Fort Wayne Educ. Ass'n, Inc. v. Aldrich, 02A04-9105-CV-142

• Decision Date: 21 January 1992
• Docket Number: No. 02A04-9105-CV-142,02A04-9105-CV-142
• Citation: 585 N.E.2d 6
• Parties: 139 L.R.R.M. (BNA) 2928, 71 Ed. Law Rep. 1124 FORT WAYNE EDUCATION ASSOCIATION, INC., Appellant-Plaintiff Below, v. Mary E. ALDRICH, et al., Appellees-Defendants Below. 1 .
• Court: Indiana Appellate Court

Page 6

585 N.E.2d 6

139 L.R.R.M. (BNA) 2928, 71 Ed. Law Rep. 1124

FORT WAYNE EDUCATION ASSOCIATION, INC., Appellant-Plaintiff Below, v. Mary E. ALDRICH, et al., Appellees-Defendants Below.

No. 02A04-9105-CV-142 ¹.

Court of Appeals of Indiana Third District.

Jan. 21, 1992.

Richard J. Darko, Mary Jane Lapointe, Lowe Gray Steele & Hoffman, Indianapolis, for appellant.

William T. Hopkins, Jr., Gallucci, Hopkins & Theisen, Fort Wayne, David T. Bryant, National Right to Work Legal Defense Foundation, Inc., Springfield, Va., for appellee.

STATON, Judge.

Fort Wayne Education Association (FWEA) appeals a negative judgment, raising five issues for our review, which we consolidate as the following four:

I. Whether the trial court erred in imposing guidelines for the "fair share" plan to be implemented by FWEA.

II. Whether the trial court erred in rejecting FWEA's method of calculation of fair share fees.

III. Whether the trial court erred in imposing a burden of proof of "clear and convincing" evidence.

IV. Whether the additional procedures mandated by the trial court for the collection of "fair share" fees are constitutionally required.

We reverse.

We first encountered this dispute between FWEA and non-union teachers over "fair share" fees in 1988. Fort Wayne Education Association, Inc. v. Aldrich (1988), Ind.App., 527 N.E.2d 201 (Aldrich I ). "Fair share" fees are those fees paid by non-union teachers to the union to cover costs incurred for collective bargaining activities on behalf of school employees, whether union or non-union. Aldrich I, supra, at 203. Non-union employees can be forced to pay their pro rata share of these costs, but they may not be forced to pay for expenses related to political and ideological activities unrelated to the costs of representation. Ping v. National Educ. Ass'n (7th Cir.1989), 870 F.2d 1369. This suit was instituted by FWEA to collect fair share fees from a number of non-union teachers ("Teachers").

In Aldrich I, FWEA followed a procedure whereby a "representation fee" was deducted from the paychecks of the Teachers as a fair share payment. If the non-union teacher objected to the union's use of those funds for political or ideological ends contrary to those of the teacher, the union would give a rebate to the objecting teacher after the close of the fiscal year upon calculation of the proportion of union expenditures which could be assigned to objectionable activities. The trial court found this "rebate scheme" constitutionally infirm and enjoined FWEA from collecting the fees in this manner. The trial court also enjoined FWEA from pursuing collection of the fair share fees until it had implemented a constitutionally permissible procedure for that purpose. FWEA brought an interlocutory appeal. We affirmed the trial court's grant of an injunction, but reversed the portion of the trial court's order which concluded that FWEA had delegated the power to resolve disputes over the amount of the fee to the Indiana Education Employment Relations Board.

A constitutionally adequate plan is required before a nonmember incurs any obligation to pay fees pursuant to a collective bargaining agreement. Cheeseman v. Jay Sch. Corp. Classroom Teachers Ass'n (1988), Ind.App., 527 N.E.2d 715, 719, reh'g denied. On remand, FWEA and the Teachers both submitted plans for the payment of fair share fees to the trial court. The plan submitted by FWEA implemented the procedure which it currently follows in the calculation of fair share fees. The trial court found both plans inadequate, and on November 27, 1989, issued an order ("the November Order") implementing "guidelines" which future proposed plans would follow. ² FWEA objected to a number of the guidelines and the parties were unable to reach an accord. The trial court entered final judgment and FWEA appeals.

I. Power of the Trial Court

FWEA argues that the trial court in effect "made up its own plan." It argues that in so doing, the trial court exceeded the scope of its jurisdiction. The Teachers in turn argue that the trial court had jurisdiction to grant equitable relief and that the trial court's order was within the scope of that jurisdiction. Moreover, they argue that this issue has been waived because it was not addressed in Aldrich I, although the trial court's request for proposed plans from the parties was a part of the injunction at issue there.

