A Chicago Public Schools math teacher and accomplished chess coach will get his chance to join the ranks of government workers asking the U.S. Supreme Court to order unions representing public sector workers to refund fees the high court has already ruled the unions, through their allies in state and local governments, unconstitutionally collected.
The teacher also is seeking to upend unions’ claims to the right to exclusively represent certain groups of workers.
On Dec. 9, the U.S. Seventh Circuit Court of Appeals rejected an appeal from plaintiff Joseph Ocol, in his class action lawsuit against the Chicago Teachers Union.
In rejecting the appeal, the Seventh Circuit judges handling the case acknowledged Ocol and his attorneys had sought the rejection, to enable them to attempt to appeal their claims to the Supreme Court.
For the past two years, lawsuits have been filed in Illinois and elsewhere in the U.S., seeking court courts to require unions to pay out for collecting fees from non-union workers. The unions claimed the fees were required to reimburse them for representing the non-union workers, as the exclusive bargaining representatives for employment units.
The fees were extracted from non-union workers’ pay by the government agencies for which they worked.
In Ocol’s case, he said was required to pay so-called “fair share fees” to the CTU, after he was expelled from the union for refusing to participate in a one-day strike in April 2016. Ocol worked as a math teacher at Chicago's Marshall Metropolitan High School. He serves as chess coach at the high school and at nearby Faraday Elementary School.
However, the Supreme Court declared such compulsory fees unconstitutional in 2018, in a case brought by Illinois state employee Mark Janus. The court declared such fees violated the First Amendment speech and association rights of non-union workers.
In the months and years since, however, federal judges have refused to require unions to reimburse workers for those fees, even if the fees were collected after Janus had filed suit and the plaintiffs claimed the unions should have been on notice that the fee regimes could be struck down.
The Seventh Circuit, for instance, specifically rejected a case brought by Janus himself, demanding such a refund for the fair-share fees he had paid under protest to the American Federation of State County and Municipal Employees, the union representing his employment unit.
In such cases, judges have typically ruled unions should be allowed to retain the fees because they were collected in “good faith,” in reliance on previous U.S. Supreme Court rulings and state law.
Ocol filed his class action suit against the CTU in December 2018. Following the rejection of Janus’ appeal by the Seventh Circuit, a federal judge granted summary judgment to the CTU on Ocol’s claims that the union’s claims to exclusive representation were unconstitutional and that the union owed him a refund for the fees collected under compulsion.
Other similar cases against unions have progressed further through the court system.
A lawsuit brought by Chicago Transit Authority worker Benito Casanova against the International Association of Machinists Local 701, for instance, is already pending before the U.S. Supreme Court. The parties are awaiting a decision from the Supreme Court on Casanova’s petition for writ of certiorari, which is a court order indicating the high court has agreed to hear a case.
Casanova’s reasoning is similar to dozens of other cases filed across the U.S. against public sector labor unions.
Casanova specifically argues the lower courts have twisted the so-called “good faith” defense to allow the unions to keep illegally collected fees, allowing unions to be protected by a legal shield designed to protect the state and local governments themselves.
The Supreme Court has put off a decision on Casanova’s petition several times since September, according to the court’s docket. Both sides completed filing requested briefs in September.
In rejecting Ocol’s appeal, the Seventh Circuit judges said his legal contentions will be best answered by the Supreme Court, as well, as prior decisions from the high court “firmly establish the constitutionality of exclusive representation, and the Supreme Court is the proper forum for challenging that rule.”
They noted Ocol had requested the Seventh Circuit rule against him in a summary fashion, “so that he may seek a petition for certiorari to pursue his arguments” at the Supreme Court.
Ocol is represented in the case by attorney Jonathan F. Mitchell, of Mitchell Law PLLC, of Austin, Texas.
The CTU and other union defendants are represented by attorneys John M. West and Joshua B. Shiffrin, of the firm of Bredhoff & Kaiser PLLC, of Washington, D.C.