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November 3, 1983


The opinion of the court was delivered by: Bua, District Judge.


This matter comes before the Court upon a complaint accompanied by a motion for a preliminary injunction. Plaintiffs are employees of the Board of Education of the City of Chicago (the "Board") who are not members of the Chicago Teachers Union ("CTU"). Named as defendants are the Board, the twelve members of the Board individually and as officers and members, and the CTU.

Plaintiffs' complaint is in seven counts, challenging the constitutionality of Ill.Rev.Stat. ch. 122 ¶ 10-22.40a (1981) on its face and as applied, under both the United States Constitution and the Constitution of Illinois. Plaintiffs claim violations of their civil rights under Title 42 U.S.C. § 1983 and 1988, seeking damages and invoking this Court's equitable powers under 28 U.S.C. § 1331 and 1343 for injunctive and declaratory relief. The suit is brought on behalf of plaintiffs and on behalf of all those similarly situated as employees of the Board of Education of the City of Chicago who are not members of the Chicago Teachers Union. A motion to maintain a class action and for certification of the class was filed on May 19, 1983.

The Court set May 26, 1983 for hearing on the motion for a preliminary injunction. Subsequently, the parties agreed to advance the matter for a full trial on the merits pursuant to Rule 65(a)(2) F.R.C.P. The presentation of testimony and evidence proceeded accordingly. Based upon its review of the evidence presented at trial and the parties' pretrial and post trial briefs, the Court enters the following findings of fact and conclusions of law.


I. Background

Since 1967, the Chicago Teachers Union ("CTU") has served as the exclusive bargaining representative to the Board of Education of the City of Chicago (the "Board") on behalf of the approximately 27,500 persons who are included within the bargaining unit of Board employees.*fn2 Membership in CTU is voluntary; all but five percent of all employees in the bargaining unit are union members. All employees, however, whether or not members of the union, are fully covered by the terms of the collective bargaining agreement between CTU and the Board. Until December, 1982, the entire cost of collective bargaining and contract administration was underwritten by CTU members through their union dues. Thus, those teachers and other employees within the bargaining unit who chose not to join CTU received the benefits of CTU's collective bargaining efforts without contributing financially to the costs of such efforts.

For several years, CTU had attempted without success to negotiate a "fair share fee" clause into its labor contracts with the Board.*fn3 The major obstacle was the absence of any language in the Illinois School Code, Ill.Rev.Stat. ch. 122 ¶ 1-1 et seq. (1981), enabling the Board to agree to such a clause. Effective August 1, 1981, the Illinois Legislature enacted a statute providing as follows:

Non-member proportionate share payments in lieu of dues.

(Ill.Rev.Stat. ch. 122 ¶ 10-22.40a) (1981).

Acting under the newly granted authority of ¶ 10-22.40a, the Board agreed to the inclusion of a "fair share fee" clause in the next collective bargaining agreement with CTU. The clause was contained in Article 1, Section 8.2 of the one-year collective bargaining agreement between CTU and the Board, effective September 1, 1982, which read as follows:

  1-8.2. All full-time employees covered by this
  Agreement who are not members of the UNION shall,
  commencing sixty (60) days after their employment or
  the effective date of the Agreement, whichever is
  later, and continuing during the term of this
  Agreement, and so long as they remain non-members of
  the UNION, pay to the UNION each month their
  proportionate share of the cost of the collective
  bargaining process and contract administration
  measured by the amount of dues uniformly required by
  members of the UNION. Such proportionate share
  payments shall be deducted by the BOARD from the
  earnings of the non-member full-time employees and
  paid to the UNION. The UNION shall submit to the
  BOARD an affidavit which specifies the amount which
  constitutes said proportionate share which shall not
  exceed the dues uniformly required of members of the
  The UNION shall indemnify and hold harmless the Board
  of Education, its members, officers, agents and
  employees from and against any and all claims,
  demands, actions, complaints, suits, or other forms
  of liability that shall arise out of or by reason of
  action taken by the BOARD for the purposes of
  complying with the above provisions of this Article,
  or in reliance on any list, notice, certification,
  affidavit or assignment furnished under any of such

Shortly after CTU and the Board signed the new agreement, CTU amended its constitution and by-laws to authorize the CTU to determine the amount of the fair share fee, receive and consider objections thereto, and set up a hearing procedure for nonmembers who objected to deductions. Accordingly, CTU adopted a hearing and appeal procedure known as the "CTU Implementation Program." Under the procedure, any non-member could object to any expenditure by CTU of his or her fair share fee payroll deductions for activities or causes which were political or ideological and not germane to the collective bargaining process or contract administration. The objector was required to individually notify the president of CTU of his or her objection by registered mail within 30 days after the first payroll deduction. The objection would be considered by CTU's Executive Committee, and the objector would be notified within 30 days of any decision as to a reduction in the amount of the payroll deduction. The objector could appeal within another 30 days, and receive a personal hearing before the CTU Executive Board. If still unsatisfied, the objector could invoke a determination by an impartial arbitrator to be appointed by the CTU president from a list maintained by the Illinois State Board of Education of accredited arbitrators. CTU was to bear the cost of such a proceeding. A determination favorable to the objector would result in an immediate reduction in the amount of deductions for all non-union members and a rebate to the objector. Provision was also made for consolidating proceedings in the case of multiple objectors.

The CTU Implementation Program was designed to become available only after the first fair share fee deduction. Non-members were not provided any right or opportunity to challenge CTU's initial request to the Board or the basis on which the deduction was calculated, nor were non-members given the right or opportunity to challenge the deduction prior to the time the deduction was actually made.

