United States District Court, Central District of Illinois, Springfield Division
July 30, 1986
JACK GILPIN, ET AL., PLAINTIFFS,
AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Mills, District Judge:
The parties offer cross motions for summary judgment.
Fed.R.Civ.P. 56. The Court finds that liability rests with the
Defendants who have denied the Plaintiffs their rights to
procedural due process in violation of 42 U.S.C. § 1983.
Jurisdiction is appropriately premised on 28 U.S.C. § 1331.
Summary judgment "shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories and
admissions on file together with the affidavits, if any, show
that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(c). In considering a motion for summary
judgment, the Court must view the facts in the light most
favorable to the party against whom summary judgment is
entered and give that party the benefit of all reasonable
inferences to be drawn from the underlying facts. Adickes v.
S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26
L.Ed.2d 142 (1970). Cross motions for summary judgment require
no less careful scrutiny of the factual allegations. LaCourte
Oreilles Band of Lake Superior Chippewa Indians v. Voigt,
700 F.2d 341, 349 (7th Cir. 1983). The Court's inquiry "unavoidably
asks whether reasonable jurors could find by a preponderance of
the evidence that the Plaintiff is entitled to a verdict —
`whether there is [evidence] upon which a jury can properly
proceed to find a verdict for the party producing it, upon whom
the onis of proof is imposed.'" Anderson v. Liberty Lobby,
Inc., ___ U.S. ___, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202
(1986), (quoting Improvement Co. v. Munson, 14 Wall. 442, 448,
81 U.S. 442, 448, 81 U.S. 442, 20 L.Ed. 867 (1872) (emphasis in
The posture of this particular litigation facilitates
adherence to these guidelines. The parties have hammered out
an understanding of the facts by dent of hard labor.
The Plaintiffs are employees of the State of Illinois,
specifically the Department of Public Aid. The employees of
the Department of Public Aid are divided into at least two
bargaining units for the purpose of administering a collective
bargaining agreement entered into between the State of
Illinois and Defendant American Federation of State, County,
and Municipal Employees (AFSCME). Although none of the
Plaintiffs are members of Defendant AFSCME, they have been
assigned to one of two bargaining units: RC-62 or RC-63. As of
August 30, 1985, there were 12,289 state employees assigned to
these two bargaining units and approximately half of these
employees were not members of Defendant AFSCME.
On February 10, 1984, Defendant AFSCME entered into an
agreement with the Illinois Department of Central Management
Services (CMS), an agency of the state that has statutory
authority to negotiate and administer collective bargaining
agreements. The February 10th agreement provided for the
assessment and collection
of "fair share" contributions from state employees who were
not members of AFSCME.*fn1
"Fair share" assessments are fees deducted from the
paychecks of non-union employees and paid to the union as a
pro rata assessment of the costs of conducting collective
bargaining activities from which the non-union employees
necessarily benefit. The parties do not contest the
constitutionality of "fair share" assessments, rather the
Plaintiffs object to the procedure whereby the fees were
After entering into the "fair share" agreement, CMS notified
various state department managers by letter of the impending
"fair share" assessments in late April and again in early July
1984. By August 30, 1985, a majority of the employees in
bargaining units RC-62 and RC-63 became members of Defendant
AFSCME. Thereupon Defendant AFSCME notified CMS of its
intention to seek "fair share" deductions from all employees
who were not members of the union. Pursuant to the agreement
entered into between AFSCME and CMS, AFSCME certified the
"fair share" contribution to be 90% of regular union dues.
On September 6, 1985, CMS informed the various state
agencies that deductions for "fair share" contributions would
begin with the September 16 through 30 pay period. Between
September 10 and September 30, 1985, members of Defendant
AFSCME placed notices of the impending "fair share"
assessments on bulletin boards throughout the state offices.
(Exhibits affixed to Defendant AFSCME's reply to Plaintiffs'
motion for a preliminary injunction.) The notices indicated
that the "fair share" assessment would be "90% of local union
dues paid by AFSCME members." They gave a brief explanation of
the manner in which the percentage was determined. And they
stated that the deductions would begin with the September 30,
1985, pay period. Both notices provided the following
information regarding objections to and appeals from the "fair
Non-members have the right to object to the
amount of the "fair share" fee and may do so (1)
through AFSCME's internal procedure; or (2) by
filing an unfair labor practice charge with the
Illinois Public Employee Labor Relations Board,
320 West Washington St., Suite 500, Springfield,
For further information:
write: AFSCME Council 31, Attention Jackie
Kinnamen, 201 North Wells St., # 1850, Chicago,
This suit was filed on September 27, 1986. The first pay
period during which "fair share" assessments were deducted
ended on September 30, 1986. Two days later, CMS sent a letter
to all affected employees signed by Bureau of Personnel
Manager Robert H. Tapscott which in substance tracked the
notices posted by Defendant AFSCME. (Plaintiff's Exhibit 6).
