Reply Brief — Weaver v. Steger

+ Supreme Ccurt, uU.5.

y/ DISTRIBUTED news

Fre 1993

~ No. 92-1072

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IN THE ama

Supreme Court of the Gnited States

OCTOBER TERM, 1992

FFR19 PACE

CAROL WEAVER, VICKI H.AHN,

SHARRON L. CARROLL, ANGELA SEGRIST,

LOIS KUPFERBERG, and ALICE TENNENBAUM.,

Petitioners,

Vv.

JOSEPH L. STEGER, President, and JILL PARRIS,

Interim Vice-President for Human Resources and

Human Reiations, University of Cincinnati; and

DISTRICT 925, SEIU, AFL-CIO,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITIONERS’ REPLY BRIEF

W. JAMES YOUNG*

GLENN M. TAUBMAN

c/o National Right to Work Legal

Defense Foundation, Inc.

8001 Braddock Road, Suite 600

Springfield, Virginia 22160

(703) 321-8510

ATTORNEYS FOR PETITIONERS

*Counsel of Record

February 1993

TABLE OF AUTHORITIES

ARGUMENT

I.

II.

Il.

IV.

CONCLUSION

TABLE OF CONTENTS

DISTRICT 925 REWRITES THE COURT

OF APPEALS’ DECISION, WHILE IG-

NORING CONFLICTING VIEWS ON

COGNIZABLE CLASS CONFLICTS .........

DISTRICT 925 REWRITES _FIRST-

AMENDMENT LAW BY SUGGESTING

THAT INFRINGEMENTS ARE NOT

MEASURED AGAINST THE “LEAST-

RESTRICTIVE MEANS” TEST WHEN

THEY BENEFIT UNIONS .................

THE FULL REFUND ORDERED UPON

ENTRY OF THE PRELIMINARY IN-

JUNCTION IS NOT FINAL AND WAS

NOT FOR THE ENTIRE CLASS; ALLEN’S

LIMITS ON AN APPROPRIATE REME-

DY ARE NOT APPLICABLE IN THIS

LTE cSt eA Kuh ESE R VANS SU bw oes as

EVEN IF ONLY THE NONCHARGE-

ABLE PORTION OF THE FEE MUST

BE REFUNDED, FEDERAL COURTS

MUST ADJUDICATE AND AWARD

DAMAGES FOR CONSTITUTIONAL

WEST a SESS CUS bee EERO OR) 6 6060 8 O%

°F 8 OPWeeseeseenesseeageeseaegeaesge eae ea Bee eS 6 & 6 4

i ee ee ee ee ee oe oe ee ee ee ee

TABLE OF AUTHORITIES

CASES

Abood v. Detroit Board of Education, 431

US. MOU... ee as

AT&T Technologies v. CWA, 475 U.S. 643 (1986) ....

Carroll v. American Federation of Musicians,

372 F.2d 155 (2d Cir. 1967), rev'd, 391

US DRM ise

Commodity Futures Trading Commission v. Schor,

$US MOO. Ue

Damiano v. Matish, 644 F. Supp. 1058 (W.D. Mich.

1986), rev'd, 830 F.2d 1363 (6th Cir. 1987) .....

Ellis v. Railway Clerks, 466 U.S. 435 (1984) ........

Elvin v. Oregon Public Employees Union,

832 P.2d 36 (Or. 1992) ........... ce eee ee

Farrar v. Hobby, 113 S. Ct. 566 (1992) ............

George v. Baltimore City Public Schools,

197 PRD. SUR CE. OR Tee ve ie cance wes

Gilpin v. AFSCME, 875 F.2d 1310 (7th Cir.),

cert. denied, 493 U.S. 917 (1989) .............

Hohe v. Casey, 128 F.R.D. 68 (M.D. Pa. 1989) ......

Hohe v. Casey, 956 F.2d 399 (3d Cir. 1992) ........

