A teacher trying to recover “fair share” fees he paid to a union before they were declared unconstitutional does not have a claim for conversion, a federal judge held Thursday.
In a written opinion, U.S. District Judge Harry D. Leinenweber granted summary judgment in favor of the Chicago Teachers Union and other defendants named in a proposed class-action lawsuit filed by Joseph Ocol.
Leinenweber acknowledged the U.S. Supreme Court in 2018 ruled that forcing public employees to pay fees to a union to which they do not belong violates their First Amendment right to free speech.
But he rejected the argument that Ocol is entitled to the return of the “fair share” fees he paid because they were collected under an unconstitutional statute.
The Illinois Educational Labor Relations Act provides the exclusive remedy for torts such as conversion, Leinenweber wrote.
Ocol’s suit is in federal court because it includes a federal claim in addition to the state tort claim.
“Plaintiff fails to cite any case in which an employee has been allowed to proceed in state court on a tort claim against either the [u]nion or the school employer, while [d]efendants have cited a host of cases to the contrary,” Leinenweber wrote, citing Shaikh v. Watson, 2011 WL 589638 (N.D. Ill. 2011), and Pugh v. Chicago Teachers Union, 2012 WL 1623222 (N.D. Ill. 2012).
Also, Leinenweber wrote, Ocol has no conversion claim because the defendants acted in good faith under what was then good law.
In Ryan v. County of DuPage, 45 F.3d 1090 (7th Cir. 1995), the 7th U.S. Circuit Court of Appeals “held that existing statutes are ‘hard facts’ on which people must be allowed to rely in making decisions and in shaping their conduct,” Leinenweber wrote.
“Thus,” he wrote, “conduct lawful under a statute cannot be later found wrongful due to a Supreme Court decision striking down that statute.”
In June 2018, a divided U.S. Supreme Court held unconstitutional laws that require non-union government employees to pay “fair share” fees to a union to help cover the cost of negotiating labor contracts that purportedly benefit union and non-union employees alike.
The high court’s 5-4 ruling in Janus v. AFSCME, No. 16-1466, overturned a 40-year-old precedent.
The plaintiff in the case was Mark Janus, then a child-support specialist with the Illinois Department of Healthcare and Family Services.
Shortly after the court ruled, Janus sued the union in federal court in Chicago seeking damages totaling the amount of “fair share” fees he had paid.
In March 2019, U.S. District Judge Robert W. Gettleman granted summary judgment in favor of the union. He held it had acted in good faith in collecting the fees under a then-valid law.
The 7th Circuit affirmed that ruling in November 2019. Janus petitioned the Supreme Court this month to review the case.
In December 2018, Ocol filed his own suit seeking a refund of the “fair share” fees he and others had been required to pay CTU. Ocol is a teacher with Chicago Public Schools.
In addition to the union, defendants in Ocol’s suit were the American Federation of Teachers and various Illinois officials in their official capacities.
In his opinion, Gettleman also rejected the argument that designating one union to be the exclusive bargaining agent violates antitrust law.
“Plaintiff’s antitrust argument is based on what he believes to be the anticompetitive evils of the present system that result from designating a [u]nion to be the exclusive bargaining agent to the exclusion of non-members,” Gettleman wrote.
However, he wrote, Ocol’s beliefs do not align with precedent.
“Regardless of what [p]laintiff thinks of the principle of exclusive representation for public employees and the collective bargaining agreements that result from such exclusive representation, it has been the accepted system in Illinois for the last 35 years and is the system adopted in most sister states,” Leinenweber wrote.
“It is difficult to see how such a system can be in violation of the federal antitrust laws,” he added.
The case is Joseph Ocol v. Chicago Teachers Union, et al., No. 18 C 8038.
Ocol is represented by Norman Rifkind of the Law Office of Norman Rifkind and Jonathan F. Mitchell of Mitchell Law PLLC in Austin, Texas.
CTU and the AFT are represented by attorneys who include Robert E. Bloch and George A. Luscombe III, both of Dowd Bloch Bennett Cervone Auerbach & Yokich.
Other attorneys representing the union and federation are John Miller West and Joshua Shiffrin, both of Bredhoff & Kaiser PLLC in Washington, D.C.
“Ocol, a CPS teacher and former CTU member who defied his fellow teachers by crossing a union picket line, sued the CTU seeking to bar the CTU from representing him and to enrich himself by recovering years worth of past fair share fees,” Bloch, who is the union’s general counsel, said in a statement.
“The court rightly dismissed his claims in a concise opinion finding that the CTU’s activities are lawful and protected and that Ocol’s novel legal theories lack any basis in the law.”
The state officials are represented by Illinois Senior Assistant Attorney General Sarah Hughes Newman.
A spokesperson for the Attorney General’s Office could not be reached for comment.