With respect to the opportunity to object and appeal the CMS
You have a right to challenge the amount of the
fair share assessment levied by the union. You
can obtain more information about how to
challenge the assessment amount by writing:
AFSCME, Attention Jackie Kinnamen, 201 North
Wells St., Suite 1850, Chicago, Illinois
60606 . . . Should you have any further questions,
you may contact the Bureau of Personnel, Division
of Employee and Labor Relations, at (217) 782-8164.
The day following the appearance of the CMS letter, 31
non-union employees filed complaints with the Illinois State
Labor Relations Board (SLRB).*fn2
One week later, the first
paychecks subject to the "fair share" deductions were issued.
At the time the "fair share" deductions were assessed and
the notices were promulgated, the Illinois State Labor
Relations Board (SLRB) had established no specific rules or
regulations for considering objections to the assessments. On
October 22, 1985, the SLRB directed its counsel to draft such
rules and regulations and to report back by November 20, 1985.
On November 20, the SLRB assumed jurisdiction over the
complaints lodged against the "fair share" assessments. Five
days later, AFSCME established an escrow account for the "fair
share" assessments paid by all non-union employees whose
objections to the assessments were known to AFSCME. The SLRB
issued a complaint on the consolidated charges on December 3,
1985. A hearing on that complaint has been postponed several
times at the request of the complainants.
Although the objection and appeal procedure advertised in
AFSCME's posted notices was, in fact, not yet available,
Defendant AFSCME did have in place an internal union grievance
procedure. Under this procedure, an objecting, non-union
employee may file a written challenge with the union to be
reviewed by the Executive Board of AFSCME Council 31. An
objector may appeal the Executive Board's decision to a
professional arbitrator chosen and compensated by agreement of
the union and the objector. As a second internal union remedy,
a non-union employee may file a challenge directly with the
union local's International affiliate and obtain a hearing from
a designated hearing officer. The record does not indicate the
existence of, or the nature of, any appeal or review of the
decision by the International's hearing officer.
The Plaintiffs contend that this cause of action is
controlled by the Supreme Court's decision in Chicago Teachers
Union, Local No. 1 v. Hudson, ___ U.S. ___, 106 S.Ct. 1066, 89
L.Ed.2d 232 (1986). The Defendants respond (1) that this Court
should observe the doctrine of abstension; (2) that they have
afforded the Plaintiffs all the procedure due; (3) that any
procedural defects have been or are being cured and thus
mooted; and (4) that the procedural guidelines outlined in
Hudson should only be applied prospectively. After a review of
the materials submitted for consideration, the Court finds that
the Hudson decision does control the resolution of this cause,
that the procedure outlined therein was violated by the
Defendants, and that a remedy should be fashioned.
The equitable doctrine whereby a federal court abstains from
considering a complaint pending resolution of the same or
similar claims by a state tribunal is applicable where the
complainant has the option of choosing between a federal or
state forum and where the resolution of unsettled questions of
state law will end the controversy. England v. Louisiana State
Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11
L.Ed.2d 440 (1964); see also Askew v. Hargrave, 401 U.S. 476,
91 S.Ct. 856, 28 L.Ed.2d 196 (1971). Defendant AFSCME
apparently contends that if this Court were to abstain and
thereby allow sufficient time for correction of any procedural
flaws, the Plaintiff's cause of action would thereby be mooted.
Such an abstension would not, however, vindicate those
rights Plaintiffs were and continue to have been denied. See
Hudson, 106 S.Ct. at 1075 n. 14.
The parties do not dispute that the deduction of "fair
share" fees impinges on recognized liberty and property
interests to which the strictures of the Fourteenth
Amendment's due process clause apply. The parties' dispute
lies in determining the precise nature of the procedures that
are due. However, this dispute has been effectively resolved
by the United States Supreme Court:
We hold today that the 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 decisionmaker, and an escrow for the
amounts reasonably in dispute while such
challenges are pending.
Hudson at 1078. The procedure which Defendant AFSCME instituted
in the fall of 1985 fails both the notice and appeal criteria
outlined by the Supreme Court.
I. The "notices" published by the Defendants fail the test
of adequacy in three respects.
First, the notice must inform all interested parties of the
rationale behind the calculation of the "fair share." "The
union need not provide nonmembers with an exhaustive and
detailed list of all its expenditures, but adequate disclosure
surely would include the major categories of expenses, as well
as verification by an independent auditor." Hudson at 1076 n.
18 (Relatively large expenditures, the Supreme Court indicates,
should be divided into their component parts so as to
demonstrate with specificity the nature of the expenditure).
The notices to which the Plaintiffs object merely indicated the
union's conclusion as to the appropriate percentage of its
budget expended on negotiation and failed to give detailed
figures verified by an independent audit.
