Lehnert v. Ferris Faculty Association-MEA-NEA, G78-346 CA1.
| Decision Date | 09 December 1988 |
| Docket Number | No. G78-346 CA1.,G78-346 CA1. |
| Citation | 707 F. Supp. 1482 |
| Parties | James P. LEHNERT, Elmer S. Junker, James E. Lindsey, Sam C. Peticolas, John R. Schauble, and Theodore D. Speerman, Plaintiffs, v. The FERRIS FACULTY ASSOCIATION-MEA-NEA, Michigan Education Association, National Education Association of the United States, The Board of Control of Ferris State College, S. Eugene Bychinsky, Robert D. Ewigleben, Earl D. Gabriel, Robert P. Gerholz, Fran Harris, Delbert D. Long, Robert C. Redman, Thomas P. Scholler, Patricia M. Short, and Steven L. Thomas, Defendants. |
| Court | U.S. District Court — Western District of Michigan |
Allaben, Massie, Vander Weyden & Timmer by Sam F. Massie, Jr., Grand Rapids, Mich., Raymond J. LaJeunesse, Nat. Right to Work Legal Defense Foundation, Springfield, Va., for plaintiffs.
Mika, Meyers, Beckett & Jones by Steven L. Dykema, Grand Rapids, Mich., for defendant, the Bd. of Control of Ferris State College.
Mitchell E. Roth, Office of General Counsel, Nat. Educ. Ass'n, Washington, D.C., for Nat. Educ. Ass'n.
White, Beekman, Przybylowicz, Schneider & Baird by Arthur R. Przybylowicz, James J. Chiodini, Okemos, Mich., for Union defendants.
On August 25, 1986, I enjoined the above-captioned union defendants1 from collecting future service fees from plaintiffs until such time as the unions had adopted constitutionally-adequate service fee collection procedures. See Lehnert v. Faculty Association-MEA-NEA, 643 F.Supp. 1306 (W.D.Mich.1986). I retained jurisdiction "for the sole purpose of determining if and when the union defendants have adopted constitutional procedures." Id. at 1335. The matter is currently before me once again on union defendants' motion for approval of new service-fee collection procedures and for dissolution of the injunction prohibiting the deduction of fees from the wages of plaintiff non-union public employees.
In September 1987, the union defendants moved for approval of a previous set of service fee collection procedures. Union defendants have modeled their procedures after collection procedures that were approved in Andrews v. Education Association of Chesire, 829 F.2d 335 (2d Cir.1987) and Lowary v. Lexington Board of Education, 704 F.Supp. 1456 (N.D.Ohio 1988). In April 1988, the parties met with U.S. Magistrate Doyle Rowland, and counsel for the union defendants agreed to make modifications in the procedures and to submit them to this Court. When I then considered the service fee collection procedures during the summer of 1988, this case had been pending for a decade.
On August 22, 1988, the Court issued its opinion and order denying, without prejudice, the union defendants' service fee collection procedures, 707 F.Supp. 1473. In the opinion, the Court identified specific areas that needed revision. The defendants report that they have revised their administrative procedures and policy so as to correct all deficiencies. See Affidavit of MEA Executive Director Beverly J. Wolkow, Exhibits A, B, C (September 1, 1988). The MEA Board of Directors approved the revisions to the MEA Policy Regarding Objections to Political/Ideological Expenditures on September 23, 1988. Affidavit of MEA Executive Director Beverly J. Wolkow, Exhibit A (September 23, 1988).
The union defendants filed two sets of procedures — one governing the 1987-88 and 1988-89 fiscal years and one governing the 1989-90 and subsequent years. They are in substance identical and will be discussed as one. A set of revised Procedures and Policy is included in this opinion. See Appendix. The Court disapproved of four areas in the September 1987 procedures. I will address each area and then discuss plaintiffs' objections to the revised procedures.
The Court, in its August 1988 opinion, disapproved of union defendants' use of the local presumption when calculating service fees for objecting employees. While a limited amount of imprecision is tolerable in calculating a service fee, a union should not calculate service fees by using presumed expenditures, as opposed to actual expenditures. "Because First Amendment rights are implicated, the method of calculating service fees for objecting employees ... must be narrowly drawn" in order to prevent collection of a clearly nonchargeable expenditure. Damiano v. Matish, 830 F.2d 1363, 1369 (6th Cir.1987). The second part of the Court's objection was that use of a local association officer does not satisfy the requirements that expenditures be verified by an independent auditor.
