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.
The Chicago Teachers Union has acted as the exclusive collective-bargaining representative of the Board's educational employees continuously since 1967. Approximately 95% of the 27,500 employees in the bargaining unit are members of the Union. Until December 1982, the Union members' dues financed the entire cost of the Union's collective bargaining and contract administration. Nonmembers received the benefits of the Union's representation without making any financial contribution to its cost.
In an attempt to solve this "free rider" problem, the Union made several proposals for a "fair share fee" clause in the labor contract. Because the Illinois School Code did not expressly authorize such a provision, the Board rejected these proposals until the Illinois General Assembly amended the
For the 1982-1983 school year, the Union determined that the "proportionate share" assessed on nonmembers was 95% of union dues. At that time, the union dues were $17.35 per month for teachers and $12.15 per month for other covered employees; the corresponding deduction from the nonmembers' checks thus amounted to $16.48 and $11.54 for each of the 10 months that dues were payable.
Union officials computed the 95% 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 ($4,103,701.58) to produce a percentage of 4.6%; the figure was then rounded off to 5% to provide a "cushion" to cover any inadvertent errors.
In October 1982, the Union formally requested the Board to begin making deductions and advised it that a hearing procedure had been established for nonmembers' objections. The Board accepted the Union's 95% determination without questioning its method of calculation and without asking to review any of the records supporting it. The Board began to deduct the fee from the paychecks of nonmembers in December 1982. The Board did not provide the nonmembers with any explanation of the calculation, or of the Union's procedures. The Union did undertake certain informational efforts. It asked its member delegates at all schools to distribute flyers, display posters, inform nonmembers of the deductions, and invite nonmembers to join the Union with an amnesty for past fines. It also described the deduction and the protest procedures in the December issue of the Union newspaper, which was distributed to nonmembers.
In March 1983, the four nonmembers, joined by three other nonmembers who had not sent any letters,
The District Court rejected the challenges. 573 F.Supp. 1505 (ND Ill. 1983). It first noted that the procedure passed the initial threshold established by an earlier Seventh Circuit opinion on the subject because the procedure itself was fair; it represented a good-faith effort by the Union; and it was not unduly cumbersome. The District Court then rejected the First Amendment objection because it found that the procedure was the "least restrictive means" to protect the nonmembers' First Amendment rights while also protecting the Union's legitimate interest in promptly obtaining service fees from nonmembers. The District Court also rejected the argument that the procedure deprived the plaintiffs of property without due process because it did not accept the plaintiffs' analogy to cases requiring predeprivation hearings. Finally, the District Court refused to reach the contention that the nonmembers' proportionate shares were, in fact, being used for impermissible purposes.
The Court of Appeals was unanimous in its judgment reversing the District Court. 743 F.2d 1187 (CA7 1984). All three judges agreed that the Constitution requires the Union to follow a procedure that protects the nonmembers from being compelled to subsidize political or ideological activities not germane to the collective-bargaining process, that the Union's objection procedure was inadequate, and that any rebate which allowed the Union temporary use of money for activities that violate the nonmembers' rights was unconstitutional. In his concurring opinion, however, Judge Flaum declined to reach certain questions discussed by the majority.
Specifically, the majority concluded that the category of impermissible expenditures included all those that were not germane to collective bargaining, even if they might not be characterized as "political or ideological." Judge Flaum found it unnecessary to reach this constitutional issue because the procedure could be deemed inadequate without deciding it and because, in his view, the collective-bargaining agreement and the Illinois statute limited agency shop fees to collective-bargaining and representational expenses. However,
Determining that the Union's existing procedure was constitutionally inadequate, and that the Union "must go back to the drawing board," id., at 1196, the majority suggested that the "constitutional minimum" of any revised procedure must include "fair notice, a prompt administrative hearing before the Board of Education or some other state or local agency — the hearing to incorporate the usual safeguards for evidentiary hearings before administrative agencies — and a right of judicial review of the agency's decision. The combination of an internal union remedy and an arbitration procedure is unlikely to satisfy constitutional requirements given the nature of the issues to be decided and the union's stake in how they are decided." Ibid.
In response to the Union's advice that it had voluntarily placed dissenters' agency fees in escrow, the majority noted that the Union had made no commitment to continue the escrow in the future, had not indicated the terms of the escrow, and, in all events, "[t]he terms cannot be left entirely up to the Union." Id., at 1197.
The importance of the case, and the divergent approaches of other courts to the issue,
In Abood v. Detroit Board of Education, 431 U.S. 209 (1977), we recognized that requiring nonunion employees to support their collective-bargaining representative "has an impact upon their First Amendment interests," id., at 222, and may well "interfere in some way with an employee's freedom to associate for the advancement of ideas, or to refrain from doing so, as he sees fit," ibid. See also id., at 255 (POWELL, J., concurring in judgment). We nevertheless rejected the claim that it was unconstitutional for a public employer to designate a union as the exclusive collective-bargaining representative of its employees, and to require nonunion employees, as a condition of employment, to pay a fair share of the union's cost of negotiating and administering a collective-bargaining agreement.
The question presented in this case is whether the procedure used by the Chicago Teachers Union and approved by the Chicago Board of Education adequately protects the basic distinction drawn in Abood. "[T]he objective must be to devise a way of preventing compulsory subsidization of ideological activity by employees who object thereto without restricting the Union's ability to require every employee to contribute to the cost of collective-bargaining activities." Id., at 237.
Procedural safeguards are necessary to achieve this objective for two reasons. First, although the government interest
In Ellis v. Railway Clerks, 466 U. S., at 443, we determined that, under the Railway Labor Act, a "pure rebate approach
In this case, we must determine whether the challenged Chicago Teachers Union procedure survives First Amendment scrutiny, either because the procedure upheld by the District Court was constitutionally sufficient, or because the subsequent adoption of an escrow arrangement cured any constitutional defect. We consider these questions in turn.
