Tierney v. City of Toledo

• Decision Date: 27 July 1987
• Docket Number: 85-3290,Nos. 85-3016,s. 85-3016
• Citation: 824 F.2d 1497,125 L.R.R.M. 3217
• Parties: 125 L.R.R.M. (BNA) 3217, 56 USLW 2115 James TIERNEY, et al., Plaintiffs-Appellants, v. CITY OF TOLEDO, Toledo Police Patrolman's Association, et al., Defendants-Appellees. . Originally
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1497

824 F.2d 1497

125 L.R.R.M. (BNA) 3217, 56 USLW 2115

James TIERNEY, et al., Plaintiffs-Appellants, v. CITY OF TOLEDO, Toledo Police Patrolman's Association, et al., Defendants-Appellees.

Nos. 85-3016, 85-3290.

United States Court of Appeals Sixth Circuit.

Originally Argued Dec. 9, 1985.

Decided July 27, 1987.

Glenn M. Taubman (argued originally), National Right to Work Legal Defense Foundation, Inc., Springfield, Va., R. Timothy Bauer, Boggs, Boggs & Boggs, Toledo, Ohio, for plaintiffs-appellants.

Ralph J. Lewis, Ted Iorio (argued originally), Gallon, Kalniz, & Iorio, Toledo, Ohio, for defendants-appellees.

Before ENGEL and MILBURN, Circuit Judges, WOODS, ^* District Judge.

ENGEL, Circuit Judge.

The principal issue in this civil rights litigation is whether the First and Fourteenth Amendments are offended by a plan requiring objecting non-union policemen to contribute a "service fee" as their "share" of the union's costs of negotiating and maintaining its collective bargaining agreement with the City of Toledo. It was our earlier view that the plan and the Toledo ordinance supporting it represented, as far as they had gone, a proper compliance with Abood v. Detroit Board of Education, 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977), and we affirmed in an unpublished per curiam opinion. After granting certiorari, the Supreme Court vacated and remanded the case to us, --- U.S. ----, 106 S.Ct. 1628, 90 L.Ed.2d 175 (1986), for further consideration in light of Chicago Teachers Union Local No. 1, AFT, AFL-CIO v. Hudson, 475 U.S. 292, 106 S. Ct. 1066, 89 L.Ed.2d 232 (1986). After a careful reexamination, we are of the opinion that neither the plan nor the ordinance complies with the requirements of Hudson and we therefore reverse and remand in turn to the district court.

In 1983, the City of Toledo enacted an ordinance requiring its police officers either to become members of the Toledo Police Patrolman's Association or to pay to the union a service fee "not to exceed the amount of dues uniformly required of members of the TPPA." Toledo Municipal Code Sec. 2129.97(a). The ordinance also mandates that the union shall notify non-members of this financial obligation and the procedures for collection of the fee. Under section 2129.97(b), the union must provide a procedure enabling non-members to recover that portion of the annual fee expended for political purposes "only incidentally related to wages, hours and conditions of employment." The ordinance delegates to the union responsibility for determining The operation of the rebate procedure is set forth in a union plan, which we understand consists of three documents: TPPA Agency Shop Rebate Procedure, 1983 Agency Shop Fees, and Agency Shop Fees Paid in Membership Years Subsequent to 1983. ¹ The plan requires a non-TPPA member to pay to the union an agency shop fee equal to 100% of union dues unless the employee objects by January 31, regardless of whether he knows how his contribution will be spent. Within fourteen days of making an objection, the dissenter must receive a copy of the refund procedure and the union budget. Upon making his objection for the first operating year of the plan, his entire payment is placed in escrow pending the determination by an "impartial umpire," of the amount to be rebated as the share of the fee that the union expended for ideological purposes unrelated to collective bargaining. The "impartial umpire" is selected by the TPPA from the membership of the National Academy of Arbitrators. Three weeks after the "impartial arbitrator" submits his written report to the union, it must send the dissenter his refund plus interest. The Agency Shop Fees Paid in Membership Years Subsequent to 1983 are identical to those for 1983, except that for those non-members who object by January 31, the union will place in escrow only the percentage of dues that the umpire determined was expended for ideological purposes during the preceding year, plus an additional five percent above that amount. The dissenter will then be informed of the amount placed in escrow and the basis for its determination, as well as the union budget, and that further communication regarding the amount to be refunded will be sent after the end of the year.

the procedures for non-members to make known their objections, the selecting of an arbitrator, the timing of his decision, and other matters involved in non-members' challenges of that portion of the union's fee that corresponds to the portion of union expenditures not incurred negotiating or administering a collective bargaining agreement. If employees do not pay their fee, the ordinance permits the union to pursue remedies under Ohio law. Section 2129.97(e).

