Fort Wayne Educ. Ass'n, Inc. v. Goetz

Decision Date30 December 1982
Docket NumberNo. 4-1281A218,4-1281A218
Citation443 N.E.2d 364
Parties115 L.R.R.M. (BNA) 2023, 8 Ed. Law Rep. 413 FORT WAYNE EDUCATION ASSOCIATION, INC. Appellant (Plaintiff Below), v. Henrietta M. GOETZ, et al. Appellees (Defendants Below).
CourtIndiana Appellate Court

Richard J. Darko, Bernard L. Pylitt, Bayh Tabbert & Capehart, Indianapolis, Frederick Tourkow, Tourkow, Danehy, Crell, Good & Rosenblatt, Fort Wayne, for appellant.

David T. Bryant, National Right to Work Legal Defense Foundation, Inc., Springfield, Va., Daniel J. Skekloff, C. David Peebles, Peebles, Rogers & Hamilton, Fort Wayne, for appellees.

MILLER, Judge.

Plaintiff-appellant Fort Wayne Education Association, Inc. (Association) is appealing the judgment rendered against it in five small claims actions it had instigated for the collection of representation fees from nonmember teachers employed by Fort Wayne Community Schools. Each action was premised on a provision in the Master Contract negotiated by the Association, as exclusive representative of the Fort Wayne teachers, with the Board of School Trustees (Board). The pertinent contract clause provided a non-mandatory payroll deduction system for the collection of a representation fee, such fee being an assessment by the Association against teachers who were not members of the organization for the purpose of defraying the costs of collective bargaining, grievance adjustment, contract administration and other expenses related to services rendered as their exclusive representative. Essentially, the fee was a sum slightly less than regular membership dues paid to the Association and its parental affiliates, Indiana State Teachers Association and National Education Association, reflecting a deduction for amounts used for political purposes. The five nonmember teachers totally refused to pay the representation fee, and the Association brought suit against them, all five actions being consolidated on motion of the teachers.

The parties stipulated to certain facts (which the court adopted as its sole findings of facts) upon which the trial court rendered judgment for the teachers, concluding Indiana does not provide statutory authorization for an agency shop provision and, further, the Association can not reap payment on the basis of unjust enrichment.

We reverse.


The Association claims the trial court erred in the following respects:

1) The trial court's judgment is contrary to law inasmuch as the Indiana General Powers Act, Ind.Code 20-5-1-1 et seq., impliedly authorized the Board to enter into a bargaining agreement with the Association containing a provision for the payment of a representation fee.

2) The trial court's judgment is contrary to law because the Certificated Educational Employees Bargaining Act, Ind.Code 20-7.5-1-1 et seq. did not abridge the Board's power to enter such a contract.

The teachers have also offered for our consideration additional grounds for affirmance:

1) The provision is unconstitutional under the First Amendment right to freedom of association.

2) The Association failed to carry its burden of proof that the amounts it attempted to collect from the teachers would be used only for constitutionally permissible (non-political) purposes, and, thus, it can not prevail. (Inherent in the teachers' argument is the proposition that nonmembers can not be required to pay the fee and then contest this particular issue later in the Association's internal rebate procedure.)

3) The provision in the Master Contract is so vague and ambiguous it is unenforceable.


The following are the facts which the parties stipulated and the trial court adopted in its judgment:

"1. FWEA is the recognized exclusive representative of a unit of employees employed by the Board of School Trustees of Fort Wayne Community Schools (Board).

2. Such recognition is pursuant to the provisions of the 1973 Certificated Educational Employee Bargaining Act (CEEBA), I.C. 20-7.5-1-1, et seq.

3. The Defendants are employees within the unit of employees represented by the FWEA but they are not members of FWEA.

4. FWEA and the Board have entered into a collective bargaining agreement (Agreement) for the period September, 1980 through August, 1983, a copy of which is attached hereto as Exhibit A and made a part hereof. Article XXIII G of the Agreement provides:


1. The Board recognizes as valid, fair and equitable the Association's claim that all members of the bargaining unit, even those that are not members of the Association, have an obligation to pay fair value for services rendered on their behalf by the Association, by the Indiana State Teachers Association, and by the National Education Association, and for their proportionate part of the costs of collective bargaining, contract administration, grievance adjustment, and other duties and services related to being exclusive representative.