The CTU determined the amount of the fair share fee based on its account ledgers and other records for the year beginning July 1, 1981 and ending June 30, 1982. Calculations were made by the assistant office manager, with the assistance of counsel and the financial secretary of CTU. The CTU estimated that a total of $188,549.82 in expenditures was unrelated to the costs of collective bargaining and contract administration. Based upon its financial statements, CTU calculated its income for the year at $4,103,701.58. As a result, CTU determined that the fair share fee for the contract year 1982-83 should be 95 percent of union dues, based on the calculation that $188,549.82 divided by $4,103,701.58 equals approximately five percent.*fn4 Current CTU dues were at that time $17.35 per month for ten months for teachers and $12.15 per month for ten months for "career service employees."*fn5 Accordingly, the amount to be deducted each month for ten months would be $16.48 from non-union teachers' paychecks and $11.54 from nonunion career service employees.

In October, 1982, CTU requested the Board to begin making deductions. The request was accompanied by an affidavit signed by CTU President Robert Healey, which specified the amount of the fair share fee, briefly explained how the figure had been calculated, and stated that a hearing procedure was available to non-union members who wished to object to the deductions.

The Board did not review any of the documents or calculations used by CTU in determining the fair share fee, nor did it challenge any of the information in the affidavit. In December, 1982, the Board began deducting the fair share fee from non-member employees' paychecks. At no time did the Board ask for the consent of the non-member employees to the deductions, explain the basis for the determination of the amount deducted, or inform them of the rebate and appeal procedure set up by CTU.

CTU, for its part, asked its member delegates at all schools to distribute flyers, display posters, generally inform non-members of the pending deductions, and invite non-members to enroll in CTU, with amnesty for past imposed fines. The CTU Implementation Program was published in the December, 1982, issue of the union newspaper which was widely circulated to nonmembers.

II. Plaintiffs' Responses to Fair Share Fee Deductions

Each plaintiff is a member of the bargaining unit represented by CTU, but none is a member of CTU. Six of the seven plaintiffs have had fair share fee deductions made from their paychecks.*fn6 Of these six, it is stipulated that two never made any objection to the deductions to either the Board or to CTU.*fn7 It is further stipulated that all of the remaining four plaintiffs submitted letters of protest to CTU. Plaintiffs Hudson, Campbell and Sherrill sent identically worded letters, stating in substance that they believed that CTU was using part of their salary for purposes unrelated to collective bargaining with the Board, specifically protesting and objecting to such expenditures, and demanding that payroll deductions be reduced to only the pro rata amount necessary for collective bargaining, contract administration, and grievance adjustment with the Board. The fourth plaintiff, Beverley Underwood, also wrote to CTU. Underwood's letter, however, differed from the other three identical letters. Underwood wrote that she was "objecting to the unauthorized deduction by CTU of any money from [her] paycheck." She requested the president of CTU to consider her objection "and return all payroll deductions." The letters sent by Campbell and Sherrill were sent on November 19, 1982, before the CTU implementation program had been publicized. Underwood and Hudson, did not send their letters until after the first payroll deduction had been made and after the objection-rebate procedure had been publicized.

CTU answered all four letters individually with identical form letters which acknowledged receipt of plaintiffs' letter requesting a reduction in fees, briefly explained the process by which the fair share fee had been calculated, and concluded, "as a result, you will note that the Chicago Teachers Union has, in fact, reduced the amount of the fees to be deducted from your earnings . . . as you have requested in your letter." The letter stated that an appeal procedure had been established and enclosed a copy of the Implementation Plan. The CTU letter closed, "any objection you may file will be recognized and processed in full compliance" therewith.

None of the four letters sent by plaintiffs was ever submitted to the Executive Committee of CTU or otherwise reviewed pursuant to the Implementation Plan. Neither the financial secretary nor the president of CTU considered any of the four letters as amounting to the type of written objection sufficient to trigger the objection-rebate procedure. The form letter sent by CTU was intended to make sure that all those who wrote concerning deductions would have a copy of the Implementation Plan, be apprised of their right to object, and be afforded the opportunity to do so.

Upon receiving the CTU letter, three of the protesting plaintiffs took no further action. Sherrill took no further steps because he objected to the requirement that he submit to the objection-rebate procedure. Campbell had no further contact with CTU because she did not feel anything would come of it. Underwood testified that she believed her letter had triggered the appeal process, and consequently she did nothing more, anticipating that CTU would be contacting her to set a hearing date.

Plaintiff Hudson, however, wrote a second letter to CTU in reply to CTU's answer to her original letter. In the second letter, Hudson stated, "I would like a full disclosure of the Union's financial operations and a step-by-step explanation of how the non-member portion of the dues was gotten." CTU responded by letter to Hudson's second letter by reiterating the gist of CTU's first letter and inviting Hudson to make an appointment at the CTU office for an "informational conference" and/or to inspect the roster of CTU expenditures. The letter concluded, "After such conference, if you continue to object to any expenditures, you may submit your protest to the Executive Committee . . . which will then review your objections and issue its determination." Plaintiff Hudson took no further action with respect to CTU. She testified that she thought it was unreasonable for CTU to ask her to take the trouble to go to the union office when CTU could have sent her the requested information. Furthermore, she did not consider the "informational conference" to be part of the Implementation Plan, but rather that CTU was "just giving [her] the runaround to make more trouble so that [she] would drop it."

Plaintiffs contend first that all seven plaintiffs have objected and continue to object to some portion of the fair share fee deducted from their paychecks. Second, plaintiffs contend that CTU never notified any plaintiff of any determination concerning his or her objections, nor did it inform any plaintiff that his or her letter failed to satisfy the Implementation Plan so as to trigger the review procedure. Defendants' answer that none of the plaintiffs registered objections as defined in ...

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