Labor & Employment Law

Union?s agency shop fee procedure violates nonmembers? First Amendment rights

By Harvey Randall, Esq.

Union?s agency shop fee procedure violates nonmembers? First Amendment rights
Seidemann v Bowen as president, Professional Staff Congress, et al, USCA, 2^nd Circuit, 499 F.3d 119

The Circuit Court of Appeals, Second Circuit, ruled that a union cannot require agency shop fee payers to file their objections to expenditures unrelated to the collective bargaining process annually.

Typically, individuals electing not to join the union certified to represent the employees in the negotiating unit pay an ?agency fee.? This fee is usually an amount equivalent to the union dues paid by active members of the union. However, those paying an agency fee in lieu of union dues are entitled to notice of the union?s expenditures unrelated to the collective bargaining process such as its expenditures for items of a political or ideological nature. If an ?agency fee member? of the unit disagrees with the union?s making such expenditures, he or she may obtain a refund of the pro rata share of those expenditures by filing timely objections with the union.

David Seidemann, a tenured professor at Brooklyn College/City University of

New York is ?non-member? employee in the negotiating unit represented by the Professional Staff Congress of the City University of New York (PSC). In lieu of PSC dues, he paid an ?agency fee,? also referred to as an ?agency shop fee.?

Seidemann sued PSC, the certified employee organization representing his collective bargaining unit, in an effort ?to reduce his agency fee for charges he alleges are not related to the collective bargaining process.?

Under the PSC procedure, agency shop fee payers are entitled to an ?advanced rebate? for the projected pro rata amount of expenditures not related to the collective bargaining process.

Seidemann alleged that PSC?s agency fee procedures with respect to the filing of objections and requests for refunds for the pro rata share of expenditures not related to the collective bargaining process are inconsistent with the First Amendment and the union?s duty of fair representation.

This decision addressed only the ?new? agency fee procedures PSC adopted on April 30, 2003, as objections related to its earlier procedures had been resolved. Several times during pretrial litigation PSC revised the procedures by which nonmembers may make such objections, and because of admitted past violations, PSC refunded Seidemann?s agency fees for the 2001-2004 fiscal year, with interest. Under its new procedure PSC provides agency shop fee payers a notice indicating ?the previous fiscal year?s rebatable expenditures? together with other information including a copy of the agency fee procedure and an outline of steps to be followed if an individual has an objection to the agency shop fee proposed. Arbitration is available in the event the parties cannot come to an agreement concerning the agency shop fee rebate payable.

Seidemann challenged the PSC requirement that objections related to the agency shop fee be renewed annually, contending that its refusal to accept his continuous objections violates his First Amendment rights. He also objected to PSC?s requirement that persons such as he identify the percentage of political and ideological expenditures in dispute as a precondition to arbitration, and to the sufficiency of the notice given.

The federal district court judge granted PSC?s motion for summary judgment, dismissing Seidemann s petition. The Circuit Court of Appeals reversed the lower court?s determination, holding:

1. PSC?s procedures requiring agency fee payers to file annual objections and to specify percentages of expenditures in dispute to obtain arbitration violate Seidemann?s First Amendment rights.

2. PSC has not demonstrated that its agency fee procedure violations are unlikely to recur.

In addition, the Circuit Court remanded the matter to the district court for the purpose of its consideration of Seidemann?s allegations concerning his Taylor Law duty of fair representation claim.

Full post as published by New York Public Personnel Law on April 17, 2008 (boomark / email).