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Appeals Court Rules District May Delay Agency-Fee Refunds

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A school district and a teachers' union may collect agency fees from nonunion teachers and issue refunds to them once yearly for charges unrelated to collective bargaining, a federal appeals court has ruled.

In Grunwald v. San BernardinoCity Unified School District, decided late last month, the U. S. Court of Appeals for the Ninth Circuit ruled that the rebate procedure developed jointly by the California district and its local teachers' union does not violate nonunion teachers' free-speech rights.

"We've maintained throughout this case that the procedure we use is a reasonable one that doesn't have any adverse effects on teachers' constitutional rights,'' said Jeremiah Collins, a lawyer who argued the case for the district and for the local and state affiliates of the National Education Association.

As the result of the U.S. Supreme Court's 1986 decision in Chicago Teachers Union v. Hudson, districts and unions must set up "a fair, prompt, and effective procedure'' that permits nonunion teachers to recoup the portion of their agency fees that would otherwise be used for activities unrelated to collective bargaining.

In San Bernardino, the district deducts an amount equal to union-members' dues from nonunion teachers' pay beginning in September and places the money in an interest-bearing escrow account. Partial refunds, plus interest, are issued in December to teachers who object to the union's political activities.

Joe Woodford, the director of employee relations for the San Bernardino schools, said the district implemented the collection policy only after teachers--both union and nonunion--voted in favor of it.

"The system has been in place six years and we have had very few complaints,'' Mr. Woodford said.

But some nonunion teachers claimed that the refund process was too lengthy, temporarily denying them access to their money.

The appeals court ruled in favor of the district, however, reversing a 1990 ruling by a federal district court.

Writing for the majority, Judge Alex Kozinski held that "the union had advanced a legitimate reason for the procedure it had adopted: Its ranks and the ranks of the agency-fee payers change from year to year.''

'Advanced Reductions'

According to Richard B. Wilkof, a lawyer with the N.E.A., rebate procedures are designed by union affiliates in most states, the most notable exception being those under the jurisdiction of the U.S. Court of Appeals for the Sixth Circuit--Kentucky, Michigan, Ohio, and Tennessee. A ruling by that court that is binding in those states requires unions to prorate nonmembers agency fees up front.

Milton Chapell, a lawyer for the National Right to Work Legal Defense Foundation, which represented the nonunion teachers in the Grunwald case, said "most of the states and unions are following schemes and offering unions some kind of advanced reduction.''

The California Teachers' Association, he said, "is one of the few holdouts.''

Mr. Chapell said his clients plan to file an appeal with the U.S. Supreme Court by August. He said he hopes the split between the Sixth and Ninth Circuit courts "will cause the Supreme Court to look at the case.''

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