Petition for Writ of Certiorari — Reese v. City of Columbus
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Supreme Court, U.s.
FILED
96 186 AUC 21996,
No. 96-__
ae
IN THE
Supreme Court of the United States
OCTOBER TERM, 1996
RICHARD W. REESE, RICHARD D. KAUFFMAN,
GEORGE R. JORDAN, BeTTy SLATER, LARRY L. WYGLE,
MARION R, CRAMBLIT, and TIMOTHY WANNER,
on behalf of themselves and
the class they represent,
Petitioners,
Ve
Crry OF CoLuMBUS; GreGoRY S. LASHUTKA, Mayor,
City Of Columbus; LOCAL 1632, Ou1Io CouNnciL 8, AFSCME;
and Onto CounciL 8, AFSCME,
Respondents
ON PETITION FoR A Writ OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
For THE SIXTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
W. JAMES YOUNG*
GLENN M. TAUBMAN
c/o National Right to Work Legal
Defense Foundation, Inc
8001 Braddock Road, Suite 600
Springfield, Virginia 22160
(703) 321-8510
ATTORNEYS FOR PETITIONERS
August 1996 *Counsel of Record
QUESTION PRESENTED
Do the First and Fourteenth Amendments to the United States
Constitution permit a public employer to compel nonunion pubiic
employees to contribute, as a condition of their continued employ-
ment, to the costs of the following activities engaged in by the state
and national affiliates of the bargaining representative imposed
upon them by force of law:
a) litigation activities concerning bargaining units other
than the employees’ unit;
b) public relations and advertising related to issues
other than the ratification of, or authorization or
appropriation of funds for, the agreement covering
the employees’ bargaining unit; and
¢) lobbying related to issues other than the ratification
of, or authorization or appropriation of funds for,
the agreement covering the employees’ dargaining
unit?
PARTIES TO THE PROCEEDINGS BELOW
In addition to the parties named in the caption, Local 2191,
Ohio Council 8, American Federation of State, County and
Municipal Employees (“Local 2191”), was initially named as a
Defendant in the original proceeding in the United States District
Court for the Southern District of Ohio. Local 2191 was dismissed
from the action by stipulation of the parties prior to the District
Court’s entry of judgment. District Court Record 35, Stipulation;
District Court Record 39, Order. Accordingly, Local 2191 was
not a party to the proceeding whose judgment is sought to be
reviewed. See Appendix B, infra, 3a (Reese v. City of Columbus,
71 F.3d 619 (6th Cir. 1995)).
“iii-
TABLE OF CONTENTS
Page
as Oe wb as b Wee be 8 oe
PARTIES TO THE PROCEEDINGS BELOW .......... il
EE 04 c bv g 6 Oh 4 oe Oe be eS 88 vi
ST Ee Se ee eee eee eee eee l
ee ee ey ee 2
CONSTITUTIONAL AND STATUTORY
CE a ee ee ee ee 2
rn rr See sc oS Sale bee wh e's oe 0 8 3
REASONS FOR GRANTING THE WRIT ...........82555 8
I. THE IMPORTANT QUESTIONS PRESENTED HAVE BEEN
SETTLED By THIS CouRT, BUT THE CoURT SHOULD RE-
SOLVE THE CONFUSION ENGENDERED By ITs OWN SPLIT
ERNE ae Serre tre ree yee eer 10
Il. THe Court OF APPEALS’ DECISION CONFLICTS WITH
THis Court’s Decisions, AS WELL As THOSE OF A
NUMBER OF CourTs OF APPEALS AND AT LEAST Two
ee er een seer 14
A. There Is A Split In The Circuits—The Court Below
Stands Alone Among Appellate Courts Addressing
BFF CTE eLe TTT 18
-iV-
TABLE OF CONTENTS (continued)
Page
B. The Court Of Appeals’ Decision Is Contrary To
Lehnert With Regard To Extra-Unit Public Relati-
ons/Advertising Expenditures, And Conflicts With
Other Appellate Courts Addressing This Issue ... 21
C. The Court Of Appeals’ Decision Is Contrary To
Lehnert With Regard To Extra-Unit Lobbying
Expenditures, And Conflicts With Other Appellate
Courts Addressing This Issue .............. 25
Ce Ne eb a a ee ee ee ae eee oe 29
APPENDICES
A. Order Of The United States Court Of Appeals For
The Sixth Circuit Denying Appellants’ Petition For
Rehearing And Suggestion For Rehearing En Banc
if. 9. BR ee eer es eat ae
B. Decision Of The United States Court Of Ap-
peals For The Sixth Circuit (19 December
1996), reported at 71 F.3d 619 (6th Cir.
PERS ca kee eh eee Ra Peas 3a
C. Final Judgment In A Civil Case Entered By
The United States District Court For The
Southern District Of Ohio (4 January 1994) .... ‘4a
D. Opinion And Order Granting In Part And
Denying In Part Plaintiffs’ Motion For Summa-
ry Judgment Entered By The United States
District Court For The Southern District Of
Ohio (23 June 1993), reported at 826 F. Supp.
BUSES: 3. ere ee re 30a
-\V-
TABLE OF CONTENTS (continued)
Order Denying Defendants’ Motion To Dis-
solve Injunction Entered By The United States
District Court For The Southern District Of
Cite (19 Femrwaty 19PS). oc ecw ee ks
Order Granting Plaintiffs’ Motion For A Preli-
minary Injunction Entered By The United
States District Court For The Southern District
Of Ohio (7 May 1992), reported at 798 F.
Sump. 403 .D. GO THGe) os wh eee ees ae es
Relevant Constitutional Provisions; 42 U.S.C.
§ 1983; and Ohio Revised Code § 4117.09(C)
Page
-vi-
TABLE OF AUTHORITIES
CASES
Abood v. Detroit Bd. of Educ.,
S56 Ie. Se certs «i a C442 Noa tea
Albro v. Indianapolis Education
Association, 585 N.E.2d 666 (Ind.
Ct. App.), adopted sub nom. Fort
Wayne Education Association v.
Page
Aldrich, 594 N.E.2d 781 (Ind. 1992) ........ passim
Austin v. Michigan Chamber of Commerce,
G6 U.S. Ge (Opee kN Ra ae eee es
Beck v. Communications Workers of America,
776 F.2d 1187 (4th Cir. 1985), aff'd
en banc, 800 F.2d 1280 (4th Cir. 1986),
GSE, FEF U.S. Toe (IFRS ka ia ae eNO ER 28
Beckett v. Air Line Pilots Association,
Tp £28 1sre Ck... 4a Bee 3 ok ws au
Board of County Commissioners v. Umbehr,
__ US. ___, 64 U.S.L.W. 6482
(20 PONS Tee Ce ae ee ea a ea
Bowman v. Loperena,
343 i. BOE CAE bk oe ae ee
Branti v. Finkel,
643 US. Sat (eee 4h be ea ews wees oer
Bromley v. Michigan Education Association,
4. 2 & 4&4 6 on
Se © oe Gee Coen GM. RIGS) 6 hae CR 8, 14
nl
-vii-
TABLE OF AUTHORITIES (continued)
Browne v. Wisconsin Employment Relations
Comm., 485 N.W.2d 376 (Wis. 1992)
Buckley v. Valeo,
co Rt Re By. ere aera are ee
Chicago Teachers Union, Local No. I v.
Hudson, 475 U.S. 292 (1986) ........
Colorado Republican Fed. Campaign Comm.
v. Federal Election Comm’n, __ US.
__, 64 U.S.L.W. 4663 (28 June 1996) .......
Communications Workers of America v. Beck,
487 U.S. TSS CIGSR) vc ee ee eee es
Crawford v. Air Line Pilots Association,
992 F.2d 1295 (4th Cir.) (en banc),
cert. denied, _U.S.__, 1148S. Ct.
Si, | RS ee ere ee ee ae
Damiano v. Matish,
644 F. Supp. 1058 (W.D. Mich. 1986),
rev'd on other grounds, 830 F.2d 1363
Oe Cie. TRGT) ow sk ce ce eee sees
Ellis v. Railway Clerks,
O66 U.S. 435 CISBO 6 wc wee eases
Elrod v. Burns,
Co Bi Be Fi, sa eee a ae
George v. Baltimore City Public Sch.,
117 F.R.D. 368 (D. Md. 1987) ........-.----
Page
passim
-viii-
TABLE OF AUTHORITIES (continued)
Page
Hohe v. Casey,
128 F.R.D. 68 (M.D. Pa. 1989), aff'd
in part, rev'd in part, 956 F.2d 399
aes SE 6 6 sk ok Ra ee ee 12
Keller v. State Bar,
ne rs ae 5 cd 3 0. c5k 6s oe le Gk a 11, 12
Lehnert v. Ferris Faculty Association,
ee as eT NE a cea he he eK ok RN passim
Lehnert v. Ferris Faculty Association,
881 F.2d 1388 (6th Cir. 1989),
aff'd in part, rev'd in part, 500
A ET CONE) bes Ke RRO 10, 21, 22, 27
Lehnert v. Ferris Faculty Association,
643 F. Supp. 1306 (W.D. Mich. 1986) .......... 27
LRL Properties v. Portage Metro Housing
Authority, 55 F.3d 1097 (6th Cir.
ee eee 6 a re Eee sce ee lee 14
Machinists v. Street,
ar a SED ce 6 a ee ae od ho ee BO 28
Mitchell v. Los Angeles Unified Sch.
Dist., 744 F. Supp. 938 (C.D. Cal.
1990), rev'd in part, 963 F.2d 258
(9th Cir.), cert. denied, _ US.
ey ce a ee, | ee ree Se 12
NAACP yv. Button,
FEE Meas SOS EEE keke) oe ee eee ee 9, 10
-ix-
TABLE OF AUTHORITIES (continued)
O’Hare Truck Service, Inc. v. City of
Northlake, _U.S.__, 64 U.S.L.W.
4694 (28 June 1996) .........2-22e-
Pilots Against Illegal Dues v. Air Line
Pilots Association, 938 F.2d 1123
5 Le Ae 5S a er a ee ee ie
Police Dep’t of Chicago v. Mosley,
£ RR a) >. Snr ne ore ae
Reese v. City of Columbus,
798 F. Supp. 463 (S.D. Ohio 1992),
further proceedings, 826 F. Supp.
1115 (S.D. Ohio 1993), aff'd in part,
rev'd in part, and remanded, 71 F.3d
GID Gith Cie. 1995) oes se ee wees
Roberts v. United States Jaycees,
468 U.S. G09 (1984) ......222 eens
Schreier v. Beverly California Corp.,
892 F. Supp. 225 (D. Minn. 1995) .......
Smith v. Regenis,
4 Cal. 4th 843, 844 P.2d 500 (1993) ......
Speiser v. Randall,
S57. US. SiS (IGS) i ee ees
Wileman Brothers & Elliott, Inc. v. Espy,
58 F.3d 1367 (9th Cir. 1995), cert.
granted sub nom. Glickman v. Wileman
Brothers & Elliott, Inc., ___ U.S.
__, 116 S. Ct. 1875 (1996) ...........
Page
erry
-X-
TABLE OF AUTHORITIES (continued)
CONSTITUTIONAL AND STATUTORY PROVISIONS Page
as COU. SINE. © vs 2 iw ah bas ote tne ck een Passim
a CORE, GUN TS 6.k'n 64.06 0 Se ee dan ras i, 2
46 U.S.C. § U256CE) (West 1SGE) 2. cece ceca wnasan 2
ae USA. | Uiee COR IGGGD oc kde sc ccucvecexen tes 5
Oe CBA. S TGS Gee WORD in ok hoc ca awk cuss 5
ae CBA. | Seems Crees GHGe ac ces tetedecsasess 2
National Labor Relations Act,
oP Bae 8 ies OO. b's bce ds sereeacecaas 12
Civil Rights Act of 1871,
42 U.S.C. § 1983 (West 1994) ............4.5. 2,5
Railway Labor Act,
Ge an Bees GOI on ce ween ccewees passim
PGE. CORP. LAWS § SED.ZIS wc cece wecescencscn 26
Ohio’s Public Employee Collective
Bargaining Law, Ou10 REV. Cope
Rs ee dc ot a ee ee ioe 27
Onto REV. CopE ANN. § 4117.09 ............... 2,3
-xi-
TABLE OF AUTHORITIES (continued)
RULES Page
Rules of the United States Supreme
i CLE - . a eb se ces © 0s '0's 00 6 0's 65.806 6 2
Rules of the United States Supreme
o § 3S errr reernes od ere
Rule 23(e), Fep. R. Civ. P. ........ or Kaela
MISCELLANEOUS
Bureau of Labor Statistics, Major
Collective Bargaining Agreements:
Union Security and Dues Checkoff
Provisions 5 (1982) .......... Dnt ace we ke 12
Milton L. Chappell, Seeking a New
Foundation: Legal and Practical
Alternatives to the Current Monopoly
Bargaining Model that Will Enhance
the Viability of Independent Teacher
Groups, 16 Government Union Review |
Ee ee ee eS ae ke ee ee ee 12
Barry T. Hirsch and David Macpherson,
Union Membership and Earnings Data
Book: Compilations from the Current
Population Survey (BNA) (1996)... .. 2.6... 65s 12
IN THE
Supreme Court of the United States
OCTOBER TERM, 1996
No. 96-
RICHARD W. REESE, ef ai..
Petitioners,
Vv.
Ciry Or COLUMBUS, ef ai...
Respondents
ON PETITION For A Writ OF CERTIORARI
To THE UNITED STATES COURT OF APPEALS
For THE Sixty Circuit
PETITION FoR A Writ OF CERTIORARI
Petitioners Richard W. Reese, Richard D. Kauffman, George
R. Jordan, Betty Slater, Larry L. Wygle, Marion R. Cramblit, and
Timothy Wanner, on behalf of themselves and the class that they
represent, respectfully pray that a writ of certiorari issue to review
the judgment and opinion of the United States Court of Appeals for
the Sixth Circuit, entered on 19 December 1995, in this case.
OPINIONS BELOW
The Court of Appeals’ unreported Order denying the Petition
for Rehearing and Suggestion of Rehearing En Banc appears in
Appendix (“App.”) A, infra, la. The panel opinion (App. B,
infra, 3a) is officially reported at 71 F.3d 619. The unreported
2.
judgment of the United States District Court for the Southern
District of Ohio appears in App. C, infra, 14a. The District
Court's opinion and order on the Petitioners’ Motion for Summary
Judgment (App. D, infra, 30a) is reported at 826 F. Supp. 1115.
Also reproduced in the appendix are the opinion and order of the
District Court granting Petitioners’ Motion for a Preliminary
Injunction (App. F, infra, 55a), reported at 798 F. Supp. 463, and
the unreported opinion and order of the District Court denying the
Motion of Respondents AFSCME Local 1632, Ohio Council 8,
AFL-CIO and AFSCME Ohio Council 8, AFL-CIO, to Dissolve
the Preliminary Injunction (App. E, infra, 41a).
JURISDICTION
The judgment was entered on 19 December 1995. Petitioners’
Petition for Rehearing and Suggestion of Rehearing En Banc was
denied on 7 March 1996 (App. A, infra, la). The time for
petitioning for a writ of certiorari runs from the latter date.
Bowman v. Loperena, 311 U.S. 262, 266 (1940). On 22 May
1996, pursuant to 28 U.S.C. § 2101(c) (West 1993) and Rule 13.5
of the Rules of this Court, Justice Stevens extended the time within
which to file a petition for a writ of certiorari to and including 2
August 1996. This petition is timely under Rule 13.1 of the Rules
of this Court. The jurisdiction of this Court is invoked under 28
U.S.C. § 1254(1) (West 1993).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The relevant provisions of the First and Fourteenth Amend-
ments to the Constitution of the United States, the Civil Rights Act
of 1871, 42 U.S.C. § 1983 (West 1994), and Ohio’s Public
Employee Collective Bargaining Law (“PECBL”), OxuIo REV.
CopE ANN. § 4117.09, appear in App. G, infra, 69a.
Sp
STATEMENT OF THE CASE
Petitioners are seven individuals representing a class of more
than 1,500 present and/or former nonuniformed employees of the
Respondent City of Columbus (“City”) in a bargaining unit for
which the exclusive bargaining representative is Respondent
AFSCME Local 1632, Ohio Council 8, AFL-CIO (“Local 1632”).
Petitioners, like the members of the class (collectively, “the
nonmembers”), are not union members, and/or were not members
when “agency fees” were seized from their pay. App. B at 3a-4a.
Local 1632 is affiliated with, inter alia, Respondent AFSCME
Ohio Council 8, AFL-CIO (“Ohio Council 8”), the American
Federation of State, County and Municipal Employees, AFL-CIO
(“the International”), and the American Federation of Labor-
Congress of Industrial Organizations (“AFL-CIO”). App. B at 4a.
Pursuant to the PECBL, Onto REV. CoDE ANN. § 4117.09,
Local 1632 and the City executed a collective bargaining agree-
ment—including an agency shop clause—effective in April 1990.
The City agreed to deduct for the benefit of Local 1632 “agency
fees” from the wages of all nonmembers. /d.
Beginning in April 1990, the City seized “agency fees” from
the nonmembers, and forwarded the fees to Ohio Council 8. Part
of the fees were then forwarded by Ohio Council 8 to Local 1632
and the International.' None of the procedural protections
required by this Court’s decision in Chicago Teachers Union,
Local No. 1 v. Hudson, 475 U.S. 292 (1986), was provided before
these fee seizures began. App. F at 56a; 798 F. Supp. at 465.
After about three months of collections, AFSCME sent to the
nonmembers the first of a series of notices, purportedly to fulfill
its obligations under Hudson. These were the notices considered
by the District Court. As relevant to this Petition, each of these
' For ease of reference, and unless otherwise necessary for clarity, Local
1632 and Ohio Council 8 shall hereinafter be referred to as “AFSCME,” or
“the union.”
ee ee Re
oT
-4-
notices claimed that the following categories of expenditures
(which appeared in the following form in the notice’s final
incarnation) were properly chargeable to nonmembers in the City
bargaining unit represented by Local 1632:
Expenses associated with the following activities are
totally chargeable:
x*x* * *
5. The public advertising of AFSCME'’s positions on the
negotiation, ratification, or implementation of collective
bargaining agreements.
