In a case that could overturn provisions of New York’s Public Employees’ Fair Employment Act, six professors at the City University of New York (CUNY) had their case heard in federal court challenging the Professional Staff Congress’ (PSC) authority to represent them because they believe the union is hostile toward Jews.
The case, Goldstein et al. vs. PSC, was heard Oct. 26 in U.S. District Court for the Southern Region of New York by Judge Paul A. Engelmayer.
The state act, commonly known as the Taylor Law, is being targeted by the professors who are asserting it forces them to be under the union’s “monopoly representation” even though they have resigned from the PSC because of its “extreme ideology and poor representation.” The six are also seeking return of union dues they contend were illegally taken from them. Five of the six professors are Jewish and all are being represented pro bono (free of charge) by the National Right to Work Legal Defense Foundation and the Fairness Center. They are Avraham Goldstein, Michael Goldstein, Frimette Kass-Shraibman, Mitchell Langbert, Jeffrey Lax and Maria Pagano.
The complaint states that the lead plaintiff Avraham Goldstein is a Soviet-born Orthodox Jew, who after experiencing extreme antisemitism there, was allowed to immigrate to Israel, from where he holds citizenship, before coming to the United States. At CUNY he “has experienced anti-Semitic and anti-Zionist attacks from members of PSC, including what he sees as bullying, harassment, destruction of property, calls for him to be fired, organization of student attacks against him, and threats against him and his family.”
The lawsuit seeks to stop university officials from “certifying or recognizing PSC, or any other union, as Plaintiffs’ exclusive representative without their consent” and enforcing any provisions requiring the professors to provide financial support to the PSC. It also requests the court declare a provision of the Taylor Law unconstitutional because it “requires or authorizes PSC to be Plaintiffs’ exclusive representative” violating the professors’ First Amendment rights to freedom of association and speech.
In addition to the PSC, named as defendants are John Wirenius, chair of the New York Public Employee Relations Board (NYPERB); NYPERB members Rosemary A. Townley and Anthony Zumbolo; and the City of New York and New York State Comptroller Thomas P. DiNapoli. They were all represented in court by Scott A. Kronland of the San Francisco law firm of Altshuler Berzon, LLP, who did not return calls or e-mails made by The Jewish Link for comment.
The professors view the PSC’s Resolution in Support of the Palestinian People as antisemitic, anti-Jewish and anti-Israel, according to the suit. They charge, since its passage in June 2021, the union has continued to advocate positions and take actions supporting those beliefs “in a manner that harms the Jewish plaintiffs and singles them out for opprobrium, hatred, and harassment based on their religious, ethnic, and/or moral beliefs and identity. Because of this, they have no faith and confidence in PSC’s ability to represent them as their exclusive, fiduciary representative, and they desire to end such forced representation.”
“Our clients want to either represent themselves or be able to join a different union and have them negotiate on their behalf,” said Nathan J. McGrath, who was in court representing the Fairness Center, based in Harrisburg, Pennsylvania. “This case is really all about choice.” Milton I. Chappell, representing the National Right to Work Legal Defense Foundation., Inc., based in Springfield, Virginia, said the hearing lasted almost two hours with the judge asking many questions of both sides. He could not speculate on when a ruling might be issued. He explained that there have been other court rulings in recent years regarding union membership, including a 5-4 decision in 2018 by the Supreme Court in Janus v. AFSCME where the court held that unions covering public-sector workers such as teachers, firefighters and police could not charge nonmembers for their services, because doing so violated those nonmembers’ First Amendment rights “by compelling them to subsidize private speech on matters of substantial public concern.”
However, he noted the current case is “unique and I think the judge recognized this because this is the first time there has been a claim because the union is taking an antisemitic view. Our legal claim is that these professors don’t want to be forced into an association with people who basically hate you.”
McGrath said he did not believe there was legal precedent, often cited by the courts when making rulings, regarding the particulars of the case. However, the opposition in its filing said the claim should be dismissed, citing among its contentions a 1984 case, Minnesota State Board for Community Colleges v. Knight, which held that an exclusive-representative bargaining system does not compel association in violation of the First Amendment.
“Courts uniformly have rejected First Amendment challenges to exclusive representation for public employees that are indistinguishable from Plaintiffs’ challenge here, “ it read.
The filing noted that in that court ruling members of the bargaining unit were not required to join the union and they were free “to speak on any matter related to the conditions or compensation of public employment or their betterment” as long as doing so “is not designed to and does not interfere with the full, faithful and proper performance of the duties of employment or circumvent the rights of the exclusive representative.”
The Supreme Court summarily affirmed the lower court decision that exclusive representation in the “meet and negotiate” context was permissible. It also rejected plaintiffs’ claim that their right to free speech was impaired because, unlike the exclusive representative, they had “no government audience for their views,” according to the filing.
“Due to PSC’s expressed anti-Semitism and anti-Zionism, none of the Plaintiffs believe PSC can serve as a fiduciary to represent them fairly in negotiating their terms and conditions of employment, or in any interactions with their Employer,” states the professors’ suit. “All Plaintiffs believe, based on past experiences they have had with PSC’s poor representation of them or refusal to represent them, along with their opposition to PSC’s positions and speech, that PSC could not and would not fairly represent them in grievances, disciplinary matters, or other interactions with their Employer.”
Jeffrey Lax, who is Orthodox and has been a professor at Kingsborough Community College in Brooklyn for about 18 years, is a spokesperson for S.A.F.E. CUNY (Students and Faculty for Equality at CUNY), which advocates for Zionist Jews at CUNY. It was founded in part as a response to discrimination by the union.
“My co-plaintiffs and I are being forced to accept the representation of a union that has made antisemitic statements and has created a hostile environment for CUNY’s Jewish faculty,” he said in an e-mailed statement to The Jewish Link. “Though New York law forces me to have the union as my representative, the First Amendment says my right to free association must be protected. I appreciated the judge’s careful consideration of our position at the oral argument. I look forward to our case advancing so that I can assert my right to refuse the services of a union that seems to hate Jews.”
By Debra Rubin
