Appendix — Robinson v. New Jersey
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IN THE APR 14 1987
Supreme Court of the United t¥PBEPH F. SPANIOL, J
CLERK
OCTOBER TERM, 1986
PAUL ROBINSON, et al.,
Petitioners,
Vv.
STATE OF NEW JERSEY, et al.,
Respondents.
JOSEPH W. ANTONACCI, et al.,
Petitioners,
Vv.
STATE OF NEW JERSEY, et al.,
Respondents.
ALLEN OLSEN, et al.,
Petitioners,
Vv.
COMMUNICATIONS WORKERS OF AMERICA, et al.,
Respondents.
Appendices to
Petition for a Writ of Certiorari to the
United States Court of Appeals for the Third Circuit
Counsel of Record for Petitioners
HUGH L. REILLY JEFFRY A. MINTZ
RAYMOND J. LaJEUNESSE MESIROV, GELMAN,
EDWIN VIEIRA, JR. JAFFE, CRAMER &
National Right to Work Legal JAMIESON
Defense Foundation, Inc. 900 Kings Highway North
8001 Braddock Road, Suite 600 Cherry Hill, NJ 08034
Springfield, VA 22160 (609) 667-9695
(703) 321-8510
April 14, 1987
SA LEAS ETI RIED 5 SEA. ENTE PLE. ORO EGR LN REALE SEB GEES SLI ROE
-
APPENDIX
TABLE OF CONTENTS
Appendix Page
PRESENT PROCEEDINGS
Decisions of the Court of Appeais
A. Decision of the U.S. Court of Appeals for
the Third Circuit in Robinson/ Antonacci/
Olsen v. State of New Jersey/ CWA Deny-
ing Sur Petition For Rehearing, January 14,
POE cecick de tvs Quads ke eeheeeNakchawnatdvecceeys la
B. Opinion of the U.S. Court of Appeals for
the Third Circuit in Robinson/Antonacci/
Olsen v. State of New Jersey/CWA,
I i re aduweeas s 4a
C. Judgment of the U.S. Court of Appeals for
the Third Circuit in Robinson/ Antonacci/
Olsen v. State of New Jersey/CWA, .
PR SD hard bids a dchiewekeniccnte 22a
Decisions of the District Court
D. Order of the U.S. District Court in Robin-
son/ Antonacci/ Olsen v. State of New Jer-
PS A Oe, re 25a
E. Transcript of Proceedings and Bench Opin-
ion of the U.S. District Court in Robinson/
Antonacci/ Olsen v. State of New Jersey/
Ce PU ED Sei ed ay av cevebevdesseces 29a
Appendix
“ii-
APPENDIX
TABLE OF CONTENTS—continued
PRIOR PROCEEDINGS ON
PRELIMINARY INJUNCTION
Decision of the United States Supreme Court
Order of the United States Supreme Court
in Robinson v. New Jersey Denying Petition
for Writ of Certiorari, February 19,1985 ...
Decisions of the Court of Appeals
Judgment of the U.S. Court of Appeals for
the Third Circuit in Robinson/ Antonacci/
Olsen v. State of New Jersey, August 6,
| MEM fy cc Soe
Order of the U.S. Court of Appeals for the
Third Circuit in Robinson/Antonacci/ Olsen
v. State of New Jersey Lifting Stay of
Judgment, October 5, 1984 .................
Order of U.S. Court of Appeals for the
Third Circuit in Robinson/ Antonacci/ Olsen
v. State of New Jersey, Staying Issuance of
Judgment, September 20, 1984 ..............
Decision of the U.S. Court of Appeals for
the Third Circuit in Robinson/ Antonacci/
Olsen v. State of New Jersey Denying Sur
Petition for Panel Rehearing and Rehearing
En Banc, September 11, 1984 ...............
Page
67a
69a
Tla
74a
-ili-
APPENDIX
TABLE OF CONTENTS—continued
Appendix Page
K.
Opinion of the U.S. Court of Appeals for
the Third Circuit in Robinson/ Antonacci/
Olsen v. State of New Jersey/CWA, August
AOU RGG VA des pds dv 0biu an dwkb uv Ew se 79a
Decisions of the District Court
Order of the U.S. District Court for Addi-
tional Preliminary Injunctive Relief and
Consolidation in Robinson/ Antonacci/ Olsen
v. State of New Jersey/CWA, June 30,
(MRS ae ES SRS» PRES te Oe are 127a
Transcript of Proceedings in Robinson v.
State of New Jersey Denying Motion for
EY SRD Neca davessevdeccevssssees I3la
Opinion of the U.S. District Court in
Robinson/ Antonacci/ Olsen v. State of New
PNT Gree, SU BA, EMS cc cccerecvaceee 137a
Order of the U.S. District Court Granting
Preliminary Injunction in Olsen v. CWA,
i and adh Kaka nine ancxeoeees 154a
Opinion of the U.S. District Court in Olsen
ee eS ee 158a
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APPENDIX
TABLE OF CONTENTS—continued
Appendix Page
Q.
Order of the U.S. District Court Granting
Preliminary Injunction in Antonacci/ Robin-
son v. State of New Jersey, October 19,
SIE Nicietyi evade stinea an ancien iat 200a
Opinion of the U.S. District Court in
Robinson/ Antonacci v. State of New Jersey,
OT Gs - ke whnnncddUiwasuewaseans 204a
RELEVANT CONSTITUTIONAL AND
STATUTORY PROVISIONS
First and Fourteenth Amendments to the
United States Constitution, and 42 U.S.C §
TREE ARAN Dace ote Bia OR as oe 270a
New Jersey [Public] Employer-Employee Re-
lations Act, N.J.S.A. 34:13A-2, -3(e),
Ce sitics\euedpoithnns aca meens 404 tKcues 272a
1980 “Representation Fee” Amendments to
the Act, N.J.S.A. 34:13A-5.5, -5.6 ......... 277a
Legislative History of 1980 Amendments to
the New Jersey [Public] Employer-Employee
PN PUNE Cicnaxt Ao bdcvaves cn sakteners: 28la
-V-
APPENDIX
TABLE OF CONTENTS—continued
Appendix Page
X.
AA.
BB.
OTHER MATERIALS
New Jersey Education Association Publica-
tion: “Agency shop: Its time has come”
(MovemmbOr TIDE) oc acc cvciccscscsdcsecceces 303a
Excerpt from Brief For Appellee Organiza-
tions (p. 33) in the U.S. Court of Appeals
for the Third Circuit in Robinson/ Antonac-
ci/ Olsen v. State of New Jersey/CWA, filed
Fay FR TBS cc cccksscsescvesesseccccsanvves 3lla
Letter from David T. Dierker to Thomas
Gay, dated February 9, 1982 ............... 314a
Letter from Robert D. Sullivan to Joseph
Antonacci, dated December 29, 1981 ...... 317a
Letter from Thomas Gay to Thomas A.
Farr, dated February 27, 1981 ............. 320a
-la-
APPENDIX A
Decision of the U.S. Court of
Appeals for the Third Circuit in
Robinson/ Antonacci/ Olsen v. State of
New Jersey/CWA Denying Sur Petition
For Rehearing, January 14, 1987
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 85-5669
PAUL H. ROBINSON, etc., et al.,
Employee- Appellants
Vv.
STATE OF NEW JERSEY, etc. et al.
(D.C. Civ. Nos. 82-1118/ 1119 and 82-3443)
SUR PETITION FOR REHEARING
Present: GIBBONS, Chief Judge, SEITZ, WEIS,
HIGGINBOTHAM, SLOVITER, BECKER,
STAPLETON, and MANSMANN, Circuit Judges.
The petition for rehearing filed by employee-appellants,
in the above-entitled case having been submitted to the
judges who participated in the decision of this Court and
to all the other available circuit judges of the circuit in
regular active service, and no judge who concurred in the
decision having asked for rehearing, and a majority of
the. circuit judges of the circuit in regular active service
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not having voted for rehearing by the court in banc, the
petition for rehearing is denied. Judge Sloviter would
grant rehearing.
BY THE COURT,
/s/ A. Leon Higginbotham
Circuit Judge
Dated: January 14, 1987
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APPENDIX B
Opinion of the U.S. Court of Appeals for
the Third Circuit in Robinson/ Antonacci/
Olsen v. State of New Jersey/CWA
November 28, 1986
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 85-5669
PAUL H. ROBINSON, et ai.,
Vv.
STATE OF NEW JERSEY, THOMAS H. KEAN, Governor, e al.,
(D.C. Civil No. 82-1118)
JOSEPH W. ANTONACCI, ef al.,
Vv.
STATE OF NEW JERSEY, Thomas H. Kean, Governor, et al.,
(D.C. Civil No. 82-1119)
ALLEN OLSEN, et ai.,
Vv.
COMMUNICATIONS WORKERS OF AMERICA (CWA), et al.,
(D.C. Civil No. 82-3443)
On Appeal! from the United States
District Court for the
District of New Jersey (Newark)
Civil Nos. 82-1118, -1119 and -3443
Argued October 29, 1986
Before: ADAMS, HIGGINBOTHAM, and VAN DUSEN
Circuit Judges,
(Filed NOVEMBER 28, 1986)
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OPINION OF THE COURT
ADAMS, Circuit Judge.
This case presents a constitutional challenge to the
1979 amendment of the New Jersey Employer-Employee
Relations Act (“the Act”), N.J.S.A. 34:13A-5.1 et seq.,
which allows public employers and public employee
unions to include in collective bargaining agreements a
requirement that employees who do not join the union
pay a representation fee in lieu of union dues in order to
share in the costs of collective bargaining. Appellants,
public employees in New Jersey who choose not to
become union members, argue that the Act violates their
first amendment right not to be required to support po-
litical positions with which they disagree.
I
Public employees in New Jersey have had the right to
bargain collectively with the state as employer since
1968. N.J.S.A. 34:13A-5.3. Because public employee
unions are required to represent the interests of all
members of the bargaining unit, those workers who do
not join such unions would, in the absence of some spe-
cial arrangement, receive the benefits of collective bar-
gaining without sharing in its costs. To ameliorate this
situation, legislation was enacted in 1979 allowing public
employers and public employee unions to provide in col-
lective bargaining agreements that employees who do not
join the union pay a representation fee in lieu of union
dues. See Sponsor's Statement to L.1979, c. 477, N.J.S.A.
—eEE —”
-Ja-
34:13A-5.5 to 5.9. The Act sets a limit on the amount of
the representation fee that may be collected, stating that
the fee
shall be in an amount equivalent to the regular
imembership dues, initiation fees and assessments
charged by the majority representative to its own
members less the cost of benefits financed through
the dues, fees and assessments and available to or
benefitting only its members, but in no event shall
such fee exceed 85% of the regular membership
dues, fees and assessments.
N.J.S.A. 34:13A-5.5(b). The Act further refines this for-
mula by allowing fees to be exacted for
the costs of support of lobbying activities designed
to foster policy goals in collective negwetiations and
contract administration or to secure for the em-
ployees represented advantages in wages, hours, and
other conditions of employment in addition to those
secured through collective negotiations with the
public employer.
N.J.S.A. 34:13A-5.5(c).
The legislation anticipates that at times unions may
collect more in representation fees than they are entitled
to under the foregoing provisions, and that some
workers may object to being required to pay such over-
ages. It therefore establishes a “demand and return” sys-
tem, which offers such workers the right to receive a
refund in the amount of the overcharge. The refund is
limited to that part of the fee paid
which represents the employee’s additional pro rata
share of expenditures by the majority representative
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that is either in aid of activities or causes of a parti-
san political or ideological nature only incidentally
related to the terms and conditions of employment
or applied toward the cost of any other benefits
available only to members of the majority repre-
sentative.
