Hudson v. Chicago Teachers Union Local No. 1

• Citation: 743 F.2d 1187
• Decision Date: 24 October 1984
• Docket Number: No. 83-3118,83-3118
• Parties: 117 L.R.R.M. (BNA) 2314, 20 Ed. Law Rep. 56 Annie Lee HUDSON, et al., Plaintiffs-Appellants, v. The CHICAGO TEACHERS UNION LOCAL NO. 1, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1187

743 F.2d 1187

117 L.R.R.M. (BNA) 2314, 20 Ed. Law Rep. 56

Annie Lee HUDSON, et al., Plaintiffs-Appellants, v. The CHICAGO TEACHERS UNION LOCAL NO. 1, et al., Defendants-Appellees.

No. 83-3118.

United States Court of Appeals, Seventh Circuit.

Argued May 31, 1984.

Decided Sept. 6, 1984.

Rehearings and Rehearings En Banc Denied Oct. 24, 1984.

Joseph J. Hahn, National Right to Work Legal Defense Foundation, Springfield, Va., for plaintiffs-appellants.

Charles Orlove, Jacobs, Burns, Sugarman & Orlove, Robert A. Wolf, Chicago Bd. of Educ., Chicago, Ill., for defendants-appellees.

Before POSNER and FLAUM, Circuit Judges, and GORDON, Senior District Judge. ^*

POSNER, Circuit Judge.

The Chicago Teachers Union has a collective bargaining contract with the city's Board of Education that makes the union the exclusive agent of teachers and certain other employees of the Board for collective bargaining. The contract contains a union-security clause which requires members of the bargaining unit who do not want to join the union to pay the union their proportionate share of the costs of the union's efforts to negotiate and administer the collective bargaining contract with the Board. The Board deducts this amount (the "agency fee") from these employees' wages, just as it deducts union dues from union members' wages. The plaintiffs, nonunion employees of the Board, brought this suit against the Board and its members and the union and its officers under section 1 of the Civil Rights Act of 1871, now 42 U.S.C. Sec. 1983 (the plaintiffs have abandoned their pendent claims), challenging the procedure established pursuant to the collective bargaining contract for determining the proportionate share that nonunion employees must contribute to the support of the union as collective bargaining agent. After a bench trial, the district judge upheld the validity of the procedure, 573 F.Supp. 1505, and the plaintiffs have appealed.

After Abood v. Detroit Board of Education, 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977)--like this a suit by nonunion employees of a school board against the board and the union, complaining that the union-security clause in the board's collective bargaining contract with the union violated the First Amendment as made applicable to the states by the Fourteenth Amendment--the plaintiffs cannot argue that a union-security clause violates the First Amendment even though it forces them to support financially an organization the policies and objectives of which they may disagree with, but which, disagree or not, they do not want to pay money to support. Since the collective bargaining contract makes the union the agent of all the employees in the collective bargaining unit, whether or not they are union members, every employee can be made to pay his proportionate share of the expenses that the union incurs in carrying out its responsibilities as agent; otherwise the nonunion employees would be taking a free ride on the union members' expenditures.

No more is it open to the defendants, after Abood, to contest the proposition that they may not, without violating the First Amendment, use money involuntarily extracted from the plaintiffs "for the expression of political views, on behalf of political candidates, or toward the advancement of other ideological causes not germane to [the union's] duties as collective-bargaining representative." 431 U.S. at 235, 97 S.Ct. at 1799. It is true that the union is a private entity; that the Board, in withholding an "agency fee" from its employees' wages, was acting as the union's agent; and that section 1983 only reaches action under color of state law. But when a public employer assists a union in coercing public employees to finance political activities, that is state action; and when a private entity such as a union acts in concert with a public agency to deprive people of their federal constitutional rights, it is liable under section 1983 along with the agency. See Tower v. Glover, --- U.S. ----, 104 S.Ct. 2820, 2824-25, 81 L.Ed.2d 758 (1984); Dennis v. Sparks, 449 U.S. 24, 27-28, 101 S.Ct. 183, 186-187, 66 L.Ed.2d 185 (1980).

The unusual feature of this case is that the plaintiffs, while objecting in passing to particular uses of the agency fee, make almost their whole attack on the procedure for determining how much shall be deducted. A threshold question therefore is whether such an attack can be based on section 1983, which so far as pertinent to this case creates a federal remedy for the deprivation, under color of state law, of liberty, without due process of law. Although this question has not been discussed extensively, an affirmative answer is implicit in our decision in Perry v. Local Lodge 2569 of Int'l Ass'n of Machinists, 708 F.2d 1258, 1261-62 (7th Cir.1983), and in the Third Circuit's recent decision in Robinson v. New Jersey, 741 F.2d 598 (3d Cir.1984), and is also supported by the Massachusetts Supreme Judicial Court's decision in School Committee v. Greenfield Education Ass'n, 385 Mass. 70, 78-86, 431 N.E.2d 180, 186-90 (1982).

