Troesch v. Chicago Teachers Union, Local 1 American Federation of Teachers, AFL-CIO

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JOANNE TROESCH and IFEOMA )

NKEMDI, on behalf of themselves )

and the putative class, )

)

Plaintiffs, )

) No. 20 C 2682

v. )

) Judge John Z. Lee

CHICAGO TEACHERS UNION, )

LOCAL UNION NO. 1, AMERICAN )

FEDERATION OF TEACHERS, and )

THE BOARD OF EDUCATION OF )

THE CITY OF CHICAGO, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Joanne Troesch and Ifeoma Nkemdi, on behalf of themselves and a putative

class of similarly situated employees (collectively, “Plaintiffs”), allege that the

Chicago Teachers Union (“CTU”) and the Chicago Board of Education (“the Board”)

(collectively, “Defendants”) violated their First Amendment rights under Janus v.

American Federation of State, County, and Municipal Employees, Council 31, 138 S.

Ct. 2448 (2018), by continuing to enforce their signed agreements to pay union dues

until the annual August window for revoking their dues authorizations after they

resigned their memberships in CTU in October 2019. Defendants have moved to

dismiss the complaint with prejudice under Rule 12(b)(6), arguing primarily that

Plaintiffs fails to state a First Amendment violation. For the following reasons, the

motions are granted. This case is terminated.

I. Background1

The Illinois Educational Labor and Relations Act (the “IELRA”) requires

public-sector educational employers like the Board, which oversees Chicago Public

Schools (“CPS”), to bargain over and enter into collective bargaining agreements

(“CBAs”) with unions that have been chosen by a majority of employees in a

bargaining unit to serve as the employees’ exclusive representative. See 115 Ill.

Comp. Stat. 5/3, 5/7, 5/10; About, Chicago Board of Education, https://www.cpsboe.org

/about (last accessed Nov. 23, 2020).2 For employees of CPS, that exclusive

bargaining representative is CTU, an affiliate of the Illinois Federation of Teachers.

Compl. ¶ 11, ECF No. 2.

Plaintiffs, along with roughly 24,000 other teachers and school personnel, are

employees of the Board, and their employment terms are and have been governed by

a series of CBAs that CTU has negotiated with the Board over the years. Id. ¶¶ 10–

11. The current CBA is effective from July 1, 2019, through June 30, 2024, while the

prior CBA was effective from July 1, 2015, through June 30, 2019. Id. ¶ 10.

Both CBAs contain an identical Section 1-6, entitled “Dues Checkoff.” This

section provides that the Board “shall deduct from the pay of each bargaining unit

employee from whom it receives an authorization to do so the required amount of fees

1 When considering a motion to dismiss, the Court “must accept as true all well-pleaded

factual allegations and draw all reasonable inferences in favor of the plaintiff.” Heredia v.

Capital Mgmt. Servs., L.P., 942 F.3d 811, 814 (7th Cir. 2019).

2 The Court may take judicial notice over these and other relevant “matters of public

record,” that the complaint does not address. See Newcomb v. Brennan, 558 F.2d 825, 829

(7th Cir. 1977).

for the payment of UNION dues.” Id. ¶ 12. Section 1-6 further states that any such

“bargaining unit employee may terminate the dues check off,” meaning the dues

authorization, “during the month of August by submitting written notice to the

BOARD and the Union.” Id.

The authorization to which Section 1-6 of the CBAs refers is part of CTU’s

membership agreement, which employees may sign if they so choose. See Pls.’ Ex. A,

Chicago Teachers Union Membership Applications of J. Troesch and I. Nkemdi

(“Membership Agreements”) at 2–3, ECF No. 2-1. While becoming a member of CTU

“is not a condition of . . . employment,” see id., doing so carries numerous benefits,

including the ability to vote on contract demands, contract proposals, strike

proposals, and union elections; to submit contract proposals; to influence political

endorsements; and to obtain legal representation in the event of a dismissal

proceeding. See Pls.’ Ex. C, 11/15/19 Letters from Union to J. Troesch and I. Nkemdi

(“Resignation Acknowledgement Letters”) at 2–3, ECF No. 2-1. Members also

provide important financial support for CTU’s bargaining efforts. See id.