Page

peeks 3

vox mS

chee 3

- iii -

TABLE OF AUTHORITIES (continued)

Page

Ihrke v. Northern States Power Company,

459 F.2d 566 (8th Cir.), vacated as moot,

Es ae 48s bas ok w a ewe vate es 2

Kidwell v. Transportation Communications

International Union, 946 F.2d 283 (4th

Cir. 1991), cert. denied, 112 S. Ct. 1760 (1992) ...... 3,4

Lehnert v. Ferris Faculty Association, 111

Oy MU ROME GA a5 6 sa cens sec sehaenciveae Fe

Machinists v. Street, 367 U.S. 740 (1961) ......... 3, 4, 5, 6

McDonald v. City of West Branch, 466 U.S.

REE ree 8

McKesson Corporation v. Division of Alcoholic

Beverages & Tobacco, 496 U.S. 18 (1990) ......... 2,4

Mitchell v. Los Angeles Unified School District,

744 F. Supp. 938 (C.D. Cal. 1990), rev'd,

963 F.2d 258 (9th Cir.), cert. denied, 113

yg eee. er 3,4

National Society of Professional Engineers v.

United States, 435 U.S. 679 (1978) ...........2.24.. 7

Pacemaker Diagnostic Clinic v. Instromedix,

725 F.2d 537 (9th Cir.), cert. denied,

EU wk sh kaka s chs cv cescncnces 10

Patsy v. Florida Board of Regents, 457 U.S.

SRE errs eae 10

«We

TABLE OF AUTHORITIES (continued)

Page

Peterson v. Oklahoma City Housing Authonity,

op Bre Fe Ee | ee 1

Phillips v. Klassen, 502 F.2d 362 (D.C. Cir.),

cert. denied, 419 US. 996 (1974) .............000.. 2

Railway Clerks v. Allen, 373 U.S. 113 (1963) ....... 3, 4, 5,6

Railway Employes’ Department v. Hanson,

See SR ee CEE awk a Sek Nee ea eh asa cee es 4

Teachers Local No. 1 v. Hudson, 475 U.S.

ro eee eee ee eee TT eee Te Te eee passim

United Independent Flight Officers, Inc. v.

United Air Lines, 756 F.2d 1274 (7th

SACL CUS Vo eeGN GS eakvesatantbeceek s3 se 1

CONSTITUTIONAL, STATUTORY AND RULE PROVISIONS

he ee ae ae kee kh cee eee ee eee wees 8

Rae ee I ob ah 6 sg seu -0 ae eee ae es 4.7

Civil Rights Act of 1871, 42 U.S.C. § 1983 ........... 8, 10

Ill. Rev. Stat., ch. 122, 1 10-22.40a

SER CNT SG WE AT ON ee Wa ea eae kee 6

Se ee Eo he eae pk ee Sees 4

TA

ARGUMENT

I. DISTRICT 925 REWRITES THE COURT OF APPEALS’

DECISION, WHILE IGNORING CONFLICTING VIEWS

ON COGNIZABLE CLASS CONFLICTS.

District 925, SEIU, AFL-CIO’s (“District 925”) Brief in

Opposition (“Opp.”) is more significant for its omissions than its

Substance. Restating the district court’s narrow reason for

denying class certification (because “Plaintiffs refuse[d] to

provide ... information related to Plaintiffs’ ability to properly

represent the proposed class,” Opp. at i), District 925 ignores

the broader principle guiding the Sixth Circuit’s affirmance.’

The Sixth Circuit affirmed because it found that Petitioners’

“choice of remedy is arguably antagonistic to the wishes of other

employees.” Pet., App. A at 14a. However, no record evidence

even remotely suggests that absent class members do not want

the relief sought by Petitioners.? To the contrary, the only

' District 925 frivolously asserts that “this Court [does not] have before it

a record which could allow it to review [the class certification] issue.” Opp. at

13. The Sixth Circuit certainly had a sufficient record to reach a decision.

Petition for a Writ of Certiorari (“Pet.”), Appendix (“App.”) A at 12a-15a.

