Joseph Ocol , on behalf of himself and all others similarly situated v. Chicago Teachers Union

In the
United States Court of Appeals
For the Seventh Circuit
No. 20-1668
J OSEPH OCOL , on behalf of himself
and all others similarly situated,
Plaintiff-Appellant,
v.
C HICAGO T EACHERS U NION, et al.,
Defendants-Appellees.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 18 CV 8038 — Harry D. Leinenweber, Judge.
SUBMITTED1 SEPTEMBER 29, 2020 — D ECIDED D ECEMBER 9, 2020
Before R OVNER , SCUDDER, and ST. EVE , Circuit Judges.
R OVNER , Circuit Judge. In Janus v. AFSCME, Council 31, 138
S. Ct. 2448 (2018)(Janus I), the Supreme Court reversed course
1 This court granted the parties` joint motion to waive oral argument. The
case is therefore submitted on the briefs.

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2 No. 20-1668
on 41 years of jurisprudence sanctioning agreements between
state-government agencies and unions authorizing the unions
to collect fair-share fees from non-union members to cover
costs incurred representing them. Joseph Ocol, a math teacher
in the Chicago public school system, then filed this putative
class action lawsuit under 42 U.S.C. § 1983 and 28 U.S.C. § 2201
against the Chicago Teachers Union and the American Federa-
tion of Teachers (“Union defendants”) as well as the Attorney
General of Illinois and the chair and members of the Illinois
Educational Labor Relations Board (“state defendants”). As
relevant here, he sought recovery of payments he had previ-
ously made under protest to the Chicago Teachers Union and
also challenged the constitutionality of the exclusive represen-
tation provisions of Illinois law as they applied to non-union
members. Ultimately the district court dismissed or granted
summary judgment to all defendants, and Ocol appeals. As
Ocol admits, however, his claims are barred by existing
precedent, and we therefore affirm.
I.
Ocol is a math teacher at Earle STEM Elementary School
and was a member of the Chicago Teachers Union from 2005
through 2016. According to his complaint, in September 2016
he was expelled from the Union after refusing to participate in
a one-day strike on April 1, 2016. He did, however, remain
obligated to pay so-called “fair-share fees” to the Union under
the portion of the Illinois Educational Labor Relations Act, 115
ILCS 5/1-5/21, authorizing unions and public employers to
include in their collective bargaining agreements a fair share
clause “requiring employees covered by the agreement who

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No. 20-1668 3
are not members of the organization to pay the organization a
fair share fee for services rendered.” Id. § 5/11.
Ocol continued paying the required fair-share fees until
2018, when the Supreme Court in Janus I overruled Abood v.
Detroit Board of Education, 431 U.S. 209 (1977), and concluded
that extraction of such fees from non-union members violated
those employees’ First Amendment rights, see Janus I 138 S. Ct.
at 2478. The district court then dismissed the state defendants
on their motion. The Union defendants moved for summary
judgment, but the parties agreed to stay consideration of the
motion until after our court resolved Janus I on remand. In that
appeal, we considered and rejected Mark Janus’s argument
that he was entitled to a refund for some or all of the fair-share
fees he had paid under protest. Janus v. AFSCME, Council 31,
942 F.3d 352 (7th Cir. 2019)(“Janus II”); see also Mooney v. Ill.
Educ. Ass’n, 942 F.3d 368 (7th Cir. 2019) (rejecting plaintiff’s
assertion that she was entitled to the equitable remedy of
restitution of past fair-share fees). Ocol then conceded defeat
on his Section 1983 claim for a refund of his fair-share pay-
ments as well as his First Amendment challenge to exclusive
representation. The district court thus granted the Union
defendants` motion for summary judgment.2
2 In addition to his constitutional claims, Ocol sought repayment of his fair-
share fees under a state-law tort of conversion claim. He also mounted an
antitrust challenge to the Union’s collective bargaining agreements, arguing
that the alleged anti-competitive effects of designating the Union as the
exclusive representative of both members and non-members alike
amounted to a violation of the Sherman Act. The district court rejected both
of these claims, noting that the tort law claim was pre-empted by the Illinois
(continued...)

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4 No. 20-1668
II.
On appeal, Ocol renews his constitutional challenges to his
past payment of fair-share fees to the Chicago Teachers Union
and to its designation as exclusive representative of both union
and non-union members alike under Illinois law. He admits,
however, that both claims are squarely foreclosed by precedent
and requests that we summarily affirm judgment in the
defendants’ favor so that Ocol may appeal to the Supreme
Court.
As Ocol recognizes, our holding in Janus II, 942 F.3d at 367,
precludes his argument that he is entitled to a refund of his
past compulsory fair-share payments. The plaintiff in Janus I,
who, like Ocol, had paid fair-share fees under protest to a
union designated as the representative of his employee unit
(the Illinois Department of Healthcare and Family Services),
sought recovery of his past payments. We held that a private
party acting under color of state law for § 1983 purposes was
entitled to a good-faith defense, which applied to the union’s
collection of fair-share fees before the Supreme Court’s
decision. Janus II, 942 F.3d at 364–65. We thus concluded that
Janus was limited to “declaratory and injunctive relief, and a
future free of any association with a public union.” Janus II, 942
2 (...continued)
Educational Labor Relations Act, 115 ILCS 5/1-5/21, and that the antitrust
claim fared no better: the principle of exclusive representation has
longstanding judicial acceptance and in any event the state action exception
to the Sherman Act would surely apply in light of the designation by the
Illinois legislature of exclusive bargaining as the authorized system
governing labor relations for Illinois public employees. Ocol is not pursuing
either of these claims on appeal.

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No. 20-1668 5
F.3d at 367. As Ocol admits, the exact same rationale applies to
bar his claim for repayment of past fair-share fees from the
Chicago Teachers Union.
Likewise, Ocol’s constitutional challenge to the Union’s
exclusive representation goes nowhere. The Illinois Educa-
tional Labor Relations Act, 115 ILCS 5/1-5/21, governs labor
relations between public educational employers and employ-
ees through a system of exclusive representation allowing the
representative union to negotiate employment conditions,
resolve disputes, and select employee representatives pursuant
to collective bargaining agreements. Ocol argues that the Act’s
exclusive representation provisions violate the First Amend-
ment by restricting his right to bargain as an individual for the
terms and conditions of his employment. Here again, as Ocol
himself acknowledges, precedent forecloses his claim. Specifi-
cally, in Minnesota State Board for Community Colleges v. Knight,
the Supreme Court rejected a First Amendment challenge to a
similar exclusive representation provision applicable to state
colleges in Minnesota, 465 U.S. 271 (1984) (upholding a
provision of Minnesota Public Employment Labor Relations
Act that precluded non-designated faculty representatives
from bargaining directly with college employers). And more
recently in Janus I, the Court gave no indication that its ruling
on fair-share fees necessarily undermined the system of
exclusive representation. See Janus I, 138 S. Ct. at 2467 (noting
that union’s duty of fair representation to both members and
nonmembers continues despite elimination of fair-share fees
because benefits of exclusive representation ?greatly outweigh
any extra burden imposed by the duty of providing fair
representation for nonmembers”). As Ocol recognizes,

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6 No. 20-1668
Knight and its progeny firmly establish the constitutionality of
exclusive representation, and the Supreme Court is the proper
forum for challenging that rule. We thus grant his request for
summary affirmance so that he may seek a petition for certio-
rari to pursue his arguments there.
III.
For the foregoing reasons, we AFFIRM the district court’s
grant of summary judgment.

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