6. Lobbying for the negotiation, ratification, or imple-
mentation of a collective bargaining agreement.
xx x *
15. The prosecution or defense of arbitration, litigation
or charges to obtain ratification, interpretation, imple-
mentation, or enforcement of collective bargaining agree-
ments and any other litigation before agencies or in the
courts which concerns bargaining unit employees which
is normally conducted by an exclusive representative.
District Court Record (“R.”) 78, AFSCME’s Motion to Dissolve
the Preliminary Injunction, and Brief in Support Thereof, Exhibit
1, pp. 4-5 (emphasis added).”
The nonmembers filed this civil rights class action under 42
U.S.C. § 1983 (West 1994) in the District Court on 15 March
1992. They sought a declaratory judgment; injunctive relief;
> The final notice considered by the District Court further stated that:
In light of the decision of the U.S. District Court in Reese
v. City of Columbus, the International Union has treated as
nonchargeable all expenses associated with lobbying for purposes
other than the ratification, interpretation, implementation or
enforcement of collective bargaining agreements.
R. 78 at 18 (emphasis added); see also id. at 23 (auditor's notes for Ohio
Council 8— “Likewise, all lobbying expenses incurred for purposes other than
the negotiation, ratification, or implementation of a collective bargaining
agreement were treated as totally nonchargeable”) (emphasis added).
sé.
nominal, punitive, and compensatory damages; and costs and attor-
neys’ fees, on the ground that the City and Local 1632 were
enforcing their “agency shop” scheme in violation of Hudson.’
Simultaneously, the nonmembers successfully sought a class-wide
preliminary injunction to stop all fee seizures, based upon
AFSCME’s first notice. R. 2, Plaintiffs’ Motion for a Preliminary
Injunction; App. F at 68a; 798 F. Supp. at 472.
With a second notice and recalculated fee, AFSCME moved
for dissolution of the preliminary injunction on 6 October 1992.
R. 36, AFSCME’s Motion to Dissolve the Injunction. This motion
was denied on 19 February 1993. App. E at 53a-S4¢a. The
nonmembers moved for summary judgment on 15 January 1993.
They requested, inter alia, a final declaratory judgment that the
“agency fees” seized before the District Court’s preliminary
injunction was entered violated the nonmembers’ First-Amendment
due-process rights, because AFSCME’s notices and procedures
were insufficient under Hudson, 475 U.S. 292 (1986). R. 61,
Plaintiffs’ Motion for Summary Judgment. That motion was
granted in part and denied in part on 23 June 1993. App. D at
40a; 826 F. Supp. at 1122.
The District Court found that AFSCME and the City had
failed to comply with all of “the constitutional requirements for the
... collection of agency fees” set forth in Hudson, 475 U.S. at 310,
and its Sixth Circuit progeny, reserving certain other issues for
trial to commence on 20 September 1993. App. D at 40a; 826 F.
Supp. at 1122. After the parties reached a partial settlement on the
eve of trial (reserving for appeal issues raised in the District
Court’s 23 June Opinion and Order), and after a fairness hearing
required by Rule 23(e), Fep. R. Civ. P., the District Court
entered final judgment on 4 January 1994, “consistent with th[e]
Court’s prior rulings and decisions.” App. C at 15a.
> The District Court had jurisdiction under 28 U.S.C. §§ 1331, 1343.
R. 1, Plaintiffs’ Verified Class Action Complaint, ¢{ 2-3.
—6-
In its 23 June order, the District Court denied that portion of
the nonmembers’ summary judgment motion which sought relief
from AFSCME’s calculation of an “agency fee” that included its
expenditures for: (1) litigation activities outside of the nonmem-
bers’ bargaining unit; (2) public relations/advertising expenditures
for the negotiation, ratification, and implementation of collective
bargaining agreements other than that which governs the terms and
conditions of employment for the nonmembers; and (3) lobbying
expenditures for the negotiation, ratification, and implementation
of collective bargaining agreements other than that which governs
the nonmembers’ terms and conditions of employment. App. D at
37a-39a; 826 F. Supp. at 1121-22; see also App. E at 44a-53a.
The court found that charging nonmembers for these expenditures
is constitutionally permissible under the First Amendment and
Lehnert v. Ferris Faculty Association, 500 U.S. 507 (1991). These
findings were contrary, in part, to legal determinations made by
the District Court in its initial preliminary injunction decision.
App. F at 64a-65a; 798 F. Supp. at 470.
With a third notice and recalculated fee, AFSCME renewed
its Motion to Dissolve the Preliminary Injunction on 20 August
1993. R. 78. Petitioners opposed on the grounds that the new
notice and procedures calculated the “agency fee” to include
AFSCME expenditures for those activities outside of the bargaining
unit as set forth above.
On 20 September 1993, the District Court dissolved the
preliminary injunction. It held that “the final amended proposed
fair share fee notice does comply with all applicable constitutional
requirements.” R. 94, Order Dissolving the Preliminary Injunc-
tion. This ruling was based in part upon the court’s earlier
holdings (denying in part Petitioners’ summary judgment motion,
App. D at 37a-38a, 826 F. Supp. at 1121, and denying AFSCME’s
initial motion to dissolve the preliminary injunction, App. E at
44a-5S3a) that it is constitutionally permissible for AFSCME to
calculate the “agency fee” to include its expenditures for litigation
activities outside of the bargaining unit, and public relations/
advertising and lobbying expenditures for the negotiation, ratifica-
tion, and implementation of collective bargaining agreements other
3
than that which governs the terms and conditions of employment
for the nonmembers. Final judgment was entered on 4 January
1994. R. 111, Entry of Final Judgment.
The nonmembers timely noticed their appeals from the entry
dissolving the injunction on 4 October 1993, and from the Entry
of Final Judgment on 27 January 1994. R. 97, Notice of Appeal;
R. 112, Notice of Appeal. The appeals were consolidated upon
AFSCME’s motion on 4 February 1994.
In the Court of Appeals, the nonmembers challenged the
District Court’s dissolution of the preliminary injunction and entry
of final judgment that found AFSCME’s notice and procedures
constitutionally adequate under Hudson. Specifically, they attacked
the District Court’s rulings that AFSCME could claim as charge-
able its expenditures for: (1) litigation activities outside of the
nonmembers’ bargaining unit; (2) public relations/advertising
expenditures for the negotiation, ratification, and implementation
of collective bargaining agreements other than that which governs
the terms and conditions of employment for the nonmembers; and
(3) lobbying expenditures for the negotiation, ratification, and
implementation of collective bargaining agreements other than that
which governs the terms and conditions of employment for the
nonmembers. App. B at 6a; 71 F.3d at 623.
The panel affirmed the District Court with regard to extra-unit
litigation and public relations/advertising expenditures. App. B at
7a-10a; 71 F.3d at 623-25. However, the panel found that “the
District Court did not expressly apply the three-prong test [in
Lehnert] to the extra-unit lobbying expense,” and that “there was
a genuine issue of material fact concerning the benefit, if any, the
objectors’ unit received from this expenditure in deciding the
summary judgment motion.” Jd. at 12a-13a; 71 F.3d at 626. The
panel therefore remanded:
for a determination of whether the lobbying expense
charge benefitted the objectors’ unit and if so, whether
the expenditure is justified by the government’s vital
policy interest in labor peace and avoiding free-riders and
-8-
whether the charge significantly added to the burdening
of free speech that is inherent in the allowance of an
agency shop.
App. B at 12a-13a; 71 F.3d at 626. A timely Petition for Rehear-
ing and Suggestion of Rehearing En Banc was denied on 7 March
1996, with “less than a majority of the judges having favored the
Suggestion.” App. A at la.
REASONS FOR GRANTING THE WRIT
This case presents important questions concerning the constitu-
tional limitations on a public employer’s authority, granted by state
law, to seize “agency fees” from nonunion public employees for
the benefit of a mandatory collective bargaining representative.
Though some of the issues presented herein were decided by this
Court in Lehnert, that case’s multiple opinions have led to
confusion in the lower courts and encouraged the Court of Appeals
to depart from this Court’s holdings. Indeed, at least one of these
issues has been specifically and unanimously decided by this Court
in the context of the Railway Labor Act (“RLA”), 45 U.S.C. §
151, et seq., Ellis v. Railway Clerks, 466 U.S. 435, 453 (1984)
(holding that nonmembers may be forced to subsidize litigation
only in and for their bargaining unit), a decision not even cited by
the Court of Appeals.
A number of the courts of appeals have themselves suggested
the need for further guidance from tis Court on these questions.
In Bromley v. Michigan Education Association, the Sixth Circuit
explained that “[w]hether the objecting employee can be required
to contribute to the cost of [extra-unit] litigation proved to be a
difficult question for our panel in light of the Supreme Court’s
fractured decision in Lehnert.” 82 F.3d 686, 696 (6th Cir. 1996).
In Pilots Against Illegal Dues v. Air Line Pilots Association
(“ALPA”), the court of appeals commented that, because the
section of Justice Blackmun’s opinion in Lehnert dealing with
extra-unit litigation “was adopted by a majority of the Court, some
uncertainty may remain as to whether the Constitution forbids
-9-
charging dissenting employees for extra-unit litigation.” 938 F.2d
1123, 1130 (10th Cir. 1991).‘
One Circuit Judge has explicitly solicited further guidance
from this Court on these questions. In Beckett v. Air Line Pilots
Association, Judge Silberman complained that:
when assessments have been levied for expenditures
relating to activities at another bargaining unit, it is
impossible to detect in the Supreme Court cases—
particularly Lehnert—a principled basis for distinguishing
expenditures that are “germane” from those that are not.
He then appealed for guidance: “surely the Court can give us some
principles on which to base our decisions.” 59 F.3d 1276, 1281
(D.C. Cir. 1995) (Silberman, J., concurring dubitante).
The Court of Appeals decided the questions presented here in
a way that pays insufficient heed to this Court’s oft-repeated
admonition that impingements upon First-Amendment rights must
be narrowly tailored to serve a compelling government interest.
Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 666
(1990), citing Police Dep’t of Chicago v. Mosley, 408 U.S. 92,
101 (1972); see also Roberts v. United States Jaycees, 468 U.S.
609, 623 (1984) (infringements on associational freedoms justified
by compelling state interests must be achieved by least restrictive
means); NAACP y. Button, 371 U.S. 415, 438 (1963) (“Precision
of regulation” must be the touchstone in the First Amendment
context), cited with approval in Hudson, 475 U.S. at 303 n.11. In
permitting the City and AFSCME to compel the nonmembers’
support for AFSCME’s “speech of a political nature in a public
forum,” Lehnert, 500 U.S. at 528, the Court of Appeals failed to
require the constitutionally—necessary nexus between the limited
license granted to Local 1632 to compel nonmembers to subsidize
* The Tenth Circuit, however, did conclude from Lehnert “that a
majority of the Supreme Court would not allow [the union] to charge [extra-
unit} litigation expenses to [objecting nonmembers].” 938 F.2d at 1130.
-10-
its function as their monopoly bargaining representative and the
functions performed by its affiliated labor organizations.
In so doing, the Court of Appeals disregarded the limited
authority granted to public employers and labor unions to compel
nonmembers’ financial support of those unions, when this Court’s
decisions command a contrary result. For the second time,’ the
Sixth Circuit has adopted a broad chargeability rule which compels
nonmembers to support union speech and political activities
directly contrary to their own political beliefs and interests—
ignoring this Court’s mandates that such infringements be circum-
scribed by “precision of regulation.” Button, 371 U.S. at 438.
The Court of Appeals’ decision compels nonunion employees to
subsidize litigation, speech, and political activities far removed
from their own bargaining unit and which may well be directly
contrary to their own political and pecuniary interests.
I. THE IMPORTANT QUESTIONS PRESENTED HAVE BEEN
SETTLED By THIS COURT, BUT THE COURT SHOULD
RESOLVE THE CONFUSION ENGENDERED BY ITS OWN
SPLIT OPINIONS.
The mere existence of an “agency shop” “is ‘a significant
impingement on First Amendment rights’” of nonunion employees.
Hudson, 475 U.S. at 301 & n.8, quoting Ellis, 466 U.S. at 455-
56. Moreover, the government may not compel public employees
to support financially a union’s political and ideological activities.
Abood vy. Detroit Bd. of Educ., 431 U.S. 209, 235 (1977);
Lehnert, 500 U.S. at 516. Consequently, procedures for the
collection of “agency fees” must be “carefully tailored to minimize
the [First Amendment] infringement.” Hudson, 475 U.S. at 303.
* See Lehnert v. Ferris Faculty Association, 881 F.2d 1388, 1389 (6th
Cir. 1989) (2-1 decision) (Martin, J., for the majority), aff'd in part, rev'd
in part, 500 U.S. 507 (1991); Reese, App. B at 3a; 71 F.3d at 621 (authored
by Martin, J.).
a:
The importance of these issues is demonstrated by the fact that
at least twice in its last six terms, this Court has reaffirmed the
constitutional limitations upon a government which licenses
politically-active private organizations to compel financial support
for some of their activities. This Court has held that requiring
payment or allowing seizure of monies to finance political and
ideological activities outside of a compelling state interest justifying
the infringement inherent in the compelled association imper-
missibly violates the First-Amendment rights of free association
and speech. See Lehnert (public-employee unions); see also Keller
v. State Bar, 496 U.S. 1, 9-17 (1990) (“integrated” or “unified”
state bars).
Further, this Court has already agreed to review—in :'s next
term—a case involving the First-Amendment implications of a
federal statutory and administrative scheme requiring handlers of
certain agricultural products to fund generic advertising programs
for those commodities. Wileman Brothers & Elliott, Inc. v. Espy,
58 F.3d 1367 (9th Cir. 1995), cert. granted sub nom. Glickman vy.
Wileman Brothers & Elliott, Inc., __ U.S. __, 116 S. Ct. 1875
(1996); see also Glickman’s Petition for a Writ of Certiorari at 14
(case involves compelled funding of “generic advertising”).
Significantly, the Glickman Petition asserts that “Abood and Keller
furnish the most appropriate general principles for reviewing the
generic advertising programs at issue here.” /d. at 18.
This Court also has addressed the constitutional limits on the
power of governments and unions under an “agency shop” in Ellis
(under the RLA), and Hudson and Abood (in public employment).
“[T]Jhe importance of these issues” caused the Court to grant
certiorari in these cases. Lehnert, 500 U.S. at 514.
Besides the 1,500 present and former nonunion City of
Columbus employees represented by the Petitioners, the questions
presented by this Petition are crucial to the millions of American
employees whose First-Amendment freedoms are burdened by
-]2.-
compulsory unionism: schemes. As of 1996, some form of
compulsory unionism was authorized or occurs for at least some
classes of public employees in some twenty states and the District
of Columbia. Milton L. Chappell, Seeking a New Foundation, 16
Government Union Review 1, 6-7, 23-28 (table) (1995). In 1995,
nearly two million nonmember employees were represented by
unions, with more than 53% of those in the public sector. Barry
T. Hirsch and David A. Macpherson, Union Membership and
Earnings Data Book: Compilations from the Current Population
Survey (BNA), Table 7a (1996). Approximately 80% of the
employees falling under the jurisdiction of the National Labor
Relations Act, 29 U.S.C. § 151, ef seq., are subject to agency
shop arrangements with private employers. Bureau of Labor
Statistics, Major Collective Bargaining Agreements: Union Security
and Dues Checkoff Provisions 5 (1982).
The freedoms guaranteed by the First Amendment are “rights
which we value most highly and which ave essential to the
workings of a free society.” Speiser v. Randail, 357 U.S. 513,
521 (1958). The government must “tread[ ] with sensitivity in
areas freighted with First Amendment concerns,” such as agency
* In the wake of Hudson, literally tens of thousands of nonunion public
employees have obtained relief for violations of the First-Amendment rights
as set forth therein. See Mitchell v. Los Angeles Unified Sch. Dist., 744 F.
Supp. 938, 944 (C.D. Cal. 1990), rev'd on other grounds, 963 F.2d 258, 262
(9th Cir.), cert. denied, —§ U.S. __, 113 S. Ct. 375 (1992) (class of 8,000
nonunion teachers required to pay agency fees); Hohe v. Casey, 128 F.R.D.
68, 72 (M.D. Pa. 1989) (class of 56,000 nonunion state employees), aff'd in
part, rev'd in part, 956 F.2d 399 (3d Cir. 1992); Damiano v. Matish, 644
F.Supp. 1058, 1060 (W.D. Mich. 1986) (class of 200 state employees), rev'd
on other grounds, 830 F.2d 1363 (6th Cir. 1987); George v. Baltimore City
Public Sch., 117 F.R.D. 368 (D. Md. 1987) (class of more than 1,000
nonunion teachers).
Of course, the Court's disposition of this case would also be preceden-
tial in other “agency shop” contexts, including those under the National
Labor Relations Act, 29 U.S.C. § 151, et seg., and those arising under the
RLA, 45 U.S.C. § 151, et seqg.; Keller, 496 U.S. at 14-17; see also Lehnert,
$00 U.S. at 516; Communications Workers of America v. Beck, 487 U.S.
735, 762 (1988); Ellis, 466 U.S. at 443, 455-56.
. 4
shop arrangements. Hudson, 475 U.S. at 303 n.12. Moreover,
infringements upon the exercise of First-Amendment rights must
be “narrowly tailored to serve a compelling government interest.”
Board of County Commissioners v. Umbehr, ___ U.S. ___, 64
U.S.L.W. 6482, 6485 (28 June 1996). Additionally, “care must
be taken not to confuse the interest of partisan organizations with
governmental interests.” Elrod v. Burns, 427 U.S. 347, 362
(1976) (per curiam).
Notwithstanding these admonitions, the courts below failed to
tread with the requisite sensitivity on the First-Amendment rights
of the nonunion City employees, determining instead that they
constitutionally may be compelled to subsidize activities of the
unions already found by this Court constitutionally to be non-
chargeable to nonunion public employees. Lehnert, 500 U.S. at
527 (lobbying expenditures), 528 (extra-unit litigation expenditures
and public relations expenditures); cf Ellis, 466 U.S. at 453
(extra-unit litigation unanimously held to be nonchargeable to
nonmembers under the RLA).