Likewise, the union curiously inveighs against Petitioners’ invocation of their

“alleged” or “so-called ‘First Amendment privilege,’"” Opp. at 2, 13, as

“Plaintiffs’ [sic] counsel’s over-zealous deposition practice,” id. at 8-9, and as a

“tactic,” id. at 13, neglecting to mention that the district court upheld

Petitioners’ First-Amendment privilege, Pet., App. D at 45a-46a, denying

District 925’s Motion to Compel and Motion for Sanctions. R. 22.

* Likewise, most cases cited by District 925 as consistent with the court of

appeals’ ruling, Opp. at 12 n.4, support Petitioners. In three, certification was

denied because there was evidence that class members had conflicts relating to

the subject matter of the suit with the named representatives. United Indep.

Flight Officers, Inc. v. United Air Lines, 756 F.2d 1274, 1284 (7th Cir. 1985);

Peterson v. Oklahoma City Housing Auth., 545 F.2d 1270, 1273 (10th Cir.

1976); Carroll v. American Fed’n of Musicians, 372 F.2d 155, 162 (2d Cir.

1967), aff'd on this point, rev'd on other grounds, 391 U.S. 99, 103 n.4 (1968).

(continued...)

~2-

evidence of the practices and wishes of absent class mem-

bers—“potential objectors,” Teachers Local No. 1 v. Hudson,

475 U.S. 292, 306 (1986)—shows that not a single nonmember

ever voluntarily contributed even a dime to District 925. R. 26,

Ex. B at 3, Answer to Interrogatory 2. Of course, even Petition-

ers’ complete success would not prevent anyone from contribut-

ing to District 925 in the future, if they choose to.

Thus, District 925 fails to address the first Question

Presented, Pet. at i, ipso facto conceding that the Sixth Circuit

affirmed the denial of class certification based upon its “sheer

speculation,” McKesson Corporation v. Division of Alcoholic

Beverages & Tobacco, 496 U.S. 18, 46 (1990), about “the wishes

of other” class members. Pet., App. A at 14a. District 925 thus

ignores well-established principles regarding class actions,’ and

overlooks those six circuits which have held that even real

evidence that absent class members do not want remediation and

vindication of their rights does not create judicially cognizable

class conflicts. See Pet. at 13-14.

District 925 also evades the Question Presented by redefin-

?(...continued)

In a fourth, Jhrke v. Northern States Power Co., 459 F.2d 566, 572 (8th Cir.),

vacated as moot, 409 U.S. 815 (1972), the class was denied as unnecessary. The

court cited possible conflicts as an additional justification, speculating regarding

the consequences of success by the class representatives. In Phillips v. Klassen,

502 F.2d 362, 367 (D.C. Cir.), cert. denied, 419 U.S. 996 (1974), the court

determined that where the challenged action “may be taken as conferring

economic benefits or working economic harm, depending on the circumstances

of the individual, the foundations of maintenance of a class action are

undermined.” Here, no such danger appears, since all nonmembers suffer

economic harm by reason of fee seizures to which they would not otherwise be

subjected.

* District 925’s claim that “Petitioners cite no conflicting rulings on class

issues in agency fee litigation from any other Circuit,” Opp. at 12, simply

ignores Petitioners’ Brief at 14 (referencing Pet. at 8 n.6), citing most of the

reported cases certifying identical classes. See n.4, infra.

Se

ing the class sought. Curious is the union’s argument that

Railway Labor Act jurisprudence casts “serious doubts about the

propriety of any class action on behalf of non-union members

objecting to union agency fees,” Opp. at 9, citing Railway Clerks

v. Allen, 373 U.S. 113, 119 (1963), and Machinists v. Street, 367

U.S. 740, 774 (1961), since the courts below did not rely upon

Allen and Street to deny certification. This is probably because

those cases involved an entirely different cause of action. That

is, in Allen, 373 U.S. at 119, and Street, 367 U.S. at 774, only

objecting employees subject to a union- or agency-shop agree-

ment had a substantive right not to subsidize their bargaining

agent’s political and ideological activities. Here, on the other

hand, all “potential objectors”—i.e., all nonmembers—are

entitled to “sufficient information to gauge the propriety of the

union’s fee,” Hudson, 475 U.S. at 306, and to have available the

other procedural safeguards that are “the constitutional require-

ments for the Union’s collection of agency fees,” id. at 310. See

George v. Baltimore City Public Schools, 117 F.R.D. 368, 371-72

(D. Md. 1987) (distinguishing Allen from a case such as this).‘

Stripped to its essence, District 925’s Opposition relies

solely upon Gilpin v. AFSCME, 875 F.2d 1310, 1313 (7th Cir.),

cert. denied, 493 U.S. 917 (1989), and derivatively, Kidwell v.