In September 2017, Plaintiffs each signed agreements to become members of

CTU. Compl. ¶ 14; see Membership Agreements at 2–3. In so doing, they each signed

a “Membership” provision stating that their membership in CTU “shall be continuous

unless I notify CTU President in writing of my resignation.” Compl. ¶ 14; see

Membership Agreements at 2–3. They also each subscribed to the aforementioned

“Dues Authorization” section:

During my employment, I voluntarily authorize and direct my Employer

to deduct from my pay each period, regardless of whether I am or remain

a member of the Union, an amount equal to the dues and assessments

certified by the Union, and to remit such amount monthly to the Union.

This authorization and direction shall become revocable by sending

written notice to the Union by United States Postal Service postmarked

between August 1 and August 31.

Id.; see Compl. ¶ 16. In other words, Plaintiffs agreed to restrict to the month of

August their ability to revoke their authorizations to have union dues deducted from

their pay, even if they resigned from CTU during another part of the year.

In October 2019, after becoming aware of the Supreme Court’s 2018 decision

in Janus, Plaintiffs each sent letters to the Board and CTU resigning their

membership in CTU effective immediately. Id. ¶ 21; see Pls.’ Ex. B, 10/18/19

Resignation Letters from J. Troesch to Board and Union and 10/22/19 Resignation

Letters from I. Nkemdi to Board and Union (“Resignation Letters”) at 2–5, ECF No.

2-1. The letters, which were substantively identical, also sought to invoke Plaintiffs’

purported rights under Janus to immediately revoke their dues authorizations,

asserting that the revocability restrictions of their membership agreements had been

signed “under a framework Janus declared unconstitutional.” Id.

CTU responded to each of Plaintiffs’ letters the following month. Compl. ¶ 23;

see Pls.’ Ex. C, 11/15/19 Resignation Acknowledgement Letters from Union to J.

Troesch and I. Nkemdi at 2–4, ECF No. 2-1. CTU’s response accepted Plaintiffs’

resignations, but stated that their dues authorizations would remain valid until

September 1, 2020—i.e., after the August 2020 revocation period—pursuant to their

membership agreements. Compl. ¶ 23; see Resignation Acknowledgement Letters at

2, 4. And the Board continue to deduct dues from their wages until September 1,

2020. Id. ¶ 25.

Plaintiffs filed this case in May 2020. Their complaint asserts two counts

under 42 U.S.C. § 1983. Count I claims that Defendants violated Plaintiffs’ First

Amendment rights by enforcing the revocability restrictions contained in the dues

authorizations, thereby compelling them to continue paying union dues through

August 2020. Compl. ¶¶ 46–48. Relatedly, Count II claims that Defendants violated

Plaintiffs’ First Amendment rights by continuing to deduct dues from their wages,

pursuant to those authorizations, even after they had resigned from CTU and

objected to such deductions in October 2019. Id. ¶¶ 49–50. Plaintiffs seek a variety

of relief for these alleged deprivations, including declaratory relief that the

revocability restrictions, together with Section 1-6 of the current and prior CBAs, are

unconstitutional under the First Amendment.3 See id. at 13–14.

Defendants have moved to dismiss the entire complaint with prejudice under

Rule 12(b)(6). See Def. Board’s Mot. Dismiss (“Board’s Mot.”), ECF No. 25; Def.

Union’s Mot. Dismiss, ECF No. 26.

3 Plaintiffs also seek a declaration that 115 Ill. Comp. Stat. 5/11.1, which authorizes

restrictions on employees’ ability to revoke their dues authorizations, Compl. ¶ 9, violates the

First Amendment, id. at 13. Defendants counter that Plaintiffs lack standing to challenge

the constitutionality of this provision because it did not become effective until December 20,

2019, about two months after they resigned from CTU. See 115 Ill. Comp. Stat. 5/11.1. But

because, as the Court explains, Plaintiffs fail to state a violation of the First Amendment in

the first place, the Court need not assess whether they could seek relief as to this provision.

II. Legal Standard

To survive a motion to dismiss under Rule 12(b)(6), a complaint must “state a

claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is liable for

the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This standard

“is not akin to a probability requirement, but it asks for more than a sheer possibility

that a defendant has acted unlawfully.” Id. (cleaned up). “Where a complaint pleads

facts that are merely consistent with a defendant’s liability, it stops short of the line

between possibility and plausibility of entitlement to relief.” Id. (cleaned up).