The panel's validation of procedures which allow government
to compel nonmembers to fund a unions’ nonchargeable activities
promotes widespread distortion of the political and legislative
processes. Cf. Buckley v. Valeo, 424 U.S. 1, 25 (1976) (per
curiam) (government has primary interest in prevention of
corruption and appearance of corruption in electoral process); see
also Colorado Republican Fed. Campaign Comm. v. Federal
Election Comm'n, __:-U.S. ___, 64 U.S.L.W. 4663, 4664 (28
June 1996) (“‘compelling’ governmental interest in assuring the
electoral system's legitimacy, protecting it from the appearance and
reality of corruption”). “Conditioning public employment on
partisan support prevents support of competing political interests.”
Elrod, 427 U.S. at 356; cof Umbehr, 64 U.S.L.W. at 4687
(nonrenewal of public contracts in retaliation for protected speech
violates First Amendment); O’Hare Truck Service, Inc. v. City of
Northlake, _U.S.__, 64 U.S.L. W.. 4694, 4698 (28 June 1996)
(same). “Given the increasingly pervasive character of government
employment, ... the power to starve political opposition by
commanding partisan support, financial and otherwise, may have
-14-
a significant [distorting] impact on the formation and expression of
political beliefs.” Branti v. Finkel, 445 U.S. 507, 513 n.8 (1980).
For all of these far-reaching and important reasons, the Petition
should be granted.
Il. THE COURT OF APPEALS’ DECISION CONFLICTS WITH
THIS COURT’S DECISIONS, AS WELL AS THOSE OF A
NUMBER OF COURTS OF APPEALS AND AT LEAST
Two STATE SUPREME COURTS.
The court below was not the first appellate court to address
the issues presented here in the wake of this Court’s decision in
Lehnert, 500 U.S. 507 (1991). It was, however, the first and
only appellate court to hold that Lehnert permits public employers
and unions to force nonmembers to subsidize some of the activities
in question.’
The panel concluded that, in Lehnert, “a majority [of this
Court] approved of charges for pooled expenses like those in this
case.” App. B at 8a; 71 F.3d at 624. The panel conceded that
four Justices specifically found extra-unit litigation expenses to be
nonchargeable. The panel constructed a majority to the contrary
by first agreeing with Justice Marshall's lone dissent that “the issue
of extra-unit litigation costs was not properly before the Court.”
” Tt appears that not all of the judges of the Sixth Circuit agree with the
panel’s decision below. After the panel's decision and the denial of the
Petition for Rehearing and Suggestion of Rehearing En Banc in this case,
another panel issued its decision in Bromley v. Michigan Education Associa-
tion, 82 F.3d 686 (6th Cir. 1996). There, the court commented that the
chargeability of extra-unit litigation expenditures was “a difficult question for
our panel in light of” this Court’s decision in Lehnert. Bromley held extra-
unit litigation chargeable only because Reese, 71 F.3d 619 (6th Cir. 1995),
was “binding under our circuit precedent rule.” Jd. at 695-96. See LRL
Properties v. Portage Metro Housing Authority, 55 F.3d 1097, 1105 (6th Cir.
1995) (circuit rule that one panel may not overrule the decision of another
panel), reh. denied. Moreover, the order denying rehearing en banc in this
case implies that at least one judge requested rehearing en banc. See App.
A, la-2a.
-15-
Id., citing 500 U.S. at 543 (Marshall, J., concurring in part and
dissenting in part).* The panel then cited the majority's agreement
on the general test for “pooled expenses.” However, the panel
ignored Justice Scalia’s statement (joined by three other Justices),
citing with approval Ellis’ treatment of extra-unit litigation
expenditures as nonchargeable. 500 U.S. at 554.
Ellis held that only the costs of a union’s litigation to enforce
and administer the bargaining unit’s agreement were chargeable.
“The expenses of litigation not having such a connection with the
bargaining unit are not to be charged to objecting employees.”
466 U.S. at 453 (emphasis added). Ellis specifically, unambig-
uously, and unanimously held that:
objecting employees need not share the costs of the
union’s challenge to the legality of the airline industry
mutual aid pact; of litigation seeking to protect the rights
of airline employees generally during bankruptcy pro
ceedings; or of defending suits alleging violations of the
non-discrimination requirements of Title VII of the Civil
Rights Act of 1964.
466 U.S. at 453 (emphasis added). These rulings were reiterated
by Lehnert, and cannot be squared with the panel's ruling in the
instant case. The panel misapplied the general test to draw a
conclusion contrary to this Court's specific application of the same
test. That leaves the court below, under the panel’s rule of law,
espousing the dubious but clearly implicit proposition that Lehnert
overruled Ellis sub silentio, a curious circumstance indeed, since
every Justice (save Justice Marshall) declared that Ellis should be
followed in the public sector. 500 U.S. at 518-19, 528 (Blackmun,
J.); id. at 554-55 (Scalia, J.). Oddly, but revealingly, one searches
* This proposition seems to have escaped every other Justice. To the
contrary, the Court applies the same rule to the costs of an activity and the
costs of reporting about it. Lehnert, 500 U.S. at 528; Ellis, 466 U.S. at 451
& n.11; see also Crawford v. Air Line Pilots Association, 992 F.2d 1295,
1311 (4th Cir.) (en banc) (Russell, J., dissenting), cert. denied, —_—*US..
__, 1148. Ct. 195 (1993).
Ys
the panel's opinion in vain for any reference to this Court’s
contrary decision in Ellis.
Of necessity, this curious—albeit quiet—conclusion requires
the assumption that no member of this Court realized that Justices
Marshall, Scalia, and the three other Justices who joined the
latter’s (though not the former's) opinion constituted a majority as
to the chargeability of extra-unit litigation.” This conclusion
suggests that Justice Marshall not only did not know that his
opinion constituted the majority on this issue, but that he operated
under the misconception that his was the minority position. It also
suggests that the other four Justices who sub silentio agreed with
Justice Marshall kept their agreement with him a secret!
The panel’s conclusion is contrary to common-sense and
Justice Marshall’s opinion. Four times he stated that he dissented
from “the Court’s decision that the costs of articles printed in [the
union]’s employee journal about union litigation outside petitioners’
bargaining unit are not chargeable.” Jd. at 534 (Marshall, J.,
dissenting in part); accord, id. at 534 (“the Court’s disposition of
these three disputed charges,” i.e., lobbying, public relations, and
extra-unit litigation), 545 (“the Court’s unreasonable conclusion
that these [costs for reporting on extra-unit litigation] are not
chargeable”), 550 (“the Court’s conclusion that the three types
* Justice Kennedy joined the part of Justice Scalia’s opinion which
implicitly concurred in the plurality’s holding that all extra-unit litigation and
lobbying expenditures are nonchargeable. See Lehnert, 500 U.S. at 562
(Kennedy, J., concurring in the judgment in part and dissenting in part).
However, Justice Kennedy also suggested that extra-unit litigation should be
chargeable under Justice Scalia’s view that the costs of “on-call services for
use in the bargaining process,” id. (Scalia, J., concurring in part), are
chargeable even though not provided to the nonmembers’ bargaining unit.
See id. at 563 (Kennedy, J.). On the other hand, Justice Scalia indicated
neither that he disagreed with the plurality nor that he agreed with Justice
Kennedy as to extra-unit litigation. Moreover, Justice Scalia omitted
litigation from examples of “collective-bargaining services (such as negotiat-
ing advice, economic analysis, and informational assistance),” id., at 561
(Scalia, J.), which he felt should be chargeable on an “on-call” basis.
-17-
of charges discussed above may not be included in the service
fees”) (emphasis added).
The panel’s conclusion also misapprehends what Justice Scalia
actually did. Justice Scalia specifically said where he disagreed
with the principal opinion and criticized it for “expand[ing] and
obscur[ing] the category of expenses for which a union may
constitutionally compel contributions from dissenting nonmem-
bers.” 500 U.S. at 550 (emphasis added). Notably, Justice Scalia
never criticized the principal opinion for inappropriately limiting
chargeable categories of union expenses. Neither did he even hint
that he disagreed with the finding that extra-unit litigation is non-
chargeable. See Lehnert, 500 U.S. at 550-60; see also Crawford,
992 F.2d at 1316 (Russell, J., dissenting) (“While the union’s
suggestion [that Justice Scalia would allow charges for extra-unit
litigation] is creative, it is not persuasive”).
To the contrary, Justice Scalia and at least two other Justices
implicitly concurred with the plurality’s comments concerning
extra-unit litigation, by quoting Ellis’ ruling that nonmembers may
be charged
only ... for litigation “incident to negotiating and admin-
istering the contract or to settling grievances and
disputes arising in the bargaining unit,” and “other
litigation ... that concerns bargaining unit employees
and is normally conducted by the exclusive representa-
tive.”
Id. at 555 (emphasis added) (quoting 466 U.S. at 453). He then
concluded that “there is good reason to treat [Ellis and other
private-sector cases] as merely reflecting the constitutional rule.”
500 U.S. at 555 (emphasis added).
Recognizing that he was a minority of one, only Justice
Marshall specifically dissented on this issue. He dissented from
“the Court’s decision that the costs of articles printed in MEA’s
employee journal about union litigation outside petitioners’
bargaining unit are not chargeable.” Jd. at 534 (Marshall, J.,
-18-
dissenting in part) (emphasis added). Whatever the interpretive test
applied to fragmented Supreme Court decisions, lower federal
courts are surely obliged to give credence to each Justice’s plain
meaning and understanding of his or her own decision and position
relative to other Justices. Such an analysis leads ineluctably to the
conclusion that the panel misapplied Lehnert. For this reason
alone, the Petition should be granted.
A. There Is A Split In The Circuits—The Court
Below Stands Alone Among Appellate Courts
Addressing Extra-Unit Litigation.
In the wake of Lehnert, the chargeability of extra-unit
litigation expenditures has been considered by other federal circuits
and state supreme courts. Each one reached a conclusion contrary
to that reached by the Sixth Circuit in this case. These conflicts
provide additional reasons for granting the Petition here.
In Pilots Against Illegal Dues v. Air Line Pilots Association,
938 F.2d 1123, 1129-30 (10th Cir. 1991), the Tenth Circuit was
the first circuit to consider, post-Lehnert, whether a labor union
constitutionally may charge nonmembers for extra-unit litigation
expenditures.
Citing Ellis, 466 U.S. at 453, the Tenth Circuit held that
“ALPA may not charge objecting United pilots for expenses
incurred in litigation on behalf of the Continental bargaining unit.”
Pilots Against Illegal Dues, 938 F.2d at 1129-30. In so doing, it
expressly rejected the notion that Ellis did not control: “At bottom,
[the union’s] argument boils down to a contention that the Supreme
Court did not mean what it said in Ellis. We think the Court
meant what it said.” 938 F.2d at 1130.
The Tenth Circuit did not rely upon Ellis alone, specifically
noting that “[tJhis reading of Ellis is bolstered by the recent
Lehnert decision.” Id. at 1130 (emphasis added). The court said
that the “section of Justice Blackmun’s opinion [addressing extra-
unit litigation] was not adopted by a majority of the Court,” and
-19-
that therefore, “some uncertainty may remain as to whether the
Constitution forbids charging dissenting employees for extra-unit
litigation.” Jd. Nonetheless, based on its reading of Justice
Scalia’s opinion in Lehnert, the Tenth Circuit concluded “that a
majority of the Supreme Court would not allow ALPA to charge
[its] litigation expenses [outside the United bargaining unit] to the
plaintiffs.” Jd. at 1130 n.4. ‘The court therefore held that extra-
unit litigation is nonchargeable under the RLA “in order to relieve
doubts concerning the statute’s constitutionality.” Jd. at 1130.
The chargeability of extra-unit litigation also was raised in
Crawford, 992 F.2d at 1316, where five of twelve judges of the en
banc Fourth Circuit vigorously dissented from the assessment that
the issue was not properly preserved for review." That minority
then went on to read Lehnert as barring unions from charging for
the extra-unit litigation expenses validated by the Sixth Circuit in
this case. Crawford, 992 F.2d at 1303-18 (Russell, J., dissenting).
The five-judge minority in Crawford—every judge reaching
the issue—had no doubt that this Court’s decisions hold extra-unit
litigation expenditures to be nonchargeable. “In Ellis and Lehnert
the Supreme Court, in positive, clear-cut terms, declared as bluntly
as it could that expenses for litigation outside of a dissenter’s unit
..., were not chargeable against the dissenter.” 992 F.2d at 1304
(citations omitted); see id. at 1316 (“Both Ellis and Lehnert
establish ... an unqualified rule that charges for extra-unit litigation
expenses are improper”). See also Beckett v. ALPA, 59 F.3d at
1281 (Silberman, J., concurring dubitante)."
'© The panel majority concluded that the issue of extra-unit litigation
“simply has not been properly presented and preserved below, and therefore
we express no view about it.” Crawford, 992 F.2d at 1295 (plurality
opinion); see id. at 1302-03 (Wilkinson, J., concurring).
'' While Judge Silberman questioned the “Supreme Court's unique
perception of litigation that leads it to describe that process as ‘political,’” he
nonetheless recognized that this Court “held that nonmembers cannot be
charged for . . . litigation expenses not directly associated with their
(continued...)
-20-
Similarly, the Supreme Courts of both Wisconsin and Indiana
have specifically rejected the notion that nonmembers in one
bargaining unit can be compelled to subsidize litigation activities
in other bargaining units. Browne v. Wisconsin Employment
Relations Comm’n, 485 N.W.2d 376, 388 (Wis. 1992); Albro v.
Indianapolis Education Association, 585 N.E.2d 666, 673 (Ind. Ct.
App.), adopted sub nom. Fort Wayne Education Association v.
Aldrich, 594 N.E.2d 781 (Ind. 1992).”
While stating that “there is no majority decision on this issue
in Lehnert,” the Wisconsin Supreme Court found “Justice Black-
mun’s plurality opinion persuasive.” Moreover, it “inferred from
Justice Scalia’s discussion of Ellis and from other early fair-share
cases that a majority of the Court would find extra-unit litigation
expenses nonchargeable.” The court therefore held that “[e]xtra-
unit litigation fails the first aspect of the Lehnert test—it is not
germane to the collective bargaining activity of the local union.”
Browne, 485 N.W.2d at 388.
Likewise, the Supreme Court of Indiana specifically rejected
the notion that Justice Scalia’s opinion in Lehnert somehow
validated charging for extra-unit litigation:
Justice Scalia’s concurring and dissenting opinion neither
constitutes the opinion of the Court on this issue nor
allows nonunion members to be charged for extra-unit
litigation. In any event, again the analysis in Justice
Biackmun’s plurality opinion is persuasive. We adopt
that opinion, and the judgment of the Court in Lehnert,
" (...continued)
collective bargaining unit.” Beckett, 59 F.3d at 1281, citing, inter alia,
Lehnert, 500 U.S. at 528 (plurality opinion), 555 (Scalia, J., concurring).
'? The Indiana Supreme Court adopted in whole the decision of the
Indiana Court of Appeals, Second Division, in Albro. Hence, all references
to the Supreme Court’s decision actually are to the opinion of the Court of
Appeals.
-21-
and hold that extra-unit litigation expenses are not
chargeable fair share fee expenses.
Albro, 585 N.E.2d at 673 (original emphasis).
Thus, one circuit, a substantial minority of judges in another
circuit (all of the judges reaching the issue), and two state supreme
courts have concluded that, under Lehnert, nonmembers may not
be forced to subsidize litigation activities outside of their bargain-
ing unit. Revealingly, the Sixth Circuit failed to in any way
discuss or even cite these determinations, directly contrary to its
own conclusion.’ This conflict among the courts alone is
sufficient reason for granting the Petition.
B. The Court Of Appeals’ Decision Is Contrary To
Lehnert With Regard To Extra-Unit Public
Relations/Advertising Expenditures, And Con-
flicts With Other Appellate Courts Addressing
This Issue.
Lehnert’s principal opinion “disagree[d]” with the Sixth
Circuit’s earlier decision that “the union constitutionally could
charge [nonmembers] for ... public relations expenditures”
““designed to enhance the reputation of the teaching profession.’”
Lehnert, 500 U.S. at 528, quoting 881 F.2d at 1394; see also id.
at 559 (Scalia, J., concurring) (holding all public relations
activities nonchargeable).'* Nonetheless, the panel here held that
'S The District Court at least conceded that it was making determinations
contrary to all existing authority. App. E at 44a-50a; see also App. D at |
37a-38a; 826 F. Supp. at 1121.
'* The issues presented here now have been decided by the Sixth Circuit
for a second time. See Lehnert v. Ferris Faculty Association, 881 F.2d 1388
(6th Cir. 1989) (2-1 decision) (holding these categories to be chargeable),
rev'd in pertinent part, 500 U.S. at 520-22, 528. In both cases, Judge Martin
authored the Sixth Circuit’s decision. For a second time, his views on these
issues are presented to this Court for review.
| een
-22-
sucn activities are chargeable across bargaining unit lines, relying
on an analogy to Lehnert’s holding that preparations for an illegal
strike are chargeable. Jd. at 530-31.'° The panel thus ignored
this Court’s discussion of the specific category of expenditures at
issue, and the analogy the Court drew between public reiations and
lobbying expenditures: “Like the challenged lobbying conduct, the
public relations activities at issue here entailed speech of a political
nature in a public forum.” Jd. at 528.
Lehnert rejected the Sixth Circuit’s “comparison of these
public relations expenses to the costs of union social activities held
in Ellis to be chargeable to dissenters.” That analogy failed
because the communicative content of social activities was derived
“solely” from the union’s participation in them. 500 U.S. at 529;
see also Ellis, 466 U.S. at 456. The panel’s analogy also fails
because public relations activities inherently are communicative—
“speech of a political nature in a public forum.” 500 U.S. at 528.
Like social activities, strike preparation activities, such as “the
creation ... of a ... ‘strike headquarters,’” id. at 530-31, are not
inherently communicative. Rather, they are “‘within the range of
reasonable bargaining tools available to a public sector union
during contract negotiations,"” and “appurtenant to collective-
bargaining negotiations.” Jd. at 531-32, quoting 881 F.2d at 1394
(emphasis added); see also Crawford, 992 F.2d at 1314 (Russell,
J., dissenting) (“Whether First Amendment rights are implicated
is driven ... by whether the activity has ‘communicative content’
outside of the union”).
