Ping v. National Educ. Ass'n

Decision Date07 April 1989
Docket NumberNo. 88-2390,88-2390
Citation870 F.2d 1369
Parties131 L.R.R.M. (BNA) 2082, 52 Ed. Law Rep. 909 H. Jane PING, et al., Plaintiffs-Appellants, v. NATIONAL EDUCATION ASSOCIATION, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Stephen C. Cline, Indianapolis, Ind., for plaintiffs-appellants.

Jeremiah A. Collins, Bredhoff & Kaiser, Washington, D.C., for defendants-appellees.

Before WOOD, Jr., POSNER and FLAUM, Circuit Judges.

FLAUM, Circuit Judge.

This case involves the constitutionality of the procedural scheme employed by some Indiana teachers unions to collect fair share fees from their non-union employees. Fair share fees are the fees paid by non-union employees to a union to cover the employees' pro rata share of the costs of the union's activities as the exclusive representative of the employees in dealing with management. Because the union may not coerce non-members into supporting political or ideological views with which they may not agree, however, the fair share fee cannot include provision for funds spent by the union to support its political or ideological views. Ping and her fellow plaintiffs (collectively "plaintiffs"), all non-union Indiana school teachers, initiated this action claiming that the procedures used by the unions to ensure against impermissible use of their fair share fees were constitutionally inadequate. The plaintiffs, shortly after filing their suit, moved for a preliminary injunction to intermit the state court proceedings brought by the unions to collect the fees. The district court denied the motion after finding that the plaintiffs failed to show that they would suffer irreparable harm absent the injunction, and the plaintiffs have appealed. We agree that no injunction should issue, although we rely on a rationale different from that cited by the district court, and therefore affirm.


The defendants in this case, principally Indiana teachers unions and school corporations (collectively "defendants"), are all parties to collective bargaining agreements which permit the unions to collect fair share fees from non-member teachers employed by the school corporations. As part of those agreements, the unions have promulgated procedures to determine the amount of the fair share fees to be collected from the non-member teachers.

In practice, the unions retain the American Arbitration Association to select an arbitrator to determine the amount of the fair share fee for a particular school year. The arbitrator holds hearings where the unions present evidence relating to the amount of their expenditures which are properly chargeable 1 to the non-members and where any non-member who desires has the opportunity to counter the unions' evidence. The arbitrator's determination of the fair share fee is binding only on the unions and not on the non-members. If the non-member teachers refuse to pay the fair share fee, the unions' only recourse is to bring suit in state court to collect the fee. See Ake v. National Education Association, 531 N.E.2d 1178, 1181 (Ind.App.1988).

This case involves the determination of the fair share fee for the 1986-87 school year for some 1700 objectors. Hearings to determine the amount of the fair share fee were held in Indianapolis over a five-day period before Arbitrator Frank A. Keenan. The union presented 141 exhibits to support the fair share fee amount that had been internally determined and was successful in convincing the arbitrator that its amount was correct. The union has filed actions in Indiana state court to collect the fees, but none of those cases has yet reached judgment. It is those state court proceedings that the plaintiffs moved the district court to enjoin pending a determination on the merits.

The plaintiffs claim that the procedure described above is constitutionally inadequate because it does not provide the objecting teachers with an impartial decisionmaker to adjudicate objections to the fair share fee amount. Specifically, the plaintiffs contend that (1) the procedures for selecting the arbitrator were inadequate because the objectors had no voice in the selection process; (2) the union failed to provide information regarding the cost of the arbitrator's services; (3) the arbitrator failed to grant a continuance after being notified that one of the attorneys for the objectors had a conflict; (4) the arbitrator failed to have an independent auditor certify that expenses were either chargeable, non-chargeable, or of questionable chargeability; and (5) the arbitrator decided the fair share fee amount based on misinformation provided by the unions.