Determining whether a complaint states a plausible claim for relief is a

“context-specific task that requires the reviewing court to draw on its judicial

experience and common sense.” Id. at 679. Moreover, while courts “must take all of

the factual allegations in the complaint as true” for purposes of a motion to dismiss,

they are “not bound to accept as true a legal conclusion couched as a factual

allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). Accordingly, “[t]hreadbare

recitals of the elements of a cause of action, supported by mere conclusory statements,

do not suffice” to state a claim on which relief can be granted. Iqbal, 556 U.S. at 678.

III. Analysis

Defendants raise two arguments in their motion to dismiss. Their principal

argument is that the complaint fails to state any violation of the First Amendment,

under Janus or otherwise. See Board’s Mot. at 8–14; Def. Union’s Mem. Supp. Mot.

Dismiss (“Union’s Mem.”) at 6–11, ECF No. 27. They also argue that the complaint

fails to render either of them liable under § 1983. See Board’s Mot. at 5–8; Union’s

Mem. at 11–14. For the reasons below, the Court concludes that Plaintiffs’ First

Amendment claims are foreclosed by controlling Supreme Court precedent, and the

complaint is dismissed with prejudice.4

Both of Plaintiffs’ First Amendment claims are based upon the same

grievance: Defendants continued to deduct union dues from Plaintiffs’ paychecks,

through August 2020, even after they had resigned as members in CTU in October

2019. See Compl. ¶¶ 46–50. In Plaintiffs’ view, the Supreme Court’s ruling in n

Janus entitled them to stop paying dues when they resigned in October 2019,

notwithstanding the expressed terms of their agreements. See Membership

Agreements at 2–3.

Plaintiffs’ theory, however, finds no support in Janus. There, public sector

employees brought a challenge to an Illinois law that “forced [them] to subsidize a

4 In light of the doctrine of constitutional avoidance, it is worth noting that Defendants’

non-constitutional arguments lack merit. Regarding § 1983, the Board argues that Plaintiffs

fail to identify an “express municipal policy” or “widespread practice constituting a custom

or usage” that caused their asserted injuries, as required to trigger municipal liability under

Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658 (1978), see Simmons v. Chi. Bd. of

Educ., 289 F.3d 488, 494 (7th Cir 2002); while CTU argues that Plaintiffs fail to identify a

sufficient nexus between its conduct as a private actor and the conduct of a state actor, see

Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 815 (7th Cir. 2009).

But the Board’s position that Section 1-6 of the current and prior CBAs, in which it agreed to

enforce dues authorizations outside of the annual August revocation period even where an

employee has since resigned from CTU, does not constitute an express policy is unpersuasive.

As for CTU, it overlooks that the Seventh Circuit has found state action where, as here, a

union is “a joint participant” with state actors in an arrangement to have union fees deducted

from employees’ paychecks. See Janus v. Am. Fed’n of State, Cty. & Mun. Emps., Council 31,

942 F.3d 352, 361 (7th Cir. 2019), cert. docketed, No. 19-1104 (U.S. Mar. 10, 2020).

union, even if they ch[o]se not to join and strongly object[ed] to the positions CTU

t[ook] in collective bargaining and related activities.” 138 S. Ct. at 2459–60. The

Court held that such an “agency-fee” arrangement—so called because employees who

declined to join CTU still had to pay an “agency” or fair-share fee5—violated the First

Amendment rights of nonmember employees “by compelling them to subsidize private

speech on matters of substantial public concern,” overruling Abood v. Detroit Board

of Education, 431 U.S. 209 (1977). Id. at 2460. In so doing, the Court reasoned that

extracting fees from employees who had given “[n]o form of . . . consent” to subsidize

union speech, id. at 2486, triggered at least intermediate scrutiny, which the

challenged charges failed to meet. See id. at 2465–69, 2474–78.

