Weaver v. University of Cincinnati

• Decision Date: 23 July 1992
• Docket Number: Nos. 91-3557,91-3604 and 91-3605,s. 91-3557
• Citation: 970 F.2d 1523
• Parties: 140 L.R.R.M. (BNA) 2948, 76 Ed. Law Rep. 726 Carol WEAVER; Vicki Hahn; Sharron L. Carroll; Angela Segrist; Lois Kupferberg; Alice Tennenbaum, Plaintiffs-Appellants (91-3557), Cross-Appellees, v. The UNIVERSITY OF CINCINNATI, Defendant, Joseph L. Steger, President, University of Cincinnati; Jill Parris, Interim Vice-President for Human Resources and Human Relations for the University of Cincinnati, Defendants-Appellees, Cross-Appellants (91-3605), District 925, Service Employees International Union, Defendant-Appellee, Cross-Appellant (91-3604).
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1523

970 F.2d 1523

140 L.R.R.M. (BNA) 2948, 76 Ed. Law Rep. 726

Carol WEAVER; Vicki Hahn; Sharron L. Carroll; Angela Segrist; Lois Kupferberg; Alice Tennenbaum Plaintiffs-Appellants (91-3557), Cross-Appellees, v. The UNIVERSITY OF CINCINNATI, Defendant Joseph L. Steger, President, University of Cincinnati; Jill Parris, Interim Vice-President for Human Resources and Human Relations for the University of Cincinnati Defendants-Appellees, Cross-Appellants (91-3605) District 925, Service Employees International Union, Defendant-Appellee, Cross-Appellant (91-3604).

Nos. 91-3557, 91-3604 and 91-3605.

United States Court of Appeals, Sixth Circuit.

Argued April 2, 1992.

Decided July 23, 1992.

Glenn M. Taubman, W. James Young (argued and briefed), Nat. Right to Work Legal Defense Foundation, Springfield, Va., J. Michael Dobyns, Rose & Dobyns, Cincinnati, Ohio, for plaintiffs-appellants, Cross-Appellees.

Eric C. Holzapfel (briefed), C.J. Schmidt (argued), Wood & Lamping, Cincinnati, Ohio, for University of Cincinnati, Steger and Parris.

Donald J. Mooney, Jr. (argued and briefed), Benesch, Friedlander, Coplan & Aronoff, Cincinnati, Ohio, for District 925, Service Employees Intern. Union.

Before: KEITH, Circuit Judge; LIVELY and TIMBERS, ^* Senior Circuit Judges.

LIVELY, Senior Circuit Judge.

This case, brought under 42 U.S.C. § 1983, involves a challenge by nonunion employees of a public employer to the "fair share" or "agency" fees deducted from the plaintiffs' paychecks pursuant to a collective bargaining agreement between their employer and a union that had been certified as the exclusive bargaining representative. The parties filed cross-motions for summary judgment. The district court found that the fair share fee calculation was valid and that the union's ratification procedures and disclosures were constitutionally acceptable in all but two respects. Accordingly, it granted summary judgment to the defendants (individual officials of the public employer and the union) on most issues and summary judgment for the plaintiffs on two issues. Both sides have appealed.

I.

This is the second appeal. The court stated the facts fully in its opinion reversing the district court's denial of the plaintiffs' motion for a preliminary injunction, and we will summarize them briefly here. See Weaver v. University of Cincinnati, 942 F.2d 1039 (6th Cir.1991) (Weaver I ).

A.

District 925, Service Employees International Union (the union), is the duly certified representative of approximately 1200 office employees of the University of Cincinnati. Effective October 1, 1989, the union and the university entered into a collective bargaining agreement, which contained, in Article IV, the following provisions:

Section 1. Fair Share. The Union shall fairly represent all employees covered under this Agreement. Therefore, as a condition of employment, employees who are covered under this Agreement shall, within 60 days of employment, or within 60 days of the effective date of this Agreement (whichever is later) either execute a union membership and payroll dues deduction form, or shall have a fair share fee deducted from their payroll checks.

* * * * * *

Section 3. Hold Harmless. The Union further agrees to save the University harmless from any legal action growing out of these checkoff deductions that may be instituted by an employee involved therein before a court, or any other body asserting or having jurisdiction, against the University as well as reasonable costs and expenses involved in defense of any such action....