The second inadequacy in the notice Defendants provided
Plaintiffs lies in the failure to provide sufficiently
specific information on the procedure for lodging an objection
to the "fair share" assessment. The notices posted by
Defendant AFSCME did inform potential objectors that two
avenues of redress existed and provided addresses for the SLRB
and AFSCME Council 31. The notices did not contain phone
numbers for the respective offices and, more importantly, they
did not explain the procedure for making an objection known.
The Supreme Court has indicated that "the non-members `burden'
is simply the obligation to make his objections known."
Hudson at 1076 n. 16. The notices posted by the Defendants, by
their lack of information regarding the procedure for
objection, imposed upon the Plaintiffs not only the burden of
objecting but also the burden of discovering how to object.
Adequate notice entails information sufficient for an
individual, unsophisticated non-union employee to file a
written objection without further investigation.
Adequate notice also implies timely notice. Although the
timing of the notice provided to the Plaintiffs in
Hudson was not at issue before the Supreme Court, this Court
finds that adequate notice requires notification a sufficient
time prior to the deprivation so as not to present the deprived
party with a fait accompli. In the present situation, although
Defendant AFSCME notified the Department of Central Management
Services of its intention to collect "fair share" assessments
on August 30, 1985, neither the union nor the state made any
attempt to notify the Defendants until September 10, 1985 (at
the earliest), five days prior to the commencement of the first
pay period during which "fair share" fees were to be assessed.
Without establishing an arbitrary period of time, the Court
finds that the period of time necessary to establish the
mechanics for deduction of the "fair share" fees is adequate
for providing notice to any potential objectors. Once the union
informs management of its desire to assess "fair share" fees in
a specified amount, those against whom the fees will be
should also be notified of their right to object.
II. In addition to notice of their right to object,
employees subject to "fair share" assessments are also
entitled to "a reasonably prompt decision by an impartial
decisionmaker." Hudson at 1076. The notices posted by the
Defendants and the additional information available to
objectors who write the union indicate three alternative
avenues of appeal. An objecting non-union employee may file a
charge with the State Labor Relations Board, or he may file an
objection with AFSCME Council 31, or he may file an objection
with the AFSCME International. Hudson requires only that the
available procedure afford an objector "to have his objections
addressed in an expeditious, fair, and objective manner."
Hudson at 1076; see also Id. at 1076 n. 19.
None of the procedures available to the Plaintiffs here
satisfy the minimum requirements of Hudson. The mechanism for
mounting a challenge through the State Labor Relations Board,
while potentially adequate, was essentially non-existent at the
time the Defendants began deducting "fair share" fees. The
appeal process through the AFSCME International fails for its
use of hearing officers employed and therefore controlled by
the union. Hudson at 1077. The appeal process through the union
local has the distinct advantage of permitting both the
objector and the union to select a mutually agreed upon
arbitrator; however, an objector obtains arbitration of his
claim only after review of his complaint by the local's
Executive Board and thus falls short of the expeditious, fair
and objective standard. None of the opposed methods of appeal
provide "a reasonably prompt opportunity to challenge the
amount of the fee before an impartial decisionmaker." Hudson at
III. The union does appear to have satisfied the third major
requirement of a valid "fair share" fee system by having
established "an escrow account for the amounts reasonably in
dispute while such challenges are pending." Id. at 1078.
However, the ex post establishment of an escrow does not cure
the procedural defects with respect to notice and appeal.
Contrary to the Defendants contentions, the Court finds that
the constitutional strictures against which the Defendants'
procedures have been measured were sufficiently established at
the time the Defendants implemented their "fair share"
assessments to require Defendants to adhere to them. The 7th
Circuit's opinion in Hudson v. Chicago Teachers Union Local No.
1, 743 F.2d 1187 (7th Cir. 1984), had been handed down prior to
the implementation of the "fair share" deductions challenged
here. While much of the Seventh Circuit's opinion was advisory
in nature, it did provide some guidance which the Defendants
chose to abjure. Moreover, in Hudson, the Supreme Court
specifically directed that the district court retroactively
fashion a remedy in accordance with its elucidation of the
procedures that were due.*fn3
Having found that the Plaintiffs rights were, indeed,
violated, the Court now, of necessity, considers the question
of an appropriate remedy. In fashioning the appropriate
remedy, the Court turns to those officers who have thus far
served the Court well during the pendency of this cause. The
remedy shall include injunctive relief as well as damages and
fees to the extent warranted. Its details should, in the first
instance, be proposed by the parties who, in the nature of
things, best understand the practical considerations of
implementation. Its scope should be sufficiently
broad to provide for all those who have been subject to
procedures which essentially, if not intentionally, were
To this end, the Plaintiffs are directed to file a
memorandum with a proposed remedy and Defendants shall
respond. The Court will then convene a hearing to be attended
by all parties — at which the precise details of the remedy
will be determined.