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Seidemann v. Bowen

October 15, 2009

DAVID SEIDEMANN, PERSONALLY AND IN HIS CAPACITY AS A MEMBER OF THE BROOKLYN COLLEGE FACULTY, PLAINTIFF-APPELLANT,
v.
BARBARA BOWEN, PERSONALLY AND IN HER CAPACITY AS PRESIDENT OF THE PSC/CUNY, PSC/CUNY, DEFENDANTS-APPELLEES.



SYLLABUS BY THE COURT

Appeal from an August 4, 2008 judgment of the United States District Court for the Eastern District of New York (Lois Bloom, Magistrate Judge) denying in part and granting in part plaintiff's motion to amend an April 10, 2008 opinion and order of the District Court that granted in part and denied in part plaintiff's motion for summary judgment. We hold that, in an agency shop, (1) a public-sector union's political activities aimed at securing a new contract may be chargeable to nonmembers if those activities are pertinent to the union's role as a collective bargaining representative and (2) nonmembers may be required to subsidize lobbying efforts undertaken by a "parent" union of the local public-sector union if the lobbying is related to collective bargaining and may ultimately inure to the benefit of local union members. We also hold that (3) on this record, the District Court erred in upholding the union's charges to nonmembers for (a) political activity undertaken to secure a new contract, (b) lobbying by the local union's state affiliate, (c) costs incurred to send union delegates to the state affiliate's annual convention, and (d) the salaries of the union's employees. Further, we hold that (4) the District Court erred in dismissing plaintiff's challenge to the union's charges for media communications by its national affiliate, and (5) it erred in holding, sua sponte, that plaintiff will be required to arbitrate future claims against the union before filing suit.

Reversed in part, vacated in part, and remanded.

The opinion of the court was delivered by: JOSÉ A. Cabranes, Circuit Judge

Argued: November 17, 2008

Before: CABRANES, STRAUB,and SACK, Circuit Judges.

Under the National Labor Relations Act, states regulate the labor relations of state and local governments, and states may authorize unions and government employers to enter into "agency shop" agreements. See 29 U.S.C. § 152(2); Davenport v. Wash. Educ. Ass'n, 551 U.S. 177, 181 (2007). Under an agency shop arrangement, a public-sector union serves as the exclusive collective bargaining representative for government employees. "This arrangement entitles the union to levy a fee on employees who are not union members but who are nevertheless represented by the union in collective bargaining." Davenport, 551 U.S. at 181. Under several of the Supreme Court's precedents, including Lehnert v. Ferris Faculty Ass'n, employees who choose not to join the union ("dissenters") may be required to subsidize union activities that are "germane" to the union's collective bargaining function. 500 U.S. 507, 519 (1991). However, the Court in Lehnert explained that, under the First Amendment, state employees may not be compelled to subsidize union activities that are "ideological" and not "germane" to collective bargaining. Id. at 516-17 (citing Abood v. Detroit Bd. of Educ., 431 U.S. 209, 222 (1977)).

In this case, we consider whether a public-sector union in an agency shop agreement may compel dissenters to subsidize (1) the union's political activities aimed at securing a new contract from management, (2) lobbying efforts undertaken by a "parent" union of the local public-sector union, (3) costs incurred to send union delegates to the state affiliate's annual convention, and (4) the salaries of the union's employees. We also consider whether the District Court erred in dismissing plaintiff's challenge to the union's charges for media communications by the national affiliate and in holding, sua sponte, that plaintiff would be required to arbitrate future claims before filing suit.

BACKGROUND

Plaintiff-appellant David Seidemann is a tenured professor of geology at Brooklyn College, which is part of the City University of New York ("CUNY") system of colleges and universities. Defendant-appellee Professional Staff Congress of the City University of New York, of which defendant-appellee Barbara Bowen is president (jointly, "PSC" or "the union"), is a public-sector union and the exclusive collective bargaining representative for certain CUNY employees, including plaintiff. Plaintiff has chosen not to join PSC. However, because CUNY is an "agency shop," New York law requires that he pay an agency fee to the union as compensation for its collective bargaining efforts on his behalf. A portion of plaintiff's dues support activities of PSC, while other portions are paid to PSC's national affiliate, the American Federation of Teachers ("AFT"), and its state affiliate, the New York State United Teachers ("NYSUT"). Because, as we explain below, dissenters may not be compelled to support "ideological" activity not related to collective bargaining, they may file objections to PSC's charges and may be entitled to receive refunds of portions of PSC's charges for such unrelated "ideological" activities. Plaintiff, as we detail below, has filed objections to several of PSC's expenditures made from the year 2001 to 2005.

In June 2002, plaintiff, proceeding pro se, filed a complaint against PSC in the United States District Court for the Eastern District of New York (Lois Bloom, Magistrate Judge),*fn1 alleging that several of the charges comprising PSC's agency fee violated his rights under the First Amendment. Plaintiff alleged that PSC impermissibly charged him a pro rata share of expenses unrelated to the union's collective bargaining duties, in violation of his rights under the First Amendment set forth by the Supreme Court in Lehnert. Specifically, plaintiff argued that PSC could not constitutionally charge him a pro rata share for, among other things, (1) PSC's "Contract Campaign," which consisted of political activity designed to persuade management to enter into a new contract with the union, (2) 63.7% of the lobbying costs incurred by NYSUT, (3) PSC's costs to send delegates to annual NYSUT conventions, (4) 95% of the salaries of PSC employees, and (5) AFT's media communication expenses. Plaintiff also alleged that PSC's procedures for contesting charges violated his First Amendment rights in falling short of the basic procedural requirements set forth by the Supreme Court in Chicago Teachers Union, Local No. 1 v. Hudson, 475 U.S. 292 (1986).

