Gillespie v. Willard City Bd. of Educ., C87-7043.

• Decision Date: 28 September 1987
• Docket Number: No. C87-7043.,C87-7043.
• Citation: 700 F. Supp. 898
• Parties: Marianna GILLESPIE, et al., Plaintiffs, v. WILLARD CITY BOARD OF EDUCATION et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

700 F. Supp. 898

Marianna GILLESPIE, et al., Plaintiffs, v. WILLARD CITY BOARD OF EDUCATION et al., Defendants.

No. C87-7043.

United States District Court, N.D. Ohio, W.D.

September 28, 1987.

COPYRIGHT MATERIAL OMITTED

James A. Calhoun, Calhoun, Benzin, Kademenos & Heichel, Mansfield, Ohio, R. Timothy Bauer, Boggs, Boggs & Boggs, Toledo, Ohio, for plaintiffs.

Ted Iorio, Gallon, Kalniz & Iorio, Toledo, Ohio, for defendants.

MEMORANDUM AND ORDER

McQUADE, District Judge.

This case presents challenges to the constitutionality of the procedures established by various union organizations and the Willard School Board for collecting and determining agency fees. Agency fees are assessed by unions against non-members who receive the benefits of union bargaining and contract administration. These challenges are being considered in light of the standards the Supreme Court set forth in Chicago Teachers Union v. Hudson, 475 U.S. 292, 106 S.Ct. 1066, 89 L.Ed.2d 232 (1986) ("Hudson"), and the ruling of the Sixth Circuit Court of Appeals in Tierney v. Toledo, 824 F.2d 1497 (6th Cir.1987). Plaintiffs contend that the Ohio law permitting such agency fee collections violates the U.S. Constitution. Furthermore, plaintiffs have brought this action under 42 U.S.C. § 1983, arguing that their money has been taken without due process of law.

Plaintiffs are employees of the Willard School Board of Education. Leo Dotson, Marianna Gillespie, Mary Appellof, Linda Hutchins, Marilyn Sands and Karen Myers are teachers. Rita DeVault and Gordon Miller are employees in the Pupil Personnel Services Department. Plaintiffs are represented by the defendant Willard Education Association (WEA), but are not members of that organization nor the Ohio Education Association (OEA), a WEA affiliate organization also named as a defendant in this action. Since these plaintiffs are represented by these organizations and receive the benefits of union bargaining and contract administration, they are assessed agency fees, also called fair share fees.

The defendant, Willard Board of Education, is a political subdivision of the state and a public employer within the meaning of O.R.C. 4117.01(B).

WEA and the school board reached its most recent agreement providing for the collection of agency fees on September 1, 1986, and modified it on October 30, 1986 by a memorandum of understanding.

Defendants started collection of the agency fees in November of 1986, except for individuals employed after October 31, 1986. For those individuals hired after that date, agency fees were collected from their second paycheck.

The procedure for the collection of agency fees is set forth as follows: (1) Deductions are made from all Willard School Board Employees covered by the agreement between WEA and school board; (2) Notice of the amount of the annual fair share fee, which shall not be more than 100% of the unified dues¹ of the association, is to be provided to all nonunion members. Notice is to be furnished by first-class mail to all nonunion members at his/her home by November 15 of each year or whenever the independent auditors' reports are received, whichever is later. See Stipulations Exhibits C at 2; (3) The notice must state the amount of the association determined fair share fee for the current membership year, as well as an explanation of how the fee was calculated. In addition, the following items must be provided:

A copy of the WEA's independent certified public accountant's audit report for the preceding membership year A copy of the OEA's independent certified public accountant's audit report for the preceding membership year;

Where applicable/available, a copy of the appropriate district association's certified public accountant's audit report for the preceding membership year;

Copies of the adopted budgets for the current membership year of the WEA, the OEA, the appropriate district association, and the local association;

A copy of the OEA Fair Share fee rebate procedure.

See Stipulations, Exhibit C at 2.