Id. The demand and return system must include a proce-
dure “by which persons who pay a representation fee in
lieu of dues may obtain review of the amount returned
through full and fair proceedings placing the burden of
proof on the majority representative.” N.J.S.A. 34:13A-
5.6. An employee who is dissatisfied with this review
arrangement is entitled to appeal to a board consisting of
three members appointed by the Governor. The member-
ship of the appeal board is prescribed:
Of such members, one shall be representative of
public employers, one shall be representative of pub-
lic employee organizations and one, as chairman,
who shall represent the interest of the public as a
strictly impartial member not having had more than
a casual association or relationship with any public
employers, public employer organizations or public
employee organizations in the 10 years prior to
appointment. —
Id.
Appellants here, public employees who are not union
members, initially challenged various aspects of the Act
On constitutional grounds in three separate lawsuits. The
district court found that the Act violates the first
amendment by allowing representation fees to be used to
support lobbying by the union in furtherance of policy
goals not directly related to collective bargaining. It also
-Ja-
held that a demand and return system of the sort autho-
rized by the Act cannot adequately protect the first
amendment rights of dissenting employees, and that the
demand and return procedures established in the collec-
tive bargaining agreements in question were so unwieldy
as to infringe the appellants’ right to due process. The
district court entered injunctions against the collection of
all representation fees from objecting employees. Robin-
son v. New Jersey, 547 F. Supp. 1297 (D.N.J. 1982);
Olsen v. Communications Workers of America, 559 F.
Supp. 754 (D.N.J. 1983); Robinson v. New Jersey, 565
F. Supp. 942 (D.N.J. 1983).
The consolidated cases were appealed to this Court,
which reversed the district court. In Robinson v. New
Jersey, 741 F.2d 598 (3d Cir. 1984), we held that the first
amendment is not abridged either by the Act's allowance
of the use of representation fees to finance lobbying of
the sort disapproved by the district court or by the
demand and return scheme. /d. at 609-12. We further
held that the demand and return systems implemented by
the defendant unions would be susceptible to constitu-
tional challenge only if in practice they allowed the
union to expend representation fee funds for prohibited
purposes. Finally, we remanded to the district court for
the necessary factfinding. /d. at 612-14.
On remand, the district court upheld the Act. It
rejected the appellants’ claims that allowing use of
representation fee funds for lobbying other than in sup-
port of collective bargaining goals and the demand and
return system facially violate the first amendment, noting
that these issues had already been determined by this
Court. JA 32-36. The district court then proceeded to
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several other issues. It held that the composition of the
appeal board established by the Act does not violate due
process requirements, JA 46, but declined to adjudicate
appellants’ claims relating to the validity of the demand
and return schemes as applied, electing to abstain under
the Pullman doctrine. JA 61-68.
II
In the present appeal the appellants raise three princi-
pal issues. First, they maintain that the Act’s demand
and return scheme facially violates the first amendment,
relying on the Supreme Court’s recent holding in Chi-
cago Teachers Union, Local No. | v. Hudson, 106 S. Ct.
1066 (1986). Second, they contest the district court’s rul-
ing to abstain from deciding their as-applied challenge to
the demand and return systems established by the union
appellees. Third, they challenge the composition of the
appeal board on due process grounds.
A.
Appellants do not argue that the collection of repre-
sentation fees by a public employee majority representa-
tive is unconstitutional, nor could they. In Abood v.
Detroit Board of Education, 431 U.S. 209 (1977), the
Supreme Court considered the constitutionality of a
Michigan statute authorizing the collection of representa-
tion fees from public employees who do not join their
union. Relying heavily on its earlier decisions in Railway
Employes’ Department v. Hanson, 351 U.S. 225 (1956),
and /nternational Association of Machinists v. Street,
367 U.S. 740 (1961), the Supreme Court held that the
first amendment does not forbid the collection of such
fees, even from employees who do not support unionism,
so long as the proceeds are used in support of “collective
bargaining, contract administration, and grievance adjust-
ment.” 431 U.S. at 225-26.
The appellants insist that the Act facially infringes the
first amendment by failing to provide sufficient proce-
dural protections to employees who do not belong to the
union and do not want their representation fees to be
used to support the union’s political positions. In this
regard, they rely exclusively on Chicago Teachers Union,
Local No. 1 v. Hudson, supra, in which the Supreme
Court considered a challenge to the procedures for col-
lecting representation fees embodied in a collective bar-
gaining agreement between the Chicago Teachers Union
and the Chicago Board of Education. These procedures
were adopted pursuant to an Illinois statute similar in
purpose to the New Jersey Act. The Court found the
union’s procedure constitutionally defective in three
respects. First, the procedure for returning to dissenting
nonmembers excess fees assessed was insufficient to
ensure that dissenters’ funds would not be used for an
improper purpose. /d. at 1075. Second, the union failed
to supply nonmembers with information justifying the
amount of fees it assessed. /d. Third, the arrangement
did not include a fair, expeditious, and objective proce-
dure for addressing the objections of nonmembers. /d. at
1076-77.
Exclusive reliance by the appellants on Hudson in
their facial attack on the Act is misplaced. Hudson
involved not a facial attack upon the Illinois statute, but
only a challenge to the procedures actually adopted in a
specific collective bargaining agreement. The effect of
-|2a-
the Court’s holding was to disallow the collection of
representation fees under the regime established in that
collective bargaining agreement. The statute itself, how-
ever, was left standing.
It is well established that the courts will not invalidate
a statute on its face simply because it may be applied
unconstitutionally, but only if it camnot be applied con-
sistently with the Constitution. Thus in Members of the
Citv Council of Los Angeles v. Taxpayers for Vincent,
466 U.S. 789 (1984), the Supreme Court explained that
there are two different contexts in which a statute may
be declared facially invalid: “either because it is unconsti-
tutional in every conceivable application, or because it
seeks to prohibit such a broad range of protected con-
duct that it is unconstitutionally ‘overbroad.’” /d. at 796.
A holding that invalidates a statute in the first situation
“expresses the conclusion that the statute could never be
applied in a valid manner.” /d. at 797-98. The New Jer-
sey Act clearly does not fall into this category. It does
not mandate procedures that result in a union enjoying
temporary use of funds to which it is not entitled; it does
not forbid a union to provide nonmembers with a justifi-
cation of its fee assessments; and it does not prevent the
establishment of an adequate appeal procedure.
Our conclusion that the Act is susceptible of a con-
struction making its application constitutional is but-
tressed by /n re Board of Education of Boonton, 494
A.2d 279 (N.J. 1985), cert. denied, 106 S. Ct. 1388
(1986). In Boonton, the New Jersey Supreme Court con-
sidered a constitutional challenge to the Act as applied.
The court proceeded from the premise that the Act must
be construed so as to make it consistent with constitu-
-|3a-
tional requirements. /d. at 292. It concluded, among
other things, that the Act requires a union to base the
amount of the representation fee it assesses on its expen-
ditures during the previous year, in order to minimize
the possibility that the union will be allowed temporary
use of the fee funds for impermissible purposes. /d. at
293-94. This construction arguably meets the first of the
three requirements set forth in Hudson: namely, that the
union “‘should not be permitted to exact a service fee
from nonmembers without first establishing a procedure
which will avoid the risk that their funds will be used,
even temporarily, to finance ideological activities unre-
lated to collective bargaining.’” Hudson, 106 S. Ct. at
1075 (quoting Abood v. Detroit Board of Education, 431
U.S. 209, 244 (1977)).
We do not pass on the issue whether the Act, as
construed in Boonton, satisfied the Hudson requirement
that the demand and return system be so designed that
the union is prevented from enjoying unwarranted use of
representation fee funds. We believe, however, that the
fact that the Act is capable of supporting such a con-
struction bolsters the determination that the Act does
not require a demand and return system that violates the
first amendment rights of dissenting nonmembers.
Further, the appeal board has proposed rules imple-
menting the Act that are explicitly designed “([t]o satisfy
the mandates of the United States Supreme Court in
[Hudson], and the New Jersey Supreme Court in Boon-
ton.” Summary of Proposed Rules, reprinted in Brief for
Appellee at app. 2. The proposed rules address all three
of the infirmities uncovered in Hudson, and arguably
result in an implementation of the Act that is in full
Se ee
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compliance with constitutional requirements. Like the
holding in Boonton, the promulgation of these rules
supports the ruling that the Act can be implemented
without running afoul of constitutional strictures.
It is equally clear that the doctrine of overbreadth is
not applicable here. A statute may be struck down as
overbroad if it has a substantial chilling effect on free
expression, even though the conduct of the party raising
the challenge may be unprotected. The doctrine “is pre-
dicated on ‘a judicial prediction or assumption that the
Statute’s very existence may cause others not before the
court to refrain from constitutionally protected speech or
expression.’” Taxpayers for Vincent, 466 U.S. at 799
(quoting Broadrick v. Oklahoma, 413 U.S. 601, 612
(1973)). Because the statute in question threatens no
sanctions, there does not appear to be any question of a
chilling effect on expressive activity.
In assessing the facial constitutionality of a statute,
courts often take the further step of setting forth a con-
struction of the statute that avoids the constitutional
issue. See, e.g., Ellis v. Brotherhood of Railway, Airline
& Steamship Clerks, 466 U.S. 435 (1984); Califano v.
Yamaski, 442 U.S. 682 (1979); United States v. C.1.O.,
335 U.S. 106 (1948); Crowell v. Benson, 285 U.S. 22
(1932). In these cases the issue was the constitutionality
of a federal statute. Where, as here, the inquiry concerns
a State statute, somewhat different considerations come
into play. A federal court is unable to set forth a defini-
tive construction of a state statute: in the nature of
things, any such construction is only tentative, at best a
forecast, subject to override by the courts of the state.
See Railroad Commission v. Pullman Co., 312 U.S. 496,
wihion
-1|5a-
499-500 (1941); Field, Abstention in Constitutional Cases:
The Scope of the Pullman Abstention Doctrine, 122 U.
Pa. L. Rev. 1071, 1085 (1974) (“When federal courts
decide questions of state law, . . . there is no possibility
of any review within the authoritative state judicial sys-
tem of their prediction of how state tribunals would
rule.”). In deference to this primary role of the state
judiciary, the district court exercised its discretion to
abstain from deciding appellants’ as-applied claims, there-
by refraining from a tentative construction of the Act. In
light of our determination that the district court acted
within its discretion in abstaining, it would be inappro-
priate for us to undertake to construe the Act in assess-
ing its facial constitutionality. It is sufficient in deciding
this issue to note that the Act is not “unconstitutional in
every conceivable application.” Taxpayers for Vincent,
466 U.S. at 796.
B.
The district court declined to pass on appellants’ as-
applied claims, electing to abstain on the basis of the
doctrine announced in Railroad Commission v. Pullman
Co., 312 U.S. 496 (1941). Appellants argue that absten-
tion was unwarranted. Under Pullman and a long line of
subsequent cases, a federal court has the discretion in
certain circumstances to avoid deciding a case that is
properly before it. In Georgevich v. Strauss, 772 F.2d
1078, 1089 (3d Cir. 1985) (in banc), cert. denied, 106 S.
Ct. 1229 (1986), we explained:
Pullman abstention is appropriate whenever “there
is an unsettled question of state law, the resolution
of which would affect the decision of a federal con-
stitutional issue, either by obviating the need to
-16a-
decide it or by changing the light in which it must
be viewed.”
