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March 26, 1996



The Honorable Justice Scariano delivered the opinion of the court: Hartman, P.j., and DiVito, J., concur.

The opinion of the court was delivered by: Scariano

The Honorable Justice SCARIANO delivered the opinion of the court:

Non-union members filed objections with the Illinois Educational Labor Relations Board ("Board") claiming that they had been assessed fair share fees by the petitioner unions ("Unions") during the 1991-92 academic year that were not chargeable to them, including internal and external organizing expenses *fn1

At the administrative hearing, Ed Geppert, Illinois Federation of Teachers' assistant to the president for organizing, testified at length regarding the "direct" benefits accruing from organizing expenses: external organizing results in additional members, thus producing power, clout and the ability to better represent the members in the collective bargaining process; it helps raise industry standards directly benefitting employees in existing organized districts; and it allows the union to provide better services to existing local units through economies of scale; internal organizing benefits unit members by increasing the local union's strength in negotiations.

On April 9, 1993, the administrative law judge issued his recommended decision and order, wherein he relied upon Geppert's testimony to find organizing expenses chargeable:

"The Federations have presented detailed, credible evidence that both external and internal organizing increase the unions' ability to engage in effective collective bargaining. The record evidence covers organizing at the national, state and local levels. That evidence further demonstrates that organizing brings direct economic benefits to nonmembers and enables the unions to provide more comprehensive service to bargaining unit members. I have concluded that organizing is therefore '"germane" to collective bargaining activity' as required by Lehnert.

I have further concluded that it is Constitutionally permissible to charge nonmembers for such organizing. Finally, I have concluded that this result is not inconsistent with the Board's decision in East St. Louis, since it is based on a rationale that was not at issue in that decision, and was therefore not ruled upon in that case."

After an objector filed exceptions to the ALJ's proposed disposition of the case, the Board issued its order, wherein it reversed that portion of the ALJ's recommendation which had concluded that internal and external organizing expenses were properly chargeable to nonmembers. This decision was based upon Ellis, Lehnert, and comments made by a sponsor of the IELRA. (These authorities are cited in full and discussed below.)

In this case, the Unions appeal solely that portion of the Board's order that holds that internal and external organizing expenses are not chargeable to nonmembers as part of the their "fair share fees." Nonmembers' obligation to pay their fair share of fees derives from The Illinois Educational Labor Relations Act as follows:

"Non-member fair share payments. When a collective bargaining agreement is entered into with an exclusive representative, it may include a provision requiring employees covered by the agreement who are not members of the organization to pay to the organization a fair share fee for services rendered. The exclusive representative shall certify to the employer an amount not to exceed the dues uniformly required of members which shall constitute each non-member employee's fair share fee. The fair share fee payment shall be deducted by the employer from the earnings of the nonmember employees and paid to the exclusive representative." 115 ILCS 5/11 (1993).

The United States Supreme Court has addressed the chargeability of a union's organizing expenses to nonmembers in Ellis v. Brotherhood of Ry., Airline and Steamship Clerks, Freight Handlers, Express and Station Employees, 466 U.S. 435, 80 L. Ed. 2d 428, 104 S. Ct. 1883 (1984) (finding the union's organizing expenses not chargeable to nonmembers under the Railway Labor Act). The test used in Ellis was:

"whether the challenged expenditures are necessarily or reasonably incurred for the purpose of performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues. Under this standard, objecting employees may be compelled to pay their fair share of not only the direct costs of negotiating and administering a collective-bargaining contract and of settling grievances and disputes, but also the expenses of activities or undertakings normally or reasonably employed to implement or effectuate the duties of the union as exclusive representative of the employees in the bargaining unit." Ellis, 466 U.S. at 448, 104 S. Ct. at 1892.

Applying this test to external organizing expenses, the Court found that "using dues exacted from an objecting employee to recruit members among workers outside the bargaining unit can afford only the most attenuated benefits to collective bargaining on behalf of the dues payer." Ellis, 466 U.S. at 452, 104 S. Ct. at 1894. As to internal organizing expenses, the Court noted that it would be "perverse" to allow "the union to charge to objecting nonmembers part of the costs of attempting ...

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