Case Study:
[The Chicago Teachers Union has been the exclusive collective bargaining representative of the Chicago Board of Education’s educational employees since 1967. Approximately 95 percent of the employees are members of the union. Until 1982, the members’ dues financed the entire cost of the union’s collective bargaining and contract administration, and nonmembers received the benefits of the union’s representation without making any contributions to its cost. In an attempt to solve this “free rider” problem, the union and the board entered into an agreement requiring the board to deduct “proportionate share payments” from non-members’ paychecks. The union determined that the “proportionate share” assessed on nonmembers was 95 percent of union dues. Union officials computed the 95 percent fee on the basis of the union’s financial records for the fiscal year ending on June 30, 1982. They identified expenditures unrelated to collective bargaining and contract administration (which they estimated as $188,549.82). They divided this amount by the union’s income for the year ($4,103,701.38) to produce a percentage of 4.6; the figure was then rounded off to 5 percent to provide a cushion to cover any inadvertent errors. The union also established a procedure for considering nonmembers’ objections to the deductions. After the deduction was made, a nonmember could object by writing the union president. The objection would then meet a three-stage procedure: (1) the union’s executive committee would consider the objection and within 30 days notify the objector of its decision; (2) if the objector disagreed with that decision and appealed within another 30 days, the union’s executive board would consider the objection; and (3) if the objector continued to protest after the executive board’s decision, the union’s president would select an arbitrator. If an objection was sustained at any stage, the remedy would be a reduction in future deductions and a rebate for the objector. Annie Hudson and other objecting nonmembers of the union brought suit in federal district court, challenging the union procedure on the grounds that it violated their First Amendment rights to freedom of expression and association and their Fourteenth Amendment due process rights and also permitted the use of their proportionate share for impermissible purposes. The district court rejected the challenges and upheld the procedure. The court of appeals reversed, holding that the procedure was constitutionally inadequate.] STEVENS, J.… In Abood v. Detroit Board of Education, 431 U.S. 209 (1977), “we found no constitutional barrier to an agency shop agreement between a municipality and a teacher’s union insofar as the agreement required every employee in the unit to pay a service fee to defray the costs of collective bargaining, contract administration, and grievance adjustment. The union, however, could not, consistently with the Constitution, collect from dissenting employees any sums for the support of ideological causes not germane to its duties as collective bargaining agent.” Ellis v. Railway Clerks, 466 U.S. 435, 447 (1984). The Ellis case was primarily concerned with the need “to define the line between union expenditures that all employees must help defray and those that are not sufficiently related to collective bargaining to justify their being imposed on dissenters.” Ibid. In contrast, this case concerns the constitutionality of the procedure adopted by the Chicago Teachers Union, with the approval of the Chicago Board of Education, to draw that necessary line and to respond to nonmembers’ objections to the manner in which it was drawn…. I. The procedure that was initially adopted by the Union and considered by the District Court contained three fundamental flaws. First, as in Ellis, a remedy which merely offers dissenters the possibility of a rebate does not avoid the risk that dissenters’ funds may be used temporarily for an improper purpose. “[T]he Union should not be permitted to exact a service fee from nonmembers without first establishing a procedure which will avoid the risk that their funds will be used, even temporarily, to finance ideological activities unrelated to collective bargaining.” Abood, 431 U.S., at 244 (concurring opinion). The amount at stake for each individual dissenter does not diminish this concern. For, whatever the amount, the quality of respondents’ interest in not being compelled to subsidize the propagation of political or ideological views that they oppose is clear. In Abood, we emphasized this point by quoting the comments of Thomas Jefferson and James Madison about the tyrannical character of forcing an individual to contribute even “three pence” for the “propagation of opinions which he disbelieves.” A forced exaction followed by a rebate equal to the amount improperly expended is thus not a permissible response to the nonunion employees’ objections. Second, the “advance reduction of dues” was inadequate because it provided nonmembers with inadequate information about the basis for the proportionate share. In Abood, we reiterated that the non-union employee has the burden of raising an objection, but that the union retains the burden of proof: “‘Since the unions possess the facts and records from which the proportion of political to total union expenditures can reasonably be calculated, basic considerations of fairness compel that they, not the individual employees, bear the burden of proving such proportion.’ “Abood, 431 U.S., at 239–240, n. 40, quoting Railway Clerks v. Allen, 373 U.S. 113, 122 (1963). Basic considerations of fairness, as well as concern for the First Amendment rights at stake, also dictate that the potential objectors be given sufficient information to gauge the propriety of the union’s fee. Leaving the non-union employees in the dark about the source of the figure for the agency fee—and requiring them to object in order to receive information—does not adequately protect the careful distinctions drawn in Abood. In this case, the original information given to the non-union employees was inadequate. Instead of identifying the expenditures for collective bargaining and contract administration that had been provided for the benefit of nonmembers as well as members— and for which nonmembers as well as members can fairly be charged a fee—the Union identified the amount that it admittedly had expended for purposes that did not benefit dissenting nonmembers. An acknowledgment that nonmembers would not be required to pay any part of 5 percent of the Union’s total annual expenditures was not an adequate disclosure of the reasons why they were required to pay their share of 95 percent. Finally, the original Union procedure was also defective because it did not provide for a reasonably prompt decision by an impartial decision maker. Although we have not so specified in the past, we now conclude that such a requirement is necessary. The non-union employee, whose First Amendment rights are affected by the agency shop itself and who bears the burden of objecting, is entitled to have his objections addressed in an expeditious, fair, and objective manner…. Thus, the original Union procedure was inadequate because it failed to minimize the risk that non-union employees’ contributions might be used for impermissible purposes, because it failed to provide adequate justification for the advance reduction of dues, and because it failed to offer a reasonably prompt decision by an impartial decision maker. f the fee before an impartial decision maker, and an escrow for the amounts reasonably in dispute while such challenges are pending. The determination of the appropriate remedy in this case is a matter that should be addressed in the first instance by the District Court. The Court of Appeals correctly reversed the District Court’s original judgment and remanded the case for further proceedings. That judgment of reversal is affirmed, and those further proceedings should be consistent with this opinion. It is so ordered.
Q1. What was the “free rider” problem the union and Board of Education tried to resolve?
Q2. Would not a rebate equal to the amount improperly expended resolve the nonmember employees’ objections?
Q3. What was constitutionally wrong with the original information given to the nonmember employees?
Q4. State the constitutional requirements for a union to collect agency fees.
Your answer must be, typed, double-spaced, Times New Roman font (size 12), one-inch margins on all sides, APA format and also include references.