(quoting Heritage Farms, Inc. v. Solebury Township, 671
F.2d 743, 746 (3d Cir. 1982)). An appellate court may
reverse a district court’s decision to abstain only for
abuse of. discretion. Frederick L. v. Thomas, 557 F.2d
373, 382 (3d Cir. 1977). We conclude that in this case
there was no abuse of discretion.
Appellants’ as-applied claims are based entirely upon
the Supreme Court’s holding earlier this year in Hudson.
The Court there set forth the features that a statute
authorizing the assessment of representation fees must
have in order to pass constitutional muster, namely: it
must require that the union provide an adequate expla-
nation of the basis for the fee assessed, that dissenting
nonmembers be provided with a reasonably prompt op-
portunity to challenge the fee before an impartial deci-
sionmaker, and that there be a procedure for assuring
that fee funds are not used even temporarily by the
union for improper purposes. 106 S. Ct. at 1075-78. The
New Jersey Supreme Court has declared in Boonton its
intention to construe the Act so as to make it consistent
with constitutional requirements, Boonton, 494 A.2d at
292, and the New Jersey courts have not decided a case
under the Act since Hudson was decided. An unsettled
issue of state law is thus presented: What set of proce-
dures does the state statute require to be followed in the
implementation of a collectively bargained agreement to
collect representation fees from nonmembers? The Act is
largely silent as to the procedures to be followed in
implementing it, and is therefore “‘fairly subject to an
interpretation which will render unnecessary’ adjudication
-17a-
of the federal constitutional question.” Hawaii Housing
Authority v. Midkiff, 467 U.S. 229, 236 (1984) (quoting
Harman v. Forssenius, 380 U.S. 528, 535 (1965)). The
propriety of abstention by the district court is enhanced
by the fact that there is as yet no substantial body of
caselaw treating the provisions in question. Only in
Boonton have the New Jersey courts addressed these
provisions, and that decision leaves open a number of
the issues that concern us on this appeal.
As discussed above, the appeal board has proposed a
set of administrative rules implementing the Act that are
designed to codify the requirements of Hudson and
Boonton. Brief for Appellees at 21, app. 1-19.' If these
proposed rules are adopted, they may well constitute an
implementation of the Act that makes applications of it
comport with the restrictions set forth in Hudson. In
such event, the need for a constitutional adjudication
would be eliminated or, at the very least, its scope sub-
stantially narrowed. The state is thus embarked on a
process aimed at implementing the Act in a constitu-
tional manner. That the state is aware of and acting in
good faith upon its constitutionally imposed duties in
this regard counsels the federal courts against undertak-
ing “a tentative answer which may be displaced tomor-
A public hearing on the proposed rules was held on September
Il, 1986. and comments were received. On the basis of these
comments, the appeal board has made changes in the proposed
rules of a substantive nature. The aim, however, remains to
implement the Act consistently with the requirements of Hucson.
There will probably be another round of comments before the
New Jersey Public Employment Relations Commission decides
whether to adopt the revised rules. We were advised at oral argu-
ment that the process is expected to proceed to resolution with
reasonable expedition.
-18a-
row by a state adjudication” and which may result in
“needless friction with state policies.” Pullman, 312 U.S.
at 500.
Appellants point out that the defendants did not move
for abstention until more than two-and-a-half years after
the actions were originally filed in the district court. We
have held that such a delay is a factor weighing against
abstention. See Frederick L. v. Thomas, supra, 557 F.2d
at 383. Although the duration of the delay here is of
some concern, we do not deem it of sufficient import to
render the district court’s decision to abstain an abuse of
discretion. In the context of a decision to abstain, the
significance of a delay derives from the harm it causes to
the party seeking vindication of his or her rights. In
Frederick L., delays in adjudication meant that children
suffering from serious learning disabilities would be
further deprived of educational opportunities that could
never be fully restored to them. In this case we do not
consider the potential harm to appellants to be of the
same magnitude.
Moreover, it appears unlikely that resolution of the
dispute has been greatly postponed as a result of the
delayed filing of the motion for abstention. In its initial
round of hearings in 1982 and 1983, the district court
held that the Act was facially invalid. That holding occa-
sioned an appeal to this Court in which we reversed the
facial invalidation and remanded for consideratior ~f the
as-applied claims. Our earlier judgment was rendered on
August 6, 1984, nearly two years after the suits were
initially filed. Thus nearly two years of the delay in filing
the motion for abstention was of no consequence, since a
decision to abstain from deciding the as-applied claims
-19a-
prior to the remand would not have affected the district
court’s disposition of the case.
We note further that the district court, although
abstaining from decision at the present time, retains ju-
risdiction over the action. Should the appellants expe-
rience undue delay in obtaining resolution of the
unsettled state-law issues, they would have the right once
again to request that the district court move forward.
See Georgevich, supra, 772 F.2d at 1093. In addition,
appellants have the right to return to the federal courts
should a federal constitutional issue remain after resolu-
tion of the state-law issues. See England v. Louisiana
State Board of Medical Examiners, 375 U.S. 411, 415-17
(1964).
In sum, there is presently in motion a process that
may well result in an interpretation of the Act that will
narrow or eliminate the need for any constitutional
adjudication. In addition, the Act is fairly susceptible of
a construction that will obviate the necessity to address a
constitutional issue. Accordingly, we cannot say that the
district court abused its discretion in abstaining from
deciding appellants’ as-applied claims.
S
There is provision in the Act for the formation of an
appeal board whose function is to review determinations
by the union under the demand and return system. The
board, consisting of three members, is to be appointed
by the Governor. “Of such members, one shall be repre-
sentative of public employers, one shall be representative
of public employee organizations and one, as chairman,
who shall represent the interest of the public as a strictly
-20a-
impartial member. . . .” N.J.S.A. 34:13A-5.6. Appellants
maintain that the composition of the board violates their
right to procedural due process. They argue that the
representatives of the union and of the employer will
constitute a voting bloc unconstitutionally biased against
employees who do not join the union.
The Supreme Court has not been quick to find that an
adjudicator’s potential bias against one whose cause he
or she hears rises to the level of a constitutional viola-
tion. In Withrow v. Larkin, 421 U.S. 35, 47 (1975), the
Court noted that the probability of bias on the part of
the adjudicator is intolerably high when the adjudicator
has a pecuniary interest in the outcome, and when he or
she has been the target of personal abuse or criticism
from the litigant. In our case there is no suggestion that
either of these conditions exists.
In addition, the Court has stated that, in the absence
of pecuniary interest or personalized animus, evidence of
a generalized bias may be sufficient to establish a consti-
tutional violation, but “only in the most extreme cases.”
Aetna Life Insurance Co. v. Lavoie, 106 S. Ct. 1580,
1585 (1986). The present situation hardly exemplifies
such an extreme case. The Act requires that one of the
board members be without institutional affiliations, and
hence presumptively impartial. Of the other two mem-
bers, one is to represent the unions and the other is to
represent employers. Even if one assumes arguendo that
the union representative is likely to be biased against
employees who cnoose not to join the union, such
assumed bias would be counterbalanced by the employer
representative, who would probably be more sympa-
thetic to the employees’ position. The union is often the
REMAN. Monies
hha Be SS oe atl ate Baro
CHAR mite a a hea rnin ae hdaanieliat
-2la-
employer's adversary at the bargaining table, and the
employer is bound to perceive anything that strengthens
the union financially to be contrary to its interests. Thus
it is difficult to see any bias at all in the composition of
the board. Certainly it is not such as to make this “the
most extreme of cases.”
Furthermore, in Hudson the Supreme Court hinted
that a review board would pass constitutional muster as
long as its membership was not controlled by the union
alone. The Court invalidated the three-tier review system
under attack in Hudson. The first two tiers were com-
posed entirely of union officials, while the third offered
review by a union-selected arbitrator. Thus the union
exercised unrestricted control of the composition of all
stages of the review process. In holding this system viola-
tive of due process requirements, the Court noted that “a
full-dress administrative hearing” was not required, and
that the impartiality requirement might be satisfied “so
long as the arbitrator’s selection [does] not represent the
Union’s unrestricted choice.” 106 S. Ct. at 1077 n.21.
While this statement is dictum, it confirms the rigor of
the standard set forth in Aetna Life, supra.
III
For the foregoing reasons, the judgment of the district
court will be affirmed, and the case remanded to the dis-
trict court with instructions to retain jurisdiction pending
resolution of the state-law issues. See Lake Carriers’
Association v. MacMullen, 406 U.S. 498, 512-13 (1972);
Insurance Federation of Pennsylvania, Inc. v. Supreme
Court of Pennsylvania, 669 F.2d 112, 113 (3d Cir. 1982)
(per curiam).
-22a- |
| APPENDIX C
Judgment of the U.S. Court of
Appeals for the Third Circuit in
Robinson} Antonacci/ Olsen v. State of
New Jersey/CWA November 28, 1986
Se ee ee
-23a-
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 85-5669
PAUL H. ROBINSON, et ai.,
Vv.
STATE OF NEW JERSEY, THOMAS H. KEAN, Governor, ef al.,
(D.C. Civil No. 82-1118)
JOSEPH W. ANTONACCI, et al.,
Vv.
STATE OF NEW JERSEY, THOMAS H. KEAN, Governor, ef ai.,
(D.C. Civil No. 82-1119)
ALLEN OLSEN, et al.,
Vv.
COMMUNICATIONS WORKERS OF AMERICA (CWA), et ai.,
(D.C. Civil No. 82-3443)
On Appeal from the United States
District Court for the
District of New Jersey (Newark)
(Civil Nos. 82-1118, -1119 and -3443)
Present: ADAMS, HIGGINBOTHAM, and VAN DUSEN,
Circuit Judges
-24a-
JUDGMENT
These causes came on to be heard on the record
from the United States District Court for the District of
New Jersey and were argued by counsel October 29,
1986.
On consideration whereof, it is now here ordered
and adjudged by this Court that the judgment of the said
District Court, entered August 20, 1985, be, and the
same is hereby affirmed and the causes remanded to the
said District Court with direction to retain jurisdiction
pending resolution of the state law issues. Costs taxed
against the appellants. All of the above in accordance
with the opinion of this Court.
ATTEST:
/s/ M. Elizabeth Ferguson
Chief Deputy Clerk
November 28, 1986
Costs taxed in favor Appellees’ Organizations as follows:
Certified as a true copy and issued in lieu
of a formal mandate on January 22, 1987.
Test: /s/ M. Elizabeth Ferguson
Chief Deputy Clerk, United States Court of Appeals,
for the Third Circuit.
-25a-
APPENDIX D
Order of the U.S. District Court in
Robinson/ Antonacci/ Olsen v. State of New
Jersey/ CWA, August 20, 1985
To tee 21
-26a-
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
PAUL H. ROBINSON, et al.,
Plaintiffs,
v.
No. 82-1118
STATE OF NEW JERSEY, et al.,
Defendants.
JOSEPH W. ANTONACCI, et al.,
Plaintiffs,
Vv.
. 82-1119
STATE OF NEW JERSEY, et al., alates
Defendants.
ALLEN OLSEN, et al.,
Plaintiffs,
Vv.
No. 82-3443
COMMUNICATIONS WORKERS OF
AMERICA, et al.,
Defendants.
