The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOSEPH OCOL, on behalf of
himself and all others
similarly situated,
Case No. 18 C 8038
Plaintiff,
Judge Harry D. Leinenweber
v.
CHICAGO TEACHERS UNION, et
al.,
Defendants.
MEMORANDUM OPINION AND ORDER
I. BACKGROUND
This lawsuit is one of several filed across the United States
in the wake of the Supreme Court’s decision in Janus v. AFSCME 31,
138 S. Ct. 2448 (2018). The plaintiff, a non-union public school
teacher in the Chicago public schools, seeks to recover for himself
and a putative class the so-called fair share fees he paid to the
union prior to Janus, both pursuant to Section 1983 and the state
tort law of conversion. He also seeks a declaration that his
constitutional rights are violated by forcing him to accept the
Unions as his exclusive bargaining agent and that the exclusive
bargaining provision of the defendants’ collective bargaining
agreement with the Chicago public schools violates the United
States antitrust laws.
While Defendants’ Motion for Summary Judgment was pending in
this Court, the parties agreed to stay consideration of the Motion
until the Seventh Circuit disposed of Janus on remand from the
Supreme Court because that court was considering the same issue,
i.e., the return of the fair share fees. The Seventh Circuit
recently held that the defendant union need not return fair share
fees collected prior to Janus. Janus v. AFSCME 31, 942 F.3d 368
(7th Cir. 2019). See also Mooney v. Illinois Education Association,
942 F.3d 368 (7th Cir. 2019). Plaintiff acknowledges that this
decision forecloses his Section 1983 claim for refunds of the fair
share payments and his First Amendment challenge to the Union’s
exclusive representation.
However, Plaintiff still has two arrows in his quiver:
namely, a claim for refund of the fair share fees under state tort
law (as opposed to Section 1983), and an antitrust challenge to
the Union’s collective bargaining agreements that command uniform
salaries for teachers regardless of subject matter and that compels
entry-level teachers to accept exceedingly low salaries negotiated
by a bargaining unit to which they do not belong. The Unions
respond by arguing that the Illinois Educational Labor Relations
Act (“ILERA”) preempts the Plaintiff’s tort claim and in any event
reliance in good faith on an unconstitutional statute is a defense
to Illinois tort law. They also argue that antitrust claim is
subject to dismissal due to action immunity, statutory labor
exemption, and the Noerr-Pennington immunity.
II. DISCUSSION
A. The Illinois Tort of Conversion
Plaintiff contends that he is entitled to recover his past
fair share payments because they were collected pursuant to an
unconstitutional statute, i.e., the statute that authorized the
fair share dues scheme. He responds to Defendants’ preemption
argument by claiming that the Defendants have taken the particular
statutory provision that they relied upon out of context and that
ILERA only provides the exclusive remedy for such a claim for fair
share when the statute is triggered by the employee filing an
objection to the fair share fees. Since plaintiff did not file and
objection with ILERA, he argues that the statute does not apply
and there is no preemption. However, this argument ignores a host
of Illinois cases in which the state and federal courts have held
tort claims to be exactly the type of claims preempted by ILERA.
A claim for conversion, being a tort claim, is thus preempted.
Plaintiff fails to cite any case in which an employee has been
allowed to proceed in state court on a tort claim against either
the Union or the school employer, while Defendants have cited a
host of cases to the contrary. See Shaikh v. Watson, 2011 WL 589638
(N.D. Ill. 2011); and Pugh v. Chicago Teachers Union, 2012 WL
1623222 (N.D. Ill. 2012).
Defendants also argue that there can be no such tort claim
because the Defendants’ actions were taken pursuant to a statute
that was existing at the time and thus were taken in good faith.