After discovery was completed, the parties cross-moved for summary judgment. On November 18, 2005, the District Court issued an opinion and order granting PSC's cross-motion and dismissing the action in its entirety. See Seidemann v. Bowen, No. 02-cv-3389 (E.D.N.Y. Nov. 18, 2005) ("Seidemann I").

Through pro bono counsel,*fn2 plaintiff timely appealed from the judgment of the District Court dismissing his action. A panel of this Court reversed the judgment of the District Court. See Seidemann v. Bowen, 499 F.3d 119, 129 (2d Cir. 2007) ("Seidemann II"). The Seidemann II panel held that PSC's objection procedures violated plaintiff's rights under Hudson, and it remanded the cause for further consideration of plaintiff's claims. Id. at 127-28.

On remand, in an opinion and order dated April 10, 2008, the District Court enforced the mandate of this Court by granting in part plaintiff's motion for summary judgment and awarding plaintiff injunctive and declaratory relief as well as nominal damages. See Seidemann v. Bowen, No. 02-cv-3389, 2008 U.S. Dist. LEXIS 29405 (E.D.N.Y. Apr. 10, 2008) ("Seidemann III"). However, the April 10, 2008 opinion and order did not specifically address all of plaintiff's claims. Plaintiff thus moved to amend the opinion and order, and in an order dated August 1, 2008, the District Court granted plaintiff's motion in part and denied it in part. See Seidemann v. Bowen, No. 02-cv-3389, 2008 U.S. Dist. LEXIS 58625 (E.D.N.Y. Aug. 1, 2008) ("Seidemann IV"). The District Court held that PSC's charges to plaintiff for certain "public relations" expenditures were not rightly charged to plaintiff. Id. at *26-29. However, the District Court upheld PSC's charges for its "Contract Campaign," NYSUT's lobbying, the cost of its members' attendance at NYSUT's annual Representative Assembly conventions, and the salaries of PSC employees. The District Court also upheld PSC's charges to plaintiff for AFT's media communications. Id. at *15-17. Finally, the District Court held, sua sponte, that plaintiff would be required to arbitrate his future challenges to PSC's agency fee before filing suit in federal court.

Plaintiff's timely appeal followed.

DISCUSSION

On appeal, plaintiff argues that, under the Supreme Court's decision in Lehnert, PSC's "Contract Campaign" was not chargeable to him because it entailed political activity in a public forum and was designed to convince CUNY management to enter into a new contract with PSC. Similarly, plaintiff contends that he may not be compelled to subsidize NYSUT's lobbying, as the record purportedly demonstrates that NYSUT's efforts on PSC's behalf were minimal and designed only to secure a new agreement from CUNY management. Plaintiff also maintains that, even if the charges for the "Contract Campaign" and NYSUT lobbying were not unconstitutional per se, the record does not support the District Court's decision to uphold them in this action. Additionally, plaintiff contends that, on this record, the District Court erred in upholding PSC's charges for the cost of sending a PSC delegation to NYSUT's annual convention and PSC's charges for its employees' salaries. Further, plaintiff contends that the District Court improperly found that plaintiff's claim regarding AFT media communications was not before the Court and, accordingly, that the District Court erred in dismissing that claim. Finally, plaintiff argues that the District Court erred in holding, sua sponte, that plaintiff will be required to arbitrate future claims against PSC for violations of his First Amendment rights.

We consider plaintiff's challenges to each of the charges in turn. We then address the District Court's dismissal of plaintiff's claim regarding AFT media communications and, finally, we consider the District Court's holding that plaintiff must arbitrate future chargeability claims.

Generally, we review a district court's ruling on a motion to amend a judgment for "abuse of discretion." See, e.g., Schwartz v. Liberty Mut. Ins. Co., 539 F.3d 135, 150 (2d Cir. 2008); cf. Sims v. Blot, 534 F.3d 117, 132 (2d Cir. 2008) ("A district court has abused its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or rendered a decision that cannot be located within the range of permissible decisions." (internal citation, alterations, and quotation marks omitted)). However, in this case, it is undisputed that each of the issues raised in plaintiff's motion to amend was before the District Court when it granted summary judgment to plaintiff, although the District Court did not specifically address them at that time. Accordingly, we review the District Court's decision de novo, as we would any other decision of a district court granting or denying a motion for summary judgment. See, e.g., Graves v. Finch Pruyn & Co., 457 F.3d 181, 183 (2d Cir. 2006). Summary judgment is warranted only upon a showing "that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed R. Civ. P. 56(c).

A. PSC's "Contract Campaign"

The Supreme Court has recognized that "[t]o compel employees financially to support their collective-bargaining representative has an impact upon their First Amendment interests." Abood, 431 U.S. at 222. Yet, "the desirability of labor peace and eliminating 'free riders'" can justify the assessment of agency fees to nonmembers "'for the purposes of collective bargaining, contract administration, and grievance adjustment.'" Lehnert, 500 U.S. at 517 (quoting Abood, 431 U.S. at 225-26). In order to accommodate both interests, the Supreme Court has established that, although public-sector unions are entitled to charge dissenters an agency fee in order to avoid free riding, ...


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