August 20, 1985
ee ef ee ie i ie ee
ORDER
This matter having been presented to the court on
cross-motions to dismiss and summary judgment by
plaintiffs om all federal claims except on Count 6 in
the Antonacci case; by defendant unions on Counts I,
2, 4, 5 (part), 6 and 7 in the Robinson case, Counts I,
2, 4, 5 (part), 7, and 8 and the Antonacci case, and on
-27a-
Counts 1, 2, 3 (part) and 4 in the Olsen case; by defen-
dant Education Associations on Count 6 in the Anto-
nacci case; by the individually named defendant State
and Rutgers officials on all Counts on the basis of quali-
fied immunity; by the State of New Jersey on all Counts
on the basis of Eleventh Amendment immunity; and by
individually named State official on all counts in Robin-
son and Antonacci on the basis of Eleventh Amendment
immunity; and this matter also being presented by de-
fendant unions on motions to abstain and to strike, and
The Court having provided all parties the opportu-
nity to present oral argument to the Court and the par-
ties having decided to rest on their submissions, and
The Court having duly considered the submissions
of the parties and the entire record of this case, and for
good cause shown
IT IS HEREBY ORDERED, for the reasons set
forth in the Opinion of this Court delivered on June 28,
1985, that
1. Summary judgment is denied to plaintiffs on all
claims;
2. Summary judgment is granted to defendants on
a. Counts 1, 2, 4, 6 and 7 in Robinson;
b. Counts 1, 2, 4, 6, 7 and 8 in Antonacci;
c. Counts 1, 2, and 4 in Olsen;
d. Counts 5 in Robinson and Antonacci and
Count 3 in Olsen, insofar as said claims challenge the
facial constitutionality of N.J.S.A. 34:13A-5.5 and 5.6;
=
ne ciate ee
-28a-
e. All claims against Edward J. Bloustein, Chris-
tine Mowry, James A. Gormley, individual officers of
the State of New Jersey, the Public Employment Rela-
tions Commission, and Rutgers, the State University;
and
f. All claims against the State of New Jersey;
3. The Court abstains on Count 3, 5 and 9 in
Robinson and Antonacci and on Count 6 in Olsen;
4. The above cases are administratively terminated
with the right of any party to move to reopen 9n 200d
cause shown within a reasonable time following resolu-
tion of the issues of state law by the state tribunals; and
5. Ruling on the motion to strike is deferred until
such time as the above actions are reopened, in the event
that the above actions, or any one of them, are
reopened.
/s/ Dickinson R. Debevoise
Dickinson R. Debevoise, U.S.D.J.
Dated: August 20, 1985
-29a-
APPENDIX E
Transcript of Proceedings and Bench Opinion
of the U.S. District Court in Robinson/ Antonacci/
Olsen v. State of New Jersey/ CWA, June 28, 1985
-30a- .
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
PAUL H. ROBINSON, et al., Civil No. 82-1118 and
Plaintiffs, ; No. 82-1119
Civil No. 82-3443
¥.
T Ww JER EY, ; TRANSCRIPT OF PROCEEDINGS
STATE OF NEW JERS OPINION
Defendant.
ALLEN OLSEN, et al., ; Newark, New Jersey
Plaintiffs . June 28, 1985
Vv.
COMMUNICATIONS WORKERS :
OF AMERICA, etc., et al.,
Defendants.
BEFORE:
HONORABLE DICKINSON R. DEBEVOISE
UNITED STATES DISTRICT JUDGE
-3la-
TABLE OF CONTENTS
I. Introduction 32a
II. Background Facts 34a
Ill. The Law 34a
A. Federal Questions 35a
1. Questions Decided by Third Circuit 35a
2. Remaining Federal Questions 38a
a. 42 U.S.C. Section 1985(3) 39a
b. Procedural Due Process 43a
c. Equal Protection 47a
d. Delegation of Governmental Power 52a
e. Overbreadth and Vagueness 54a
f. Prior Restraint on Expression 56a
g. Impairment of Contract 56a
B. Qualified Immunity and Eleventh Amendment
Defenses 58a
C. Pullman Abstention 60a
IV. Conclusion 65a
ee ee ee
-32a-
THE COURT: Oh, good afternoon. Here we are
back again.
MS. REINHARDT: Good afternoon.
MR. SCHACHTER: Judge.
THE COURT: I'm going to put a somewhat lengthy
opinion on the record because I think it’s the most effec-
tive and quickest way to do it. I've prepared a table of
contents which I will give to the court reporter and ask
him to include it with the transcript.
In addition, I would like to reserve the opportunity
to go over the opinion after it has been initially tran-
scribed, make any corrections or changes that I think
should be made, and then it can be put in final form and
distributed to the parties and filed with the Court.
I. Introduction
The motions under consideration relate to three
consolidated cases, namely, Antonacci v. Kean (Civil
Action No. 82-1119), Robinson v. Kean (Civil Action
No. 82-1118) and Olsen v. Kean (Civil Action No.
82-3443).
_ Plaintiffs in these three actions are public employees
who have been required to pay representation fees to
defendant union organizations pursuant to the New Jer-
sey Employer-Employee Relations Act, N.J.S.A. 34:13A-1
et seq. (The “Act”). Plaintiffs challenge on numerous
grounds the Act’s representation fee provisions contained
in N.J.S.A. 34:13A-5.5 and 5.6, alleging that those provi-
sions are unconstitutional on their face and as applied.
In 1982 and 1983 I issued three separate opinions in
which I held that the Act was unconstitutional in two
-33a-
respects and ordered preliminary injunctive relief. Robin-
son v. New Jersey, 547 F. Supp. 1297 (D.N.J. 1982);
Olsen v. Communications Workers of America, 559 F.
Supp. 754 (D.N.J. 1983); Robinson v. New Jersey, 565
F. Supp. 942 (D.N.J. 1983). The United States Court of
Appeals for the Third Circuit reversed those rulings,
abated the injunctions and remanded the case for further
proceedings consistent with its opinion. Robinson v. New
Jersey, 741 F. 2d 598 (3d Cir. 1984), cert. denied, 105
Supreme Court 1228 (1985).
Subsequent to the issuance of the injunctions in the
three consolidated cases, the parties filed cross-motions
for summary judgment on the plaintiffs’ multiple consti-
tutional challenges to the Act. I deferred ruling on those
motions pending resolution of the consolidated appeal
before the Third Circuit. At my request, during a status
conference on April 17th, 1985, the parties have resub-
mitted their respective cross-motions for summary judg-
ment. Plaintiffs have moved for summary judgment “on
some claims.” Plaintiffs’ motion appears to encompass
all counts of the complaints relating to federal constitu-
tional claims, with the exception of Count VI in the
Antonacci case which contains allegations of impairment
of certain plaintiffs’ contractual relationships by defen-
dant Education Associations in violation of Article I, Sec-
tion 10 of the United States Constitution. Defendant
Education Associations and Boards of Education have
moved for summary judgment on this count. Defendants
State of New Jersey and Thomas H. Kean, Governor of
New Jersey move for summary judgment dismissing all
claims as to those two defendants on Eleventh Amend-
ment grounds. Defendants Thomas H. Kean and Edward
J. Bloustein, Christine B. Mowry, James A. Gormley
-34a-
move for summary judgment on all claims as to these de-
fendants as individuals and in their official capacities on
the grounds of qualified immunity. Defendant union
organizations move for summary judgment on all unre-
solved federal questions and, in particular, on Count I,
II, IV, V (in part), VI and VII of the Robinson Com-
plaint, Counts I, II, IV, V (in part), VII and VIII of the
Antonacci Complaint, Counts I, II, III (in part) and IV
of the Olsen Complaint. In addition, defendant union
organizations move to strike various documents submit-
ted by plaintiffs in support of their motion for summary
judgment.
Il. Background Facts
The statutory provisions which are applicable in
these cases are described in the opinion in Robinson, 547
F. Supp. at 1299 to 1301. The demand to returh systems
originally devised by defendant union organizations in
the Robinson and Antonacci cases are also described in
Robinson, 547 F. Supp. at 1301 to 1314. Subsequent
revisions to the demand and return system established by
these defendants are described in Robinson, 565 F.
Supp. at 944 to 945. The demand and return system
established by defendant Communication Workers of
America (CWA) is described in Olsen, 559 F. Supp. at
756-762. Other background facts pertinent to the present
motions are set forth in the above opinions and are
incorporated by reference.
Ill. The Law
In general, the cross-motions for summary judg-
ments can be divided into two broad categories; those
motions which rely on the affirmative defense of quali-
-35a-
fied immunity or challenge the jurisdiction of the Court
on Eleventh Amendment grounds, and those motions
which address plaintiffs’ substantive federal statutory and
constitutional claims.
A. Federal Questions
1. Questions Decided by the Third Circuit.
Two of the plaintiffs’ claims concerning the facial
constitutionality of the Act have already received exhaus-
tive treatment in this Court and. the Third Circuit.
Whether permitting the use of representation fees for
lobbying activities “designed to foster policy goals
through collective negotiations and contract administra-
tion” violates the First Amendment rights of non-
members, and whether the demand and return systems
authorized by the Act unconstitutionally infringe the
First Amendment and due process rights of nonconsent-
ing public employees. The Third Circuit opinion in
Robinson conclusively addresses the merits of each of
these claims.
In reference to the first of these issues, the Third
Circuit distinguished between the scope of union activi-
ties which are germane to collective bargaining in the
public and private sector. The Court noted that collective
bargaining in the public sector employment “is inextrica-
bly intertwined with legislative change.”
So long as the lobbying activities are pertinent to
the duties of the union as a bargaining representa-
tive and are not used to advance the political and
ideological positions of the union, lobbying has no
different constitutional implications from any other
form of union activity that may be financed with
representation fees.
-36a-
741 F. 2d at 609. The Third Circuit concluded that com-
pelled support for the lobbying activities described in
N.J.S.A. 34:13A-5.5(c) constitutes “a legitimate means of
achieving the state interest in labor peace and does not
unnecessarily burden the First Amendment rights of
representation feepayers.” 741 F. 2d at 610.
As to the second issue on appeal, the Third Circuit
held that the temporary deprivation of funds that an
employee might otherwise use to advance alternative po-
litical views, without more, does not constitute a First
Amendment violation. 741 F. 2d at 612. Furthermore,
adequate post deprivation procedures may protect against
what might otherwise be an unconstitutional taking. 741
F. 2d at 611. The Third Circuit concluded that the post
deprivation demand and return system provided for in
the Act, coupled with the advance reduction in represen-
tation fees and the escrow systems adopted by defendant
union organizations more than satisfied the procedural
due process requirements enumerated in Matthews v.
Eldridge, 424 U.S. 319 (1976) and Ellis v. Railway
Clerks, U.S. ___, 80 L. Ed. 2d 428 (1984).
Plaintiffs have submitted a meandering 67-page
memorandum in support of their motion for summary
judgment, a substantial portion of which is devoted to
the very same arguments which were definitively rejected
by the Third Circuit on appeal. Plaintiffs also submitted
a supplemental brief on the law of the case doctrine in
which they argue that the Third Circuit opinion in
Robinson is “manifestly erroneous” and this Court
should, in effect, disregard the legal conclusions rendered
above.
[A] decision of a legal issue or issues by an appel-
late court establishes the “law of the case” and must
\
-37a-
be followed in all subsequent proceedings in the
same case in the trial court..., unless the evidence on
a subsequent triat was substantially different, con-
trolling authority has since made a contrary decision
of the law applicable to such issues, or the decision
was clearly erroneous and would work a manifest
injustice.”