Transportation Communications International Union, 946 F.2d

283, 306 (4th Cir. 1991), cert. denied, 112 S. Ct. 1760 (1992),

decisions which were wrong. Those decisions misstate critical

facts by suggesting that nonunion employees who receive free

legal aid provided by the National Right to Work Legal Defense

* The class is defined as “employees of the University of Cincinnati within

the relevant bargaining unit: (1) who are represented exclusively for purposes

of collective bargaining by ... District 925 and (2) who are nonmembers of ...

District 925, or were nonmembers on 3 May 1990.” R. 1 at 6,912. Similar

classes were certified in George, 117 F.R.D. at 371-72; Mitchell v. Los Angeles

Unified Sch. Dist., 744 F. Supp. 938, 944 (C.D. Cal. 1990), rev’d on other

grounds, 963 F.2d 258, 262 (9th Cir.), cert. denied, 113 S. Ct. 375 (1992); Hohe

v. Casey, 128 F.R.D. 68, 72 (M.D. Pa. 1989); and Damiano v. Matish, 644 F.

Supp. 1058, 1060 (W.D. Mich. 1986), rev’d on other grounds, 830 F.2d 1363

(6th Cir. 1987).

Y -

Foundation, Inc., and its staff attorneys are per se inadequate

class representatives under Fed. R. Civ. P. 23. These cases both

rely upon sheer speculation about: (1) wishes of absent class

members; and (2) consequences of an award of the relief sought.

Since Gilpin and Kidwell are rooted in “sheer speculation,”

McKesson Corp., 496 U.S. at 46, they conflict with this Court’s

standards regarding the usual and accepted bases for judicial

decisionmaking. Likewise, District 925 cites no facts or evidence

supporting the Sixth Circuit’s economically anti-rational theory

that some nonmembers do not want their unlawfully seized

property returned to them. That theory, too, is “sheer specula-

tion.”

II. DISTRICT 925 REWRITES FIRST-AMENDMENT LAW

BY SUGGESTING THAT INFRINGEMENTS ARE NOT

MEASURED AGAINST THE “LEAST-RESTRICTIVE

MEANS” TEST WHEN THEY BENEFIT UNIONS.

Most striking is District 925’s failure to identify even a

single compelling state interest served by the state’s seizure (by

definition, absent consent) of the nonmembers’ money for union

political activities. Like the court of appeals, Pet., App. A at

15a-19a, the union fails to explain how such a practice meets

First-Amendment scrutiny. Indeed, reference to the First

Amendment appears only in the body of a quote from a Ninth

Circuit decision. Opp. at 16, quoting Mitchell, 963 F.2d at 262.

Instead, the union relies upon this Court’s decisions in

Railway Employes’ Department v. Hanson, 351 U.S. 225 (1956),

Street, and Allen. Opp. at 14-15. District 925’s reliance is

misplaced. Those cases did not address the narrow question

regarding nonmembers—all “potential objectors,” Hudson, 475

U.S. at 306—presented here. Unlike Petitioners, employees in

Hanson, Street, and Allen did not challenge the requirement that

they object to the union’s political, ideological, or other nonbar-

gaining spending to avoid paying for those activities. E.g., Brief

for Respondents at 6-7, Allen, supra (No. [62-] 316).

