Seidemann v. Bowen

• Decision Date: 01 August 2007
• Docket Number: Docket No. 05-6773-cv.
• Parties: David SEIDEMANN, Plaintiff-Appellant, v. Barbara BOWEN, Personally and in her Capacity as President of the PSC/ CUNY (Professional Staff Congress/City University of New York), and PSC/CUNY,<SMALL><SUP>*</SUP></SMALL> Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

499 F.3d 119

David SEIDEMANN, Plaintiff-Appellant, v. Barbara BOWEN, Personally and in her Capacity as President of the PSC/ CUNY (Professional Staff Congress/City University of New York), and PSC/CUNY,^* Defendants-Appellees.

Docket No. 05-6773-cv.

United States Court of Appeals, Second Circuit.

Argued: December 20, 2006.

Decided: August 1, 2007.

On Petition for Rehearing: Decided August 27, 2007.

Amended: August 28, 2007.

Phineas E. Leahey, Davis Polk & Wardwell, New York, NY, for Plaintiff-Appellant.

James R. Sandner, (Christopher M. Callagy, Bryan D. Glass, on the brief), New York, NY, for Defendant-Appellee.

Before: ROSEMARY S. POOLER, ROBERT D. SACK and PETER W. HALL, Circuit Judges.

HALL, Circuit Judge:

Plaintiff David Seidemann is a tenured professor at Brooklyn College/City University of New York ("CUNY") and a nonunion employee, or "agency fee payer." Defendant Professional Staff Congress of the City University of New York ("PSC/CUNY") is a public-sector union designated as the exclusive collective bargaining representative for certain CUNY employees like Seidemann. Barbara Bowen is the president of the PSC/CUNY.

In 2002, Seidemann filed written objections with the union seeking to reduce his agency fee for charges he alleges are not related to the collective bargaining process. He brought this action against Defendants alleging that PSC's agency fee procedures are inconsistent with the First Amendment and the duty of fair representation. Several times during pretrial litigation the union 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. Thereafter, the parties and the court addressed only the agency fee procedures adopted on April 30, 2003.

According to the April 2003 procedures, prior to the annual objection period PSC must provide agency fee payers with information regarding the previous fiscal year's rebatable expenditures. Pursuant to this provision, PSC annually sends agency fee payers a notice letter with a copy of the agency fee procedure outlining the objection procedures, and agency fee payers have between May 1 and May 31 to mail their objections.¹ Objecting fee payers are then entitled to an advanced rebate for the projected pro rata amount of expenditures not related to the collective bargaining process. If the objector is dissatisfied with the amount of the advance rebate or disputes whether a category of expenditures is a component of collective bargaining, the objector may appeal the determination in writing to the union president within thirty-five days and the union will submit the matter to a neutral arbitrator for an "expeditious" hearing.

After Seidemann filed his third amended complaint, the parties cross-moved for summary judgment. The Magistrate Judge² granted summary judgment in favor of Defendants and dismissed the action.

Seidemann makes several arguments on appeal. First, he asserts the union's requirement that objections be renewed annually and its refusal to accept continuous objections violates the First Amendment. Seidemann further challenges the requirement that persons in his position identify the percentage of political and ideological expenditures in dispute as a precondition to arbitration, and he objects to the sufficiency of the notice given. Seidemann also asserts the district court erred in holding some of his claims to be moot. Finally, he insists the court erroneously dismissed his suit without addressing his claim asserting breach of duty of fair representation.

I. DISCUSSION

A. Requirements for Objecting Agency Fee Payers

Generally, employees who do not choose to join the union must still pay union dues; these employees are referred to as "agency fee payers." For such employees, the employer deducts agency fees equivalent to the amount of union dues from their paychecks and remits those fees to the union. Although fee payers must pay union fees even if they are not union members, they are entitled to notice of the union's expenditures not related to the collective bargaining process—i.e., expenditures for items political and ideological in nature—and may obtain a refund of their pro rata share of those expenditures by filing timely objections with the union. Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507, 524, 111 S.Ct. 1950, 114 L.Ed.2d 572 (1991); Chicago Teachers Union, Local No. 1 v. Hudson, 475 U.S. 292, 303, 106 S.Ct. 1066, 89 L.Ed.2d 232 (1986).

