Opinion
No. 89 CVI 412.
Decided March 12, 1990.
Ira J. Mirkin, for plaintiff.
Ritch Nasca, pro se.
This case came on to be heard on March 1, 1990. Plaintiff was represented by Attorney Ira J. Mirkin. Defendant was not represented. This case involves a small claims complaint by plaintiff to collect "fair share" fees for the 1988-1989 academic year. The court received the testimony of Catherine Ondrejovich, Treasurer of the Jefferson Area Teachers Association, Peggy Chavez, local representative of the Ohio Education Association, the defendant, Ritch Nasca, the exhibits and the arguments of the parties.
Facts
The court finds that there is no substantial dispute as to the material facts. Defendant was employed as a teacher at Jefferson Area High School during the 1988-1989 school year. He is not a member of the plaintiff union. Plaintiff is the sole and exclusive bargaining agent for the bargaining unit which includes teachers employed by the Jefferson Area Local Board of Education. Defendant is a member of the bargaining unit represented by plaintiff and is therefore subject to the Master Agreement between plaintiff and the Jefferson Area Local Board of Education. The Master Agreement contains an "agency shop" provision which requires nonunion members of the bargaining unit to pay a "fair share" or "service fee" to plaintiff in consideration of its costs incurred on their behalf in negotiating and administering the collective bargaining agreement.
During the 1988-1989 academic year there was no provision for payment of the service fee through mandatory payroll deduction. Defendant has not paid any part of the fee for the 1988-1989 school year. Pursuant to the contract between plaintiff and the school board, the amount of the service fee is equivalent to the amount of dues charged to union members. However, plaintiff has a formalized procedure or plan whereby nonmembers may object to payment of the service fee. Upon timely objection, a nonunion member takes part in a procedure intended to determine the proportion of the service fee legitimately related to the negotiation and administration of the collective bargaining agreement. Defendant has not made any formal objection to the service fee for the 1988-1989 school year. However, defendant did invoke the objection procedure for the 1987-1988 and 1989-1990 academic years.
The plan or procedure employed by plaintiff for consideration and determination of objections by nonmembers during the 1988-1989 school year was known as the "Fair Share Fee Advance Reduction Procedure." The procedure requires the union to post a notice indicating the amount of the service fee and the date when the fee will first be deducted from an employee's pay. Plaintiff did post such a notice in the Jefferson Area High School Teachers' Lounge. This notice was substantially the same as the notice and procedure used by plaintiff for the 1987-1988 school year. Defendant testified that although he observed the notice for the 1987-1988 year, he failed to observe any notice for the 1988-1989 year. The evidence reflects that for the current academic year, 1989-1990, plaintiff provided individual notice by placing a copy in each teacher's mailbox.
The procedure requires that objections must be in writing, and filed with the Ohio Education Association either by mail or by personal delivery. Once an objection is made, the association submits a "refund" or "advance reduction" of the portion of the full year's "fair share" fee which an independent audit indicates would be spent for purposes other than negotiation and administration of the collective bargaining agreement. Regardless of whether an objection is made to the service fee, the Ohio Education Association sends a financial package to all nonunion members each year providing information as to how the proportionate share of the service fee chargeable to nonmembers is calculated. Peggy Chavez, local representative of the Ohio Education Association, testified that the package was sent to defendant. The package is sent by ordinary mail. However, defendant testified that he did not receive the package for the 1988-1989 school year. The Ohio Education Association Fair Share Fee Advance Reduction Procedure also requires that the service fee question be submitted to an impartial arbitrator each year. The arbitrator is selected in accordance with rules of the American Arbitration Association, over which neither the plaintiff nor the Ohio Education Association has any control. Nonunion members who file written objections in accordance with the procedure are automatically included within the arbitration and are also provided with notice of the arbitration hearing and an opportunity to submit further written statements and attend the hearing. These procedures were followed for the 1988-1989 academic year. The independent arbitrator affirmed the determination of the Ohio Education Association of the proportionate amount of the service fee properly chargeable to objecting nonunion members.
Law
There is no question that the "agency shop" provision and requirement for payment of the service fee contained in the contract between plaintiff and the Jefferson Area Local Board of Education is valid and enforceable through collection proceedings such as the instant small claims complaint. Abood v. Detroit Bd. of Edn. (1977), 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261; Jefferson Area Teachers Assn. v. Lockwood (1982), 69 Ohio St.2d 671, 23 O.O.3d 543, 433 N.E.2d 604. Nevertheless, the teachers' union must observe procedural safeguards which assure that nonmembers' "fair share" fees are not collected or used in violation of their First Amendment rights. Chicago Teachers Union v. Hudson (1986), 475 U.S. 292, 106 S.Ct. 1066, 89 L.Ed.2d 232. Hudson requires, generally, that the union must implement a procedure which will (1) avoid the risk that dissenters' funds may be used temporarily for an improper purpose, (2) provide nonmembers with adequate information about the basis for the proportionate share, and (3) "provide for a reasonably prompt decision by an impartial decisionmaker." Chicago Teachers Union v. Hudson, supra, at 305-307, 106 S.Ct. at 1075-1076, 89 L.Ed.2d at 246-247. The court notes, parenthetically, that in this case there is no risk that defendant's money could have been used for any improper purpose since he has not paid any part of the fee sought to be collected by plaintiff.
"* * * [T]he constitutional requirements for the Union's collection of agency fees include an adequate explanation of the basis for the fee, a reasonably prompt opportunity to challenge the amount of the fee before an impartial decision maker, and an escrow for the amounts reasonably in dispute while such challenges are pending." Chicago Teachers Union v. Hudson, supra, at 310, 106 S.Ct. at 1078, 89 L.Ed.2d at 249.