The trial court's November Order states:

In both plans, which the parties have submitted to the court, although progress is made toward conciliatory procedures, there are elements of an impermissible burden upon recognizable rights of each party. The insights of the experience of the last four years must not be lost to either expedience or excess. So long as claims are made from Defendants under this contract, the parties confer jurisdiction upon this Court to supervise its order of August 5, 1986. Other people, places and things are of no concern to this Court.

Having considered the transcript of the hearing on March 14, 1988, prior memorandum orders, Aldrich, supra, and the proposed plans of the parties, including Plaintiff's Response to Defendants' Proposed Fair Share Fee Plan, the court determines to set guidelines rather then [sic] authoring a plan, and orders the parties to file motions to amend or objections thereto, if any, within forty-five (45) days and thereafter the final judgment of the Court shall be entered.

Record, pp. 554-555.

It appears from the tenor of the November Order that the trial court proposed guidelines to be followed by the parties so that a plan could be implemented which did not infringe upon the rights of the parties. The trial judge explicitly stated that it was not his intention to author a plan for the parties.

We are aware of other courts who have taken a similar role in fair share fee cases. See, e.g., Lehnert v. Ferris Faculty Ass'n (W.D.Mich.1988), 707 F.Supp. 1482. As it is not altogether clear that the trial court exceeded its jurisdiction, we will address the merits of the trial court's continuation of the injunction in the face of FWEA's new plan.

II. Method of Fee Calculation

FWEA argues that the trial court erred in failing to approve the method of fee calculation which it proposed. The November order contained the following guidelines:

1. Expenses which are proposed as a fair share fee shall be arranged as to line item format and published in a clear and concise manner, certified as consonant with universally accepted accounting principles and practices (unless otherwise reported) and referenced to a succinct narrative commentary which demonstrates the nexus and germaness [sic] to collective bargaining, contract administration and grievance adjustment; and no item of expense, which upon objection, can not be so supported with clear and convincing evidence shall be chargeable as part of a fair share fee.

2. Only chargeable expenses of exclusive representation paid during the year last past shall constitute the basis for the calculation of the fair share fee assessed for the ensuing year which shall be proportionately divided among the entire population of the bargaining unit, share and share alike.

Record, pp. 555-556. FWEA attacks these guidelines on two grounds.

A. Formula

FWEA argues that its plan employed the proper formula for calculating fair share fees. It contends that the formula prescribed by the trial court in paragraph 2 of the November Order has been previously rejected by our courts. We agree.

The trial court recommended that the fair share fee should be calculated by assessing each nonmember with a pro rata share of the amount actually spent on collective bargaining activities. In New Prairie Classroom Teachers Ass'n v. Stewart, (1986), Ind.App., 487 N.E.2d 1324, 1328, cert. denied, Stewart v. New Prairie Classroom Teachers Ass'n (1987), 480 U.S. 917, 107 S.Ct. 1370, 94 L.Ed.2d 686, we stated:

The teachers argue that the method for calculating their representation fee should be a pro rata share of the amount actually spent on collective bargaining activities, with [the union] required to prove such amount. The United States Supreme Court has not gone so far.

Instead, this court has consistently approved of the formula proposed by FWEA. Abels v. Monroe County Educ. Ass'n (1986), Ind.App., 489 N.E.2d 533, 539, cert. denied 480 U.S. 905, 107 S.Ct. 1347, 94 L.Ed.2d 518; Stewart, supra, at 1328; Cheeseman, supra, at 719. That method of calculation defines a fair share representation fee as dues less a pro rata share of non-assessable expenses. Abels, supra.

While not citing any cases in which a court has approved of their formula, the Teachers argue that the facts of this case justify a departure from the norm. In support of this argument, they quote a number of passages from the record out of context, ultimately concluding that FWEA wishes to use its method of calculation in order to require non-member teachers to pay for non-chargeable political and ideological expenses. Appellee's Brief at 11. Our review of the record indicates the opposite conclusion. This court has previously declined the invitation to overrule those decisions which approve of FWEA's method of calculation. Cheeseman, supra, at 719. We see nothing in the record which mandates a departure from that formula in this case.

B. Chargeable Expenses ³

FWEA also contends that the trial court's recommendations improperly limit assessable expenses to those which are incurred within the bargaining unit. It argues that imposing that limit on chargeable expenses would exclude expenses incurred at the state and national levels by the Indiana State Teachers Association (ISTA) and the National Education Association (NEA) which benefit all teachers. The result, it argues, would be an artificially low fair share fee.

The Teachers respond that the language complained of, which is contained in the original injunction affirmed by this court in Aldrich I, is the...