District 925’s Opposition illustrates why those decisions are

_ e

inapplicable. While claiming that Street “first established the

proposition that non-union members wishing to pay less than

full union dues have the burden of informing the union of their

desire to pay only those expenses related to collective bargain-

ing,” Opp. at 14 (emphasis added), the union then quotes this

Court’s actual holding that remedies are available only to “em-

ployees who have made known to the union officials that they

do not desire their funds to be used for political causes to which

they object.” Street, 367 U.S. at 744 (emphasis added), quoted

at Opp. at 15. Three times in that same passage this Court uses

the word “employee,” not the more specific word “nonmember.”

Use of the more general term was necessary because Street, 367

U.S. at 742, involved a “union-shop agreement,” not an agency

shop. Thus, District 925 and the Sixth Circuit are mistaken

when they assert that those cases impose an initial “objection”

requirement on nonmembers to prevent the seizure of admitted-

ly nonchargeable amounts. Id. at 14.

Likewise, plaintiffs in prior cases had made their objections

known to the unions. Lehnert v. Ferris Faculty Ass’n, 111 S. Ct.

1950, 1956 (1991); Hudson, 475 U.S. at 297; Ellis v. Railway

Clerks, 466 U.S. 435, 439 (1984); Abood v. Detroit Bd. of Educ.,

431 U.S. 209, 212-14 (1977); Allen, 373 U.S. at 118-19 & n.6;

Street, 367 U.S. at 744. Thus, this critical issue has not been

directly or indirectly decided by this Court.

Similarly, reliance upon Hudson’s comments regarding

“objection,” Opp. at 15, is misplaced. In Hudson, 475 USS. at

306, “objection” is necessary to invoke the process to challenge

the union’s calculation of the fee, not to prevent the seizure of

full union dues. Thus, this Court held that “the nonunion

employee has the burden of raising an objection, but ... the

union retains the burden of proof,” id., not unreasonably

requiring that individuals act to invoke adjudicative procedures.

Further, this Court could not have been discussing “objec-

tion” in the context at issue here, because the union in Hudson

could not exact an amount equal to full union dues from

nonmembers. The relevant statute authorized the exaction only

7

of the employee’s “‘ proportionate share of the cost of the

collective bargaining process and contract administration.’” Jd.

at 295 n.1, quoting Ill. Rev. Stat., ch. 122, 7 10-22.40a (1983).

Consequently, the collective bargaining agreement authorized

the employer to seize only a fee equal to the employee’s pro

rata share of the union’s expenditures for collective bargaining,

contract administration, and grievance adjusiment. 475 U.S. at

295-96.

Ill. THE FULL REFUND ORDERED UPON ENTRY OF THE

PRELIMINARY INJUNCTION IS NOT FINAL AND WAS

NOT FOR THE ENTIRE CLASS; ALLEN’S LIMITS ON

AN APPROPRIATE REMEDY ARE NOT APPLICABLE

IN THIS CONTEXT.

District 925 and the court of appeals, Pet., App. A at 20a,

rely upon Street, 367 U.S. at 775, and Allen, 373 U.S. at 122-24,

to conclude that full restitution of fees seized prior to Hudson

compliance is “unwarranted.” Opp. at 16-17. Those decisions

are not controlling because they are inapposite.’ Both cases

only establish the appropriate remedy for an excessive collection

of an objectors’ fees. See Street, 367 U.S. at 775 (a refund of

nonchargeable expenditures); Allen 373 U.S. at 122-24. Neither

addresses the appropriate remedy for failure to comply with “the

constitutional requirements for the Union’s collection of agency

fees.” 475 U.S. at 310. Hudson is clear and unambiguous on

this point; unions must comply with the “constitutional require-

* District 925 also misrepresents the Record by stating that its new notices.

and procedures “satisf[y] Arbitrator Florman’s requirements and the District

Court’s subsequent May 31, 1991 decision,” and that its “procedures now

comply with Hudson.” Opp. at 6, 16; see also id. at 2 (“procedures now in use

have not been challenged” by Petitioners). Petitioners remain protected against

“fair share fee” seizures by an injunction entered on remand from the Sixth

Circuit’s reversal of the denial of their Motion for a Preliminary Injunction, Pet.,

App. E at 47a; see also R. 61, which, as of the date of the filing of this Brief,

Respondents have not moved to disswive. No court has adjudicated the

adequacy or validity of any of District 925’s notices or procedures promulgated

after the 31 May 1991 decision.