Moreover, the strike-preparation expenses considered in
Lehnert were for a strike in support of the collective-bargaining
negotiations in the nonmembers’ own bargaining unit, and thus
necessarily were “to the direct benefit of members of the
dissenters’ unit.” 500 U.S. at 532 (emphasis added). In contrast,
'S The panel erroneously said that “Lehnert did not concern the constitu-
tionality of charges for advertising expenses.” App. B at 10a; 71 F.3d at
625. Advertising by definition is paid public relations, addressed by this
Court in Lehnert, 500 U.S. at 528-29.
74.
Lehnert found the challenged public relations expenditures to be
nonchargeable, because “public speech in support of the teaching
profession generally is not sufficiently related to the union’s
collective-bargaining functions” in the nonmembers’ bargaining
unit. See id. at 528.
Public relations and advertising concerning collective bar-
gaining in other bargaining units are no more germane to the
nonmembers’ bargaining than are “public speech in support of the
teaching profession generally.” Jd. at 528. And indeed, because
they impact upon the nonmembers solely as citizens and taxpayers,
but decidedly not as employees in their own bargaining unit, their
First-Amendment significance is direct and tangible.
Public relations activities outside of the bargaining unit are
nonchargeable under Lehnert, because they cannot survive scrutiny
under Lehnert’s requirement that expenditures “not significantly
add to the burdening of free speech that is inherent in the allow-
ance of an agency or union shop.” 500 U.S. at 519; see Albro,
585 N.E.2d at 672-73. Public relations on behalf of the nonmem-
bers’ own bargaining unit is arguably chargeable, because it affects
the nonmember as an employee in his or her unit. But see 500
U.S. at 559 (Scalia, J., concurring) (holding all public relations
activities nonchargeable). Under those circumstances, while public
relations activity is by its very nature compelled speech, it also
bears a closer relationship to the union’s role as exclusive bargain-
ing representative, addressing the negotiation and enforcement of
the collective bargaining agreement governing the nonmember’s
terms and conditions of employment.
On .he other hand, advertising expenditures for other bargain-
ing units are too attenuated in their relationship to bargaining on
the nonmember’s behalf to justify the additional burden upon his
or her free speech rights. They affect the nonmember primarily as
a citizen, taxpayer, and consumer of scarce public resources.
Forced subsidization of extra-unit public relations activities are
both unrelated to the nonmember’s employment relations, and have
a direct, tangible, and adverse impact upon the nonmember’s
constitutional interests in expressing (or refraining from expression
}
.
4
-24-
Or supporting the expression of) political and ideological opinions
as a taxpayer and/or consumer of scarce public resources.
In this way, these expenditures are like the “informational
picketing, media exposure, signs, posters and buttons” found to be
nonchargeable in Lehnert, 500 U.S. at 528-29. They are more
akin to the union organizing activities found to be nonchargeable
under the RLA in Ellis:
[T]he free-rider rationale does not extend this far. The
image of the smug, self-satisfied nonmember, stirring up
resentment by enjoying benefits earned through other
employees’ time and money, is completely out of place
when it comes to the union’s overall organizing efforts.
If one accepts that what is good for the union is good for
the employees, a proposition petitioners would strenuous-
ly deny, then it may be that employees will ultimately
ride for free on the union’s organizing efforts. But the
free rider Congress had in mind was the employee the
union was required to represent and from whom it could
not withhold benefits obtained for its members. Non-
bargaining unit organizing is not directed at that employ-
ee. Organizing money is spent on people who are not
union members, and only in the most distant way works
to the benefit of those already paying dues. Any free-
rider problem here is roughly comparable to that result-
ing from union contributions to pro-labor political
candidates.
Ellis, 466 U.S. at 452-53; see also id. , n.13 (“it would be perverse
to read [the RLA] as allowing the union to charge to objecting
nonmembers part of the costs of attempting to convince them to
become members”).
Comparably, extra-unit public relations/advertising expendi-
tures are “not directed at that [nonmember]. [It] is spent [for]
people who are not union members, and only in the most distant
way works to the benefit of those already paying dues.” Jd. at
453. Indeed, because such expenditures outside of the unit have
25.
tangible impact upon the nonmember as citizen, taxpayer, and
consumer of scarce public resources—but no impact upon the
nonmember as an employee in his or her bargaining unit—they
have the same constitutionally antagonistic relationship as expendi-
tures for union organizing activities.
As with extra-unit litigation, the panel’s ruling concerning
public relations/advertising activities conflicts with the decisions of
other appellate courts. In Albro, the Indiana Supreme Court held
that all public relations activities, as “speech activities that are
directed to the public at large,” are nonchargeable. 585 N.E.2d at
672-73.
Similarly, in Crawford, all judges of the Fourth Circuit who
discussed the chargeability of extra-unit public relations activities
concluded that such activities are nonchargeable under Lehnert.
The only activity with communicative content directed
outside the union that the Court found could be charged
against dissenters was preparation for a strike in the
dissenters’ unit because it was “within the range of
reasonable bargaining tools available to a ... union during
contract negotiations.”
992 F.2d at 1315 (Russell, J., dissenting), citing Lehnert, 500 U.S.
at 530-31. The Court should grant the petition to resolve the
conflicts among the appellate courts on this issue, too.
C. The Court Of Appeals’ Decision Is Contrary To
Lehnert With Regard To Extra-Unit Lobbying
Expenditures, And Conflicts With Other Appel-
late Courts Addressing This Issue.
Expenses for lobbying “to obtain ratification or implementa-
tion of a collective bargaining agreement” are chargeable to
objecting nonmembers under Lehnert’s principal opinion only if
they “concern legislative ratification of, or fiscal appropriations
for, their collective bargaining agreement.” 500 U.S. at 519
-26-
(emphasis added). This approval was grudging, justified only
because of the “dual roles of government as employer and policy-
maker.” Jd. at 520. However, the panel below divined a Supreme
Court majority for the proposition that such lobbying is chargeable
without regard to the unit involved, so long as it “benefitted the
objectors’ unit,” again utilizing Justice Marshall's solitary dissent.
App. B at | la-12a; 71 F.3d at 625.
A clear majority of this Court disapproved of the chargeability
of such expenditures. In addition to the principal opinion’s explicit
holding, Justice Scalia’s test for chargeability compels that
conclusion. Justice Scalia held that:
a charge must at least be incurred in performance of the
union’s statutory duties.... [A] union cannot constitution-
ally charge nonmembers for any expenses except those
incurred for the conduct of activities in which the union
owes a duty of fair representation to the nonmembers
being charged.
Lehnert, 500 U.S. at 558 (original emphasis). He concluded that
union “costs in providing collective-bargaining services ... to its
affiliates nationwide” met that test, because having “on-call
services for use in the bargaining process” available to the non-
members’ bargaining unit when needed is “a tangible benefit
relating to the union's performance of its representational duties.”
Id. at 561. However, Justice Scalia did not include lobbying for
ratification or implementation of a collective bargaining agreement
as an example of the “collective-bargaining services (such as
negotiating advice, economic analysis, and informational assis-
tance),” id. at 561, which can be charged on an “on-call” basis.
Justice Scalia agreed with Justice Blackmun “that the chal-
lenged lobbying expenses are nonchargeable,” because they “are
no part of this collective bargaining process.” Jd. at 560 (empha-
sis added). The bargaining process to which Justice Scalia referred
was that defined by state law, MicH. Comp. Laws § 423.214
(quoted at 500 U.S. at 559), as “the performance of the mutual
obligation of the employer and the representative of the employees
|
-27-
to meet at reasonable times and confer in good faith with respect
to wages, hours, and other terms and conditions of employment,
or the negotiation of an agreement, or any question arising
thereunder.” Justice Scalia emphasized that, under this definition,
“the union's duties extend only to negotiating an agreement and
resolving disputes under it.” 500 U.S. at 559 n.3 (original
emphasis). Lobbying for the ratification or implementation of a
collective bargaining agreement, even in the nonmember’s own
unit, is neither “negotiating an agreement” nor “resolving disputes
under it.”"*
Ohio law is virtually indistinguishable from the statutory
provision considered by Justice Scalia. The Ohio Revised Code
similarly defines “to bargain collectively” as:
to perform the mutual obligation of the public employer,
by its representatives, and the representative of its
employees to negotiate in good faith at reasonable times
and places with respect to wages, hours, terms and
conditions of employment and the continuation, modifica-
tion, or deletion of an existing provision of a collective
bargaining agreement, with the intention of reaching an
agreement, or to resolve questions arising under the
agreement.
§ 4117.01(G). As in Lehnert, the lobbying and public relations
here at issue, for the ratification or implementation of a collective
bargaining agreement, even in a nonmember’s own unit, are
neither “negotiat{ion]” nor “resolv{ing] questions arising under the
agreement.”
‘* The lobbying expenditures challenged in Lehnert included support of
“millages,” i.¢., local property taxes, to fund elementary, intermediate, and
high schools. See Lehnert v. Ferris Faculty Association, 643 F. Supp. 1306,
1313 (W.D. Mich. 1986). Although millages were unrelated to bargaining
in the Lehnert plaintiffs’ unit, which was in higher education, see id. at 1308,
they could easily be said to be necessary to the implementation of collective
bargaining agreements in those other bargaining units. 881 F.2d at 1392.
Justice Scalia, nonetheless, agreed that they were not chargeable.
-28-
That this was Justice Scalia’s view is confirmed by another
part of his opinion. Lobbying clearly is a political activity. See
Machinists v. Street, 367 U.S. 740, 769 n.17 (1961). Justice
Scalia restated the holding of “Street that expenses relating to
political and ideological activities could not be charged to nonmem-
bers,” because they were not “‘costs of negotiating and administer-
ing collective agreements.’” Lehnert, 500 U.S. at 554, quoting
Street, 367 U.S. at 764. As the District Court recognized in
Lehnert, 643 F. Supp. at 1523 (emphasis added), Street negatively
“settled the question whether political or ideological expenditures
can ever be chargeable to an objecting member of a private sector
bargaining unit.” Yet Justice Scalia concluded that “there is good
reason to treat [Street and other private-sector cases] as merely
reflecting the constitutional rule.” Lehnert, 500 U.S. at 555
(Scalia, J., concurring in part) (emphasis added). It follows that
Justice Scalia viewed political and ideological activity, including
lobbying, as never part of the statutory bargaining process, and
therefore, never chargeable.
Other courts ruling in the wake of Lehnert have agreed that no
extra-unit lobbying is chargeable to nonmembers. See Albro, 585
N.E.2d at 671-72; see also Beckett, 59 F.3d at 1280-81 (Silber-
man, J., concurring) (“lobbying activities” are not chargeable
under Lehnert); cf. Beck v. Communications Workers of America,
776 F.2d 1187, 1210-11 & n.31 (4th Cir. 1985) (holding lobbying
nonchargeable in private-sector case), aff'd en banc, 800 F.2d
1280 (4th Cir. 1986), affd, 487 U.S. 735 (1988); Schreier v.
Beverly California Corp. , 892 F. Supp. 225, 227 (D. Minn. 1995)
(same), citing Lehnert; cf. Smith v. Regents, 4 Cal. 4th 843, 865,
844 P.2d 500, 515-16 (1993) (en banc) (authority to force subsidi-
zation of lobbying activities under Lehnert extends only to “those
matters that are strictly necessary to further the interest that
justified the requirement of support”) (emphasis added).
As with extra-unit litigation and public relations/advertising
expenditures, certiorari should be granted to resolve this stark and
irreconcilable conflict between the Sixth Circuit Court of Appeals
and other appellate courts addressing expenditures for extra-unit
lobbying. These conflicts—occasioned by the decision of the Sixth
-29-
Circuit in this case—can be resolved only by a clear pronounce-
ment by this Court as to the appropriate standard of chargeability
of a union’s expenditure of funds pursuant to its duties as the
nonmember’s monopoly bargaining representative.
CONCLUSION
For the reasons stated above, this petition for a writ of
certiorari should be granted, and the case set for plenary briefing
and argument on the important questions presented herein.
Respectfully submitted,
W. JAMES YOUNG*
GLENN M. TAUBMAN
c/o National Right to Work Legal
Defense Foundation, Inc.
8001 Braddock Road, Suite 600
Springfield, Virginia 22160
(703) 321-8510
ATTORNEYS FOR PETITIONERS
*Counsel of Record
August 1996
REBSE\CERTIORA RI\PETITION FIN
Tureday, 3) July 1996 3:04 pm. B.D.T
APPENDICES
APPENDIX A
ORDER OF THE
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
March 7, 1996
-la-
Nos. 93-4112/94-3108
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
)
RICHARD W. REESE, ET AL., ) [Filed
) March 7 1996
Plaintiffs-Appellants, ) LEONARD GREEN,
) Clerk]
)
v. ) ORDER
)
CITY OF COLUMBUS, ET AL., )
)
Defendants-Appellants. )
)
BEFORE: MARTIN, GUY, and DAUGHTREY, Circuit Judges
The court having received a petition for rehearing en banc, and
the petition having been circulated not only to the original panel
members but also to all other active judges of this court, and less
than a majority of the judges having favored the suggestion, the
petition for rehearing has been referred to the original hearing
panel.
The panel has further reviewed the petition for rehearing and
concludes that the issues raised in the petition were fully considered
-2a-
upon the original submission and decision of the case. Accordingly,
the petition is denied.
ENTERED BY ORDER OF THE COURT
/s/
Leonard Green, Clerk
APPENDIX B
OPINION AND ORDER OF THE
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
December 19, 1995
NG
A
ras
ue
a} eg
*
-3a-
[71 F.3d 619]
Richard W. REESE; George R. Jordan; Richard D.
Kaufman; Betty Slater; Larry L. Wygle; Marion R.
Cramblit; Timothy Wanner, on behalf of themselves and
the class that they Kathu Plaintiffs-Appellants,
CITY OF COLUMBUS; evel Lashutka, Mayor; Local
1632; Ohio Council 8; American Federation of State,
County and Municipal Employees, Defendants-Appellees.
Nos. 93-4112, 94-3108.
United States Court of Appeals,
Sixth Circuit.
Argued Aug. 1, 1995.
Decided Dec. 19, 1995.
[621]Before: MARTIN, GUY, and DAUGHTREY, Circuit Judges.
BOYCE F. MARTIN, JR., Circuit Judge.
This case requires us again to address the issue of whether
unions may collect a fair share fee to pay for so-called “extra-unit™
collective bargaining-related litigation, lobbying and advertising
expenses from nonunion employees who, pursuant to Ohio law,
belong to a collective bargaining unit represented exclusively by the
unions. The City of Columbus deducts the fair share fee from the
paychecks of nonunion city employees and pays it to the defendant
unions. Claiming that their First, Fifth and Fourteenth Amendment
' The unions charged the objecting employees a fee for on-call litigation
service and for lobbying and advertising expenses related to collective bargaining.
Some of this fee also benefitted other local unions. The objectors call expenses
related to the negotiation, ratification or implementation of collective bargaining
agreements, but which were not incurred solely in connection with the collective
bargaining agreement between their Local 1632 and the City “extra-unit” or
“indirect” expenses.
~4a-
rights have been violated by the “seizure” of the fair share fees and
by the unions’ use of these fees to pay for allegedly non-chargeable
activities, the objecting nonunion employees appeal the district
court’s denial of their motion for summary judgment on the issue of
whether extra-unit litigation, lobbying and advertising expenses are
chargeable to them. Reese v. City of Columbus, 826 F.Supp. 1115
(S.D.Ohio 1993). They also appeal the district court’s decision to
dissolve its preliminary injunction restraining the collection of these
fees. J.A. at 586 (Order of September 22, 1993).
The objecting employees’ collective bargaining unit is repre-
sented exclusively by Defendants Local 1632, its national affiliate,
the American Federation of State, County and Municipal Employees
International and its state affiliate, Ohio Council 8. For purposes
of deciding the summary judgment motion, the district court
determined that Ohio Council 8 provides legal services to all
affiliated local unions on an as-needed basis, and employs a staff of
lawyers to handle such local union matters as grievance handling,
enforcement of collective bargaining agreements, and negotiation of
collective bargaining agreements. The district court also concluded
that the national union provides services to the state and local
unions, including advertising the national union’s positions on
negotiation, ratification and implementation [622]of collective
bargaining agreements. Local 1632 has no professional or perma-
nent staff.
Ohio law permits fair share fees to be collected from nonunion
city employees for expenses related to the unions’ costs of negotiat-
ing, ratifying, enforcing and administering the collective bargaining
agreement between the unions and the City. Ohio Rev.Code Ann.
§ 4117.09(C) (Baldwin 1993). Prior to the collection of fees, the
unions must give written notice of chargeable and nonchargeable
expenses, and other procedural requirements must be met. Approxi-
mately 1500 non-union City employees pay the fair share fee.
On March 15, 1992, the objecting employees filed suit alleging
that the defendants had violated their “First-Amendment due process
rights” by failing to provide them with a proper notice regarding the
collection of fair share fees. Because of constitutional inadequacies
Peet Te ee ee a ee Pa ee a 2
-
i Ste Se at ih a Bi lan Sat eh Rt Dl tcl a CELT CE,
-5Sa-
with the required financial disclosure, the district court ordered a
preliminary injunction restraining the City from collecting the fees
and subsequently certified the class. The unions issued a second
notice and recalculated fee, but due to remaining inadequacies the
unions’ motion to dissolve the preliminary injunction was denied.
On January 15, 1993, the objecting employees moved for
summary judgment seeking a final declaratory judgment that the fair
share fees collected between June 1990 and May 1992 were
collected in violation of their constitutional rights because the
unions’ notices and procedures were constitutionally insufficient.
On June 23, the district court granted in part and denied in part the
motion. Relevant to this appeal, the district court held that it was
constitutionally permissible under Lehnert v. Ferris Faculty
Association, 500 U.S. 507, 111 S.Ct. 1950, 114 L.Ed.2d 572
(1991), for the unions to assess a fee for collective bargaining
agreement-related litigation, lobbying and advertising expenses even
though the fee also supported litigation, lobbying and advertising
taking place outside of the objectors’ own collective bargaining unit.
On September 22, the district court granted the unions’ renewed
motion to dissolve the preliminary injunction, finding that the final
amended proposed fair share fee notice complied with all applicable
constitutional requirements. Certain issues were reserved for trial.