2. The Board considers it proper for the Association to charge each non-member of the Association, who is also a member of the bargaining unit, and for each such non-member to pay to the Association a representation fee, to be determined solely by the Association but in a manner consistent with the services rendered and costs incurred on behalf of all bargaining unit members. Such representation fee may then be allocated between the Association, the Indiana State Teachers Association, and the National Education Association, as the Association shall deem appropriate.

3. On or before October 10, of each year, the Association shall provide the Board with a list of bargaining unit members who are not also Association members, and the Board shall ask each such person to voluntarily submit, within two (2) weeks, a payroll deduction authorization form, as set forth in 4. The Association, on its own and not on behalf of the Board, may take such action as it may deem appropriate to collect its representation fee from those bargaining unit members who refuse to authorize payroll deductions for or who otherwise refuse to pay the representation fee. (Pages 50-51 of the Agreement).

the Appendix to this Contract. The Board shall then deduct the representation fee in ten (10) equal installments from the payroll of each person who submits an authorization. The Board shall inform the Association of all members of the bargaining unit who refuse to sign such an authorization form or who revoke an executed form.

5. The Defendants have declined to sign a payroll deduction authorization form or to otherwise pay a representation fee to the Plaintiff.

6. The Defendants receive the salary and fringe benefits set forth in the agreement and are subject to the working conditions established therein. It is not known what the salary, fringe benefits and working conditions would be for these defendants if FWEA were not the recognized exclusive representative. The recognition of the FWEA as the exclusive representative precludes the defendants from dealing individually with the Board except as may be authorized by CEEBA-2(o) and 6(a), on the matters which are the subject of collective bargaining and discussion set forth in CEEBA 4 and 5.

7. FWEA is affiliated with the Indiana State Teachers Association (ISTA) and the National Education Association (NEA).

8. For school year 1980-81 a member of the bargaining unit who is a member of FWEA pays dues in the amount of $212.00 per year. These dues are distributed as follows:

FWEA - $34.00

ISTA - 133.00

NEA - 45.00

9. In this action FWEA seeks to recover a representation fee from each of the defendants in the amount of $204.60 for school year 1980-81. This fee was determined internally by FWEA and its affiliates, without any participation by the Board or the Defendants, pursuant to the provisions of the paragraph XXIII G2 of the Agreement between FWEA and the Board. If the representation fee is recovered, it will be distributed as follows:

FWEA - $32.00

ISTA - 131.60

NEA - 41.60

10. The difference between the $212 per year in dues for a member of the FWEA and the $204.60 representation fee constitutes an estimate by the FWEA, the ISTA, and the NEA, as to the portion of their dues which will be utilized during the relevant fiscal year for 'political activities' as defined in the rebate policies attached hereto. The estimates were made internally by the three organizations.

11. FWEA, ISTA and NEA have adopted Rebate Policies for those non-members subject to a service or representation fee who object to the expenditure of any portion of such fee for 'political activities.' Copies of these policies are attached hereto as Exhibits B, C and D, respectively. FWEA, ISTA and NEA have not adopted any rebate procedures other than those attached hereto.

12. The defendants have notified FWEA, ISTA and NEA that, if they are required to pay a representation fee to these organizations, they object to their fees being used for any purposes other than collective bargaining, contract administration and grievance processing."


We are presented with an issue that has generated a great deal of controversy in the area of labor relations, in both private and public sectors. That issue is whether non-union members can be compelled to pay their share of the costs generated by the labor organization which represents their interests in dealing with management. Typically, these fee-payment arrangements are negotiated into collective bargaining agreements governing the relationship between the employer and the employees. Such provisions, commonly denoted as union security agreements, are generally viewed as promoting stability within the working relationship. See NLRB v. General Motors Corp., (1963) 373 U.S. 734, 83 S.Ct. 1453, 10 L.Ed.2d 670; R. Gorman, Basic Text on Labor Law: Unionization and Collective Bargaining 639 (1976).

Here, the Association negotiated what the parties refer to as an "agency shop" provision. An agency shop is defined as requiring, as a...

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