They claim this as a defense to Illinois tort law. Plaintiff
argues, citing Norton v. Shelby County, 118 U.S. 425, 442 (1886),
that unconstitutional statutes are void ab initio and therefore
cannot be a justification for a wrongful taking even if done in
good faith. However, as Defendants point out, the Norton case has
been distinguished by the Seventh Circuit in Ryan v. County of
DuPage, 45 F.3d 1090, 1094 (1995), which held that existing
statutes are “hard facts” on which people must be allowed to rely
in making decisions and in shaping their conduct. Thus, conduct
lawful under a statute cannot be later found wrongful due to a
Supreme Court decision striking down that statute. Plaintiff
criticizes the Ryan decision, but this Court is bound by it.
There have been numerous cases throughout the United States
seeking state tort relief in lieu of Section 1983 proceedings after
Janus, but none has been successful. At least Plaintiff has failed
to cite any. The latest such case that denies recovery for fair
share fees under state tort law comes from the Sixth Circuit in
Lee v. Ohio Education Association, No. 19-3250 (slip op.
February 24, 2020). For these reasons the Defendants’ Motion for
Summary Judgment of Plaintiff’s tort claim for conversion under
Illinois law is granted.
B. The Antitrust Claim
Plaintiff’s antitrust claim is based on a tea leaf reading of
the Supreme Court’s Janus decision, in which the majority opinion
stated that designating a union to be the exclusive bargaining
agent, “substantially restricts the rights of individual
employees” and that such designation constitutes “a significant
impingement on associational freedoms that would not be tolerated
in other contracts.” Janus, 138 S. Ct. 2448 (2018). However, the
constitutionality of exclusive representation was not before the
Court and the statements quoted were dicta and made in response to
the argument that requiring the Union, as the exclusive bargaining
agent, to represent non-union members without fee (the so-called
“free rider” argument) constituted a benefit to the non-union
employee and a detriment to the union. However, the connection
between associational freedom and the First Amendment was
considered in Minnesota State Board for Community Colleges v.
Knight, 465 U.S. 271 (1984), in which the Supreme Court held that
the First Amendment permitted giving “the exclusive representative
a unique role” that justified infringement of the rights of non-
members. In addition, the Plaintiff admits that the Supreme Court
has never gone so far as to hold that the Constitution requires
public employers to permit non-union employees to negotiate
outside the Union negotiation. Knowing he is foreclosed from making
this constitutional argument, he instead relies on the antitrust
laws to make his case.
Plaintiff’s antitrust argument is based on what he believes
to be the anticompetitive evils of the present system that result
from designating a Union to be the exclusive bargaining agent to
the exclusion of non-members. He contends that such an arrangement
allows the Union, through negotiation of a collective bargaining
agreement, the power to benefit some teachers to the detriment of
others by forcing a uniform salary structure regardless of subject
matter and which allows the union to reward long-term incumbent
teachers (who often hold leadership positions within the union) at
the expense of payment of low salaries to entry level teachers.
The exercise of these powers resulting from the exclusive
bargaining agent role is clearly anti-competitive and a violation
of the rule of reason.
Regardless of what Plaintiff thinks of the principle of
exclusive representation for public employees and the collective
bargaining agreements that result from such exclusive
representation, it has been the accepted system in Illinois for
the last 35 years and is the system adopted in most sister states.
It is difficult to see how such a system can be in violation of
the federal antitrust laws. Moreover, since the exclusive
bargaining principle has been designated by the Illinois
legislature to be the system employed for labor relations for
Illinois public employees, the state action exception to the
Sherman Act clearly applies. Parker v. Brown, 317 U.S. 341 (1943).
Finally, there is no way under current statutes and Supreme Court
decisions that the Plaintiff’s antitrust claim could be viable,
and he has suggested none. Accordingly, Summary Judgment of
dismissal of the antitrust claim is granted.
III. CONCLUSION
For the reasons stated herein, Defendants’ Motion for Summary
Judgment is granted in favor of the Defendants and against the
Plaintiff on all claims.
IT IS SO ORDERED.
Chttirh.
-Harry D. Leinenweber, Judge
United States District Court
Dated: 3/26/2020
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