The parties then reached a partial settlement agreeing to preserve
three issues for appeal. Pursuant to the agreement, the objecting
employees now appeal the chargeability of the “extra-unit” litiga-
tion, advertising and lobbying expenses.
We review a district court’s decision dissolving a preliminary
injunction for abuse of discretion, but we review de novo where the
dissolution is based upon a legal premise. Tyson Foods, Inc. v.
McReynolds, 865 F.2d 99, 100 (6th Cir.1989). On February 19,
1993, the district court denied the unions’ motion to dissolve the
preliminary injunction because it believed that the objectors would
4a-
likely succeed? on two of the legal issues that had yet to be
resolved—the chargeability of extra-unit advertising, and lobbying
expenses.* On September 22, however, it dissolved the injunction
in a summary order, thereby implicitly deciding that the objectors
had not shown a substantial likelihood of success regarding the
chargeability of the advertising and lobbying expenses. The district
court’s decision to dissolve the injunction was based on the legal
premise that the lobbying and advertising expenses were chargeable.
As to the denial of the objectors’ motion for summary judg-
ment, we also review for abuse of discretion. Pinney Dock &
Transp. Co. v. Penn Cent. Corp., 838 F.2d 1445, 1472 (6th Cir.),
cert. denied, 488 U.S. [623]880, 109 S.Ct. 196, 102 L.Ed.2d 166
(1988). The district court, by denying in part the objectors’ motion
for summary judgment, believed that the objectors were not entitled
to judgment as a matter of law, and that genuine issues of material
fact remained for trial.
The objecting employees rely on the Supreme Court case of
Lehnert v. Ferris Faculty Assoc., as their primary authority for
asserting that the district court erred in concluding that litigation,
lobbying and advertising expenses were chargeable even though the
fees benefitted other collective bargaining units. 500 U.S. 507, 111
S.Ct. 1950, 114 L.Ed.2d 572 (1991) (plurality opinion). The
unions also rely on Lehnert and argue that general legal principles,
as well as the views of the majority in Lehnert, require this Court
? A preliminary injunction may be issued only if a legal remedy would be
inadequate. The district court weighs four factors in deciding whether to issue a
preliminary injunction: 1) whether plaintiffs have shown a substantial likelihood
of success on the merits, 2) whether the plaintiffs have shown irreparable injury;
3) whether the preliminary injunction would cause substantial harm to others; 4)
and whether the public interest would be served by the issuance of the preliminary
injunction. NAACP v. City of Mansfield, 866 F.2d 162, 166 (6th Cir.1989).
> On February 19, 1993, the district court determined that Lehnert would
objectors had not shown a substantial likelihood of success on this issue.
ot
-7a-
to affirm the district court’s determination that the charges for the
“extra-unit” expenses are not unconstitutional.
Lehnert established a three-part test for determining whether
mandatory fair share fees infringe upon a dissenting employee’s
First Amendment rights. 500 U.S. at 519, 111 S.Ct. at 1959 d.
Blackmun delivering the opinion of the Court as to Part II with
Rehnquist, C.J., White, Stevens, and Marshall, JJ. concurring). A
mandatory assessment is constitutional if it is (1) “germane to
collective bargaining”; (2) “justified by the government’s vital
policy interest in labor peace and avoiding ‘free-riders,"”; and, (3)
“does not significantly add to the burdening of free speech that is
inherent in the allowance of an agency or union shop.” /d. Justices
Scalia, O’Connor, Souter and Kennedy, however, supported a
“statutory duties” test, and would permit the unions to compel fees
only for the “costs of performing the union’s statutory duties as
exclusive bargaining agent.” 500 U.S. at 550, 111 S.Ct. at 1975.
Unfortunately, the 5-4 decision in favor of the three-prong test is
one of the clearer aspects of this opinion. We now turn to examine
whether the district court correctly applied Lehnert in determining
that each of the “extra-unit” expenses were chargeable to the
objecting employees.
Chargeability of Extra-Unit Litigation Costs. The district court
found that the fair share fee included a litigation expense charge
paid to Ohio Council 8 to provide on-call legal services related to
collective bargaining to all local units, including Local 1632.
The record shows that the litigation expenses of Ohio Council
8 are directly related to grievance handling, the enforcement of
the collective bargaining agreement and negotiating collective
bargaining agreements ... In effect, the locals have pooled their
resources at the council level in order to obtain legal services
when needed ... the Court finds that defendants may properly
include a pro rata share of Ohio Council 8’s chargeable legal
expenses as part of its [fair share] fee.
Reese, 826 F.Supp. at 1120. The district court concluded that
summary judgment was not warranted because the unions had shown
-Sa-
that the “bulk” of the litigation services provided by Ohio Council
8 were related to grievance handling and enforcement of collective
bargaining agreements, and therefore were collective bargaining
agreement-related litigation services available to the objecting
employees’ unit. The district court did not abuse its discretion in
determining that a disputed issue of material fact existed on this
point.
Neither did the district court abuse its discretion in dissolving
the injunction restraining the fee assessment for the extra-unit
litigation charge. Although originally concluding that this charge
was unconstitutional, 798 F.Supp. at 470, the district court later
reversed its view. J.A. at 437, 439 (Order of February 19, 1993).
We agree with the court’s ultimate determination that the objectors
did not enjoy a substantial likelihood of success in their challenge
of this charge based on its conclusion that a mandatory fair share
fee charged for pooled litigation services is constitutional under
Lehnert. In deciding the “substantial likelihood of success” prong
of the preliminary injunction inquiry, the district court was faced
with the difficult task of interpreting Lehnert, which did not have a
holding on this precise issue. Justice Marshall correctly observed
that the issue of chargeability of extra-unit costs was not properly
before the Court: “The opinion’s discussion of extra-unit litigation
costs [624]is no more than dicta since, as far as appears from the
record before us, no such costs are at issue in this case.” 500 U.S.
at 544, 111 S.Ct. at 1972. Costs related to the reporting on
litigation were at issue in Lehnert. However, we believe Lehnert
does control the issue of the chargeability of pooled litigation
services because a majority approved of charges for pooled expenses
like those in this case.
Despite the fact that the issue of extra-unit litigation costs was
not properly before the Court, four Supreme Court Justices agreed
that extra-unit litigation costs were not chargeable if they were
“unrelated to an objecting employees’ unit.” Lehnert, 500 U.S. at
528, 111 S.Ct. at 1964 J. Blackmun, Rehnquist, White and Stevens
concurring in the last paragraph of Part IV.B). A majority in
Lehnert, however, approved of charges for pooled expense arrange-
ments. Lehnert, 500 U.S. at 522, 111 S.Ct. at 1961 J. Blackmun
—_
a er ee we ee eee
-9a-
delivering the majority opinion as to Para. III.B.). Regarding the
constitutionality of charges for pooled expenses, the majority in
Lehnert stated,
We ... conclude that a local bargaining representative may
charge objecting employees for their pro rata share of the costs
associated with otherwise chargeable activities of its state and
national affiliates, even if those activities were not performed
for the direct benefit of the objecting employees’ bargaining
unit.... There must be some indication that the payment is for
services that may ultimately inure to the benefit of the members
of the local union by virtue of their membership in the parent
organization.
Id. at 524, 111 S.Ct. at 1961. Based on this holding and the district
court’s determination that the objecting employees in this case
benefitted from the pooling arrangement for litigation services, these
services were not “unrelated” to the objectors’ unit, and therefore
are not unconstitutional. We agree with the district court's
disposition in dissolving the injunction as to the litigation expenses.
Chargeability of Advertising Expenses. The final fair share fee
notice in this case contains Expense Item 5, for
The public advertising of [the national union’s] positions on the
negotiation, ratification, or implementation of collective
bargaining agreements.
J.A. at 590. The district court ultimately denied the objecting
employees’ request that the unions be restrained from charging for
advertising expenses related to collective bargaining because Item 5,
by its terms, states that the charge is for expenses incurred by the
national union in advertising its positions related to collective
bargaining agreements. If this were the sole basis for the district
court’s decision, we might be inclined to reverse. Item 5 does not,
by its terms, provide evidence that the objectors’ unit benefits from
the national union’s collective bargaining-related advertising.
However, the district court went on to determine that a genuine
issue of material fact existed concerning the benefit to the objectors’
-10a-
unit. Furthermore we agree that collective bargaining-related
advertising can be constitutional under Lehnert.
Although Lehnert did not concern the constitutionality of
charges for advertising expenses, the district court analogized
collective bargaining- related advertising expenses to strike prepara-
tion expenses‘ and collective bargaining-related lobbying expenses
it believed that the Supreme Court approved of in Lehnert. The
district court stated that “[a]dvertising of the union’s positions on
negotiation, ratification or implementation of collective bargaining
agreement is germane to the success of the union’s efforts in those
[625]areas and such expenses may ultimately inure to the benefit of
the members of the local.” Reese, 798 F.Supp. 463, 467 (S.D.Ohio
1992).
Again, the objectors argue that it is unconstitutional for them
to have to pay for collective bargaining-related advertising if it
benefits other units, even if they are also benefitted. The district
court found that the advertising charges here were germane to
collective bargaining and that the objectors had not shown that they
did not or would not benefit from the expenditure. We do not
believe the district court abused its discretion in denying summary
judgment to the objecting employees after finding the charges
germane to collective bargaining or in dissolving the injunction as
to this charge.
Chargeability of Lobbying Expenses. While the district court
granted summary judgment to the objectors on the issue of the
* Justices Blackmun, Rehnquist, White and Stevens agreed that the strike
preparation expenses (the local and state unions set up a strike “crisis” center) were
directly related to negotiating a collective bargaining agreement benefitting the
dissenters, imposed no additional burden on the dissenters free speech rights, and
was not contrary to public policy. 500 U.S. at 530-32, 111 S.Ct. at 1964-66.
Justice Kennedy would agree. 500 U.S. at 562-63, 111 S.Ct. at 1981-82. Justice
Marshall approved of the strike prep expenses under the three-prong test, 500 U.S.
at 550, 111 S.Ct. at 1975. Justices Scalia, O’Connor and Souter would not permit
a charge for strike preparation expenses because “[iJn conducting a strike, a union
does not act in its capacity as the government-appointed bargaining agent for all
employees.” 500 U.S. at 562, 111 S.Ct. at 1981.
-lla-
chargeability of lobbying expenses for purposes other than the
negotiation, ratification or implementation of a collective bargaining
agreement, the court permitted the unions to assess a fee for
SO thikic tei aoe -
6. Lobbying for the negotiation, ratification, or implementa-
tion of a collective bargaining agreement.
8 Sit ON LSAT OM Tae a
: J.A. at 590. The objectors argue that Item 6 permits charges for
; lobbying unrelated to their collective bargaining agreement and
therefore it fails the last two prongs of the three-prong Lehnert test.
Finally, they argue that a majority of Justices in Lehnert held that
all lobbying expenses are nonchargeable.
The objectors misunderstand the Lehnert plurality position on
this issue. In Lehnert, four Justices (Blackmun, Rehnquist, White
and Stevens) agreed that the lobbying charges in that case were not
chargeable because they were not related to collective bargaining.
The lobbying charges in Lehnert were for lobbying in connection
with the “Preserve Public Education” program, a program designed
to secure funds for education generally in Michigan. In applying
the three part test to the lobbying charge for the “Preserve Educa-
tion Program,” Justices Blackmun, Rehnquist, White and Stevens
“held” that a state could constitutionally charge dissenters for
lobbying expenses only in “the limited context of contract ratifica-
tion or implementation” but could not charge dissenters for
“legislative lobbying or political union activity” without infringing
their First Amendment rights. Jd. at 522, 111 S.Ct. at 1960-61.
They also believed that the first two prongs of the test were met
only if the lobbying related to the dissenters’ collective bargaining
agreement. Jd. at 521, 111 §.Ct. at 1960. As will become evident
after reviewing Justice Marshall’s view of the chargeability of
lobbying expenses, the position of these four Justices is the
narrowest ground of agreement and therefore must be applied in this
case.’ See Triplett Grille, Inc. v. Akron, 40 F.3d 129, 132 (6th
* Justice Scalia, applying his “statutory duties” test, determined that the
challenged lobbying expenses in Lehnert were not chargeable because “though
[public relations and lobbying activities] may affect the outcome of negotiations,
[these] are no part of this collective-bargaining process.” 500 U.S. at 559, 111
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Cir. 1994) (“[wJhen a fragmented Court decides a case and no single
rationale explaining the result enjoys the assent of five Justices, ‘the
holding of the Court may be viewed as that position taken by those
Members who concurred in the judgments on the narrowest
grounds’”) (citing Marks v. United States, 430 U.S. 188, 193, 97
S.Ct. 990, 993, 51 L.Ed.2d 260 (1977)).
Justice Marshall would have permitted the charges for the
challenged “public relations campaign ... a specialized form of
lobbying” in Lehnert, despite the lack of a close nexus to the
dissenters’ collective bargaining agree-[626]ment, because he
believed the public relations campaign to be germane to collective
bargaining (serves to influence officials who control the terms of
public-sector labor contracts) and because the lobbying placed no
additional burden on the First Amendment rights of the dissenters
than already imposed upon them by the agency shop laws. 500
U.S. at 543, 111 S.Ct. at 1971. We believe Justices Blackmun,
Rehnquist, White and Stevens, and certainly Justice Marshall with
his more expansive understanding of collective bargaining-related
lobbying, would permit a lobbying expense charge assuming, of
course, that the expense satisfied their three-prong test. Based on
the record before us, the question remains whether the lobbying
expense in Item 6 benefitted the objectors’ unit and whether the
lobbying expense would satisfy the three-prong test.
For reasons not obvious from the record, the district court did
not expressly apply the three-prong test to the extra-unit lobbying
expense in Item 6. J.A. at 478. Neither did the district court
S.Ct. at 1979-80. Thus, Justice Scalia (and O’Connor and Souter concurring)
would presumably permit a charge for a lobbying expense that was related to a
union’s duties as statutory bargaining agent. Likewise, Justice Kennedy would
permit a charge for a lobbying expense if it was “reasonably or necessarily
incurred in the performance of the union's statutory duties as the exclusive
bargaining representative.” 500 U.S. at 564, 111 S.Ct. at 1982. Justices Scalia,
O’Connor, Souter and Kennedy would thus permit lobbying expense charges
related to collective bargaining if the objecting employees’ unit benefitted and if
the expense was incurred as part of the unions’ statutory duty of representation;
however, theirs was not the majority position on this issue.
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determine whether there was a genuine issue of material fact
concerning the benefit, if any, the objectors’ unit received from this
expenditure in deciding the summary judgment motion. Item 6, by
its language, states that the lobbying charge is for collective
bargaining agreement-related lobbying and therefore is germane to
collective bargaining as required by the first prong of the Lehnert
test. The objectors do not assert that the charge in Item 6 was for
a purpose other than collective bargaining-related lobbying.
Therefore, the first prong of the Lehnert test is met. We must
remand, however, for a determination of whether the lobbying
expense charge benefitted the objectors’ unit and if so, whether the
expenditure is justified by the government’s vital policy interest in
labor peace and avoiding free-riders and whether the charge
significantly added to the burdening of free speech that is inherent
in the allowance of an agency shop.
The judgments of the district court are AFFIRMED as to the
litigation and advertising expenses, but the denial of summary
judgment to the plaintiffs is REVERSED as to the lobbying expense
in Item 6 and REMANDED for further proceedings. The dissolu-
tion of the preliminary injunction is also REVERSED only as to the
lobbying expense charge and REMANDED for further proceedings.
APPENDIX C
ENTRY OF FINAL JUDGMENT
OF THE
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
January 4, 1994
-14a-
[Clerk’s Stamp Omitted in Printing]
IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
RICHARD W. REESE, et al., : [FILED Jan. 4, 1994]
Plaintiffs, : Case No. C-2-92-268
(Graham, J.)
v. : (Mag. Abel)
CITY OF COLUMBUS, et al.
ENTRY OF FINAL
Defendants. : JUDGMENT
WHEREAS, the parties in this action have entered into a
Partial Settlement Agreement resolving claims of the Plaintiffs and
of the Class which they represent for damages arising from the
allegations set forth in the Plaintiffs’ Complaint; and
WHEREAS, pursuant to Rule 23(e), Fed. R. Civ. P., the Court
has conducted a hearing following reasonable notice to members of
the Plaintiff Class on the fairness of the proposed Partial Settlement
Agreement; and
WHEREAS, pursuant to Rule 23(e), Fed. R. Civ. P., the Court
determines that the proposed Partial Settlement Agreement is fair
and is in the best interest of the members of the Plaintiff Class
certified in this case;
-15a-
THEREFORE, this Court hereby approves the Partial Settle-
ment Agreement entered into between Plaintiffs and Defendants, and
enters Final Judgment in this action consistent with this Court's
prior rulings and decisions, and consistent with the terms of the
Partial Settlement Agreement and the Supplemental Amendment to
Partial Settlement Agreement, which are attached hereto.
s/
Hon. James L. Graham, Judge
United States District Court
Southern District of Ohio
/s/
W. James Young
NATIONAL RIGHT TO WORK LEGAL
DEFENSE FOUNDATION, INC.
8001 Braddock Road, Suite 600
Springfield, Virginia 22160
(703) 321-8510
Attorney for Plaintiffs
/s/
Donald J. Mooney, Jr. (0014202)
BENESCH, FRIEDLANDER, COPLAN & ARONOFF
2800 Cincinnati Commerce Center
600 Vine Street
Cincinnati, Ohio 45202
(513) 762-6271
Attorney for Defendants Local 1632,
-16a-
Ohio Council 8, AFSCME and
Ohio Council 8, AFSCME
/s/
Douglas K. Browell
CITY ATTORNEY’S OFFICE
90 West Broad Street
Columbus, Ohio 43215
(614) 645-7385
December 17, 1993 - 10:48am - GAF
CIN - 41323 _1.CIN - 30715\4
-17a-
PARTIAL SETTLEMENT AGREEMENT
WHEREAS, RICHARD W. REESE, RICHARD D.
