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High Court Agrees To Accept Lawsuit Testing Pact's Agency-Free Provision

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Washington--The U.S. Supreme Court last week agreed to review a federal appeals court's nullification of the agency-fee provisions of the contract negotiated in 1982 by the Chicago Board of Education and the city's local chapter of the American Federation of Teachers.

The teachers' union appealed the decision by the U.S. Court of Appeals for the Seventh Circuit, which said that the contract violated the First and 14th Amendment rights of nonunion teachers by failing to establish an appropriate grievance procedure for those who thought their agency-shop fees were being misspent. (See Education Week, Sept. 26, 1984.)

The name of the case is Chicago Teachers Union v. Hudson (Case No. 84-1503).

Contract Provisions

Under the contested contract, teachers not joining the union were required to pay an agency fee equal to 95 percent of union dues, which totaled about $208 in 1982. The Chicago Teachers Union calculated that about 4.6 percent of its income in 1981 had been spent on "matters not germane to collective bargaining," such as "political, ideological, charitable, and philanthropic causes," according to a brief it filed with the Court.

Teachers who were dissatisfied3with the agency fee were allowed to appeal first to an internal union review board and then to an arbitrator appointed by the union president from a list of arbitrators kept by the state board of education. If still dissatisfied, teachers could, under the contract's terms, take their dispute to state court.

In March 1983, a group of nonunion teachers challenged the grievance procedure and the amount of the fee in federal district court, but the court found in favor of the union.

Appeals Court's Decision

On appeal, the teachers challenged only the ruling on the grievance procedure and the Seventh Circuit Court upheld their claim. The three-judge panel found that the grievance procedure, "from start to finish'' under the control of the union, was biased against the nonunion teachers. It also offered a more impartial process.

"We suggest that the constitutional minimum would be fair notice, a prompt administrative hearing before the board of education or some other state or local agency, and the right of judicial review of the agency's decision," the panel stated.

The union, in a brief filed with the Supreme Court, contended that the circuit court's decision "imposes on the states the burdensome, time-consuming, and expensive obligations of establishing administrative procedures as a condition of enforc-ing a proportionate-share requirement."

Agency Fees Challenged

The Court in 1977 ruled in another case that while the collection of agency fees "might well be thought ... to interfere in some ways" with nonunion employees' First Amendment rights, such fees are "constitutionally justified by the legislative assessment of the important contribution of the union shop to the system of labor relations established by Congress."

That case was Abood v. Detroit Board of Education.

And last year, the Court ruled in Ellis v. Railway Clerks that unions could not use the fees paid by nonmembers for union organizing or litigation not connected to collective bargaining.

But the grievance-procedure issue remains unresolved.

Earlier this year, three Justices voted to hear an agency-shop case, Jibson v. White Cloud Board of Education, which is similar to Hudson. But four Justices must agree in order for the Court to schedule a case for argument. The Court has also rejected four other appeals on the issue this year.

Moreover, agency-shop agreements in union contracts have come under increasing fire from nonunion teachers across the country and from the National Right to Work Committee, an organization based in Springfield, Va., that seeks to abolish laws requiring workers to join or support unions. (See Education Week, April 24, 1985.)

Rossie D. Alston Jr., a staff attorney with the right-to-work committee who is representing the nonunion employees who initially brought the Hudson suit, commented that he is "encouraged because now the U.S. Supreme Court can use the sound reasoning of the Seventh Circuit and adopt it as the law of the land." His group had initially asked the Supreme Court not to hear the appeal.

Lawrence A. Poltrock, an attorney for the union, said that he was "surprised" that the Court took the case, because it had turned down other agency-fee cases and ruled on Ellis last year.

He cautioned that while the appeals court's reasoning "went far beyond" what the High Court has ruled previously in agency-fee cases, the "down side" is that the Justices may now endorse the lower court's line of argument.

Handicapped Student's Case

In another decision last week, the Justices declined to review a case involving the reimbursement of parents who decide unilaterally to seek private treatment for their handicapped children.

The issues presented in the case were virtually identical to those in a case recently decided by the Court, School Committee of the Town of Burlington v. Department of Education of the Commonwealth of Massachusetts. (See Education Week, May 8, 1985.)

In last week's case, a Texas school district contended that a mother who placed her son in private treatment without consulting the school district was not entitled to reimbursement, irrespective of whether or not the care provided her son was proper.

The U.S. Court of Appeals for the Fifth Circuit had reopened a case that was dismissed by a district court and remanded it to the lower court to develop a factual record. Such a record would be used to determine whether the mother of Sterling Wilks, a severely autistic boy, is entitled to reimbursement under P.L. 94-142, the Education for All Handicapped Children Act, under the standard developed in Burlington. If she was found to have acted properly, she is entitled to reimbursement.

The school district asked the Supreme Court to review and reverse the appellate court's decision to reopen the case.

The name of the case was Garland Independent School District v. Sterling Wilks (No. 84-1649).

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