(4) This year, the first agency fees were collected before notice was sent to the nonunion members. Notice reached all but one nonunion member about one month later. One plaintiff, Leo Dotson, did not receive the packet of information at that time in that he was inadvertently listed as a life member of the OEA. He received the information in February, 1987. See Stipulation 15 at note 2; (5) Upon receipt of this notice, dissenters have 30 days to file objections to the collection of the agency fees; (6) Dissenters have the option of an early rebate. If they exercise this option, they forfeit the right to a hearing before an impartial decisionmaker; (7) the second option allows dissenting members to be heard by an impartial decisionmaker. Meanwhile, 100% of the dues paid by members is collected from the nonunion members' paycheck, and that money is placed into an interest-bearing escrow account within ten (10) days after an objection is received. It remains in that account until a determination of a rebate amount has been made by an impartial decisionmaker; (8) An impartial decisionmaker is selected from the American Arbitration Association, hereinafter AAA, under the AAA's Rules for Impartial Determination of Union Fees. See, Stipulations, Exhibit F-4; (9) The rebate amount is based upon OEA's preceding membership year. The total OEA impermissible expenditures are compared with the total OEA expenditures. The result is the amount that is applied to determine part of the rebate amount. The WEA makes a similar calculation to determine its portion of the dues which should be rebated. See, Stipulations, Exhibit C at 2.

Plaintiffs and defendants each are seeking summary judgment. Plaintiffs also desire injunctive relief and restitution of collected agency fees, plus interest. Plaintiffs argue that the defendants' system for collection of agency fees is constitutionally inadequate under both Hudson and Tierney. Defendants also seek summary judgment arguing that the procedure for the collection and challenge of agency fees is constitutionally sound and meets all of the requirements set forth in Hudson. Defendants further contend that the court need not find that this system comports with the requirements of Tierney, in that the facts of each case require different results.

The parties have stipulated to the facts in this case. See Stipulations of Fact. Based upon these stipulations, the court finds that there are no genuine issues of material fact that would prevent the entry of summary judgment for the party prevailing on the questions of law presented by the motions. Fed.R.Civ.P. 56.

I

Plaintiffs allege that the collection of the agency fees violates the plaintiffs' due process rights because the government is "taking" their property without appropriate procedural safeguards. The court finds that the plaintiffs' argument is without merit. The Supreme Court has upheld the constitutionality of agency shop provisions which require nonunion members to contribute service charges to pay for the benefits of the union bargaining on its behalf and the union administration of the contract. Abood v. Detroit Board of Education, 431 U.S. 209, 232, 97 S.Ct. 1782, 1798, 52 L.Ed.2d 261, 266 (1977). See also, Hudson v. Chicago Teachers Union, 475 U.S. 292, 106 S.Ct. 1066, 89 L.Ed.2d 232 (1986); and Ellis v. Railway Clerks, 466 U.S. 435, 104 S.Ct. 1883, 80 L.Ed.2d 428 (1984). The Supreme Court in Abood, 431 U.S. at 232, 97 S.Ct. at 1798, held that this "taking" was justified based upon a balancing of First Amendment rights and the need for labor peace.

II

Plaintiffs also contend that the collection of the agency fee from the nonunion members violates their First Amendment rights because fees are used for political purposes other than those the plaintiffs desire to support. However, the court finds that this argument is without merit in that all of the nonunion fees collected are placed in an interest-bearing escrow account. Placement of these funds in this account effectively prevents the union from using the plaintiffs' moneys for non-permissible purposes and does not allow the union the exact a forced loan from nonunion members. In Hudson, the Supreme Court held that an escrow account met the constitutional requirements for protecting nonunion members' First Amendment rights with respect to the collection of the agency fees. Therefore, the escrow account here meets the constitutional requirements as set forth in Hudson.

However, one problem with the escrow account in the instant case is that it did not exist at the beginning of the collections. Based upon that occurrence, plaintiffs ask that all of the agency fees collected be returned to them. This court finds that all fees collected to date should be returned because a constitutional procedure for their collection has not been established. Tierney v. City of Toledo, 824 F.2d 1497 (6th Cir.1987). However, once such a procedure has been established and a proper amount assessed, defendants will be entitled to the amount of 1986-1987 dues which would have been paid to support collective bargaining and contract administration. McGlumphy v. Fraternal Order of Police, 633 F.Supp. 1074, 1084 (N.D.Ohio 1986).

III

Plaintiffs also contend that the Board's delegation of the collection to the union is improper and that Ohio Rev.Code § 4117.09(C), which permits such delegation and collections, is unconstitutional. The court finds that such delegation is proper. Abood v. Detroit Board of Education, 431 U.S. 209, 232, 97 S.Ct. 1782, 1798, 52 L.Ed.2d 261, 266 (1977). Furthermore, this court finds that since such delegation and collection is permissible, Ohio Rev.Code § 4117.09(C) is constitutional.

IV

Plaintiffs also contend that the notice provided by the WEA and OEA regarding the amounts of dues chargeable and nonchargeable to union members, and the notice concerning how the agency fee was calculated, do not pass...