KAUFMAN, GEORGE R. JORDAN, BETTY SLATER,
LARRY L. WYGLE, MARION R. CRAMBLIT, and
TIMOTHY WANNER, as Plaintiffs, individually and representing
a class of current and former employees of the City of Columbus
(“the nonmembers”), and Defendants, the CITY OF COLUMBUS,
GREGORY S. LASHUTKA, MAYOR, CITY OF COLUMBUS,
LOCAL 1632, OHIO COUNCIL 8, AFSCME (“Local 1632”),
and OHIO COUNCIL 8, AFSCME (“Council 8”), are parties to
litigation pending in the United States District Court for the
Southern District of Ohio, captioned Reese, et al. v. City of
Columbus, et al., Case No. C2-92-268; and
WHEREAS, the above-named Plaintiffs and Defendants have
agreed to settle and otherwise resolve portions of such litigation,
subject to approval by the United States District Court for the
Southern District of Ohio, pursuant to the terms of Rule 23 of the
Federal Rules of Civil Procedure;
ADS at te, SOS LG OE RN A ht her ta Ay
Et BT ee ARO oe Been Ge
-18a-
WHEREFORE, the parties set forth the terms of their Partial
Settlement Agreement as follows:
1. In settlement of all claims for any monetary relief,
including restitution, compensatory damages, and punitive damages,
against all Defendants for their collection of agency fees from June
1990 through May 1992 from the nonmembers which were or could
have been asserted in this action, Local 1632 and Council 8 (“the
union Defendants”) shall make payment to the nonmembers totalling
Two Hundred Thirty-Seven Thousand Five Hundred Dollars
($237,500.00). The method of distribution to the nonmembers shall
be approved by the Court, with distribution to occur not later than
thirty (30) days following the Court’s final approval of this Partial
Settlement Agreement.
[2]Upon the Court’s final approval of this Partial Settlement
Agreement, the union Defendants shall establish an escrow account
under the joint control of the Trial Attorneys for the Plaintiffs and
for the union Defendants, from which the settlement proceeds shall
be distributed. The settlement proceeds shall be distributed to the
nonmembers as an equal proportion of the agency fees collected
from them from June 1990 through May 1992, but the parties agree
-19a-
that the entire amount shall be distributed to the nonmembers, and
shall be calculated as follows: the settlement proceeds ($237,500.00)
shall be divided by the total amounts collected from the nonmem-
bers from June 1990 through May 1992 (having first subtracted
from that figure amounts unilaterally distributed to the nonmembers
in November 1992, pursuant to the union Defendants’ Motion to
Dissolve the Preliminary Injunction). Each nonmember’s refund
shall be calculated by multiplying the resulting figure [which will be
a decimal with a value less than one (1)] by the total amount of
agency fees collected from the nonmember (having first subtracted
from each figure the amount unilaterally distributed by the union to
each nonmember in November 1992).
If, sixty (60) days after the initial mailing of the settlement
distribution, any nonmembers have not cashed their settlement
checks, the union Defendants shall compile a separate list of names
and last known addresses, telephone numbers, and work locations
(if known) of those nonmembers, and shall forward the same to
counsel for all parties. The parties and their counsel shall then
make all reasonable and conscientious efforts to ascertain the current
addresses of those nonmembers within thirty (30) days, sharing
ee ee
-20a-
information gathered among counsel. The union Defendants shall
use the information gathered and shall thereafter mail to each such
nonmember another identical check via certified mail, return receipt
requested. If, sixty (60) days after the certified mailing, those
checks have not been cashed by any nonmember(s), or if the
certified mailing has been returned, the undistributed amounts
remaining in the escrow account shall be paid as a charitable
donation — in the name of the named Plaintiffs herein — to the
Children’s Hospital, Columbus, Ohio.
[3}2. By this Partial Settlement Agreement, the union Defen-
dants, on behalf of themselves and their officers, agents, employees,
attorneys, and assigns, hereby fully waive and discharge any claims
which they have or may have had against the nonmembers for any
agency fees which they would have collected from the nonmembers,
but for the preliminary injunction entered by the Court and the
terms of this Partial Settlement Agreement, between 7 May 1992
and the date when this Court enters final judgment in this case.
3. The union Defendants shall bear the costs of notifying the
nonmembers of the settlement, of distributing the settlement
proceeds to the nonmembers, and of calculating the allocation of the
-21a-
settlement proceeds to the nonmembers. Upon request, Plaintiffs’
and their counsel shall have complete access to all information
regarding the notification of the nonmembers, the distribution of the
settlement proceeds to the nonmembers, and the calculation of the
settlement proceeds to be distributed to the nonmembers.
4. Within thirty (30) days of the execution of this Partial
Settlement Agreement, counsel for Plaintiffs and counsel for
Defendants shall prepare and jointly submit to the Court a proposed
form of notice of this settlement to the nonmembers. Any disputes
with respect to the form and/or content of the notice shall be
resolved by the Court.
5. Theunion Defendants shall withdraw their pending motion
to decertify the class action. Defendants consent to the addition of
Marion R. Cramblit and Timothy Wanner as Plaintiffs, and to their
certification as class representatives for any further proceedings in
this case.
6. Plaintiffs are entitled under the terms of this Partial
Settlement Agreement to seek an injunction pending any appeal in
this action from the District Court. Should such motion be denied,
Plaintiffs waive their right to seek an injunction pending appeal in
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this case from the United States Court of Appeals for the Sixth
Circuit.
7. Within seven (7) days of the Court’s approval of this
Partial Settlement Agreement, [4]the union Defendants shall
separately pay to Plaintiffs’ attorneys, or to their designee, a total
of Fifty Thousand Dollars ($50,000.00), in full settlement of
Plaintiffs’ claim for all costs and/or attorneys’ fees accruing to and
including 20 September 1993. Pursuant to any rights under the law,
Plaintiffs reserve — and the Defendants recognize — their right to
seek compensation for their reasonable costs and/or attorneys’ fees
incurred after 20 September 1993. Defendants reserve the right to
oppose such a request for additional costs and/or attorneys’ fees for
any reasons permitted by law, except that Defendants agree that
Plaintiffs are prevailing parties for purposes of liability under 42
U.S.C. §1988 with regard to Plaintiffs’ entitlement to their
reasonable costs and attorneys’ fees for the negotiation and
administration of this Partial Settlement Agreement.
8. The parties agree that any appeal by the nonmembers to
the United States Court of Appeals for the Sixth Circuit in this case
shall be limited to those portions of the District Court’s Orders and
-23a-
Judgments allowing as chargeable to the nonmembers expenditures
by Local 1632 and/or its affiliated unions, including Council 8, in
the following categories, as listed in the union Defendants’
September 1993 notices, to the extent that such expenditures are not
incurred for the negotiation and enforcement of the Local 1632/City
of Columbus collective bargaining agreement:
5. The public advertising of AFSCME’s position on
the negotiation, ratification, or implementation of collec-
tive bargaining agreements.
6. Lobbying for the negotiation, ratification, or
implementation of a collective bargaining agreement.
15. The prosecution or defense of arbitration,
litigation or charges to obtain ratification, interpretation,
implementation, or enforcement of collective bargaining
agreements or any other litigation berfore agencies or in
the courts which concern bargaining unit employees which
is normally conducted by an exclusive representative.
9. The parties agree and stipulate that there has been no
adjudication by the District Court of issues related to the existence,
validity, and/or enforcement of an indemnification agreement
between Defendant City of Columbus and the union Defendants.
[5]10. In the event that Plaintiffs prevail in the United States
Court of Appeals or the United States Supreme Court with respect
to any of the appellate issues itemized in paragraph eight (8), any
» a a eee
-24a-
award of compensatory damages or restitution shall be adjudicated
by the District Court, which retains the authority to refer this matter
to a Magistrate Judge pursuant to the provisions of 28 U.S.C. §636,
or to a Special Master pursuant to the provisions of Rule 53 of the
Federal Rules of Civil Procedure.
11. The parties shall submit to the Court a proposed form of
final judgment to be entered by the Court following the Court’s final
approval of this Partial Settlement Agreement, its ruling on any
pending motion, and complete distribution of the settlement
proceeds from the escrow account.
12. By this Partial Settlement Agreement, and contingent upon
the approval of the District Court of this Partial Settlement
Agreement pursuant to Rule 23 of the Federal Rules of Civil
Procedure, all Plaintiffs, on behalf of themselves and the class that
they represent, and except as specifically stated herein, hereby fully
release and discharge Defendants City of Columbus, Gregory S.
Lashutka, Mayor, City of Columbus, Local 1632, Ohio Council 8,
AFSCME, and Ohio Council 8, AFSCME, and ail of their officers,
agents, and employees, from any and all liability arising from the
events or activities described in the Complaint and First Amended
-25a-
Complaint in this case including, but not limited to, the collection
of agency fees from the nonmembers occurring prior to 20
September 1993.
13. The parties’ entry into this Partial Settlement Agreement
is contingent upon the District Court’s approval, pursuant to Rule
23 of the Federal Rules of Civil Procedure, of all of the terms and
conditions set forth herein. In the event that the District Court
declines to approve any of the terms of this Partial Settlement
Agreement, all of the obligations set forth herein shall be considered
null and void, and the parties shall not be bound by any of the terms
of this Partial Settlement Agreement.
[6]14. This Partial Settlement Agreement sets forth all of the
terms and conditions of the partial settlement agreed to by the
parties hereto in the case of Reese, et al. v. City of Columbus, et
al., Case No. C2-92-268. This Partial Setthement Agreement may
be amended or supplemented in writing only, executed by all of the
parties, and subject to the District Court’s approval, pursuant to
Rule 23 of the Federal Rules of Civil Procedure.
FS ALORA — ARP RRA AAS RA PS BRE ag:
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FOR THE PLAINTIFFS:
/s/
W. JAMES YOUNG
c/o National Right to Work Legal
Defense Foundation, Inc.
8001 Braddock Road, Suite 600
Springfield, Virginia 22160
(703) 321-8510
Trial Attorney Pro Hac Vice for Plaintiffs
FOR THE UNION DEFENDANTS:
/s/
DONALD J. MOONEY, JR.
Benesch, Friedlander, Coplan & Aronoff
2800 Cincinnati Commerce Center
600 Vine Street
Cincinnati, Ohio 45202
(513) 762-6271
Trial Attorney for Council 8 and Local 1632
FOR THE CITY OF COLUMBUS and
GREGORY S. LASHUTKA, MAYOR, CITY OF COLUMBUS:
ls/
RONALD J. O’BRIEN
City Attorney
90 West Broad Street
Columbus, Ohio 43215
(614) 645-7385
Attorney for the City of Columbus and Mayor Lashutka
-27a-
WHEREAS, RICHARD W. REESE, RICHARD D.
KAUFMAN, GEORGE R. JORDAN, BETTY SLATER,
LARRY L. WYGLE, MARION R. CRAMBLIT, and
TIMOTHY WANNER, as Plaintiffs, individually and representing
a class of current and former employees of the City of Columbus
(“the nonmembers”), and Defendants, the CITY OF COLUMBUS,
GREGORY S. LASHUTKA, MAYOR, CITY OF COLUMBUS,
LOCAL 1632, OHIO COUNCIL 8, AFSCME (“Local 1632”),
and OHIO COUNCIL 8, AFSCME (“Council 8”), are parties to
litigation pending in the United States District Court for the
Southern District of Ohio, captioned Reese, et al. v. City of
Columbus, et al., Case No. C2-92-268; and
WHEREAS, the above-named Plaintiffs and Defendants have
agreed to settle and otherwise resolve portions of such litigation,
subject to approval by the United States District Court for the
Southern District of Ohio, pursuant to the terms of Rule 23 of the
Federal Ruies of Civil Procedure;
-28a-
WHEREAS, certain individuals (Mitchel R. Peters, David E.
Gotschall, Kenneth R. Walker, Yvonne M. Allen, Jeanette Allison,
Catherine A. Phillips, and Bill Dawson) who are no longer
employed by the City of Columbus and are no longer represented
by Local 1632 have raised certain objections to that Partial
Settlement Agreement because of their circumstances;
WHEREFORE, for purposes of clarification, and pursuant to
{14 of the Partial Settlement Agreement, the parties set forth the
terms of this Supplemental Amendment to their Partie! Settlement
Agreement as follows:
{2}1. The release and discharge agreed to by the Plaintiffs, on
behalf of themselves and the class that they represent, in no way
affects any claim that any class member may have arising from the
collection of agency fees during any period during which they were
represented by any union other than Local 1632.
FOR THE PLAINTIFFS:
Ls/ 12/22/93
W. JAMES YOUNG
c/o National Right to Work Legal
-29a-
Defense Foundation, Inc.
8001 Braddock Road, Suite 600
Springfield, Virginia 22160
(703) 321-8510
Trial Attorney Pro Hac Vice for Plaintiffs
FOR THE UNION DEFENDANTS:
/s/_ 12/21/93
DONALD J. MOONEY, JR.
Benesch, Friedlander, Coplan & Aronoff
2800 Cincinnati Commerce Center
600 Vine Street
Cincinnati, Ohio 45202
(513) 762-6271
Trial Attorney for Council 8 and Local 1632
FOR THE CITY OF COLUMBUS and
GREGORY S. LASHUTKA, MAYOR, CITY OF COLUMBUS:
/s/ 20 Dec 93
RONALD J. O’BRIEN
City Attorney
90 West Broad Street
Columbus, Ohio 43215
(614) 645-7385
Attorney for the City of Columbus and Mayor Lashutka
APPENDIX D
OPINION AND ORDER OF THE
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
June 23, 1993
OO 0 lO Ol PE eA by A ee ee lacs Stat te aE ok Saar.
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[826 F. Supp. 1115]
Richard W. REESE, et al., Plaintiffs,
v.
CITY OF COLUMBUS,
et al., Defendants.
No. C2-92-268.
United States District Court,
S.D. Ohio, E.D.
June 23, 1993.
[1117JOPINION AND ORDER
GRAHAM, District Judge.
This matter is before the Court on the plaintiffs’ motion for
summary judgment. Plaintiffs are employees of the City of
Columbus, Ohio. Defendants are the City of Columbus, its Mayor,
sued in his official capacity, and Local 1632 of Ohio Council 8,
American Federation of State, County and Municipal Employees
(AFSCME). Plaintiffs are members of a bargaining unit represented
by Local 1632 but they are not members of the union. The City has
recognized Local 1632 as the sole and exclusive representative of
the bargaining unit and has entered into a collective bargaining
agreement which requires all employees who are not members of the
union to pay a “fair share fee” to the local as a condition of their
employment. Under the agreement, the City automatically deducts
this fee from the paychecks of the nonmember employees. Plaintiffs
allege that defendants’ payroll deduction procedures vio-[1118]late
tiieir rights under the First, Fifth and Fourteenth Amendments to the
United States Constitution. The Court has previously reviewed the
facts and many of the legal principles involved in this case in its
Memorandum Opinion and Order of May 7, 1992 in which it
-3la-
granted plaintiffs’ motion for a preliminary injunction restraining the
defendants from collecting fees from nonmembers of Local 1632.
See Reese v. City of Columbus, 798 F.Supp. 463 (S.D.Ohio 1992)
(hereinafter “Reese”). In the interest of brevity, the Court will
refer the reader to that memorandum opinion and order.
Plaintiffs contend that they are entitled to judgment as a matter
of law with respect to alleged constitutional deficiencies in defen-
dants’ fee collection procedures. It is constitutionally permissible
for a public employer to designate a union as the exclusive collec-
tive bargaining representative of its employees and to require
nonunion employees to pay a fair share of the union’s cost of
negotiating and administering a collective bargaining agreement.
Reese, 798 F.Supp. at 466. However, nonunion employees have a
constitutional right to prevent the union from spending a part of
their required fees to support political candidates or to express
political views unrelated to the union’s duties as exclusive bargain-
ing representative. Jd. The constitutional requirements for the
collection of agency fees include both an adequate explanation of the
basis for the fee and a reasonably prompt opportunity to challenge
the amount of the fee before an impartial decisionmaker. Jd. The
union’s duty of adequate disclosure requires it to disclose the major
categories of its expenditures and to provide verification by an
independent auditor. Jd.
Defendants began collecting fees from the plaintiffs in June,
1990. In June, July and August of 1990, fees were deducted from
the plaintiffs’ paychecks without providing any financial disclosures
or any notice of procedures available for challenging the fees.
Written notices containing financial disclosures and procedures for
challenging the fees were given to the plaintiffs on August 22, 1990,
October 24, 1990 and November 7, 1991.’ Plaintiffs claim that
each of these notices was constitutionally deficient in certain
respects.
' The notice sent on August 22, 1990 is dated December 1, 1989. After this
lawsuit was filed, defendants sent another notice dated September 28, 1992.
-32a-
LOCAL UNION PRESUMPTION
None of the notices provided any disclosure of Local 1632’s
chargeable and nonchargeable expenses. In calculating the fair
share fee the Union relied on a “local union presumption.” See
Reese, 798 F.Supp. at 467. Such a presumption may not be used
to avoid providing detailed audited financial statements of a local
union. Lowary v. Lexington Local Bd. of Educ. (Lowary II), 903
F.2d 422 (6th Cir.), cert. denied, 498 U.S. 958, 111 S.Ct. 385, 112
L.Ed.2d 396 (1990). Defendants claim that they have provided a
factual predicate for the local union presumption which distinguishes
this case from Lowary II. The evidence defendants have provided
to support the local union presumption consists of affidavits
indicating that most of the nonchargeable union functions are
performed by Ohio Council 8 instead of the locals and an affidavit
by the union’s counsel which states that in prior arbitration
proceedings, including one involving Local 1632, the evidence
established that the local union had fewer nonchargeable expenses
than Ohio Council 8. However, the audited financial information
contained in the fair share fee notice of September 28, 1992
contradicts the local union presumption. It indicates that the
nonchargeable expenses of Local 1632 were greater than those of
Ohio Council 8. Although in Lowary II the court commented on the
lack of a factual predicate for the presumption, its holding that the
local union presumption is unconstitutional did not rest on that
circumstance. In Lowary II, the Sixth Circuit said:
We agree with the reasoning of the court in Lehnert v.
Ferris Faculty Association—MEA—NEA, 707 F.Supp. 1473
(W.D.Mich.1988), aff'd, 881 F.2d 1388 (6th Cif.1989), that
such a local union presumption is unconstitutional under
[Chicago Teachers Union, Local No. 1 v.] Hudson [475 U.S.