White v. Murtha, 377 F. 2d 428, 431-432 (Sth Cir. 1967);
see also United States v. Williams, 728 F. 2d 1402, 1405-
1406 (11th Cir. 1984). Although I must disagree with the
conclusion of the Third Circuit, the difficult constitu-
tional issues raised on appeal are by no means unequivo-
cally established in the law, and a conclusion that the
decision of the Third Circuit is clearly erroneous would
be presumptuous and unfounded. Nor am I persuaded
that subsequent decisions of controlling authority cited
by plaintiffs in their supplemental brief undermine the
Third Circuit opinion in Robinson. | am therefore bound
to decide subsequent proceedings in these cases in con-
formity with the clear mandate of the Third Circuit.
Cross-motions have been filed by the parties for
summary judgment on plaintiffs’ First Amendment and
due process claims. In order to prevail on a motion for
summary judgment, the moving party must prove that
“there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter
of law.” Federal Rule of:Civil-Procedure 56. A motion
for summary judgment may only be granted if there are
no remaining issues of material fact which, if believed by
the trier of fact, would justify a finding for the party
opposing that judgment. Bryson v. Brand Insulation,
Inc., 621 F. 2d 556,559 (3d Cir. 1980). All evidence
submitted must be viewed in a light most favorable to
-38a-
the party opposing the motion. Wahi v. Rexnord, 624 F.
2d 1169, 1181 (3d Cir. 1980). However, the opposing
party may not rest upon the mere allegations or denials
of his pleadings, but his response must set forth specific
facts showing genuine issues for trial. DeLong Corp. v.
Raymond International, Inc., 622 F. 2d 1135, 1139 (3d
Cir. 1980). The cross-motions directed to plaintiffs’ First
Amendment and due process claims address the facial
constitutionality of the New Jersey representation fee stat-
ute. Accordingly, there are no material facts as to which
there exists a genuine issue.
In view of the rulings of the Third Circuit on these
issues, summary judgment is granted in favor of defen-
dants on Counts I, II, III and IV of the Robinson and
Antonacci Complaints and Counts I, II and III of the
Olsen Complaint insofar as these counts assert First
Amendment and due process challenges to the facial
constitutionality of the representation fee provisions of
the Act.
2. Remaining Federal Questions.
There are other federal questions remaining in these
actions which were not addressed on appeal and which
are now the subject of motions and cross-motions for
summary judgment. These issues can be briefly summa-
rized as follows:
a) whether plaintiffs have stated a claim for relief
under 42 U.S.C. Section 1985(3);
b) whether the statutory demand and return system
authorized by the Act is unconstitutional on its face
insofar as the provisions for initial internal union review
of complaints and the composition of the three-member
-39a-
appeal board deprive nonconsenting employees of proce-
dural due process;
c) whether the automatic deduction of representa-
tion fees authorized by the Act violates the Equal Pro-
tection Clause of the Fourteenth Amendment;
d) whether the demand and return system autho-
rized by the Act constitutes an unconstitutional delega-
tion of power to private parties;
e) whether the Act is unconstitutionally overbroad
and/or vague;
f) whether the Act imposes a prior restraint on free
expression and
g) whether the Act, as applied by defendant educa-
tion associations, has resulted in an unconstitutional ret-
roactive impairment of contractual obligations.
a. 42 U.S.C. Section 1985(3). In Count I of the
complaints in Robinson and Antonacci, captioned “Con-
Stitutional and Statutory Liberty Denied,” plaintiffs
allege, inter alia, a conspiracy in which defendant labor
organizations and their officers
agreed, conspired, and subsequently acted in concert
knowingly to deprive the Plaintiffs of rights secured
to them under the Fourteenth Amendment of the
United States Constitution and under the New Jer-
sey Employer-Employee Relations Act.
Robinson complaint, paragraph 12. Antonacci com-
plaint, paragraph 11. This alleged conspiracy, according
to plaintiffs,
is motivated by purposes to discriminate and deprive
Plaintiffs of liberty and property because Plaintiffs
-40a- .
are members of a class of persons who exercise their
rights to refrain from associations and who exer-
cised their rights to associate and support causes
and activities adverse to the private defendants.”
Ibid. Count 1 of the Olsen complaint, captioned 42
U.S.C. Section 1985(c),” alleges, inter alia, a private/
public conspiracy, in which defendant CWA “acts in
concert with its locals and the state for the purpose of
depriving the plaintiffs’ class [i.e., representation feepay-
ers] of the equal enjoyment of First and Fourteenth
Amendment rights.” Olsen complaint, paragraph 41.
_ Plaintiffs have not moved for summary judgment on
these counts. However, defendant union organizations
have moved for summary judgment dismissing these
counts for failure of plaintiffs to state a claim under 42
U.S.C. Section 1985(3). In their memorandum in opposi-
tion to defendants’ motion, plaintiffs rely exclusively on
the bare allegations contained in their pleadings and do
not set forth any additional facts tending to show the
existence of a conspiracy by defendants to deprive
representation feepayers of rights protected under 42
U.S.C. Section 1985(3). Nevertheless, for the purposes of
this motion to dismiss, I will assume that such a conspir-
acy did in fact exist.
In order to prevail on a claim under Section
1985(3), plaintiffs must be members of the class entitled
to protection under the statute. In Griffin v. Brecken-
ridge, 403 U.S. 88 (1971), the Court concluded that Con-
gress intended to limit relief under the statute to particu-
lar types of injuries inflicted on particular categories of
persons:
-4ia-
[The statute was not] intended to apply to all tor-
tious, conspiratorial interferences with the rights of
others... The language requiring intent to deprive
equal protection or equal privileges and immunities
means that there must be some racial, or perhaps
otherwise class-based animus behind the conspira-
tors’ action.
403 U.S. at 101 and 102. The Court in Griffin, however,
expressly declined to decide “whether a conspiracy moti-
vated by invidiously discriminatory intent other than
racial bias would be actionable under [Section 1985(3)].”
403 U.S. at 102, note 9. There has been a plethora of
lower court decisions subsequent to Griffin which have
addressed this issue, and the element of class based ani-
mus has consistently “acted as a ‘threshold requirement,’
screening out a variety of 1985(3) claims at an early
stage.” Novotny v. Great American Federal Savings and
Loan Association, 584 F. 2d 1235, 1240-1241 (3d Cir.
1978) (en banc), vacated on other grounds, 442 U.S. 336
(1979).
In United Brotherhood of Carpenters v. Scott,
U.S. 7 L. Ed. 2d 1049 (1983), the Court ex-
panded on its decision in Griffin and considered the extent
to which claims based on nonracial class-based animus are
cognizable under Section 1985(3). In Scott, a construc-
tion company that hired nonunion employees and two of
its employees brought a suit for damages under Section
1985(3) against several labor unions and various individ-
uals alleging that defendants had conspired to deprive
them of their First Amendment rights by planning and
executing attacks upon the nonunion employees and the
property of the plaintiff construction company. The Fifth
Circuit held that Section 1985(3) “encompasses [such] a —
-42a-
conspiracy designed to deprive nonunion workers of
their First Amendment right to freely associate with one
another where that conspiracy does not occur in con-
junction with legitimate union activity and is perfected
by force and violence.” Scott v. Moore, 680 F. 2d 979,
1004 (Sth Cir. 1982). The Supreme Court, however,
found “no convincing support in the legislative history
[of Section 1985(3)] for the proposition that the provi-
sion was intended to reach conspiracies motivated by
bias toward others on account of their economic views,
status, or activities.” 77 L. Ed. 2d at 1060 (original
emphasis). Reversing the Fifth Circuit’s holding, the
Supreme Court concluded that Section 1985(3) does not
“forbid [ ] conspiracies against workers who refuse to
join a union.” 77 L. Ed. 2d at 1058.
[I}f anti-union, anti-nonunion, or anti-employer
biases represent the kind of animus that trigger Sec-
tion 1985(3), there would be little basis for conclud-
ing that the statute did not provide a cause of
action in a variety of other situations where one
economic group is pitted against another, each hav-
ing the intent of injuring or destroying the economic
health of the other. We think that such a construc-
tion of the statute, which is at best only arguable
and surely not compelled by either its language or
legislative history, should be eschewed and that
group actions generally resting on economic motiva-
tions should be deemed beyond the reach of Section
1985(3).
77 L. Ed. 2d at 1061.
I find that the holding in Scott dictates a similar
conclusion in the present cases. The class of objecting
- feepayers—i.e., persons who “exercised their right to
: -43a-
refrain from association” with a union and to “associate
and support causes and activities adverse” to the defen-
dant union organizations—does not constitute the type
of class afforded special protection under Section 1985(3).
The conspiracies alleged by plaintiffs necessarily are not
motivated by the kind of class-based animus that is
actionable under the statute. Defendants’ motion for
summary judgment on Count | of the Robinson, Anto-
nacci and Olsen complaints is granted insofar as these
counts assert conspiracies in violation of Section 1985(3).
b. Procedural Due Process. The precise nature of
plaintiffs’ procedural due process claims is difficult to
discern from their pleadings and legal memoranda.
Plaintiffs are content to rely on repeated generalized and
conclusory allegations of procedural due process viola-
tions associated with the demand and return system au-
thorized by the Act without clearly articulating the fac-
tual circumstances which give rise to such violations. In
their memorandum in support of their cross-motion for
summary judgment, defendant union organizations have
made a commendable effort to isolate and structure
plaintiffs’ due process claims. Plaintiffs reply simply that
“defendants’ brief does not address plaintiffs’ case and
needs no further comment.” Opposition to defendants’
motion for summary judgment, page 4.
Count IV of the Robinson and Antonacci com-
plaints and Count III of the Olsen complaint challenge
the facial constitutionality of the Act on procedural due
process grounds. Paragraphs 8 and 9 of the plaintiffs’
motion for summary judgment and pages 50 through 66
of plaintiffs’ memorandum in support of motion for
summary judgment further address plaintiffs’ procedural
due process claims. Plaintiffs’ due process claims appear
to focus primarily on the timeliness and constitutional
44a- .
sufficiency of the post deprivation remedy afforded by
the statutory demand and return system. As previously
indicated, the Third Circuit in Robinson upheld the
facial constitutionality of the demand and return system
authorized under the statute and adopted by defendant
union organizations, and plaintiffs’ claims which conflict
with this holding must fall as a matter of law.
The only apparent due process challenge by plain-
tiffs to the facial constitutionality of the Act left unde-
cided by the Third Circuit relates to the alleged partiality
of the fact-finding process established under the Act. The
Act mandates a two-tier review process. The majority
representative is required to establish a demand and re-
turn system in which nonconsenting feepayers may con-
test the amount of the deductions through “full and fair
proceedings” in which the majority representative has the
burden of proving the validity of fee deductions. The Act
further provides for an appeal to a three-member board
composed of one “representative of public employers,”
one “representative of public employee organizations,”
and one “who shall represent the interest of the public as
a strict and impartial member not having had more than
a casual association or relationship with any public
employers, public employer organizations, or public
employee organizations in the ten years prior to appoint-
ment.” Plaintiffs contend that the internal union review
mechanism and the composition of the appeal board
constitute an inherently biased fact-finding procedure in
violation of procedural due process.
“A fair trial in a fair tribunal is a basic requirement
of due process.” Jn re Murchison, 349 U.S. 133, 136
(1955). This requirement applies to adjudicative admini-
strative bodies as well as to courts. Gibson v. Berryhill,
-4Sa-
411 U.S. 564 (1973). Actual bias need not always be
present for a fact-finding and/or decision-making process
to be constitutionally unacceptable. “{[Ojur system of law
has always endeavored to prevent even the probability of
unfairness.” Jn re Murchison, 349 U.S. at 136. The issue
in the present cases is whether the probability of actual
bias in the review process established under the Act is
too high to be constitutionally acceptable.
