Probation Officers Win Challenge to Union Fees

(CN) - A union violated the First Amendment rights of four non-union probation officers by charging them for organizing activities, the 2nd Circuit ruled.

"[W]e hold that under the First Amendment, (the officers) cannot be charged for the organizing expenses involving employees who perform entirely different types of work," Judge Barrington Parker wrote.

The Civil Service Employees Association represents about 200,000 state and local government employees, including some who opt out of the union. New York law requires an exclusive bargaining agent to fairly represent all public employees, even if they decline to join the union. Because these workers don't pay dues, the union can charge them an "agency shop fee," portions of which can be refunded if the worker objects.

Probation officers David Scheffer, Mary Bergevin, Joseph Stephany and Laura Swartzenberg resigned their union memberships in 2005 and later objected to some of the fees.

The union notified them that they still had to pay about three-quarters of the full union dues and 95 percent of the "organizing" costs.

The officers challenged this in federal court, but lost.

The 2nd Circuit acknowledged that organizing efforts were crucial for collective bargaining, but doubted how much it would benefit the probation officers.

"[T]he fact that this organizing is germane to ... collective bargaining activities does not resolve the issue of whether these particular plaintiffs can properly be charged for it," Parker wrote (original emphasis).

"It is clear to us that as probation officers, they derive little meaningful benefit from the unionization of workers in the developmental disability, food service, and courier industries, and therefore present no free-rider problem by not paying the costs of this organizing."

Parker said the organizing fees violate the officers' constitutional rights to free speech and association.

In a concurring opinion, Chief Judge Dennis Jacobs added, "Plaintiffs here have a right to be free from assessments used to promote views on public subjects - views that they do not choose to express, or affirmatively reject."

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