Ct A i A

Ae sn ancien LA Gen alla, Sait Ath Mint prac rag a Pies hha pe, oat A Bini

bic alae rt Seah a Lette peel OR ALES ch

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. -

ments” before they collect any fees, as the court of appeals itself

conceded. Pet., App. A at 20a.

Only a full refund of all fees will insure that unions comply

with the minimum constitutional standards for notice and proce-

dures established in Hudson; only this remedy will “avoid a re-

currence of the violation.” National Soc’y of Professional Eng’rs

v. United States, 435 U.S. 679, 697 (1978); see also Elvin v.

Oregon Public Employees Union, 832 P.2d 36, 42 (Or. 1992), (full

restitution is not punitive in this context). If full refunds are not

required, unions self-evidently have affirmative economic incen-

tives to ignore the “constitutional requirements” and to keep the

nonmembers “in the dark” about their rights. See Hudson, 475

USS. at 306, 316.

Finally, the assertions that the relief sought by Petitioners

“could have crippled District 925’s ability to represent all

members of the bargaining unit,” that some “non-union ‘free

riders’ ... hoped to benefit from some aspects of union represen-

tation,” and that the “financial destruction of the union” would

have resulted from the Plaintiffs’ success in obtaining all of the

relief sought, Opp. at 10, are nothing more than alarmist,

speculative cant, unsupported by any record evidence.° A full

refund would merely put the union into the position it was in

prior to the enforcement of its illegal fee seizure scheme.’

* Even assuming that there were record evidence supporting these

apocalyptic conjectures, we are aware of no case which stands for the

proposition that a tortfeasor is relieved from compensating its victims because

it would suffer as a result of an appropriate award to them.

” Likewise, the assertion that full restitution “would undeniably deny the

union that ‘fair share’” or “unduly penalize the union,” Opp. at 17, is singularly

self-serving under the facts of this case. Inter alia, the union made extraor-

dinary efforts to burden the nonmembers’ exercise of their First-Amendment

rights by imposing a requirement that three certified mailings be made to fully

navigate its original procedures and through other violations of Hudson found

by the district court. R. 1, Ex. B; App. E at 60a.

x -

IV. EVEN IF ONLY THE NONCHARGEABLE PORTION OF

THE FEE MUST BE REFUNDED, FEDERAL COURTS

MUST ADJUDICATE AND AWARD DAMAGES FOR

CONSTITUTIONAL TORTS.

Rather than addressing the district court’s failure to fulfill

its Article III duties, District 925 recasts this issue, stating that

Petitioners were required to controvert the “arbitrator’s findings

as to the propriety of the fee with facts.” Opp. at 19 (emphasis

in original). But, the propriety of the district court’s rubber-

stamping of the “arbitrator’s” decision is simply not a question

of summary judgment practice, as District 925 suggests. Jd. at

18-20. The union’s argument fails for three reasons.

First, nonmembers are never required to prove a union’s

chargeability claim wrong; the union must prove that the amount

of its claim for fees is valid. See, e.g., Hudson, 475 U.S. at 306

& n.16. Here, if District 925 is correct, the district court

impermissibly shifted the burden of proof to the nonmembers.

Second, District 925 distorts Hudson by selective quotation.

While “expeditious arbitration might satisfy the requirement of

a reasonably prompt decision by an impartial decisionmaker,” id.

at 308 n.21, Hudson does not validate the lower court’s treat-

ment of that decision (even if it had been true arbitration) by

reason of that observation. To the contrary, this Court specifi-

cally held that “[t]he arbitrator’s decision would not receive

preclusive effect in any subsequent § 1983 action.” Jd. (empha-

sis added), citing McDonald v. City of West Branch, 466 U.S. 284

* District 925 continuously misrepresents its intra-union proceeding “under

procedures administered by the American Arbitration Association” as an

“arbitration,” and the decisionmaker as an “arbitrator.” Opp. at 3. Petitioners

neither consented to nor participated in that proceeding. Pet. at 27 n.24.

