CUNY Professor Wins Appeal against Faculty Union

Brooklyn College's Professor David Seidemann had previously been defeated in a pro se (representing himself without a lawyer) law suit against the CUNY faculty union, the Professional Staff Congress (PSC). Professor Seidemann just e-mailed me that he has won on appeal in federal appeals court, this time with representation from Davis, Polk and Wardwell's Phineas E. Leahey. Professor Seidemann is to be highly commended for his investment of time and effort in establishing individuals' rights to refuse to subsidize the PSC's left-wing extremist political goals.

According to the Bureau of National Affairs:

>"A union representing employees at the City University of New York violated a professor's First Amendment rights by requiring him to file annual objections for agency fees and by requiring him to specifically state what percentages of the disputed fees he found unreasonable, the U.S. Court of Appeals for the Second Circuit ruled Aug. 1 (Seidemann v. Bowen, 2d Cir., No. 05-6773, 8/1/07). Reversing a trial court, the Second Circuit agreed with Brooklyn College geology professor David Seidemann that the Professional Staff Congress of the City University of New York's requirement that agency fee payers make annual objections was an unreasonable requirement and therefore violated his First Amendment rights.

"PSC's annual objection requirement burdens employees exercising their constitutionally protected right to object, and the union has proffered no legitimate need for disallowing continuing objections," Judge Peter W. Hall wrote for the court...

"...the Third Circuit explained that there was no suggestion in Supreme Court precedent that said "merely because an employee must initially make his objection known, a union may thereafter refuse to accept a dissenter's notice that his objection is continuing. The fact that employees have the responsibility of making an initial objection does not absolve unions of their obligation to ensure that objectors' First Amendment rights are not burdened...

"...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 an action in the U.S. District Court for the Eastern District of New York accusing the union, and its president Barbara Bowen, of interfering with his First Amendment rights and the union's duty of fair representation.
Several times during pretrial litigation the union revised the procedures by which nonmembers may make such objections and refunded Seidemann's agency fees for the 2001-2004 fiscal year, with interest.

"According to the union's 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...

"...In reversing summary judgment granted by the trial court, the Second Circuit said that in addition to the annual notice being burdensome, the union failed to provide a legitimate interest that was narrowly tailored enough to justify the burden.

"The union argued that it wanted to "take advantage of inertia on the part of would-be dissenters who fail to object affirmatively, thus preserving more union members," the Second Circuit explained in finding the reasoning unreasonable.

"In addition to finding the annual reporting too burdensome, the Second Circuit also found the union's requirement that fee payers must identify what percentage of the activity they object to is believed to be unreasonable.

"The Supreme Court has specifically and consistently rejected the notion that dissenters must object with particularity," Hall explained, adding that "requiring particularized objections to preserve an objector's rights to dissent places an additional unnecessary burden on objectors."

"Because of confusion over evidence, the Second Circuit refused to decide whether other union procedures and notice requirements were permissible but instead sent the issue back to the trial court. The Second Circuit, however, did rule that Seidemann's claims were not moot because the union failed to demonstrate that it had made a good faith effort to correct past problems and to not violate rights in the future."