It may well be that the internal union remedy man-
dated by the Act, standing alone, would not satisfy
procedural due process requirements. However, the Act
further provides for appeal to a three-member state-
appointed board. Plaintiffs argue that the composition of
the board is inherently flawed in that the representatives
of public employers and public employee organizations
on the board might have an institutional bias which
would conflict with the interests of nonunion public em-
ployees and thereby impede a fair and impartial review.
The Supreme Court has identified two situations in
which the risk of bias is unacceptably high; those cases
in which the adjudicator has a pecuniary interest in the
outcome, and those in which there is evidence of per-
sonal animosity between one or more of the parties and
the adjudicator. Withrow v. Larkin, 421 U.S. 35, 47
(1975). In Hortonville Joint School Dist. No. 1 v. Hor-
tonville Education Association, 426 U.S. 482 (1976), the
Court rejected a due process challenge alleging unconsti-
tutional bias brought by teachers whose employment had
been terminated by a school board because they had
engaged in an unlawful strike following unsuccessful col-
lective bargaining with the school board. The Court
concluded:
-46a-
[T]he teachers did not show, and the Wisconsin
courts did not find, that the Board members had the
kind of personal or financial stake in the decision
that might create a conflict of interest, and there is
nothing in the record to support charges of personal
animosity.” .
426 U.S. at 491-92. The Court went on to note that the
principles of due process are not violated merely because
an adjudicator “has taken a position, even in public, on
a policy issue related to the dispute, in the absence of a
showing that he is not ‘capable of judging a particular
controversy fairly on the basis of its own circumstan-
ces.” Id. at 493 (citation omitted). Indeed, in those
instances where there is no showing of pecuniary interest
or personal animosity, a contention of unconstitutional
risk of bias must “overcome a presumption of honesty
and integrity in those serving as adjudicators.” Withrow,
421 U.S. at 447. The mere fact that an adjudicator is a
representative of an organization with institutional inter-
ests which are in opposition to the interests of certain
parties whose claims are brought before the adjudicator
is insufficient to establish a claim of unconstitutional
bias.
Federal courts have repeatedly rejected due process
challenges to statutorily-created adjudicatory boards con-
sisting of members with a “representative” or institu-
tional bias. See, e.g., Withrow, supra; United Farm
Workers of America v. Arizona Agric. Empl. Rel. Bd.,
727 F. 2d 1475 (9th Cir. 1984) (en banc); Overlook Nurs-
ing Home, Inc. v. United States, 556 F. 2d 500 (Ct. Cl.
1977); Lopez v. Henry Phipps Plaza South, Inc., 498 F.
2d 937 (2d Cir. 1974); Hornsby v. Dobard, 232 F. Supp.
25 (E.D. La. 1964).
-47a-
In the present cases I find that there is no unconsti-
tutional risk of bias inherent in the composition of the
appeal board established under the Act. Plaintiffs have
not attempted to make a showing that board members
will have the kind of “personal or financial stake” in dis-
putes regarding representation fees which would support
a claim that the probability of actual bias is unaccepta-
bly high. Summary judgment is granted in favor of de-
fendants on Count IV of the Robinson and Antonacci
complaints and Count III of the Olsen complaint, insofar
as these counts challenge the composition of the appeal
board as unconstitutional on its face.
c. Equal Protection. Count VII of the Robinson
complaint and Count VIII of the Antonacci complaint
challenge the method of computing representation fees
authorized by the Act. The Act provides, in relevant
part:
The representation fee in lieu of dues shall be in an
amount equivalent to the regular membership dues,
initiation fees and assessments charged by the
majority representative to its own members less the
cost of benefits financed through the dues, fees and
assessments and available to or benefiting only its
members...
N.J.S.A. 34:13A-5.5(b). Plaintiffs contend that this
method “derives a fee that does not reflect the non-
members’ equal share of the pro rata costs of collective
bargaining, contract administration and grievance pro-
cessing.” Robinson complaint Count VII, paragraph 41
and Antonacci complaint Count VIII, paragraph 45. In
effect, these counts do nothing more than rephrase plain-
tiffs’ claim that they are being forced to pay a share of
-48a-
the costs of union activities which may not constitution-
ally be charged to objecting nonmembers. The allega-
tions contained in those counts, however, do not estab-
lish any factual basis for concluding that the method of
calculating representation fees results in differential
treatment of similarly situated public employees (i.e.
union and nonunion employees) in violation of the Equal
Protection Clause of the Fourteenth Amendment. Sum-
mary judgment is granted dismissing Count VII of the
Robinson complaint and Count VIII of the Antonacci
complaint.
Count VI of the Robinson complaint, Count VII of
the Antonacci complaint and Count IV of the Olsen
complaint also challenge the facial constitutionality of
the Act on equal protection grounds. Plaintiffs contend
that the automatic deduction of representation fees au-
thorized by the Act unconstitutionally discriminates
against nonmember public employees. The Act directs
that once the majority representative and the public
employer have negotiated a representation fee provision,
the majority representative “shall be entitled to a repre-
sentation fee ... by payroll deduction.” N.J.S.A. 34:13A-
5.6. By contrast, an employer may deduct union dues
from an employees’ paycheck only upon written authori-
zation of the employee. N.J.S.A. 52:14-15.9%e).
Concededly, the automatic deduction of representa-
tion fees authorized by the Act results in different treat-
ment of union members and nonunion members. How-
ever, not all legislatively sanctioned differential treatment
amounts to a violation of equal protection guarantees.
The Supreme Court has adopted a two-tier approach to
analyzing equal protection claims. Legislative provisions
\
a
-49a-
which invidiously discriminate against a “suspect” class,
such as racial minorities and aliens, are subject to strict
scrutiny and will be sustained only if narrowly tailored
to serve a compelling governmental interest. See, e.g.,
Korematsu v. United States, 323 U.S. 214 (1944) and
Graham v. Richardson, 403 U.S. 365 (1971). Legislative
classifications which impinge upon fundamental rights or
interests, such as voting rights or First Amendment
rights, are similarly subject to strict scrutiny by the
courts. See, e.g., Kramer v. Union Free School District
No. 15, 395 U.S. 621 (1969), and Carey v. Brown, 447
U.S. 455 (1980). However, absent the presence of a sus-
pect classification or the impairment of a fundamental
right or interest, a legislative classification will survive an
equal protection challenge if the classification is ration-
ally related to a legitimate governmental objective. See,
e.g., San Antonio Independent School District v. Rodri-
guez, 411 U.S. 1 (1973).
Applying the two-tier approach adopted by the
Supreme Court to the present cases, it is readily appar-
ent that the automatic deduction provision in the Act is
subject only to the less rigorous standard of review. Dif-
ferential treatment on the basis of union membership
does not constitute a suspect classification. Neither does
the statutory restriction on the freedom of nonunion
public employees to control the payment of representa-
tion fees interfere with the exercise of a fundamental
right or interest. In City of Charlotte v. Firefighters, 426
U.S. 283 (1976), the Supreme Court held that a public
employer’s refusal to institute an automatic deduction
system for union dues was not subject to strict scrutiny:
[Neither] respondents’ status as union members
[njor their interest in obtaining a dues checkoff is
such as to entitle them to special treatment under
-50a-
the Equal Protection Clause ... [Thus,] the city’s
practice [i.e., refusal to withhold union dues from
the paychecks of its firefighters] must meet only a
relatively relaxed standard of reasonableness in
order to survive constitutional scrutiny.
426 U.S. at 286.
There is no substantive difference between the status
and interests of the nonunion public employees in the
present cases and the status and interests of the union
firefighters in the City of Charlotte case. Therefore, the
constitutionality of the payroll deduction provision de-
pends upon the “reasonableness” of the distinction
between members and nonmembers in regard to the
method of collecting union dues and representation fees.
As the Court noted in City of Charlotte, a constitutional
challenge must fail under a “rational basis” analysis
unless the statutory distinction “marks an arbitrary line
so devoid of reason as to violate the Equal Protection
Clause.” 426 U.S. 288.
A review of the underlying purpose of the Act leads
to the inescapable conclusion that the provision for
automatic deduction of representation fees is rationally
re)ated to a legitimate governmental objective. The state-
ment by the Sponsor of the representation fee amend-
ments to the Act clearly indicates that the purpose of the
amendment was to eliminate the “free ride” enjoyed by
nonunion members of the bargaining unit who received
the benefit of services performed by the majority repre-
sentative without sharing in the costs incurred. Sponsors’
Statement, Assembly Bill No. 688, Laws of 1979, chapter
477, Section 2. The Sponsors’ statement suggests that the
governmental interest advanced by the bill is the provi-
i
-5la-
sion of a fair-share formula for nonunion employee pay-
roll deductions so that the cost of union services that
benefit both union and nonunion employees alike will
not burden unfairly the members of the union. This
governmental interest must be assessed in the context of
the underlying purpose of the New Jersey Employer-
Employee Relations Act, namely, to foster the preven-
tion and prompt settlement of labor disputes in the pub-
lic and private sector. N.J.S.A. 34:13A-2. This purpose
was implemented by the statutory authorization of public '
employee unions and the requirement that they negotiate
for all employees in the union regardless of union mem-
bership status. N.J.S.A. 34:13A-5.3. The original statute
and its 1979 amendments demonstrate a state interest in
promoting stability in public-sector employment by
authorizing majority-unit representation of all employees
for collective negotiations and grievance procedures, with
the cost to be shared equitably among members and
nonmembers.
The Supreme Court in Railway Employees’ Dept. v.
Hanson, 351 U.S. 225, 231 and 238 (1956) and Abood v.
Detroit Board of Education, 431 U.S. 209, 222 (1977)
recognized the legitimate governmental interest in elimi-
nating the “free rider” problem and endorsed the means _
of achieving this interest by requiring all employees who
benefit from union activity to share in the cost of obtain-
ing such benefits. Automatic deduction of representation
fees constitutes nothing more than a reasonable adminis-
trative means of achieving the same legitimate end. An
automatic deduction system for representation fees neces-
sarily avoids many of the problems that otherwise would
be involved in attempting to collect such fees. In the
absence of an automatic deduction system, it would be
-52a-
necessary to adopt a more burdensome mechanism to
enforce the representation fee provision against those
employees who refuse to pay the fee. The New Jersey
Legislature could reasonably have concluded that if the
fees are not automatically deducted, considerable time,
effort and expense would be required of the union to col-
lect them. By contrast, collecting dues from union
members does not entail the same problem. Because
those employees, by their own voluntary decision to
become a member, have demonstrated a commitment to
the financial stability of the union, there is no compara-
ble need for automatic deduction of dues from their
salaries. In any event, if a member should prove unduly
recalcitrant in this regard, the union could simply cancel
his or her membership, which would bring the automatic
deduction system into play.
I find the automatic deduction provision of the Act
is not “so devoid of reason as to violate the Equal Pro-
tection Clause,” and grant summary judgment to defen-
dants on Count VI of the Robinson complaint, Count
VII of the Antonacci complaint and Count IV of the
Olsen complaint. 3
d. Delegation of Governmental Power. Plaintiffs
contend that the representation fee provisions of the Act
impermissibly delegate to private organizations the power
t. deprive plaintiffs of liberty and property without “spe-
cific standards, limitations, or adequate procedures to
protect against arbitrary and self-serving decisions.”
