Prescott

concurring:

Although I agree that the PEU’s notice does not satisfy the requirements of Chicago Teachers Union, Local No. 1. v. Hudson, 475 U.S. 292, 306 , 106 S.Ct. 1066 , 89 L.Ed.2d 232 (1986), and that remand is therefore necessary, I write separately because I believe that the majority unnecessarily reaches the issue of the constitutionality of the local union presumption.

We all agree that the PEU’s failure to provide audited verification of its expenses violates Hudson . Because it is clear that the local affiliate, EDCEA, cannot rely on the parent union’s (PEU’s) constitutionally insufficient data, we need not decide the issue of the constitutionality of the local union presumption. While the majority properly interprets the Supreme Court’s decision in Hudson , it ignores the Supreme Court’s strong warning against premature adjudication of constitutional questions:

Clinton v. Jones, 520 U.S. 681 , 690 n. 12, 117 S.Ct. 1636 , 137 L.Ed.2d 945 (internal quotation marks and citations omitted).

If the notice based on the parent union’s data is legally deficient, then the derivative data is similarly tainted for notice purposes. The “doctrine of avoidance,” id. at 690 ,…

Opinion by Judge FERNANDEZ; Concurrence by Judge McKEOWN.

Steven Prescott, an employee of the County of El Dorado, California, appeals from a determination of the district court that granted him limited relief on his claim that the assessment of fair-share agency shop fees against him was not fair. 2 The fees were for the purpose of supporting the El Dorado County Employees Association, Local # 1 (EDCEA), the union which represents him and the other employees of the County who are in his bargaining unit. Prescott is not a member of the EDCEA. He objects to the district court’s approval of the escrow provisions, its failure to order full restitution of fees, its remanding him to using the union’s arbitration procedures, and its failure to strike down an indemnification provision under which the EDCEA protects the County, against losses. We affirm in part, reverse in part, and remand.

BACKGROUND

Prescott, an employee of the County, is covered by a collective bargaining agreement (CBA) between the County and the EDCEA. The CBA establishes an agency shop arrangement. Employees in the bargaining unit must either be members of the union or pay a fair-share agency fee. Those who are…