292, 106 S.Ct. 1066, 89 L.Ed.2d 232 (1986)] and Tierney
[v. City of Toledo, [1119]824 F.2d 1497 (6th Cir.1987)].
Specifically, the court rejected the argument that the local
union presumption is constitutional merely because it is
rebuttable upon an objection to the impartial decisionmaker.
Holding the presumption to be unconstitutional, the court noted
that “the use of the local presumption increases the risk that the
-33a-
reduced fee collection from the objector would be in excess of
what is appropriate.”
903 F.2d at 431 (emphasis added). Thus, in Lowary IJ, the Sixth
Circuit specifically adopted the reasoning of the district judge in
Lehnert who held the local union presumption unconstitutional
because: 1. it increases the risk that the fee “would be in excess of
what is appropriate” and 2. it “falls short of the precision required
under Hudson, Tierney and Damiano [v. Matish, 830 F.2d 1363
(6th Cir.1987)}.” 707 F.Supp. at 1480.
Defendants’ efforts to distinguish Lowary II are unavailing; it
unqualifiedly holds that the use of a local union presumption is
unconstitutional. Furthermore, the manner in which the defendants
used the local union presumption in the present case deprived
nonmembers of sufficient information to determine the propriety of
the fee. See Hohe v. Casey, 956 F.2d 399, 410-11 (3d Cir. 1992).
Defendants argue that it would be unduly burdensome to
perform an audit on each local union and prepare a fair share notice
to the nonmembers of each local. However, each local has its own
treasurer and maintains its own financial records. Other than
conclusory statements, the defendants have provided the Court with
no facts which would support their claim that a separate audited
statement of the chargeable and nonchargeable expenses of Local
1632 would be unduly burdensome. A separate audited statement
for Local 1632 was included in the fair share fee notice of Septem-
ber 28, 1992. Defendants have not provided the Court with any
information about the cost of producing that statement. The Court
notes that there are approximately 2,000 employees in the bargain-
ing unit represented by Local 1632 and that the dues collected from
these employees is approximately $20.00 per month. This would
yield an annual income of almost half a million dollars. The Court
finds no factual basis for defendants’ claim that a separate audited
financial statement of Local 1632 would be unduly burdensome. In
any event such a statement is constitutionally required regardless of
the burden it may impose on the union. See Lowary II, 903 F.2d at
431-32. Plaintiffs are entitled to summary judgment on this issue.
-34a-
FAILURE TO PROVIDE FINANCIAL DISCLOSURES REGARDING
AFFILIATED STATE AND NATIONAL UNIONS
Local 1632 pays affiliation fees to other labor organizations,
including the AFL-CIO. The fair share fee notices failed to provide
any financial disclosure regarding these affiliated labor organiza-
tions. The mandate to provide such information is clear. Reese,
798 F.Supp. at 467-68. Plaintiffs are entitled to summary judgment
on this issue.
FAILURE TO PROVIDE INFORMATION REGARDING THE
PROPORTION OR AMOUNTS OF PAYMENTS MADE TO EACH
AFFILIATE
Defendants’ fair share fee notices do not inform nonmembers
of the dollar amount of the payments made to affiliated unions or
the percentage of the total agency fee paid to them. A nonmember
is entitled to a financial disclosure of the chargeable and noncharge-
able expenses of an affiliated union. Such information is relatively
useless in the absence of any information about the amount of the
fee which is being remitted to an affiliate. The Court addressed this
matter in its Opinion and Order of February 13, 1993 and conclud-
ed that such a disclosure was constitutionally required. See
February 19, 1993 Op. and C)., pp. 9-10. In Hohe v. Casey, 956
F.2d 399, 410 (3rd Cir.1992), the court criticized defendant’s fair
share fee notice for faiJing “to inform nonmembers of the amount
their locals contributed to Council 13 and the International,....”
And in Weaver v. University of Cincinnati, 942 F.2d 1039, 1046
(6th Cir.1991), the court held that Hudson required the local union
“to delineate what portion of the agency fee goes to the Union’s
affiliates.” Plaintiffs are entitled to summary judgment on this
issue.
{1120]DEFINITIONS AND METHODS OF CALCULATIONS USED
FOR CHARGEABLE ACTIVITIES
Plaintiffs assert that the definitions and methods used by the
union defendants to determine chargeable activities are vague and
constitutionally overbroad and result in charging nonmembers for
-35a-
constitutionally nonchargeable items. With one exception, discussed
below, plaintiffs have not challenged any specific definitions or
procedures. It is impossible for the Court to respond to plaintiffs’
broadside challenge to unspecified definitions and procedures.
The only specific language of the fair share fee notice which
plaintiffs have specifically addressed is the language contained on
Page 1 of the November 7, 1991 notice and prior notices which
states:
The reduction in the fair share fee, which has already been
granted, reflects expenses to support political and ideological
activity and unrelated expenses. The remainder of the fair share
fee is the proportionate share of costs of collective bargaining,
contract administration and pursuing matters affecting wages,
hours and other terms and conditions of employment.
(Footnote 10, p. 20 of plaintiffs’ memorandum of points and
authorities in support of their motion for summary judgment)
(emphasis added). Plaintiffs argue that the underlined language is
constitutionally overbroad. The Court notes, however, that this
language appears in what could be described as the preamble to the
definition of chargeable and nonchargeable expenses. Thereafter, the
various categories of chargeable, partially chargeable and non-
chargeable expenses are specifically defined. Since the definitions
of expense categories are more specific they, and not the general
preamble, would control. Thus, the Court rejects plaintiffs’
argument that the language is unconstitutionally overbroad.
PARTIALLY CHARGEABLE ACTIVITIES
The Court finds, for the reasons stated in Reese, 798 F.Supp.
at 468, that with respect to Expense Items 17 through 29, the
November 7, 1991 fair share fee notice is constitutionally deficient
and that plaintiffs are entitled to summary judgment on this issue.
Pate *
-36a-
DEFENSIVE ORGANIZING
Plaintiffs object to the chargeability of Expense Item 10 in
defendants’ fair share fee notice of November 7, 1991 which is
substantially the same as Expense Item 12 in the notices of August
22, 1990 and October 23, 1990:
Defending AFSCME against efforts by other unions or
organizing committees to gain representation rights in units
represented by the unions.
In Reese, 798 F.Supp. at 470, this Court concluded that
“[d]efensive organizing would serve only the union’s self-interest in
perpetuating itself as the sole representative of the bargaining unit,
a goal which is not germane to collective bargaining activity and
which may add to the burden on an objector’s First Amendment
rights....” A union may not properly charge a nonmember for such
expenses. Plaintiffs are entitled to summary judgment on this issue.
ORGANIZING EXPENSES
Plaintiffs challenge Expense Items 22 and 23 in defendants’ ‘air
share fee notice of November 7, 1991 which are substantially the
same as Expense Items 9 and 10 in the notices of August 22, 1990
and October 23, 1990:
22. Organizing within the bargaining unit in which fair share
fee or agency shop payers are employed.
23. Organizing other bargaining units.
The Supreme Court expressly disapproved the chargeability of
organizational expenses in Ellis v. Brotherhood of Railway, Airline
and Steamship Clerks, 466 U.S. 435, 104 S.Ct. 1883, 80 L.Ed.2d
428 (1984). Defendants have attempted to show that, in the context
of public employment, organizing is germane to collective bargain-
ing activity because there is a direct linkage between union organiz-
ing activity and union bargaining power. The Court rejects this
argument finding the linkage attenuated and that requiring nonmem-
-37a-
bers to contribute to the cost of union organizing would significantly
increase the burden on their First Amendment rights. The Supreme
Court's decision in El-[1121}lis strongly suggests that organizing
expenses Can never pass constitutional muster. Plaintiffs are entitled
to summary judgment on this issue.
EXPENSE OF LITIGATION OUTSIDE PLAINTIFFS’ BARGAINING
UNIT
Ohio Council 8 provides legal services to all of its affiliated
local unions on an as-needed basis. The council employs a staff of
lawyers and retains outside counsel when necessary. The record
shows that the litigation expenses of Ohio Council 8 are directly
related to grievance handling, the enforcement of the collective
bargaining agreement and negotiating collective bargaining agree-
ments. See February 19, 1993 Op. and O., pp. 4-6. In effect, the
locals have pooled their resources at the council level in order to
obtain legal services when needed. Plaintiffs claim that it is
constitutionally impermissible for defendants to charge plaintiffs for
any part of the cost of litigation conducted on behalf of the members
of other bargaining units. The Court discussed this issue at length
in its February 19, 1993 Op. and O. and for the reasons stated
therein, the Court finds that defendants may properly include a pro
rata share of Ohio Council 8’s chargeable legal expenses as part of
its agency fee. See February 19, 1993 Op. and O., pp. 6-8.
Plaintiffs are not entitled to summary judgment on this issue.
ADVERTISING EXPENDITURES
Plaintiffs challenge the constitutionality of Expense Item 5 in
defendants’ fair share fee notice of November 7, 1991 which is
substantially the same as Expense Item 6 in the notices of August
22, 1990 and October 23, 1990:
The public advertising of AFSCME’s positions on the negotia-
tion, ratification, or implementation of collective bargaining
agreements.
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-38a-
As defined, such advertising expenses would be directly related
to the union's collective bargaining activities. These expenses are
analogous to the strike preparation expenses approved in Lehnert.
Such expenses are not per se unconstitutional. Reese, 798 F.Supp.
at 469. Plaintiffs are not entitled to summary judgment on this
issue.
Plaintiffs object to certain specific advertising expenses deemed
chargeable by the defendants, namely advertising expenses related
to a protest of the firing of Lori Moon and congratulatory birthday
advertisements for both a local union and the Ohio Federation of
Teachers. The Court is inclined toward the view that challenges to
specific expenditures should be relegated to an arbitrator, a
procedure sanctioned in Lowary II. See Lowary, 903 F.2d at 433.
However, since there are only three items presently at issue and the
parties have fully briefed the matter, the Court will proceed to rule
on them.
The advertising expense for Ms. Moon arose out of a contro-
versy concerning her discharge from public employment while a
probationary employee and her allegations of sexual harassment by
her employer. Ohio Council 8 incurred advertising expenses to
publicize Ms. Moon’s allegations of sexual harassment in an attempt
to apply pressure on the employer to re-hire her. Ms. Moon was
not a member of the bargaining unit represented by Local 1632.
This expense was not properly chargeable and impinged upon
nonmembers’ First Amendment rights. The same is true of the cost
of the advertisements congratulating Barberton Local 265 and the
Ohio Federation of Teachers on their fiftieth anniversaries. These
advertisements were public speech generally in support of public
employee unionism which dissentiag members should not be
required to support. Plaintiffs are entitled to a summary judgment
declaring these three items of advertising expense to be unconstitu-
tional.
PROCEDURE FOR CHALLENGING AGENCY FEE
Plaintiffs argue that the union’s procedures for challenging
agency fees are unconstitutionally burdensome. In support of this
-39a-
argument, plaintiffs adopt by reference the arguments advanced in
support of their motion for a preliminary injunction. Plaintiffs also
claim that the requirement that nonmembers file separate objections
is unconstitutional and that the notice unconstitutionally suggests that
resort to internal union reme-[1122]dies is the only method to
challenge the amount of the fee. The Court analyzed these issues
in Reese, 798 F.Supp. at 470-71, and based on that reasoning holds
that defendants’ procedures for challenging agency fees are
constitutional. Plaintiffs are not eniied to summary judgment on
this issue.
FAILURE TO PROVIDE AUDITED FINANCIAL DISCLOSURE OF
THE EXPENDITURES OF OHIO COUNCIL 8
The November 7, 1991 fair share fee notice and its predeces-
sors did not provide the constitutionally required audited financial
disclosure regarding the expenses of Ohio Council 8. See Reese,
798 F.Supp. at 468. Plaintiffs are entitled to summary judgment on
this issue.
LOBBYING FOR PURPOSES OTHER THAN THE NUGOTIATION,
RATIFICATION OR IMPLEMENTATION OF A COLLECTIVE
BARGAINING AGREEMENT
Defendants’ fair share fee notice of Septernber 28, 1992
includes an expense item for lobbying for purposes other than the
negotiation, ratification or implementation of a collective bargaining
agreement. The notice states that such expenses are chargeable to
the extent that they satisfy the three-pronged test of Lehnert. For
the reasons stated in its opinion and order of February 19, 1993, the
Court finds that such expenses can never pass constitutional muster
under Lehnert and that plaintiffs are entitled to summary judgment
on this issue.
REMEDIES
Plaintiffs are entitled to a declaration that the collection of
agency fees from the plaintiff class from June, 1990 to May 7, 1992
did not comport with the constitutional requirements for the
Me de
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-40a-
collection of agency fees. Ordinarily, for the reasons stated in
Lowary II, 903 F.2d at 432-33 and Weaver v. University of
Cincinnati, 970 F.2d 1523, 1533-34 (6th Cir.1992), restitution
should be limited to the unchargeable portion of the fees collected.
However, the Court concludes that this case may call for an
exception to the general rule. In Weaver, the court left open the
possibility of full restitution where the constitutional violations are
willful or malicious. Jd. at 1534. This issue cannot be resolved on
a motion for summary judgment.
Plaintiffs also seek an award of punitive damages against both
defendants. Punitive damages are appropriate in a case such as this
when the defendants’ conduct is shown to be motivated by evil
motive or intent, or when it involves reckless or callous indifference
to the plaintiffs’ federally protected rights. Beauford v. Sisters of
Mercy-Province of Detroit, Inc., 816 F.2d 1104, 1108-09 (6th
Cir.1987). “The imposition of punitive damages in civil rights
actions has generally been limited to cases involving egregious
conduct or a showing of willfulness or malice on the part of the
defendant.” Jd. at 1109 (citing Wolfel v. Bates, 707 F.2d 932, 934
(6th Cir. 1983)). Like their claim for full restitution, plaintiffs’ claim
for punitive damages presents genuine issues of material fact which
cannot be resolved on a motion for summary judgment.
The facts of this case do not warrant the imposition of a
permanent injunction. The appropriate remedy is damages and the
continuation of the present preliminary injunction until such time as
defendants provide plaintiffs with a fair share fee notice which
passes constitutional muster.
Plaintiffs’ motion for summary judgment is granted in part and
denied in part.
It is so ORDERED.
APPENDIX E
ORDER OF THE
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
February 19, 1993
-4la-
[Clerk’s Stamp Omitted in Printing]
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Richard W. Reese, et al.,
Plaintiffs,
Vs. Case No. C2-92-268
JUDGE GRAHAM
City of Columbus, et al.,
Defendants.
ORDER
On May 7, 1992, the Court issued a preliminary injunction
enjoining the defendants from collecting agency fees from nonmem-
bers of defendant Local 1632. On October 6, 1992, defendants
filed a motion to dissolve the preliminary injunction. An oral
hearing on the motion was held on December 4, 1992 and the
matter is now before the Court for a ruling.
The preliminary injunction was premised on the Court’s
findings that plaintiffs had shown a substantial likelihood that
defendants’ fee collection procedures were constitutionally deficient
in a number of respects. On October 2, 1992, defendants issued a
-42a-
revised fair share notice to all nonmembers of Local 1632.
Defendants contend that the revised notice corrects the deficiencies
found by the Court. In addition to issuing the revised notice,
defendants represent in their motion that they will rebate the
difference in nonchargeable expenses to all members of the plaintiff
class and will escrow an amount equal to the proportion of agency
[2]fees for matters remaining in dispute pending a final decision by
the Court.
The May 7, 1992 order was based upon findings that plaintiffs
had established a substantial likelihood of success in showing that
the defendants’ fair share fee notice was deficient in the following
respects: (1) failing to provide an accounting of the chargeable and
nonchargeable expenses of the local; (2) failing to provide audited
financial statements of all of the affiliates which receive a portion of
the agency fee; (3) failing to provide an independently audited
statement of Ohio Council 8’s allocation between chargeable and
nonchargeable expenses; (4) charging nonmembers for defensive
organizing expenses; and (5) charging nonmembers for expenses
related to organizing within the bargaining unit and in other
bargaining units.
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-43a-
The revised notice provides an independently audited financial
statement of the chargeable and nonchargeable expenses of Local
1632, which resolves the first deficiency. The revised notice treats
payments to the affiliates as completely nonchargeable (the original
revised notice contained an error in this regard which defendants
will correct), which resolves the second deficiency. The revised
notice includes an independent audit of the allocation of the
chargeable and nonchargeable expenses of Ohio Council 8,
resolving the third deficiency. The revised notice treats all
organizing expenses [3]as nonchargeable, curing deficiencies 4 and
5. As a result of these recalculations, the agency fee was reduced
from 88.037% to 75.247% of the amount of regular dues.
Defendant Ohio Council 8 has agreed to rebate this difference to all
members of the class.
In their motion, defendants identify two unresolved issues
relating to the agency fee, to wit: advertising expenses and
litigation expenses. With respect to these items, defendants propose
to escrow a percentage of the agency fee that would cover all such
expenses until the outstanding issues are resolved by the Court.
44a-
Plaintiffs oppose defendants’ motion to dissolve the preliminary
injunction, arguing that the revised notice and proposed escrow are
constitutionally deficient because (1) defendants are charging
nonmembers for litigation expenses not related to the bargaining
unit; (2) the revised notice fails to inform the recipient of the
amount of the total fee and the amounts paid to each affiliated
union; (3) the revised notice indicates that defendants will charge
nonmembers for lobbing expenses for purposes other than the
negotiation, ratification or implementation of a collective bargaining
agreement; and (4) escrow of fees challenged on constitutional
grounds is not an adequate remedy.
[4]LITIGATION EXPENSE
In its Memorandum Opinion and Order of May 7, 1992, the
Court held at page 14 that plaintiffs had failed to show a substantial
probability of success on their challenge to the chargeability of the
expense of litigation described in the notice as litigation
to obtain ratification, interpretation, implementation or enforce-
ment of collective bargaining agreements and any other
litigation before agencies or in the courts which concerns
bargaining unit employees which is normally conducted by an
exclusive representative.
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-45a-
Plaintiffs argued that this definition included litigation outside of
their bargaining unit and on behalf of other bargaining units. The
Court said, mistakenly, that in Lehnert v. Ferris Faculty Ass’n,
___US.____,_- 59: U.S.L.W. 4544 (1991), the Supreme Court
disapproved litigation expenses not related to the bargaining unit.