To remedy these problems, defendants revised Step I of the procedures. Now if a local association wants to collect a service fee, it must disclose to non-members its major categories of expenditures, verified by an independent auditor. The relevant language in Step I, Part (2) now reads:
In those instances where a local association service fee is collected, a list of the local association's major categories of expenditures verified by an independent auditor and an identification of whether the major category of expense, or a particular portion thereof, is chargeable to objectors shall be provided. In the event a court of competent jurisdiction determines that independent audits of local association expenditures are not required, then a list of the local association's major categories of expenditures certified by a local association officer shall be provided. (Emphasis added).
The union defendants also omitted the local presumption language from Step III of the procedures where it had formerly been. Under the revised procedures, it simply says, "... the arbitrator shall determine the proportion of the agency fee that is chargeable to non-members under applicable law." The result is if a local association wants to collect a local service fee, it is subject to the same standards applicable to the MEA and NEA.
The language has also been changed to reflect the fact that some local associations may choose not to collect a service fee.
The first sentence of Step I in the procedures now reads:
By November 30, 1988, or as soon thereafter as possible, the Executive Director of the Michigan Education Association or his or her designee shall determine the amount of the MEA's, NEA's and local associations' (for those locals collecting a service fee) total expenditures for the 1987-88 fiscal year that were expended on chargeable and nonchargeable activities. (Emphasis added.)
Where a local association does not collect a local service fee, the information in the procedures will relate to the MEA and the NEA only. While the Court observes that the three proceeding revisions remedy past problem areas, the Court observes that the addition of the following sentence in Step I does not comply with the constitutional standards described in my August 22, 1988 Opinion — in fact, it is directly contrary.
In the event a court of competent jurisdiction determines that independent audits of local association expenditures are not required, then a list of the local association's major categories of expenditures certified by a local association officer shall be provided.
Employing the so-called "local presumption" fails to comply with the constitutional requirements of Hudson, Tierney, and Damiano.
Union defendants were also using a procedure that the Court found violated nonunion members' First Amendment rights. In order to use a payroll deduction plan, employees were required to sign a waiver form in which they gave up the right to receive financial information and a full explanation of their rights as nonmembers. This procedure appeared to discourage the nonmembers' access to full and proper information under Chicago Teachers Union v. Hudson, 475 U.S. 292, 106 S.Ct. 1066, 89 L.Ed.2d 232 (1986). The Court acknowledged that First Amendment rights may be waived, but stressed that a waiver must be voluntary, knowing, and intelligently made, with full awareness of the legal consequences to be valid. The waivers would only be acceptable, I noted, where the waivers contained a clear and full explanation of the nonmembers' rights under Hudson.
According to the union defendants, Step I of the procedures now requires the unions to "provide to all non-union employees who are required to pay an agency fee adequate information as required by the procedures." In addition, all non-union employees, including all individuals who previously executed a waiver of their rights to receive the information, shall be provided with a copy of the procedures and the information required by the procedures. Affidavit of Beverly J. Wolkow, at 2 (September 1, 1988). The unions have also agreed to disregard the former waivers and consider them without force and effect. Defendant's Brief in Support of Motion to Dissolve Injunction, at 5. Moreover, according to the defendants, any future attempt to secure a waiver shall conform to the standards set forth in the Court's August 1988 opinion.
The Court stated in its August 1988 opinion that the language in the procedures should be changed to clearly indicate that, pending a decision by the impartial decision-maker, all payments of the non-member's reduced fee must be paid directly into escrow. In all other respects, I found the proposed escrow procedure to comport with the mandates of Hudson. In response to the Court's directive, the union defendants have added the following language to Step II of the procedures:
All such payments required of an objecting non-member by these procedures shall be paid into the First of America-Central escrow account and shall remain in said account until such time as the arbitrator has issued his or her decision on the proportion of the agency fee that is chargeable to non-members. Thereafter all such funds in the escrow account shall be disbursed in conformity with these procedures.
With this addition, the union defendants clearly establish that all payments required under the...
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