By contrast, Janus treated consenting employees quite differently. The

Supreme Court observed that agency fees and other payments to the union may not

“be deducted from a nonmember’s wages . . . unless the employee affirmatively

consents to pay.” Id. at 2486 (emphasis added). “By agreeing to pay,” the Court

explained, “nonmembers are waiving their First Amendment rights . . . .” Id. The

Court further explained that, “[t]o be effective, the waiver must be freely given and

shown by clear and compelling evidence.” Id. (cleaned up). In other words, Janus

excluded from its holding those nonmember employees who “clearly and affirmatively

consent before any money is taken from them.” See id.

Janus, thus, did not disturb the Supreme Court’s conclusion in Cohen v. Cowles

Media Co. that “[t]he First Amendment does not confer . . . a constitutional right to

5 The 2015–2019 CBA between the Board and CTU contained a “fair share” clause as

well, but Defendants stopped enforcing it once Janus was decided. Compl. ¶ 13.

disregard promises that would otherwise be enforced under state law.” 501 U.S. 663,

671 (1991). There, an informant challenged the state supreme court’s holding that

the First Amendment barred enforcement of a newspaper’s promise to keep his

identity confidential in publishing unflattering stories about a candidate in the 1982

state gubernatorial election. Id. at 665–67. The Supreme Court reversed, holding

that “[t]he First Amendment does not forbid” the doctrine of promissory estoppel from

applying to the press. Id. at 670. Any inhibition on “truthful reporting,” the Court

reasoned, was “no more than the incidental, and constitutionally insignificant,

consequence of . . . generally applicable law that requires those who make certain

kinds of promises to keep them.” Id. at 671–72.

The Court need look no further than Janus and Cohen to dispose of Plaintiffs’

First Amendment claims. Indeed, courts have universally recognized that Janus does

not articulate a path “to escape the terms” of an agreement to pay union dues, which

remain binding under Cohen even where an employee has resigned her membership

in CTU. Fisk v. Inslee, 759 F. App’x 632, 633–34 (9th Cir. 2019); accord Fischer v.

Governor of N.J., --- F. App’x ----, Nos. 19-3914 and 19-3995, 2021 WL 141609, at *8

(3d Cir. Jan. 15, 2021) (“Because Janus does not abrogate or supersede Plaintiffs’

contractual obligations, which arise out of longstanding, commonlaw principles of

‘general applicability,’ Janus does not give Plaintiffs the right to terminate their

commitments to pay union dues unless and until those commitments expire under

the plain terms of their membership agreements.” (quoting Cohen, 501 U.S. 670));

Belgau v. Inslee, 975 F.3d 940, 950 (9th Cir. 2020) (“These facts speak to a contractual

obligation, not a First Amendment violation.”), cert. docketed, No. 20-1120 (U.S. Feb.

16, 2021); Oliver v. Serv. Emps. Int’l Union Local 668, 830 F. App’x 76, 79 (3d Cir.

2020) (“It is difficult to imagine language that would be more clear and compelling as

evidence of consent to . . . pay union dues.”); Loescher v. Minn. Teamsters Pub. & Law

Enf’t Emps.’ Union, Local No. 320, 441 F. Supp. 3d 762, 773 (D. Minn. 2020)

(“[Plaintiff’s] reliance on Janus is misplaced and does not establish a cognizable claim

to relief.”), appeal dismissed, No. 20-1540, 2020 WL 5525220 (8th Cir. May 15, 2020);

Hendrickson v. AFSCME Council 18, 434 F. Supp. 3d 1014, 1023–24 (D.N.M. Jan. 22,

2020) (“[Plaintiff’s] choice was voluntary, and he may not void his choice after

Janus.”), appeal docketed, No. 20-2018 (10th Cir. Feb. 21, 2020); Bennett v. Am. Fed’n

of State, Cty. & Mun. Emps., Council 31, AFL-CIO, --- F. Supp. 3d. ----, No. 4:19 C

4087, 2020 WL 1549603, at *4 (C.D. Ill. Mar. 31, 2020) (“Plaintiff’s obligation to pay

union dues pursuant to the 2017 Card remains enforceable despite the new

constitutional right identified in Janus.”), appeal docketed, No. 20-1621 (7th Cir. Apr.