Most cases involving a union's duty not to use agency fees to support political or ideological endeavors that are not germane to the union's responsibilities as collective bargaining agent have arisen under the federal labor-relations statutes, either the National Labor Relations Act or the Railway Labor Act, rather than the Constitution. See, e.g., International Ass'n of Machinists v. Street, 367 U.S. 740, 768-69, 81 S.Ct. 1784, 1799-1800, 6 L.Ed.2d 1141 (1961). Those statutes have been interpreted to require a union to represent fairly all the members of the bargaining unit for which the union is the exclusive agent, and this obligation in turn has been interpreted to include a specific duty to the unit's nonunion employees to establish procedures that will make sure that the employees are not forced to pay for union activities other than those the union undertakes in its agency role. Maybe a similar duty could be inferred from the Illinois statute (Ill.Rev.Stat.1981, ch. 122, p 10-22.40a) that authorizes agency-fee clauses in collective bargaining contracts with school boards. Meylor v. Boys, 101 Ill.App.3d 148, 153, 56 Ill.Dec. 618, 621, 427 N.E.2d 1023, 1026 (1981), so suggests, in part by citing Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), a leading case on the duty of fair representation under federal labor law. But the violation of a duty under state law could not be challenged under 42 U.S.C. Sec. 1983. Nor can we force the plaintiffs to allege such a violation, although if they had (more precisely, if they had not abandoned their pendent claims), we would have the power to decide the state-law issue first in order to avoid having to decide federal constitutional issues. Hagans v. Lavine, 415 U.S. 528, 545-50, 94 S.Ct. 1372, 1383-86, 39 L.Ed.2d 577 (1974). Pendent jurisdiction is not compulsory; and federal civil rights claimants are not required to exhaust their state remedies, Patsy v. Board of Regents, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982), and a fortiori need not give a federal judge an opportunity to adjudicate state-law claims that they might have raised but did not.

The plaintiffs also cannot base their section 1983 claim on the discussions in Abood and other cases of the proper remedy once improper use of revenues generated by an agency fee is proved. See 431 U.S. at 237-42, 97 S.Ct. at 1800-03. These discussions presuppose the existence of a federal right that the improper expenditures violated. See Ellis v. Brotherhood of Railway Clerks, --- U.S. ----, 104 S.Ct. 1883, 1890, 80 L.Ed.2d 428 (1984). The question here is whether the plaintiffs have a federal right to challenge a procedure that may not have resulted in any improper expenditures--whether, in other words, even if the union has not used any of the money it has collected from objecting employees to promote political activities unrelated to its role in collective bargaining, the plaintiffs can still complain that they have been deprived of the liberty secured them by the Constitution.

We think they can, and on two grounds (conflated in Robinson v. New Jersey, supra, 741 F.2d at 611-612). First, a procedure that, lacking reasonable protections for nonunion employees, makes it likely that some of the money collected from them will be used to support political objectives not germane to the union's function in the collective bargaining process infringes the First Amendment even if the procedure is not shown to have resulted in any improper expenditures. Just the danger (as distinct from actuality) of depriving people of the freedom of expression guaranteed by the First Amendment has led courts to invalidate procedures that created the danger. See, e.g., Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 552-62, 95 S.Ct. 1239, 1243-48, 43 L.Ed.2d 448 (1975); Freedman v. Maryland, 380 U.S. 51, 58, 85 S.Ct. 734, 739, 13 L.Ed.2d 649 (1965); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963); Tribe, American Constitutional Law 724-36 (1978); Monaghan, First Amendment "Due Process", 83 Harv.L.Rev. 518 (1970). This body of First Amendment law has a long historical pedigree. At common law, free speech meant freedom from prior restraints--a procedural right. The press could not be licensed although it could be punished, after the fact in a criminal proceeding, for "disseminating ... bad sentiments." 4 Blackstone, Commentaries on the Laws of England 152 (1769); see Levy, Freedom of Speech and Press in Early American History: Legacy of Suppression 248 (1960). The present case, remote as it is from the classic prior restraint, illustrates in a new setting the close relationship between procedure and substance in free-speech cases. Since even a local union may have many members, and since most of the expenditures that a union makes are germane to its responsibilities in the...