Nevertheless, this Court rejected plaintiffs’ challenge to these
expenses because the notice seemed to indicate that they were
limited to the plaintiffs’ bargaining unit. Plaintiffs now assert, and
defendants do not deny, that this category of expenses does include
the cost of litigation outside the plaintiffs’ bargaining unit. Thus,
the Court must now examine further the issue of chargeability of
such expenses.
Ohio Council 8 provides legal services to all of its affiliated
local unions on an as-needed basis. The Council employs a staff of
lawyers and retains outside counsel when [S]necessary. Defendants
assert that the bulk of the litigation expenses of Ohio Council 8 are
directly related to grievance handling, the enforcement of the
collective bargaining agreement, and negotiating collective bargain-
ing agreements. Defendants have furnished the Court with the
affidavit of Rochelle L. Gardner, Associate General Counsel of
-46a-
Ohio Council 8, which provides detailed information about the kinds
of legal services provided by the union during 1990. Ms. Gardner
indicates that one-third of the cases litigated were arbitration cases
and that over thirty-five of the court cases involved actions to
enforce or vacate arbitration awards or to compel the employer to
arbitrate. Another third of the cases involved proceedings before
the State Employee Relations Board, 67% of which involved unfair
labor practice charges in which the union asserted that the employer
had failed to bargain in good faith. Another 18% of these cases
involved the union’s claim that the employer had discriminated
against a bargaining unit member for engaging in union activities,
and 6% of these cases involved situations in which Ohio Council 8
or a local union had been charged by an employer with failing to
bargain in good faith.
Ms. Gardner’s affidavit supports defendants’ claim that the bulk
of the legal serves provided by Ohio Council 8 involves contract
enforcement, grievance handling and the negotiation of collective
bargaining agreements. This legal work is financed [6]by Ohio
Council 8 on behalf of all of its constituent local unions. In effect,
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-47a-
the locals have pooled their resources at the council level in order
to obtain legal services when needed.
In Lehnert, Justice Blackmun found “extra-unit litigation to be
more akin to lobbying in both kind and effect” and opined that
“[w]hen unrelated to an objecting employee’s unit, such activities
are not germane to the union’s duties as exclusive bargaining
representative.” Lehnert, 59 U.S.L.W. at 4550. This part of his
opinion was joined in only by the Chief Justice and Justices White
and Stevens and did not represent the opinion of a majority of the
Court. However, a majority of the justices did agree “that part of
a local’s affiliation fee which contributes to the pool of resources
potentially available to the local is assessed for the bargaining unit’s
protection, even if it is not actually expended on that unit in any
particular membership year.” Id. 59 U.S.L.W. at 4548. The
majority approved of the chargeability of a pro rata share of costs
associated with otherwise chargeable activities of state and national
affiliates, even if those activities were not performed for the direct
benefit of the objecting employees’ bargaining unit so long as there
is “some indication that the payment is for services that may
ultimately enure to the benefit of the members of the local union by
-48a-
virtue of their membership in the parent organization.” Lehnert, 59
(7]U.S.L.W. at 4549. The litigation expenses involved in this case
meet these tests and the litigation involved in this case is not “akin
to lobbying.”
In Lehnert, Justice Scalia, concurring in part and dissenting in
part, indicated his agreement with the concept of charging a pro rata
share of an affiliated organization's costs for providing collective
bargaining services, finding it a tangible benefit to a local union to
have such services on call even in years when they are not used.
Lehnert, 59 U.S.L.W. at 4559. Justice Scalia’s opinion was joined
in by Justices O"Connor, Souter and Kennedy. Justice Marshall, in
a separate opinion concurring in part and dissenting in part,
disagreed with Justice Blackmun’s disapproval of extra-unit
litigation expenses and indicated that he would apply the general
rule of chargeability of extra-unit expenses as part of a share of
general collective bargaining costs of a state or national parent
union. Id. at 4554. This court concludes that a majority of the
Supreme Court would approve the chargeability of the kind of
litigation expenses at issue in the present case.
~49a-
This Court disagrees with the conclusien reached by the
Supreme Court of Wisconsin in Browne v. Wisconsin Employment
Relations Com’n, 169 Wis.2d 79, 485 N.W.2d 376 (1992), which
is based on a mechanistic application of the Supreme Court's
decision in Ellis v. Brotherhood of Ry., etc., 466 U.S. 435
[8](1984). The concept of pooling of resources to pay for legal
expenses directly related to collective bargaining activities was not
before the Court in Ellis. The litigation expenses disallowed in Ellis
had no direct relation to collective bargaining activities. This Court
does not read Ellis as prohibiting the payment of a share of extra
unit litigation expenses directly related to collective bargaining
activities as a part of a reciprocal arrangement which guarantees the
availability of such services to the unit when needed. These
comments about Ellis apply as well to the decision of the Tenth
Circuit in Pilots Against Illegal Dues v. Air Line Pilots Ass'n, 938
F.2d 1123 (10th Cir. 1991).
This Court concludes that the members of Local 1632's
bargaining unit may properly be charged a pro rata assessment of
Ohio Council 8’s costs in providing legal services to its various
affiliated local unions incident to negotiating and administering the
-50a-
collective bargaining agreement or to settling grievances or disputes
arising under the collective bargaining agreement and of any
litigation before agencies or in the courts that concerns bargaining
unit employees and is normally conducted by the exclusive represen-
tative. See Ellis, 466 U.S. at 453. The Court concludes that
plaintiffs have not shown a substantial likelihood of success in
challenging these expenses.
[JEAILURE TO GIVE NOTICE OF THF AMOUNT OF THE
AGENCY FEE AND THE AMOUN” —PROPORTION_ OF
SUCH FEE PAID TO EACH AFFILI.
The revised notice tells the recipient how the agency fee is
calculated, what percentage of the total combined expenses of the
International Union, Ohio Council 8 and Local 1632 are chargeable,
and that the fair share fee will be 75.247% of the amount of regular
dues. There is no statement of the amount of regular dues or the
amount of the fair share fee, nor is there any statement of the
amount of the fee received by each of the three unions. Defendants
point out that the amount of the agency fee appears on the nonmem-
bers’ pay stub. Thus, the recipient of this notice would be aware
of the total amount of the agency fee. However, the recipient
would not know either the dollar amount or the percentage of the
-Sla-
total agency fee received by each of the three affiliated unions.
Such information would assist a nonmember in determining whether
to exercise the right to challenge the chargeability of expenses. For
instance, if a nonmember had a potential objection to the chargeabil-
ity of an item included in the chargeable expenses of Local 1632,
the fact that a large part of the monthly payment went to that entity
might very well affect a nonmember’s decision to challenge the
chargeability of that expense. This kind of information was
included in the notice considered by the court in Tierney y. City of
Toledo, 917 F.2d 927, 937 (6th Cir. 1990). It does not appear that
it would impose any undue burden upon the union to include this
information in the [10]notice, and since it would assist nonmembers
in exercising their constitutional rights, the Court believes it should
be included in the notice.
LOBBYING FOR PURPOSES OTHER THAN THE NEGOTIA-
TION, RATIFICATION OR IMPLEMENTATION OF A COL-
LECTIVE BARGAINING AGREEMENT
The revised notice includes a category of expenses which are
chargeable to the extent that they satisfy the three-pronged test of
Lehnert, which is described as follows:
-52a-
21. Lobbying for purposes other than the negotiation, ratifica-
tion or implementation of a collective bargaining agreement.
Plaintiffs argue that charging nonmembers for such lobbying
expenses would never be permissible. In Lehnert, all of the justices
but Justice Marshall disapproved the chargeability of lobbying
activities which do not relate to the ratification or implementation
of a collective bargaining agreement.
Defendants argue that lobbying for purposes other than the
negotiation, ratification or implementation of a collective bargaining
agreement may nevertheless be directly related to the union's duties
as the bargaining representative, citing as an example lobbying
activities engaged in by Ohio Council 8 concerning health insurance
legislation which would impact upon the negotiated health care
benefits of union members. Defendants state that “Item 21 is
intended to be rarely used and to cover only such a limited situa-
tions (sic) as this.” Union Defendants’ Reply Brief, p. 33. It is
perhaps arguable that the kind of lobbying described in defendants’
example [11]}could pass constitutional muster. However, in light of
the almost unanimous holding in Lehnert that such expenses are
generally not chargeable, the Court concludes that plaintiffs have
-53a-
shown a substantial likelihood of success on this issue and that an
escrow would not be an adequate remedy.
W_OF NGED EXPEN M
Defendants propose to escrow that portion of the revised
agency fee which represents charge which remain in controversy
pending a final determination by the Court. While such an escrow
arrangement is not an adequate remedy for expenses which the
Court has found likely to violate the constitutional requirements of
Chicago Teachers’ Union, Local No. 1 v. Hudson, 475 U.S. 292
(1986) and its progeny, an escrow arrangement would be appropri-
ate for contested charges as to which plaintiffs have not shown a
substantial likelihood of a successful challenge.
CONCLUSION
Inasmuch as the Court concludes that the revised notice still
fails to comply in certain respects with the constitutional require-
-54a-
ments of Hudson and its progeny, the motion to dissolve the
preliminary injunction is denied.
It is so ORDERED.
/s/
JAMES L. GRAHAM
United States District Judge
DATE: February 19, 1993
APPENDIX F
MEMORANDUM OPINION AND ORDER
OF THE
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
May 7, 1992
-55Sa-
[798 F. Supp. 463]
Richard W. REESE, et al., Plaintiffs,
v.
CITY OF COLUMBUS,
et al., Defendants.
No. C2-92-268.
United States District Court,
S.D. Ohio, E.D.
May 7, 1992.
xx * x
[465]JMEMORANDUM OPINION
AND ORDER
GRAHAM, District Judge.
Plaintiffs are nonunion employees of the City of Columbus,
Ohio. Defendants are the City of Columbus, the Mayor of Colum-
bus, sued in his official capacity, and Locals 1632 and 2191 of Ohio
Council 8, American Federation of State, County and Municipal
Employees (AFSCME). The City has recognized Locals 1632 and
2191 as the sole and exclusive representatives of plaintiffs and other
city employees for the purposes of collective bargaining and has
entered into collective bargaining agreements with the locals which
require all employees who are not members of the union to pay a
“fair share fee” to the locals as a condition of their employment.
Under this agreement, the City automatically deducts the fair share
fee from the paychecks of the nonmember employees and forwards
the fees to the local unions. Plaintiffs allege that the payroll
deduction procedures adopted by the defendants violate their rights
under the First, Fifth and Fourteenth Amendments to the United
States Constitution.
-56a-
This matter is before the Court on the plaintiffs’ motion for a
preliminary injunction. Arguments on the motion were heard by the
Court on April 14, 1992. At that hearing, the parties agreed that
the record would consist of the verified complaint and exhibits and
the affidavit of William T. Ensley attached to defendants’ brief in
opposition to the motion for a preliminary injunction. Although the
complaint challenges all agency fees collected from nonmembers
since April 1990, the motion for preliminary injunction requires the
Court to focus its attention specifically on the fair share fee
procedure which became effective on November 7, 1991 and which
controls current agency fee collections.
[466]The criteria which a district court must balance in
determining whether to issue a preliminary injunction are as
follows:
1) Whether the plaintiffs have shown a strong or substantial
likelihood or probability of success on the merits;
2) Whether the plaintiffs have shown irreparable injury;
3) Whether the issuance of a preliminary injunction would
cause substantial harm to others;
4) Whether the public interest would be served by issuing a
preliminary injunction.
NAACP v. City of Mansfield, 866 F.2d 162, 166 (6th Cir.1989).
The Court will first consider whether plaintiffs’ claims meet the first
requirement for injunctive relief.
Plaintiffs challenge the procedure for deducting union dues
from their paychecks. It is constitutionally permissible for a public
employer to designate a union as the exclusive collective bargaining
representative of its employees, and to require nonunion employees,
as a condition of employment, to pay a fair share of the union’s cost
of negotiating and administering a collective bargaining agreement.
Chicago Teachers Union, Local No. 1 v. Hudson, 475 U.S. 292,
301, 106 S.Ct. 1066, 1073, 89 L.Ed.2d 232 (1986). However,
-57a-
“nonunion 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.’ ” Jd. at 301-302, 106
S.Ct. at 1073, quoting Abood v. Detroit Board of Education, 431
U.S. 209, 234, 97 S.Ct. 1782, 1799, 52 L.Ed.2d 261 (1977).
Compulsory subsidization of ideological activity by employees who
object thereto must be prevented while preserving the union’s ability
to require every employee to contribute to the cost of collective
bargaining activities. Id. 475 U.S. at 302, 106 S.Ct. at 1073-74.
Procedural safeguards are necessary to achieve these objectives. In
order to balance these competing interests, procedures must be
carefully tailored to minimize the infringement on nonmembers’
First Amendment rights. Jd. at 303, 106 S.Ct. at 1074.
A nonunion employee must have a fair opportunity to identify
the impact of governmental action on his interests and assert a First
Amendment claim. Thus, the employee must be given sufficient
information to determine the propriety of the fee. Hudson, 475
U.S. at 307, 106 S.Ct. at 1076. The constitutional requirements for
the collection of agency fees include both an adequate explanation
of the basis for the fee and a reasonably prompt opportunity to
challenge the amount of the fee before an impartial decisionmaker.
Id. at 310, 106 S.Ct. at 1077-78. While a union is not required to
provide nonmembers with an exhaustive and detailed list of all of its
expenditures, its duty of adequate disclosure does require disclosure
of the major categories of expenses, as well as verification by an
independent auditor. Jd. at 307, n. 18, 106 S.Ct. at 1076, n. 18.
The Sixth Circuit in Tierney v. Toledo, 824 F.2d 1497, 1504
(6th Cir.1987) (“Tierney II ) held that Abood and Hudson require
the following notice:
Specifically, all non-members must receive an adequate
accounting, certified by an independent auditor and setting
forth the major categories of the union’s budgeted expenses,
that enables a non-consenting employee to intelligently appraise
what proportion of his dues would be allocable to the costs of
negotiating and administering the collective bargaining agree-
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ment and that portion which would advance the union's
ideological purposes. The independent auditor must verify
each major category in the union’s budget or expenses for each
major category of expenses and indicate which categories
comprise each component.
Plaintiffs claim that defendants’ fair share fee procedure notice
of November 7, 1991 is constitutionally deficient because it fails to
provide audited financial information regarding the chargeable and
nonchargeable expenses of Locals 1632 and 2191. The notice
contains financial information regarding ASFCME International and
ASFCME Ohio Council 8 but contains [467]no financial information
regarding either of the locals. With respect to the locals, the notice
states:
ASFCME Ohio Council 8 has over two hundred and forty
(240) affiliated Local Unions. In addition, there are seventy-
four (74) Chapters in various amalgamated Local Unions. In
accordance with decisions of the federal courts on the question
of how local union expenditures should be allocated for the
purpose of determining a fair share fee, the Union has deter-
mined that the percentage of chargeable activities of these
Local Unions is at least as great as the percentage of charge-
able activities of Ohio Council 8. As set forth above, the
percentage of Ohio Council 8's expenses that are chargeable to
fair share fee payors is 90.869%. This same percentage is
used for the said Local Unions to establish the total adjustment
in fair share fee.
Defendants’ method of calculating the fair share fee paid to the
locals on the basis of the ratio of chargeable to nonchargeable
expenses of the Ohio Council is referred to as the “local union
presumption.” The presumption underlying this methodology is that
local unions spend a larger percentage of their budgets on charge-
able expenses than do state or national unions. The Sixth Circuit
has rejected a union’s attempt to use such a presumption to avoid
providing detailed audited financial statements of local and district
affiliates. Lowary v. Lexington Local Board of Education, 903 F .2d
422 (6th Cir.1990) (“Lowary II”).
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Defendants attempt to distinguish Lowary J] on the grounds that
in Lowary II, the union required the arbitrator to adopt the local
union presumption as fact in the event of a challenge to the expense
allocation. The Sixth Circuit did not so limit its decision, and
agreed with the plaintiffs, 903 F.2d at 431, that this local union
presumption permits the unions to avoid providing audited and
detailed financial statements to nonmembers concerning the local
and district union affiliates in violation of Hudson.
Defendants further argue that the local union presumption is
properly used here because the filing of a challenge rebuts the
presumption and the union then bears the burden of proving the
percentage of chargeable expenses at the arbitration hearing. This
argument was likewise rejected in Lowary II, where the court held,
903 F.2d at 432:
The union must provide detailed information so that the
dissenting teachers can understand why they are being charged.
Only then can they make an informed decision.
Thus, Lowary II held that the local union presumption violated the
union’s duty to make a full and adequate disclosure in the initial
notice. The Sixth Circuit referred to this burden as a “minimal
requirement” in exchange for the interference with the nonmembers’
First Amendment right of freedom of association. 903 F.2d at 432.
The Sixth Circuit’s holding in Tierney II, is also germane here. In
Tierney Il the court held that the union must give adequate informa-
tion before it collects any fee and that it is unconstitutional to
require nonmembers to object before receiving adequate informa-
tion.
The fees deducted from plaintiffs’ paychecks are sent to Locals
1632 and 2191, not to Ohio Council 8 or ASFCME International.
Plaintiffs have shown a substantial likelihood of prevailing on their
claim that they are entitled to an accounting of the chargeable and
nonchargeable expenses of the local unions which receive the fees
deducted from their pay.
|
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Plaintiffs next argue that defendants have violated their duty to
provide adequate financial disclosure by failing to provide audited
financial statements of all of their affiliates which receive a portion
of the fee. Plaintiffs complain in particular of defendants’ failure to
provide financial information regarding the AFL-CIO. The notice
documents identify the locals as affiliates of the AFL-CIO, and
Expense Item 19, which is subject to allocation, includes “support-
ing and paying affiliation fees to other labor organizations which do
not negotiate the collective bargaining agreements governing the fair
share fee payors’ employment.”
[468]Nonmembers are entitled to “an audited, detailed
accounting of local union payments to affiliated state and national
labor organizations that will be used for agreement and nonagree-
ment related purposes.” Tierney IJ, 824 F.2d at 1503. Def
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