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Appellate  Court Decision


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The Professional Staff Congress, represented by NYSUT legal counsel, recently achieved a significant legal victory for public sector unions throughout New York State.  The United States Court of Appeals for the Second Circuit ruled on October 15, 2009 in the case Seidemann v. Bowen that it is constitutional for a union to charge non-members for the union’s political activities aimed at securing funds from the New York State Legislature or New York City Council for a new contract.  The Court also ruled that it was constitutional for unions to charge non-members for similar activities undertaken by its parent organizations.  This was the first time the Second Circuit has addressed this question; in the Opinion issued on the case, the Court ruled decisively for the PSC on these significant constitutional issues. 

The only ruling that went against the PSC’s position was that certain specific methods for determining the appropriate amount of the rebate to non-members were remanded to the District Court for further ruling.  Rather than continue to pursue the case at this level, the PSC reached a settlement with the plaintiff on this portion of the case.  Most of the settlement was payment by the PSC of the attorneys’ fees mandated by statute.   

The litigation was commenced in June 2002 by Professor David Seidemann, a non-member, who argued that it was illegal and unconstitutional for the PSC to charge non-members, as part of the non-members’ agency fee, for the cost of the PSC’s political activities aimed at securing funds for a  new contract.  Seidemann argued that a non-member could be charged only for political activities designed to administer and enforce a contract already in place.  In addition, Seidemann claimed that the procedures in place for determining a non-member’s agency fee amount were improper and flawed.   

The PSC began the litigation by reviewing the procedures in place for many years for assessing that portion of non-members’ fees eligible for rebate.  The PSC quickly came to the conclusion that the processes were indeed flawed, and immediately returned to Professor Seidemann the entire amount of his agency fees, first for the years 1999-2000 and 2000/01and subsequently for the years 2001/02 through 2003/04, plus interest.  From the beginning of the case, the PSC complied with each request from Second Circuit Magistrate Judge Lois Bloom, and, each time Professor Seidemann amended his complaint asking for more changes the PSC also complied.  Throughout this period, the PSC continued to review and change its procedure for calculating non-members' agency fee rebates.  In an unrelated case, the Second Circuit required unions to change the long-standing and common practice of requiring agency fee objectors to file annual requests for rebates of that portion of their dues that are used for political or ideological purposes.  The PSC has complied with that decision, and agency fee objectors need apply only once for their annual rebates.   

Rather than joining in the effort to establish better procedures, Professor Seidemann – even after being fully reimbursed for all his challenged fees – waged a protracted struggle against the union by seeking to have held unconstitutional any charge of the PSC or its parent organizations that supported political activities aimed at securing a new contract. Seidemann, aided by the National Right to Work Foundation, an organization devoted to anti-union crusading, and the management law firms Jones, Day and Davis Polk, Wardell, spent years trying to deny the PSC access to funds with which it could conduct political action in  the New York State Legislature and the New York City Council to secure a fair contract.  Seidemann lost both those points in Court.   

The only issues remanded to the District Court were regarding the specific methods and assessments used by the PSC for the period 2003-2005.  The PSC settled the remanded issues for the statutorily mandated plaintiff’s attorneys’ fees and some minor expenses.  The legal fees, paid to the anti-labor law firms were incurred after the PSC had returned Prof. Seidemann’s money and had agreed to revise the procedures he questioned. 

In the end, Professor Seidemann succeeded in causing the transfer of nearly $250,000 of union funds to two anti-union law firms and tying up the time and resources of NYSUT and PSC legal staff.  His ideological campaign to deny the PSC funds for our contract campaign ended in failure.  Instead, it produced an important legal ruling affirming the constitutionality of charging non-members for political activities aimed at securing funds for a contract. 

March 2010

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