District 925 devalues simple words and misrepresents the nature of that

proceeding by continuing to refer to it as “arbitration.” See AT&T Technologies

v. CWA, 475 U.S. 643, 648-49 (1986) (“arbitrators derive their authority to

resolve disputes only because the parties have agreed in advance to submit such

grievances to arbitration”).

y=

(1984). Chargeability is a legal question in the first instance,

Lehnert, 111 S. Ct. at 1959; Ellis, 466 U.S. at 447-48, Hohe v.

Casey, 956 F.2d 399, 409 (3d Cir. 1992), and Petitioners clearly

raised these legal issues in response to the union’s submission of

the phony “arbitrator’s” decision as part of its summary judg-

ment motion. R. 40 at 23-25.°

Finally, even by its own standards, Pet., App. C at 40a, the

district court must be reversed. It was temporally impossible for

the “arbitrator” to apply the appropriate standard for chargeabil-

ity because her decision—and the district court’s rubberstamping

of it~—occurred before this Court’s decision in Lehnert.

By ignoring the question presented by the Petition, District

925 ipso facto concedes that the district court abdicated its duty

to provide the Petitioners with “federal adjudication” of their

claim for damages, Commodity Futures Trading Commission v.

Schor, 478 U.S. 833, 850 (1986), and ignored its obligation to

award at least nominal damages for the violations of the Peti-

tioners’ “right to procedural due process,” Farrar v. Hobby, 113

S. Ct. 566, 573 (1992), which it did find. The district court

violated these principles by flatly refusing to adjudicate Petition-

ers’ damages, and treating non-judicial determination as though

it were a judgment binding upon the Petitioners.”°

* The union’s representation that “Plaintiffs never contested with facts the

arbitrator’s determination that the 90% fair share fee had been properly

calculated by the union,” Opp. at 19, consciously misrepresents the Record.

Petitioners repeatedly showed that the standards to determine chargeability

applied by the union are constitutionally overbroad and that the “arbitrator’s”

legal findings on chargeability are per se erroneous. See R. 1, 11 39, 41, 42; R.

32 at 18-24; R. 40 at 12-16, 23-25.

" District 925 quotes the district court’s conclusion that “The arbitrator

correctly determined that the chargeability determination made by District 925

is valid.” Pet., App. C at 43a. However, the union fails to mention that the

district court based its conclusion solely on the finding that “the arbitrator

thoroughly examined the extensive financial documentation buttressing the

(continued...)

- 10 -

This result transforms Hudson’s requirement that unions

provide “a reasonably prompt opportunity to challenge the

amount of the fee before an impartial decisionmaker,” 475 U.S.

at 310 (emphasis added), into a practical obligation that the

nonmember seek and exhaust relief before that “impartial

decisionmaker,” contrary to Patsy v. Florida Board of Regents,

457 U.S. 496, 501 (1982). This nakedly denies Petitioners their

right to instead seek relief in the federal courts under 42 U.S.C.

§ 1983. It permits unions to “adjudicate” constitutional issues

before nonconsensual “arbitrators” without the nonmembers’

participation or actual challenge even where, as here, the

nonmembers affirmatively sought relief in the federal courts.

This grossly deviates from Hudson’s protections, which by their

own terms are designed to insure and facilitate the protection of

nonmembers’ constitutional rights, and violates Petitioners’

“personal right ... to demand Article III adjudication of [their]

civil suit.” Pacemaker Diagnostic Clinic v. Instromedix, 725 F.2d

537 (9th Cir.) (en banc, opinion by Kennedy, J.), cert. denied,

469 U.S. 824 (1984).

CONCLUSION

The Petition should be granted as to all questions present-

ed.

Respectfully submitted,

W. JAMES YOUNG*

GLENN M. TAUBMAN

*Counsel of Record for Petitioners

(continued)

calculations.” Jd. at 40a. The Record shows that only portions of the “arbitra-

tion” record were before the district court, and that the district court could not

and did not examine the complete “arbitration” record to support its rubber-

stamping of the “arbitrator’s” decision. R. 34.