Robinson complaint, Count II, Antonacci complaint,
Count II. These claims are foreclosed by the Supreme
Court decision in Knight v. Minnesota Community Col-
lege Faculty Association, 460 U.S. 1048 (1983), affirming
-53a-
571 F. Supp. 1, 3-5 (D. Minn. 1982). Knight involved a
constitutional challenge directed at Minnesota legislation
which mirrors in several important respects the New Jer-
sey Act in issue in the present cases. The Minnesota Pub-
lic Employment Labor Relations Act authorizes the
designation of private union organizations as the exclu-
sive representative of appropriate public employee bar-
gaining units. Employees are not required by statute to
join the union. Nevertheless, the benefits derived from
the union collective bargaining activities apply to all
employees regardless of union membership. The statute
provides that a fair share fee may be collected from
nonmembers not to exceed 85 percent of regular union
dues, and the statute further provides a procedure by
which employees may challenge the calculation of the
fair share fee. The District Court rejected the contention
that the statute conferred upon the union organization
impermissible power to make “economic laws” and there-
by impermissibly delegated state sovereign powers. 571
F. Supp. at 3-5. The Court concluded:
It is clear that the present structure under PELRA
does not impermissibly abridge the state’s sovereign
power. i
Id. at 4. Citing the recognition in Abood, supra, of
important governmental interests advanced by such legis-
lation, the District Court further stated:
Minnesota may provide for exclusive representation
by an employee association in the public sector and
may require that nonmembers of the association
financially support its collective bargaining efforts
through a fair share fee [without unconstitutionally
delegating state sovereign power].
-54a-
Id. at 5. The Supreme Court decision in Knight affirm-
ing the lower court ruling is controlling in the present
case. Summary judgment is granted in favor of defen-
dants on Count II of the Robinson and Antonacci com-
plaints insofar as these counts contest the facial constitu-
tionality of the Act on the grounds of impermissible
delegation of governmental power.
e. Overbreadth and Vagueness. Plaintiffs assert that
the Act should be invalidated on its face for overbreadth
and vagueness. Robinson complaint, paragraph 19,
Antonacci complaint, paragraph 19.
The overbreadth doctrine has been sparingly applied
by courts-to invalidate statutes which sweep unnecessar-
ily broadly and thereby impinge upon the area of pro-
tected freedoms. See, e.g., NAACP v. Alabama ex rel.
Flowers, 377 U.S. 288 (1964). The Supreme Court in
Broadrick v. Oklahoma, 413 U.S. 601 (1973) dramati-
cally limited application of the overbreadth doctrine to
situations in which the overbreadth of a statute is “not
only [ ] real, but substantial as well, judged in relation to
the statute’s plainly legitimate sweep.” 413 U.S. at 615.
Implicit in plaintiffs’ overbreadth claim is the contention
that the Act on its face permits the collection of repre-
sentation fees to support the cost of union activities which
may not constitutionally be charged to nonmembers, as
well as to those activities which may constitutionally be
charged to nonmembers. However, the Third Circuit in
Robinson specifically upheld the facial constitutionality
of the contested portion of the Act which allows major-
ity representatives to include in the calculation of repre-
sentation fees “the costs of support of lobbying activities
designed to foster policy goals in collective negotiations
-5Sa-
and contract administration or to secure for the em-
ployees represented advantages in wages, hours and
other conditions of employment in addition to those
secured through collective negotiations with the em-
ployer.” 741 F. 2d at 604-610. As a consequence, there is
no legal basis for concluding that the Act on its face
impinges upon the First Amendment rights of non-
members at all, much less to a substantial degree.
Allegations of official vagueness must be supported
by a showing that the enactment is impermissibly vague
in all of its applications.” Village of Hoffman Estates v.
Flipside, 455 U.S. 489, 495 (1982). It is not enough that
the Act is imprecise; the Act is void for vagueness only if
“no standard of conduct is specified at all.” Jd. at 495,
note seven, quoting Coates v. City of Cincinatti, 402
U.S. 611, 614 (1971). As is also true with the doctrine of
overbreadth, “the expression deterred by a vague statute
must be both real and substantial, [aJnd a precise and
narrow judicial reconstruction must be unavailable”.
Tribe, American Constitutional Law, 719 (1978 ed.). The
Act in issue in the present cases does describe in general
terms the nature of those activities for which a union
may collect representation fees as well as the nature of
those union activities for which an objecting nonmember
is entitled to receive a rebate. Furthermore, any impreci-
sion which currently infects the statutory language is
clearly susceptible to judicial efforts to define the scope
of union activities which may permissibly be the subject
of representation fees.
The Act is not unconstitutionally overbroad or
vague on its face, and summary judgment is granted in
favor of defendants on the overbreadth and vagueness
claims contained in Count II of the Robinson and Anto-
nacci complaints.
-56a-
f. Prior Restraint on Expression. Count II of the
Robinson and Antonacci compiaints raise the bald alle-
gations that the demand and return provision of the Act
“acts as a prior restraint on plaintiffs’ First Amendment
rights.” This claim presumably refers to the temporary
deprivation of money paid to the majority representative
pending a return of that portion of the representation fee
impermissibly collected by the union. The Third Circuit
in Robinson addressed this very issue and noted:
[W]e are cautioned by Abood that “[a] public
Employee who believes that a union representing
him is urging a course that is unwise as a matter of
public policy is not barred from expressing his
viewpoint.”
741 F. 2d at 611, quoting 431 U.S. at 230. The Court
went on to conclude:
We hold that, standing alone, the deprivation of the
nonconsenting employee’s ability to contribute the
withheld funds to an alternative political view does
not constitute a First Amendment violation.
Id. at 612. Plaintiffs’ prior restraint claim is without
merit, and summary judgment on this claim is granted in
favor of defendants.
g. Impairment of Contract. Count VI of the Anto-
nacci complaint asserts that certain defendant Boards of
Education and Education Associations acted in concert
“to abrogate the pre-existing contractual rights of non-
member employees by assessing representative fees retro-
actively without statutory authority.” In particular, plain-
tiffs claim that defendant Westfield Education Associa-
tion (WEA) executed representative fee provisions on
-57a-
September 6, 1980 with defendant Westfield Board of
Education, yet collected representation fees retroactively
to July 1980. Similarly, plaintiffs contend that defendant
Edison Township Education Association (ETEA) exe-
cuted representative fee provisions with defendant Edison
Township Board of Education on December 9, 1980, yet
charged fees retroactively to September 1980. These de-
fendants have filed a motion for summary judgment on
this count, and in support of their motion submitted the
affidavit of John Pietrowicz, UniServ Coordinator for
defendant New Jersey Education Association (NJEA),
together with supporting documentation. Mr. Pietrowicz
asserts that the Westfield collective bargaining agreement
was executed on September 16, 1980 and representation
fees were assessed only for the ten-month salary schedule
from September 1, 1980 to June 30, 1981. The Edison
Township agreement was executed on September 8, 1980,
and, as in Westfield, representation fees were assessed for
the period from September 1, 1980 to June 30, 1981.
In their memorandum in opposition to defendants’
motion for summary judgment, plaintiffs do not attempt
to challenge with specific facts the allegations contained
in the Pietrowicz affidavit, but rather rely exclusively on
the unsupported factual allegations asserted in their
complaint. Since plaintiffs have failed to produce evi-
dence controverting defendants’ affidavit, the facts assert-
ed in the Pietrowicz affidavit must be accepted as true
and undisputed.
As the representation fees were assessed beginning
with the months during which representation fee provi-
sions in the collective bargaining agreements were exe-
cuted by the respective defendants, there does not appear
-58a-
to be any retroactive burden placed on the contractual
salary rights of plaintiffs. Even if representation fees
could not lawfully be assessed for those days in Sep-
tember 1980 prior to the execution of the respective
agreements, the slight harm thereby sustained by the
plaintiffs does not amount to a “substantial impairment
of a contractual relationship” cognizable under Article I,
Section 10 of the United States Constitution. Energy
Reserves Group, Inc. v. Kansas Power and Light Co.,
459 U.S. 400, 411 (1983). Summary judgment on Count
VI of the Antonacci complaint is granted in favor of
defendants.
B. Qualified Immunity and
Eleventh Amendment Defenses
Defendants Thomas H. Kean, Edward J. Bioustein,
Christine B. Mowry and James A. Gormley move for
summary judgment on all claims as to them as individu-
als and in their official capacities on the grounds of qual-
ified immunity. It is well settled that government officials
performing discretionary functions are immune from lia-
bility for civil damages unless their conduct violated
clearly established statutory or constitutional rights. Har-
low v. Fitzgerald, 457 U.S. 800, 818 (1982).
On summary judgment the judge may appropriately
determine not only the currently applicable law, but
whether that law was clearly established at the time
an action occurred.
Id. The qualified immunity afforded government officials
applies equally to state officials, Jd. at 818, note 30. The
procedural history of these cases clearly reflects the
unsettled nature of the law relating to representation fee
deductions in the public employment sector. This Court
-59a-
and the Third Circuit certainly disagreed about the con-
stitutional implications of the representation fee and
demand and return provisions of the Act, and neither
was the three judge panel of the Third Circuit unani-
mous on the facial validity of the statutory demand and
return system. Surely, state executive officials should not
be expected to divine the validity of laws which are the
subject of ongoing dispute in the courts themselves.
Furthermore, the claims against the state defendants
relate to the enactment of the contested provisions of the
Act. Insofar as the facial constitutionality of the Act has
been upheld, and the only remaining claims relate to the
manner in which the Act is being applied by union
defendants, there is no injunctive relief which could
properly be directed against these defendants. Summary
judgment is granted in favor of these defendants and all
claims against them are dismissed.
The State of New Jersey has also moved for sum-
mary judgment on the grounds of sovereign immunity.
Unless a State consents to be sued or otherwise waives
its Eleventh Amendment sovereign immunity, the State
remains immune from suits brought by her own citizens
as well as by citizens of another state. Employees v. Mis-
souri Public Health and Welfare Department, 411 U.S.
279 (1973). The State’s consent to be sued must be
unequivocally expressed. Edelman v. Gordon, 415 U.S.
651 (1974). The jurisdictional bar of sovereign immunity
applies regardless of the nature of the relief sought. See,
e.g., Pennhurst State School and Hospital v. Halderman,
U.S. 79 L. Ed. 2d 67, 78 (1984). There is no
indication in the Act that New Jersey has consented, ex-
pressly or otherwise, to be sued on claims arising under
the Act. This Court does not have jurisdiction over the
a
-60a-
State of New Jersey in these cases. Summary judgment is
granted dismissing all claims against the State of New
Jersey.
C. Pullman Abstention
The foregoing rulings effectively dispose of the qual-
ified immunity and Eleventh Amendment defenses as
well as each of the substantive federal claims relating to
the facial constitutionality of the Act. The only claims
remaining in these cases are based on factual allegations
relating to the manner in which the representation fee
and demand and return provisions of the Act are being
applied by individual defendants. Robinson complaint,
Counts III, V and IX and Antonacci complaint, Counts
III, V and IX. Although plaintiffs characterize these
claims as federal constitutional challenges to the Act as
applied by defendants, final resolution of these claims
will necessarily require the construction and application
of state law. Defendant union organizations urge that the
remaining claims of the plaintiffs should be presented in
the first instance to the State tribunals created to adjudi-
cate claims under the Act with the right of appeal to the
New Jersey courts. Defendants further urge that this
Court should stay any further proceedings of these cases
pending clarification of the state law issues by the
appropriate state agencies and courts pursuant to the
abstention doctrine originally outlined in Railroad Com-
mission of Texas v. Pullman Company, 312 U.S. 496
(1941).
