Cases & Deals

Second Circuit rules for CUNY geology professor in First Amendment appeal against his public sector union

Clients Seidemann, David

Jones Day represent David Seidemann, a professor of geology at Brooklyn College of the City University of New York, against the Professional Staff Congress ("PSC"), his exclusive bargaining agent, the public sector union designated to engage in collective bargaining for CUNY professors. Under state law, PSC is entitled to deduct compulsory dues from the paychecks of all employees and may charge dissenting nonmember employees for a pro rata share of union expenses relating to collective bargaining. In Seidemann v. Bowen, 499 F.3d 119 (2d Cir. 2007), the U.S. Court of Appeals reversed a judgment of the district court and entered judgment for Seidemann on his First Amendment challenges to the agency fee procedure of the union under Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986). As a matter of first impression, the Second Circuit invalidated a requirement in PSC's procedure for dissenting nonmembers to object annually to political and ideological expenditures unrelated to collective bargaining. The Court remanded Seidemann's claims under Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507 (1991), which establishes the standard for determining which expenses are chargeable to dissenting nonmembers.

On remand, the District Court entered summary judgment for Seidemann on his Lehnert chargeability claims. 2008 U.S. Dist. LEXIS 29405 (E.D.N.Y. Apr. 10, 2008). Seidemann moved to amend the judgment to address Lehnert chargeability claims the District Court had not reached, including questions of first impression on the scope of Lehnert. The District Court granted in part and denied in part the motion and awarded Seidemann attorneys' fees against PSC under 42 U.S.C. § 1988. 2008 U.S. Dist. LEXIS 58625 (E.D.N.Y. Aug. 1, 2008). Seidemann appealed from the portion of the District Court's order denying his motion to amend and moved to expedite his appeal. The Second Circuit granted Seidemann's motion to expedite his appeal, which was argued in November 2008.

On October 15, 2009, the Second Circuit reversed the judgment and remanded Seidemann's Lehnert claims for a second time, holding that the District Court erred in allowing the union to charge Seidemann for political and ideological expenses which, on the record, were not sufficiently related to the collective bargaining process. The Second Circuit also reversed the District Court's holding that Seidemann would be required to arbitrate future disputes with the union, reaffirming the principle that a dissenting nonmember "need not . . . vindicate his First Amendment rights through the union's arbitration process."

The Seidemann litigation has been reported by the media, including Forbes, New York Law Journal, Employment Law 360, the Daily Labor Report (BNA), and the Chronicle of Higher Education.

Seidemann v. Bowen, 499 F.3d 119 (2d Cir. 2007), 2008 U.S. Dist. LEXIS 29405 (E.D.N.Y. Apr. 10, 2008), 2008 U.S. Dist. LEXIS 58625 (E.D.N.Y. Aug. 1, 2008), -- F.3d --, 2009 U.S. App. LEXIS 22567 (2d Cir. Oct. 15, 2009)

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