The plaintiffs claim that these inadequacies in the arbitration left the union's procedures for fair share fee collection constitutionally infirm. In the district court, they moved for a preliminary injunction against the state court proceedings instituted by the unions to collect the fair share fees. The district court, upon the recommendation of a magistrate, denied the motion. According to the district court, a preliminary injunction would be inappropriate because the plaintiffs have an adequate remedy at law. Specifically, the court found that the plaintiffs would be able to recoup any money unconstitutionally collected by the unions in the form of damages. The district court also refused to stay the state court proceedings pending the outcome of this appeal. The plaintiffs have appealed both decisions and we affirm, although on grounds other than those relied upon by the district court.


Before a preliminary injunction will issue, the movant must show, as a threshold matter, that: (1) they have no adequate remedy at law; (2) they will suffer irreparable harm if the injunction is not granted; and (3) they have some likelihood of success on the merits in the sense that their "chances are better than negligible." Roland Machinery Co. v. Dresser Industries, Inc., 749 F.2d 380, 386-87 (7th Cir.1984); see also Lawson Products, Inc. v. Avnet, Inc., 782 F.2d 1429, 1433 (7th Cir.1986). If the movant can meet this threshold burden, the inquiry then becomes a "sliding scale" analysis of the harm to the parties and the public from the grant or denial of the injunction and the actual likelihood of success on the merits. In particular, and keeping in mind that the public interest may become important in a given case, the "more likely the plaintiff is to win, the less heavily need the balance of harms weigh in his favor [in order to get the injunction]; the less likely he is to win, the more need it weigh in his favor." Roland Machinery, 749 F.2d at 387.

In this case, the district court determined that it did not have to reach the sliding scale analysis because the plaintiffs had failed to make the threshold showing that they would suffer irreparable harm from a denial of the injunction. We agree that there is no need to reach the sliding scale analysis in this case but we do not reach the question of whether the district court was correct in finding no irreparable harm from a denial of the injunction. Instead, we find that no injunction should have issued because the plaintiffs failed to meet their threshold burden of showing some likelihood of success on the merits. See Libertarian Party of Indiana v. Packard, 741 F.2d 981, 986 (7th Cir.1984) ("a reviewing court may affirm the decision of a court below if that decision is correct, even though the court below relied upon a wrong ground or gave a wrong reason.").


It is by now a well-settled matter that a non-union member can be forced to share in the expenses incurred by a union in its role as the exclusive bargaining representative on behalf of employees. Chicago Teachers Union v. Hudson, 475 U.S. 292, 301, 106 S.Ct. 1066, 1073, 89 L.Ed.2d 232 (1986). This rule recognizes that a union, in exchange for its position as the exclusive bargaining representative, is under a duty to represent fairly all of the employees within the relevant unit, including those who are not members of the union. Abood v. Detroit Board of Education, 431 U.S. 209, 221, 97 S.Ct. 1782, 1792, 52 L.Ed.2d 261 (1977). That representation is not costless, however, and thus the Supreme Court has held that non-union employees can be forced to pay their pro rata share of the costs of representation. On the other hand, non-members cannot be forced to pay for expenses related to political and ideological activities unrelated to the costs of representation. Hudson, 475 U.S. at 302, 106 S.Ct. at 1074. To force non-members to financially support political or ideological causes with which they might not agree, according to the Court, would be too great an impingement on the first amendment rights of the non-members. Ellis v. Brotherhood of Railway Clerks, 466 U.S. 435, 447, 104 S.Ct. 1883, 1891-92, 80 L.Ed.2d 428 (1984). The objective, then, is to come up with a system of procedures which prevent " 'compulsory subsidization of ideological activity by employees who object thereto without restricting the union's ability to require every employee to contribute to the cost of collective bargaining activities.' " Id., quoting Abood, 431 U.S. at 237, 97 S.Ct. at 1800.

In attempting to strike the balance between the union's financial needs and the non-members' first amendment rights, the Supreme Court has listed three procedural prerequisites to the receipt of fair share fees. First, the union must disclose sufficient information to permit non-members to make an informed decision about whether to object to the amount of the fair share fee. Hudson, 475 U.S. at 306-07, 106 S.Ct. at 1075-76. Second, the union must set up an escrow account to hold the fees paid by non-members who have indicated an objection to the amount of the fair share fee. Id. at 305, 106 S.Ct. at 1075. The escrow arrangement ensures that the union will not have access to funds which may eventually be determined to have been paid on the basis of...

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