The United States Court of Appeals for the Sixth Circuit has gone a step farther than the Supreme Court and held that "dissenting non-members are entitled immediately to an `advance reduction' of that portion of their fees which an independent audit unquestionably indicates would be spent for ideological purposes." Tierney v. Toledo (C.A.6, 1987), 824 F.2d 1497, 1503. The Ohio Supreme Court has clearly held that violations of the conditions established by the foregoing cases establish grounds for a Section 1983, Title 42, U.S. Code action in state court, and has stated "that service fees may not be collected from nonmembers until a plan providing for the constitutionally required procedure set forth in [ Chicago Teachers Union v.] Hudson, supra, is in effect. * * *" Gibney v. Toledo Bd. of Edn. (1988), 40 Ohio St.3d 152, 158, 532 N.E.2d 1300, 1306. This court therefore holds that in a small claims action to collect "fair share" fees, the plaintiff is required to establish a constitutionally adequate procedure for protection of nonunion members' First Amendment rights as an element of its case.
Notwithstanding the burden of proof placed upon the union, the United States Supreme Court has clearly placed the burden of raising an objection upon the nonunion employee. Abood v. Detroit Bd. of Edn., supra; Chicago Teachers Union v. Hudson, supra.
The Ohio legislature has sanctioned "agency shop" provisions in collective bargaining agreements covering public employees, provided that the union prescribes a procedure to determine a rebate "which conforms to federal law, provided a nonmember makes a timely demand * * *." R.C. 4117.09(C).
Conclusion
Upon thorough consideration and review of the record herein, the court holds that plaintiff has established a procedure for determination of the "fair share" fees to be charged to objecting nonunion members which satisfies the constitutional requirements imposed by the United States Supreme Court and the United States Sixth Circuit Court of Appeals. This conclusion appears to be in harmony with decisions of the United States District Court for the Northern District of Ohio in Lowary v. Lexington Local Bd. of Edn. (1988), 704 F. Supp. 1456, and Gwirtz v. Ohio Edn. Assn. (1988), 704 F. Supp. 1481, affirmed (C.A.6, 1989), 887 F.2d 678, in which that court considered objections to essentially the same Fair Share Fee Advance Reduction Procedure in effect and applicable to the case at bar.
The court further holds that plaintiff's notice procedure, advising nonunion members of the amount of the "fair share" fee for the 1988-1989 school year, was adequate. The court agrees that the individual notice procedure utilized for the 1989-1990 school year is preferable. However, the procedure of posting a notice in the teacher's lounge can be reasonably expected to give fair notice of the "fair share" fee assessment and the need for timely objection. It is unfortunate that defendant did not observe the notice posted for the 1988-1989 school year. Nevertheless, he did observe the virtually identical notice posted for the preceding school year and invoked the objection procedure for the 1987-1988 school year. It is also unfortunate that defendant may not have received the financial disclosure package which the Ohio Education Association mailed to all nonunion members. However, again, the law requires that the union employ procedures reasonably calculated to provide nonmembers with sufficient information about the basis for the "fair share" fee. There is no question that substantial financial information was prepared and distributed by the Ohio Education Association. The information was certainly readily available to any affected individual who sought to inquire. The defendant made no inquiry. The union was reasonably entitled to rely upon the United States mail for delivery of these materials. In view of the finding that the notice procedure employed by plaintiff is adequate, the question of whether the defendant may have actually received the financial disclosure package is not sufficient to legally absolve him from the obligation to pay the service fee.
The remaining question involves defendant's failure to make timely objection to the service fee in accordance with the Fair Share Fee Advance Reduction Procedure. The fee is equal to the dues charged to a union member unless an objection is made. The notification posted by the union states the amount of the fee and the existence of an advance reduction or rebate of a portion of the fee to those who timely object. Implementation of and participation in the entire fair share fee advance reduction process is initiated by the timely filing of a written objection. Time limits are not at all unusual to the law or legal proceedings. A deadline within which to object is only fair to the union. Unions are already bound by judicial decree to provide extensive procedural safeguards to nonmembers' First Amendment rights. Calculation of the nonmembers' proportionate share of fees involves analysis of extensive financial data. Both the data and the proportionate share can change each year. Any plan for dealing with nonmembers' objections must provide for review by an independent arbitrator in order to pass constitutional muster. None of this could be feasibly accomplished without a period of limitation on the right to object.
In Lowary v. Lexington Local Bd. of Edn. (1988), supra, one of the plaintiffs was held to be barred from bringing a Section 1983 action because she failed to make timely objection, notwithstanding the fact that the court found that the fair share fee procedure employed by the union for the year in question was constitutionally defective. All of the foregoing reasons compel this court's conclusion that, as a result of his failure to file a timely objection, the defendant is precluded in this collection action from taking advantage of the advance reduction amount or other refund otherwise available to objecting nonunion members who complied with the Fair Share Fee Advance Reduction Procedure. Just as the plaintiff must demonstrate compliance with constitutional procedures as a precondition to prevailing in a collection action, the defendant must show that he affirmatively objected, in accordance with the procedure, before he can assert the ideological nature of any portion of the fees as a defense to the collection action.
Judgment is therefore rendered against the defendant and in favor of the plaintiff in the sum of $338.50, together with interest at the statutory rate of ten percent per annum from the date of judgment and costs.
Judgment for plaintiff.