Hudson Notice Not Required For Mid-Year Temporary Fee Increase

Public employee unions are required to send a “Hudson notice” to bargaining unit members which must provide an “adequate explanation of the basis for union representation fees, a reasonably prompt opportunity to challenge the amount of the fee before an impartial decision maker, and an escrow for the amount reasonably in dispute while such challenges are pending.  (See Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986.)).

The reasons for the notice is because in a “closed shop” non-union members can be compelled to pay representation fees (also known as “fair share” fees) – and if those fees are utilized for purposes other than collective bargaining activities, for example to support political candidates or ballot initiatives, a dissenting employee is entitled to refrain from paying for such items. To compel a non-union member to support such union-backed causes against his/her individual will would violate the First Amendment.

In Knox v. CSEA, a legal question arose as to whether a union was required to send a “Hudson notice” when it adopted a temporary fee increase mid-year in order to fund campaigns against “anti union” ballot measures.  The union made clear, however, that the increase would be split between such uses and traditional collective bargaining work.

The court rejected the challenge and held that the union did not have send a “mid year” Hudson notice. It was sufficient, said the court, for the union to base its forecasted expenditure on the previous year’s experience.  Even if there is some “temporary” use of non-members funds for political purposes, the result does not offend the essential teaching of the Hudson decision. To quote the court:

“The inevitable effect of the Hudson “prior year” method is a lag of at least one year between the time when a union incurs expenditures and when the audited ratio of its chargeable expenditures to total expenditures is applied to calculate the objectors’ fee for the next year. Fluctuation is inherent in such a method: in each year, objectors may be “underpaying” or “overpaying” fees when compared to the chargeable percentage of the union’s actual expenditures in that year because under Hudson’s “prior year” method the fee is based upon the chargeable percentage of the prior year’s actual expenses, but the inevitable effect of the Hudson method is that these over- and undercharges even out over time. The Hudson notice can never be more than a prediction, which will inevitably be incorrect as to the union’s actual expenditures. The Hudson notice is not, and cannot be expected to be, more than that.”

For your convenience, a copy of this ruling is attached.

Our firm regularly advises public and private school employers, employee unions and individual employees about various legal issues that arise in the workplace, whether under the Labor Code, the Education Code, collective bargaining agreements, or otherwise. Feel free to contact us if you need assistance in this area