So-called "agency-shop" arrangements that compel all employees within a bargaining unit to pay agency fees as a condition of employment are permitted in light of "the government's interest in promoting labor peace and avoiding the free rider problem that would otherwise accompany union recognition." Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507, 511, 520-21, 111 S.Ct. 1950, 114 L.Ed.2d 572 (1991); see also Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457, 472, 117 S.Ct. 2130, 138 L.Ed.2d 585 (1997) (citing Abood v. Detroit Bd. of Educ., 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977)). "However, agency-shop arrangements in the public sector raise First Amendment concerns because they force individuals to contribute money to unions as a condition of government employment." Davenport v. Wash. Educ. Ass'n, ___ U.S. ___, 127 S.Ct. 2372, 2377, 168 L.Ed.2d 71 (2007). To safeguard employees' constitutional rights, therefore, unions must allow employees who do not wish to be union members to be able to object to the payment of portions of the union fee that are not related to collective bargaining. See Int'l Ass'n of Machinists v. Street, 367 U.S. 740, 768-69, 774, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961) (noting such employees must "identif[y] themselves as opposed to political uses of their funds"). The Supreme Court specifically addressed union dues collection in the public sector in Abood v. Detroit Bd. of Educ., 431 U.S. 209, 235-36, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977), holding that it is unconstitutional for a union to collect sums from dissenting employees to support political and ideological causes not germane to the union's duties as a collective-bargaining agent. See also Ellis v. Bhd. of Ry., Airline, & S.S. Clerks, 466 U.S. 435, 447, 104 S.Ct. 1883, 80 L.Ed.2d 428 (1984) (same); Bhd. of Ry. & S.S. Clerks v. Allen, 373 U.S. 113, 118-19, 83 S.Ct. 1158, 10 L.Ed.2d 235 (1963) (same). To achieve the appropriate balance between constitutional and unconstitutional collections, the union must "devise a way of preventing compulsory subsidization of ideological activity by employees who object thereto without restricting the Union's ability to require every employee to contribute to the cost of collective-bargaining activities." Abood, 431 U.S. at 237, 97 S.Ct. 1782.

Chicago Teachers Union, Local No. 1 v. Hudson, 475 U.S. 292, 303, 106 S.Ct. 1066, 89 L.Ed.2d 232 (1986), established three requirements for the procedures unions put in place to handle public employees' objections to fee allocations intended to minimize the risk that objectors' First Amendment rights will be burdened. Principally, the procedures must "minimize the risk that nonunion employees' contributions might be used for impermissible purposes." Id. at 309, 106 S.Ct. 1066. Second, they must provide adequate "information about the basis for the proportionate share" of the union expenses fee payers must pay. Id. at 306, 106 S.Ct. 1066; see also id. at 309, 106 S.Ct. 1066 (reiterating that although the nonmember employee has the "burden of raising an objection, . . . the union retains the burden of proof" with respect to apportionment and notification to the fee payers of the appropriate payment); accord Allen, 373 U.S. at 122, 83 S.Ct. 1158 ("Since the unions possess the facts and records from which the proportion of political to total union expenditures can reasonably be calculated, basic considerations of fairness compel that they, not the individual employees, bear the burden of proving such proportion."). Finally, a union procedure must "provide for a reasonably prompt decision by an impartial decisionmaker" adjudicating fees that are in dispute. Hudson, 475 U.S. at 307, 106 S.Ct. 1066.

Procedural safeguards prevent "compulsory subsidization of ideological activity . . . without restricting the Union's ability to require every employee to contribute to the cost of collective-bargaining activities." Id. at 302, 106 S.Ct. 1066 (internal quotation marks omitted). Although the government interest in a stable labor force is strong, the fact that constitutional rights are protected by the First Amendment requires the union procedures be carefully tailored to minimize the risk of burdening employees' First Amendment rights. Id. at 302-03, 106 S.Ct. 1066 (procedures must "minimize the infringement"). Nonunion employees, "whose First Amendment rights are being affected[] must have a fair opportunity to identify the impact of the governmental action on [their] interests and to assert a meritorious First Amendment claim." Id. at 303, 106 S.Ct. 1066.

It is in light of these principles and requirements that we examine the agency fee procedures at issue here. We conclude that PSC's procedures for dealing with agency fee payers' objections fail to minimize the risk that objectors' First Amendment rights will be burdened and are therefore unconstitutional. Id.

B. Annual Objection Procedures

This Circuit has mandated that unions use "narrowly drawn" objection procedures to protect the First Amendment rights of agency fee payers, while allowing unions and government to pursue their needs in "establishing a rational system to consummate labor negotiations." Andrews v. Educ. Ass'n of Cheshire, 829 F.2d 335, 339 (2d Cir.1987). Although we have not required that objection procedures be the "least restrictive" means available, they must, nonetheless, be "narrowly drawn" to comply with the...