In accordance with the international union's guidelines for administration of fair share fees, on May 3, 1990, the local union sent a letter to the 408 represented employees who were not union members, explaining that, even if they did not join the union, a fair share fee equal to union dues would be deducted from their paychecks. (Letter of May 3, 1990). The union then explained that employees could "dissent" from such a deduction by sending a letter by certified mail to the local union office within 30 days of receipt of the May 3 letter. Dissenters would be charged a fair share fee equal to 90% of union dues, an amount the union determined included all union expenses fully chargeable to nonmembers under federal law, but excluded: voter registration; members-only benefits; litigation not related to bargaining unit matters; and contributions to charitable and political organizations, political candidates, ideological causes or foreign affairs.

The May 3 letter also provided guidelines for nonmembers to "challenge" the fair share calculation, explaining that employees could send a certified letter to District 925's National Secretary within 30 days of the receipt of the May 3 letter. A challenge would cause the union to place the challenger's fair share payments in an interest-bearing escrow account and would invoke an internal appeal procedure whereby a three-member committee (composed of at least two union executive officers) would review the fair share calculations under state and federal law. The May 3 letter further advised that a challenger could appeal the internal committee's decision by notifying the union, which would submit the matter to an impartial arbitrator selected by the American Arbitration Association (AAA). Arbitration proceedings would conform to the AAA's Rules for Impartial Determination of Union Fees.

Finally, the May 3 letter included a one-page summary of District 925's Fair Share Calculation for 1989. Although an independent certified public accountant, the Samuel Sindel Company (Sindel), had prepared an audit of the local and national union's expenditures and the fair share calculation, this audit was not included in the May 3 letter. The Sindel audit considered reports from 14 joint bargaining councils to whom District 925 paid fees, which disclosed in general terms how District 925's payments were used. Based on these reports, Sindel concluded that approximately 45% of the fees paid by District 925 in 1989 to the joint bargaining councils was chargeable to nonunion employees. The reports of the joint bargaining councils also were not included in the May 3 mailing to nonunion employees. Instead, nonunion employees were merely informed that "[a]n employee filing a challenge will have the right to inspect any of the financial records at the offices of the Union that formed the basis for the Union's calculations."

B.

District 925 received 157 dissents and 55 challenges from nonmember employees. Beginning in June 1990, the University deducted 90% of District 925's union dues from the paychecks of the 157 dissenters. District 925 placed into an escrow account all of the fees deducted from the 55 challengers' paychecks.

Following a hearing before the internal review committee, in which some of the dissenters refused to participate, that committee upheld the 90% fair share fee calculation. When some of the dissenters appealed the committee's decision to District 925's National Secretary, the union requested arbitration by the AAA. The AAA selected an arbitrator. While arbitration was pending, six dissenters filed this action seeking, inter alia, an injunction against all fair share deductions and a declaratory judgment that the indemnification agreement in Article IV, Sec. 3 of the collective bargaining agreement was void.

Some of the challenging nonunion employees refused to recognize the arbitrator's authority and requested a postponement of arbitration proceedings until the district court action was concluded. The arbitrator held a hearing without these protestors' participation. Thereafter the arbitrator issued an Interim Award and opinion, finding that most of the information in the May 3 letter satisfied constitutional requirements. The arbitrator did find several defects in the union's notification procedures. First, she found constitutionally inadequate the union's requirement that dissents and challenges be sent by certified mail because it placed too great a burden on the objector, and she determined that ex-post acceptance of other-than-certified mail did not cure the constitutional violation. Second, the arbitrator found that the internal appeal procedure for challengers violated Chicago Teachers Union, Local No. 1 v. Hudson, 475 U.S. 292, 106 S.Ct. 1066, 89 L.Ed.2d 232 (1986), because the union did not use impartial hearing officers and because the procedure prevented the challengers from having an expeditious arbitration. Third, the arbitrator found that the use of the word "rebate" in District 925's financial disclosure sheet did not adequately apprise nonunion employees that the money so identified was used to contract for the services of affiliated unions in locations where District 925 did not have an office. The arbitrator enjoined District 925 from continuing any of these practices. She then ordered the union to send to the nonunion clerical employees a "Revised Notice" correcting these errors and offering a new opportunity for challenging and dissenting from the fair share fee to any employee who did not previously dissent or challenge.

Pursuant to the arbitrator's orders, District 925 sent a new letter to nonunion employees represented by the union on November 20, 1990. The letter outlined the results of the fair share fee arbitration, and then offered lists of chargeable and nonchargeable union expenses that were virtually identical to the lists in the May 3 letter to nonunion employees. The letter again contained a summary of the audit of District 925's calculation of the fair share fee, and this time District 925 also appended to each letter a full copy of the 1989 Sindel audit. The November 20 letter set forth new dissent and challenge procedures which did not require the use of certified mail and allowed employees to dissent and challenge in the same letter. The renotification letter then provided that any nonmembers who filed dissents or...