15, 2020); Allen v. Ohio Civil Serv. Emps. Ass’n AFSCME, Local 11, No. 2:19 C 3709,

2020 WL 1322051, at *8 (S.D. Ohio Mar. 20, 2020) (“Because Plaintiffs opted to join

and pay dues to CTU, the properly framed right at issue here is not whether Plaintiffs

have the right to not subsidize OCSEA’s speech but whether they have a right to tear

up those contracts.”), appeal dismissed, No. 20-3440, 2020 WL 4194952 (6th Cir. July

20, 2020); see also LaSpina v. SEIU Pa. State Council, 985 F.3d 278, 288 (3d Cir.

2021) (“[W]e decline to find any First Amendment violation under Janus for an

employer’s or union’s failure to promptly process a member’s resignation notice and

terminate the associated dues deductions.”).

The same result follows here. “By agreeing to pay” dues until they could

revoked their dues authorizations during the annual August revocation period,

regardless of whether they remained members of CTU, Plaintiffs waived their rights

not to subsidize CTU’s speech. See Janus, 138 S. Ct. at 2486. These waivers were

“freely given,” see id., as Plaintiffs each attested, see Membership Agreements at 2–3

(“I understand that signing this card is not a condition of my employment.”). And it

is indeed “difficult to imagine” clearer and more compelling evidence of these waivers

than their own signed agreements. See Oliver, 2020 WL 5946727, at *2.

Plaintiffs’ arguments to the contrary are unavailing. They latch onto Janus’s

language that “nonmembers” cannot be compelled to pay union fees, see, e.g., 138 S.

Ct. at 2467, but ignore the Court’s exclusion of employees who “affirmatively

consent[] to pay,” id. at 2486. They contend that clear and compelling evidence of

consent is absent here, but fail to explain how their agreements furnish anything less.

Indeed, Plaintiffs do not identify “even a whiff of compulsion” that led them to sign

the agreements in the first place. See Belgau, 975 F.3d at 950. They suggest that

their consent was terminated by their objections to the deductions when they

resigned their union memberships, but point to nothing in Janus (or any other case)

allowing them to “renege on their promise[s]” to pay dues until the following August

revocation period. See Belgau, 975 F.3d at 950. Nor do Plaintiffs contend that their

promises to pay dues are unenforceable under state law. See Cohen, 501 U.S. at 671;

cf. Kinkel v. Cingular Wireless LLC, 857 N.E.2d 250, 260 (Ill. 2006) (“One party to a

contract may not unilaterally modify a contract term . . . .”).

Plaintiffs also argue that their consent was not “voluntary, knowing, and

intelligent” because, while they agreed to the terms of the membership agreements,

they did not specifically agree to give up their rights under Janus not to subsidize

union speech. See Pls.’ Resp. Opp’n Mots. Dismiss at 10–11, ECF No. 34 (quoting

Erie Telecomms., Inc. v. City of Erie, 853 F.2d 1084, 1094 (3d Cir. 1988)). But, this

view of the law is much too myopic. As Janus makes clear, Plaintiffs “waiv[ed] their

First Amendment rights” simply “[b]y agreeing to pay.” See 138 S. Ct. at 2486. And

Janus “had no effect” on employees’ pre-existing obligations “to pay fees pursuant to

voluntarily signed membership agreements.” Bennett, 2020 WL 1549603, at *3. As

a result, Plaintiffs’ prior dues agreements are not invalidated by that mere “change[]

in intervening law.” See Smith v. Bieker, No. 18 C 05472, 2019 WL 2476679, at *2

(N.D. Cal. June 13, 2019) (citing Brady v. United States, 397 U.S. 742, 757 (1970)),

appeal docketed, No. 19-16381 (9th Cir. July 12, 2019).

In sum, even when all of the well-pleaded factual allegations in the complaint

are taken to be true, Plaintiffs’ legal theory finds no support in First Amendment

jurisprudence. The complaint is dismissed, and because “it is clear that any

amendment would be futile,” the dismissal is with prejudice. See Bogie v. Rosenberg,

705 F.3d 603, 608 (7th Cir. 2013).

IV. Conclusion

For the forgoing reasons, Defendants’ motions to dismiss the complaint with

prejudice are granted. This case is terminated.

IT IS SO ORDERED. ENTERED: 2/25/21

John Z. Lee

United States District Judge

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