Friday, September 7, 2001
Ninth Circuit Upholds Delay in Refunding Hudson Fee
By a MetNews Staff Writer
A union didn’t violate the constitutional rights of non-members whom it represents by adopting a plan under which their refunds of fees that would otherwise be used for political purposes were delayed if they contested the amount, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The ruling grows out of the implementation of the U.S. Supreme Court’s ruling in Chicago Teachers Union Local No. 1 v. Hudson, 475 U.S. 292 (1986) by the union representing University of Alaska-Fairbanks faculty members.
Hudson requires that non-members who pay an “agency shop” fee for services rendered by a union be given a refund equal to the percentage of membership dues which the union uses for political or ideological activities not related to collective bargaining. The Supreme Court later extended Hudson’s reasoning to mandatory State Bar dues in its Keller decision.
Professors Robert Carlson and John Morack, represented by the Virginia-based National Right to Work Legal Defense Foundation, said the plan established by United Academics-AAUP/AFT/APEA violates Hudson.
The plan is unfair, they said, because objectors who accept the union’s calculation of the refund receive that amount immediately, while those who elect to have their refund amounts determined by an impartial factfinder—appointed by the American Arbitration Association—get nothing until the factfinder rules.
But Chief U.S. District Judge James K. Singleton disagreed, and the Ninth Circuit upheld the district judge.
Judge Procter Hug Jr., writing for the appellate panel, said the plan complies with Hudson because the money is placed in escrow, the challenges are heard in a fair and expeditious manner, and the objectors are entitled to interest.
“Thus, there is no risk that challengers’ money can be used by the Union for non-representational purposes pending resolution of the challenge,” Hug said.
Hug also rejected the plaintiff’s contention that the plan violates Hudson by allowing the impartial factfinder to reduce the amount of the refund as calculated by the union, in effect chilling the fee payer’s decision to present a challenge.
The system is fair, Hug said, because the arbitrator is neutral, and all parties are entitled to present evidence.
“We do not believe the Union could successfully influence a neutral arbitrator so as to prejudice the objectors,” Hug wrote. “Instead, adjustments in the chargeable amount would likely occur only if the arbitrator finds an error in previous calculations. The adjustments can either increase or decrease the amount attributable to nonchargeable activities.”
The opinion was joined by Judge Thomas G. Nelson and U.S. District Judge Dean Pregerson of the Central District of California, sitting by designation.
The case is Carlson v. United Academics, 00-35399.
Copyright 2001, Metropolitan News Company