The plan provides that those employees in arrears since the municipal ordinance was enacted must immediately satisfy their delinquencies in full. After the TPPA demanded that non-members pay full union dues, seventeen non-union member police officers brought this civil rights action under 42 U.S.C. Sec. 1983 challenging the Toledo municipal ordinance as violative of the First Amendment and the Fourteenth Amendment's Due Process Clause, seeking declaratory and injunctive relief. In response, TPPA filed a motion to abstain (later withdrawn), a motion to dismiss, and a motion in opposition to the plaintiffs' motion for preliminary injunction.

By consent of the parties, the case was referred to a magistrate who on August 2, 1984, denied plaintiffs' motion for preliminary injunctive relief. Nonetheless, plaintiffs refused to remit agency fees, in violation of the magistrate's order, and so notified the district court. The TPPA then filed suit in Toledo Municipal Court for the collection of the agency fees, whereupon the plaintiffs sought injunctive relief against maintenance of the state court action. On December 11, 1984, the magistrate denied this motion under the Anti-Injunction Act, 28 U.S.C. Sec. 2283. The plaintiffs then timely filed a notice of appeal from this order. The record indicates that the state court has agreed to stay its consideration of TPPA's collection suit pending a decision by this court of that appeal.

Upon cross-motions for summary judgment, the magistrate granted defendants' motion because in his view no First Amendment violation had occurred. He reasoned that although the plan might enable the union to briefly use funds extracted from the plaintiffs for ideological purposes, this would only "have an utterly de minimis impact upon the First Amendment issues at stake in this controversy." Plaintiffs filed another timely notice of appeal from this ruling. The appeals were consolidated.

Our original unpublished opinion, issued before Hudson, supra, concluded that while there were deficiencies in the plan as submitted, its terms generally satisfied the requirements of Abood. We believed that any difficulties would be resolved by the procedures which we understood from the record would be forthcoming as the plan actually began operating. Our opinion reflected a view that there would be at least minor obstacles to overcome in the implementation of any plan when, as here, neither the union nor the employer had had experience enacting such a procedure. After carefully considering the commands of Hudson, however, and the reasoning behind them, we have concluded that that decision requires that before a non-union member may incur any obligation to contribute his fair share of the expenses of managing the collective bargaining agreement, there must be in place a constitutionally adequate plan. What follows, therefore, is an itemization of the minimal constitutional requirements which must necessarily be incorporated in any agency shop plan, and our observations concerning the inadequacies of the plan as it existed when summary judgment was granted in favor of the union and the city. We stress that it is not for us to rewrite the plan, which should essentially derive from the parties who must operate under it. The district court's function, and ours, is only to assure that any plan at least meets the minimum constitutional requirements under the First and Fourteenth Amendments.

I.

While we emphasize that under Hudson and Abood the First Amendment permits an agency shop agreement, those cases recognize that to require a non-union employee to pay the same union dues as a union member restricts that employee's First Amendment rights of association and expression, to the extent that employee does not consent to such representation. Nonetheless non-members benefit from the operation of the collective bargaining agreement, and it is hornbook law that the government's interest in industrial peace justifies a minimal intrusion upon the non-members' First Amendment rights. See Hudson, 106 S.Ct. at 1073 n. 8. Therefore, non-union employees may be required, as a condition of their employment, "to pay a fair share of the union's cost of negotiating and administering a collective-bargaining agreement." Id. at 1073, At the same time, "non-union employees do have a constitutional right to 'prevent the Union's spending a part of their required service fees to contribute to political candidates and to express political views unrelated to its duties as exclusive bargaining representative.' " Id.

In Hudson the Supreme Court created procedural safeguards designed to "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 activites." Id. at 1074, quoting Abood, 431 U.S. at 237, 97 S.Ct. at Hudson 's constitutional requirements fall into three general categories.

First, Hudson requires that the union procedure for obtaining a fair share of the expense of servicing the collective bargaining agreement from nonconsenting, non-union members must "avoid the risk that dissenters' funds may be used...