CUNY's Charybdis Loses In Federal Court

Barbara Bowen, Silly "Sue" O'Malley's long time comrade in the struggle for stiffling free speech, of late has lost a major First Amendment case in the Second Circut. Our Brooklyn College colleague Mitch Langbert provides details and commentary:

"David Seidemann just e-mailed me that he has defeated the Professional Staff Congress's (PSC), CUNY's faculty union, in a federal court law suit, Seidemann v. Bowen, in federal district court. This case is of national importance because it establishes standards of disclosure for agency fee bargaining units. An agency fee arrangement occurs where the union agreement compels non-members to pay dues even though they elect not to belong to the union. Agency arrangements differ from union shops in that under agency arrangements members are permitted to refuse membership in the union (unlike union shops), but they are compelled to pay dues nevertheless.

CUNY has an agency shop. A number of faculty, myself included, do not belong to the union but are compelled to pay dues. Professor Seidemann's law suit concerned the PSC's failure to accurately disclose the portion of dues that the PSC devotes to political contributions unrelated to the PSC's collective bargaining and higher education activities. The PSC is an unusually ineffectual union that has failed to win wage increases one half of what New York City's modestly paid teachers (in comparison with teachers in neighboring municipalities and suburbs) have won. The teachers won 16 percent over three years and the PSC won six percent over three years for CUNY's faculty. The PSC has repeatedly refused to represent faculty in grievances. At the same time, the PSC has served as a conduit for political contributions to various extremist causes. Before Sharad Karkhanis's and David Seidemann's protests, the PSC was sending Iraqi War literature to the CUNY faculty almost daily, even as it failed to represent faculty in collective bargaining and grievances.

According to Professor Seidemann, the federal court ruled by summary judgment* that:
1) the PSC violates the First Amendment rights of agency fee payers because it fails to provide them with sufficient information to gauge the propriety of the union's agency fee expenditures;
2) the PSC unlawfully charged objecting non-members for some of the union's political activities by inaccurately characterizing them as contract-related activities. Among the activities that the PSC improperly claimed were contract-related was a forum on an anti-war resolution. The PSC also improperly charged fee payers for public rallies, picket lines, concerts, letter-writing campaigns - all political activities - under the category "office supplies". (How does one confuse a paper clip with a picket line?)
3) Further, the District Court enforced a ruling in Professor Seidemann's case made by the Second Circuit in August 2007 that held as unconstitutional the PSC's requirement that non-members annually renew their objections to political expenditures. (The Second Circuit ruling applies to all public unions in New York, Vermont, and Connecticut.)

*The Court finds that plaintiff is entitled to a declaratory judgment that defendants' notice to fee payers for the years at issue violated plaintiff's rights under the First Amendment. Plaintiff is entitled to injunctive relief and defendants are enjoined and prohibited from requiring nonmembers to file an annual objection or to identify the percentage of the agency fees in dispute in order to file an objection. Defendants shall send plaintiff and all nonmembers a notice that complies with Hudson and the Second Circuit's Mandate as set forth herein. Defendants shall provide the financial [*37] information necessary for fee payers to gauge the propriety of the agency fees, either by mail or by posting on the union's website, at least thirty days prior to the start of the fee payer objection period. The financial information PSC provides to fee payers shall set forth the basis for the allocation of both the chargeable and non-chargeable expenses."

Brutus