1. Retroactive assessment
When Local 38 provided plaintiffs with a copy of MKA's schedule for the year end 1990, it was accompanied by a letter, dated June 17, 1991, which states that MKA has determined that the proper agency fee for plaintiffs is $ 45.10 per month (based on a 78.9% chargeability ratio) and that "this amount is to be retroactive to July 1, 1989." Mazzola Decl., Exh. 16. Plaintiffs object that the Union's attempt to collect on a retroactive basis is improper.
While neither party points to any authority on point, the clear thrust of the cases cited above is that non-members must be given constitutionally adequate disclosures, and an opportunity to object before the union attempts to collect an agency fee from non-members. Retroactive assessment would be contrary to this consistent theme. See e.g., Grunwald, 917 F.2d at 1228; Tierney, 824 F.2d at 1503. It would also provide little incentive for unions to bring their procedures into compliance with constitutional standards, since they could always collect agency fees retroactively at any point. Further, the fact that the union undertakes a constitutionally adequate audit for the most recent year does not mean that the chargeable ratio for the most recent year would have been the same for previous years. Accordingly, we conclude that the union may not recover agency fees retroactively.
The June 17, 1991, letter referred to above simply states that $ 45.10 is the amount due per month and requests that plaintiffs contact the Dues Office so that the matter may be finalized. It does not mention any right to object or to arbitrate any objection. Local 38 argues that this failure should be of no consequence because plaintiffs can identify no resulting prejudice. Plaintiffs must know, the Union contends, of their right to object and arbitrate given the history of this litigation.
Again, neither party directs the Court to any authority on point. However, we conclude that the absence of prejudice is not dispositive. The purpose of this lawsuit is to force the Union to develop constitutionally adequate procedures for collection of agency fees from plaintiffs. Such procedure must include the opportunity to object and to arbitrate any disputes, and have disputed funds placed in escrow in the meantime.
If this procedure is to have any meaning, the union must notify plaintiffs of these options when informing them of the amount of the agency fee and providing the supporting audits. The Union appears to concede as much by arguing that their failure to provide such notice caused no prejudice rather than arguing that no such notice was required at all. As there is no "lack of prejudice" exception to compliance with the constitutional requirements, we conclude that the Union should be required to inform plaintiffs of their rights concerning objecting to and arbitrating any disputes. Hudson, supra; Grunwald, supra.5
Moreover, even assuming plaintiffs are aware of their right to object, the Union has failed to inform them of how or where such objection should be lodged and by what date it must be lodged. See, Tierney v. City of Toledo, 824 F.2d 1497, 1506 (6th Cir. 1987) ("a non-union member reading the rules simply would not know how to make a prompt and effective objection").
As noted above, in addition to the injunctive relief sought, plaintiffs seek nominal damages and punitive damages (in the amount of $ 1,000/plaintiff). Local 38 does not object to the request for nominal damages, but argues that punitive damages are not warranted.
The test for punitive damages in cases brought under 42 U.S.C. § 1983 is whether the defendant's conduct is shown to have been motivated by an evil motive or intent or a reckless or callous indifference to the federally protected rights of others. Smith v. Wade, 461 U.S. 30, 56, 103 S. Ct. 1625, 75 L. Ed. 2d 632 (1983). Plaintiffs contend that the Union persistently refused to undertake the necessary audit, and harassed plaintiffs concerning payment of the fee, including threatening termination, and that such conduct constitutes at least reckless or callous indifference to their first amendment rights. The Union contends that it has acted in good faith all along. At this juncture, neither party has persuaded the Court that the matter is resolvable on summary judgment.
The only issue remaining with respect to the adequacy of the Union's disclosure concerns the two components of the chargeability definition discussed above.
Accordingly, and good cause appearing, it is HEREBY ORDERED as follows:
1. Ruling on plaintiffs' motion for summary judgment and Local 38's cross-motion for dissolution of the preliminary injunction is deferred pending the following. Within 14 days of the date of this Order, Local 38 shall submit a supplemental filing which consists of either:
(a) a declaration, under penalty of perjury, from MKA that clarifies that that portion of the chargeability definition which includes:
(1) the costs of "communications with community organizations, civic groups, government agencies and the media respecting the Local's position on work-related matters," and