The procedure that was initially adopted by the Union and considered by the District Court contained three fundamental
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 nonunion 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).
In this case, the original information given to the nonunion employees was inadequate. Instead of identifying the expenditures for collective bargaining and contract administration
Finally, the original Union procedure was also defective because it did not provide for a reasonably prompt decision by an impartial decisionmaker. Although we have not so specified in the past,
The Union has not only created an escrow of 100% of the contributions exacted from the respondents, but has also advised us that it would not object to the entry of a judgment compelling it to maintain an escrow system in the future. The Union does not contend that its escrow has made the case moot. Rather, it takes the position that because a 100% escrow completely avoids the risk that dissenters' contributions could be used improperly, it eliminates any valid constitutional objection to the procedure and thereby provides an adequate remedy in this case. We reject this argument.
Although the Union's self-imposed remedy eliminates the risk that nonunion employees' contributions may be temporarily used for impermissible purposes, the procedure remains flawed in two respects. It does not provide an adequate explanation for the advance reduction of dues, and it does not provide a reasonably prompt decision by an impartial decisionmaker. We reiterate that these characteristics are required because the agency shop itself impinges on the nonunion employees' First Amendment interests, and because the nonunion employee has the burden of objection. The appropriately justified advance reduction and the prompt, impartial decisionmaker are necessary to minimize both the impingement and the burden.
Thus, the Union's 100% escrow does not cure all of the problems in the original procedure. Two of the three flaws remain, and the procedure therefore continues to provide less than the Constitution requires in this context.
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.
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
It is so ordered.
JUSTICE WHITE, with whom the THE CHIEF JUSTICE joins, concurring.
I join the opinion and judgment of the Court with the following observations. First, since the Court, as did Judge Flaum in the Court of Appeals, deems it unnecessary to reach the issue of nongermane, nonideological expenditures, the panel's remarks on the subject are therefore obvious dicta. Under our cases, they are also very questionable.
Second, as I understand the Court's opinion, the complaining nonmember need only complain; he need not exhaust internal union hearing procedures, if any, before going to arbitration. However, if the union provides for arbitration and complies with the other requirements specified in our opinion, it should be entitled to insist that the arbitration procedure be exhausted before resorting to the courts.
Ronald A. Zumbrun, John H. Findley, and Anthony T. Caso filed a brief for William Cumero as amicus curiae.
"Where a collective bargaining agreement is entered into with an employee representative organization, the school board may include in the agreement a provision requiring employees covered by the agreement who are not members of the representative organization to pay their proportionate share of the cost of the collective bargaining process and contract administration, measured by the amount of dues uniformly required by members. In such case, proportionate share payments shall be deducted by the board from the earnings of the non-member employees and paid to the representative organization." Ill. Rev. Stat., ch. 122, ¶ 10-22.40a (1983).
That statute has now been superseded by the Illinois Educational Labor Relations Act, Ill. Rev. Stat., ch. 48, ¶ 1701 et seq. (Supp. 1984).
"The fact that the appellants are compelled to make, rather than prohibited from making, contributions for political purposes works no less an infringement of their constitutional rights. For at the heart of the First Amendment is the notion that an individual should be free to believe as he will, and that in a free society one's beliefs should be shaped by his mind and his conscience rather than coerced by the State. See Elrod v. Burns, [427 U. S.], at 356-357; Stanley v. Georgia, 394 U.S. 557, 565; Cantwell v. Connecticut, 310 U.S. 296, 303-304. . . .
"These principles prohibit a State from compelling any individual to affirm his belief in God, Torcaso v. Watkins, 367 U.S. 488, or to associate with a political party, Elrod v. Burns, supra; see 427 U. S., at 363-364, n. 17, as a condition of retaining public employment. They are no less applicable to the case at bar, and they thus prohibit the appellees from requiring any of the appellants to contribute to the support of an ideological cause he may oppose as a condition of holding a job as a public school teacher." 431 U. S., at 234-235 (footnote omitted).
We also emphasized that freedom of association, as well as freedom of expression, supported our conclusion. See id., at 233. See also Roberts v. United States Jaycees, 468 U.S. 609, 623 (1984) (citing Abood for the principle that "[f]reedom of association . . . plainly presupposes a freedom not to associate").
Moreover, in view of the fact that the First Amendment principles identified in Abood require procedural safeguards and in view of the fact that respondents' challenge is to the procedure, not the expenditures, we find it unnecessary to resolve any question concerning nongermane, nonideological expenditures. Unlike the Seventh Circuit, we are not convinced that resolution of the constitutional nongermaneness question will lead to appreciably different procedural requirements, and we thus find no need to reach that constitutional question. See Rescue Army v. Municipal Court, 331 U.S. 549, 568-572 (1947). Cf. Ellis v. Railway Clerks, 466 U.S. 435 (1984) (analyzing specific challenged expenditures under the Railway Labor Act and, as necessary, under the First Amendment).
In other First Amendment contexts, of course, we have required swift judicial review of the challenged governmental action. See, e. g., Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975); Blount v. Rizzi, 400 U.S. 410 (1971); Freedman v. Maryland, 380 U.S. 51 (1965). In this context, we do not believe that such special judicial procedures are necessary. Clearly, however, if a State chooses to provide extraordinarily swift judicial review for these challenges, that review would satisfy the requirement of a reasonably prompt decision by an impartial decisionmaker.
The arbitrator's decision would not receive preclusive effect in any subsequent § 1983 action. See McDonald v. West Branch, 466 U.S. 284 (1984).