Under the appropriate circumstances, the Pullman
doctrine requires a federal court to refrain from deciding
federal constitutional issues until related state law issues
have first been adjudicated in court. D’Jorio v. County
-6la-
of Delaware, 592 F. 2d 281 (3d Cir. 1978). The present
cases satisfy the three special circumstances which must
be present for a particular case to fall within the ambit
of the Pullman doctrine. /d. at 685-686.
An initial determination must be made under N.J.S.A.
34:13A-5.5(b) which provides that subject to the 85 per-
cent ceiling the representation fee “shall be in an amount
equivalent to the regular membership dues, initiation fees
and assessments charged by the majority representative
to its own members less the cost of benefits financed
through the dues, fees and assessments and available to
or benefiting only its members.” Thus it must be decided
what, under state law, constitutes benefits available to or
benefiting only union members.
In Ellis v. Railway Clerks, 80 L. Ed. 2d 428 (1984)
the Court held that the Railway Labor Act and the
United States Constitution permitted the assessments
paid by objecting nonunion railroad employees to be
spent for (i) quadrennial national conventions of the
union, (ii) social activities and (iii) a union magazine to
the extent the magazine reported about activities for
which the union could charge dissenting nonmembers.
The Court also held that under the Act a union could
not charge objecting nonunion employees for (i) organiz-
ing expenses, (ii) expenses of litigation unconnected to
the bargaining unit and (iii) expenses of the union maga-
zine to the extent it reported about activities for which a
union could not charge the objecting employees. The
Court did not reach the question whether such imper-
missible expenditures would also violate the constitu-
tional rights of objecting employees. That remains a fed-
eral question, but before that question is reached in the
-62a-
present case it must be determined the extent to which
unions can charge nonmembers for such expenses under
the New Jersey representation fee statute.
There are uncertain issues of state law underlying
the federal constitutional claims brought by plaintiffs.
The federal constitutional claims of primary importance
which remain undecided relate to the application and
constitutional sufficiency of the demand and return sys-
tem authorized by the Act and implemented by the
defendant union organizations. The Third Circuit in
Robinson \eft open the question whether the escrow
procedures adopted by the defendant union organiza-
tions “satisfy the Ellis requirement that the union not be
in a position to extract a forced loan from nonconsent-
ing employees.” 741 F. 2d at 614. As the Court explained:
In order for the representation fees collected by the
unions to be susceptible to constitutional challenge
. the expenditures for political and ideological
activities by them must exceed the sum of the [5
percent statutory “cushion” and the amount escrowed
by the union.
Id. at 612. No such challenge can be resolved without
first determining what are “political and ideological
activities” unrelated to collective bargaining under the
Act. In order to determine whether the amounts escrowed
by defendant union organizations are sufficient to
preclude an improper “forced loan,” it must be deter-
mined i) whether certain expenditures by each union dur-
ing the years covered in this litigation should be deemed
“only incidentally related to the terms and conditions of
employment.” N.J.S.A. 34:13A-5.5(c); ii) whether certain
lobbying activities undertaken by each union are designed
-63a-
to “secure ... advantages in wages, hours and other con-
ditions of employment” beyond those secured at the bar-
gaining table, /d.; iii) whether certain other lobbying
activities undertaken by each union are “designed to fos-
ter policy goals through collective negotiations and con-
tract administration.” Jd. Other uncertain issues of State
law underlying plaintiffs remaining ‘as applied’ constitu-
tional claims include i) whether the actions taken by each
union to implement or apply its demand and return sys-
tem have “interfere[d] with, restraine[d] or coerce{d]
{plaintiffs} in the exercise of” their statutory rights.
N.J.S.A. 34:13A-5.4(b), and ii) whether the demand re-
turn system adopted by the unions provide plaintiffs with
the opportunity to “obtain review of the amount returned
through full and fair proceedings placing the burden of
proof on the majority representative.” N.J.S.A. 34:13A-
5.6.
The New Jersey Supreme Court recently had the
opportunity to consider the facial constitutionality of the
representation fee and demand and return provisions of
the Act. In a holding which conforms to the Third Cir-
cuit decision in Robinson, the Court sustained the facial
validity of the contested sections of the Act. Boonton
Board of Education v. Kramer, (A-124) (N.J. 1985).
Although the Court adopted broad standards for assess-
ing the constitutional validity of representation fee
assessments and the procedural adequacy of the demand
and return system, the decision did not address the fac-
tual issues of state law as noted above due to the spar-
city of the factual record before the Court. As the Court
noted:
In the context of this facial challenge to the Act, we
do not now attempt to forecast the various objec-
-64a-
tives of lobbying activities that will or will meet this
standard.
These uncertain issues of state law could be re »Ived
in a manner that would obviate the need to edjudicate
the constitutional claims. Plaintiffs’ claims attacking the
facial constitutionality of the Act have each been rejected
either by the Third Circuit or in the present motions for
summary judgment. The only outstanding constitutional
issues which require adjudication relate to the manner in
which the facially valid provisions of the Act are being
applied by defendants. Whether or not the provisions of
the Act are being constitutionally applied will depend
largely upon a state law interpretation of the meaning
and scope of these provisions. A precise explication of
the range of union activities which may be the subject of
fee deductions under the Act, as well as the elements of
due process required by the Act would narrow if not elim-
inate the claims of unconstitutional application of the Act.
An erroneous decision by this Court of state law
might well be disruptive of important public employment
policies of the state of New Jersey. The express purpose
of the Act is to foster the prevention and prompt settle-
ment of labor disputes in the public and private sector.
N.J.S.A. 34:13A-2. Clearly, the resolution of disputes
between an exclusive majority representative and non-
member employees is an integral component of this
important governmental interest. Assuring that members
and nonmembers alike share in the cost of union services
that benefit all employees equally is an additional policy
consideration which the state has an interest in promot-
ing. The important state interests implicated in the Act
will be advanced by the fair and uniform application of
the representation fee and demand and return provisions
of the Act. The New Jersey legislature intentionally
-65a-
created an internal union review system and an appeal
board to adjudicate disputes arising out of the assess-
ment and deduction of representation fees. Review of
union fee deduction determinations by the appeal board
in the first instance is an important means of achieving a
consistent interpretation of relevant provisions of the
Act, and an inconsistent result in another forum could
interfere with the uniform application of the Act.
Under the Pullman doctrine, once it is determined
that the case is within the general ambit of the doctrine
and meets the three special circumstances set forth in
D'Torio, a weighing process must take place to determine
if the doctrine should be applied. In the present cases,
the advantages of abstention clearly outweigh the disad-
vantages. State court interpretation of the Act is neces-
sary in order to resolve the remaining issues. There is no
reason to believe that the federal rights of any party
would be jeopardized or in any way placed at risk pend-
ing state proceedings under the Act. I am satisfied that
abstention is warranted in these cases under the Pullman
doctrine and I will stay all further proceedings in this
court pending adjudication in state tribunals of the
unclear issues of state law. The foregoing discussion sug-
gests the kind of issues which should be raised and
decided in further state proceedings. It is quite possible
that these questions are already before the review board
and/or the New Jersey courts in other proceedings. If
not, plaintiff should raise these issues in those tribunals.
IV. Conclusion
Summary judgment is granted dismissing all claims
challenging the facial constitutionality of the Act. In par-
c meme
3
:
:
-66a-
ticular, summary judgment is granted in favor of defen-
dants on Count I, II, IV, VI and VII of the Robinson
complaint, Counts I, II, IV, VII and VIII of the Anto-
nacci complaint, and Counts I, II and IV of the Olsen
complaint. Summary judgment is further granted in
favor of defendants on Count V of the Robinson and
Antonacci complaints, and Count III of the Olsen com-
plaint insofar as these counts raise claims of facial
unconstitutionality. Summary judgment is granted dis-
missing all claims against the State of New Jersey and
defendants Thomas H. Kean, Edward J. Bloustein,
Christine B. Mowry and James A. Gormley. Plaintiffs’
motion for summary judgment “on some claims” is
denied.
I will abstain from any further proceedings on
Counts III, V and IX of the Robinson and Antonacci
complaints and Count VI of the Olsen complaint to
allow the parties to pursue clarification of unclear issues
of state law before the appropriate state tribunals. In the
meantime, the action will be administratively terminated
with the right of any party to move to reopen on resolu-
tion of the state law issues or otherwise for good cause.
I request the defendants or some of them to prepare
an appropriate form of judgment.
I’m going to defer ruling on the motion to strike
certain documents filed by the plaintiffs until or if the
matter is reopened. There is no need to dispose of that
motion at this time.
-67a-
APPENDIX F
Order of the United States ~-
Supreme Court in Robinson
v. New Jersey Denying
Petition for Writ of Certiorari,
February 19, 1985
-68a- .
SUPREME COURT OF THE UNITED STATES
OFFICE OF THE CLERK
WASHINGTON, D. C. 20543
February 19, 1985
Mr. Nelson R. Kieff
8001 Braddock Road
Suite 600
Springfield, VA 22160
Re: Paul Robinson, et al.,
v. New Jersey, et al.
No. 84-920
Dear Mr. Kieff:
The Court today entered the following order in
the above entitled case:
The motion of Legal Foundation of America for
leave to file a brief as amicus curiae is granted. The
petition for a writ of certiorari is denied. Justice
Powell took no part in the consideration or decision
of this motion and this petition.
Very truly yours,
- Alexander L. Stevas, Clerk
/s/ Alexander L. Stevas
at
=
a
7
yt i vis
>. Sed
-69a-
APPENDIX G
Judgment of the U.S. Court of Appeals
for the Third Circuit in Robinson/ Antonacci/
Olsen v. State of New Jersey, August 6, 1984.
-70a-
Nos. 82-5698, 82-5750, 83-5403, 83-5459,
83-5532, 83-5533, 83-5563 and 83-5569
Present: ADAMS and SLOVITER, Circuit Judges and
TEITELBAUM, District Judge’
JUDGMENT
[his cause came on to be heard on the record from
the United States District Court for the District of New
Jersey and was argued by counsel February 27, 1984.
On consideration whereof, it is now here ordered and
adjudged by this Court that the orders of the said Dis-
trict Court, entered October 19, 1982, July 1, 1983, in
D.N.J. Civil No. 82-1119; October 19, 1982, July 1, 1983,
July 1, 1983, in D.N.J. Civil No. 82-1118; May 13, 1983
and Juiy 1, 1983 in D.N.J. Civil No. 82-3443; enjoining
the operation of the representation fee provision in the
New Jersey Employer Employee Relations Act, appealed
here respectively at Nos. 82-5698 and 83-5533 (from
D.N.J. Civil No. 82-1119); 82-5750, 83-5563, and 83-5569
(from D.N.J. Civil No. 82-1118); and 83-5403, 83-5459
and 83-5532 (from D.N.J. Civil No. 82-3443) be, and the
same are hereby vacated, the injunctions are dissolved,
and the consolidated cases are remanded to the said Dis-
trict Court for further proceedings consistent with the
opinion of this Court.
ATTEST:
/s/ M. Elizabeth Ferguson
Chief Deputy Clerk
August 6, 1984
* Honorable Hubert I. Teitelbaum, United States District Judge for the
Western District of Pennsylvania, sitting by designation.
-7la-
APPENDIX H
Order of the U.S. Court of Appeals for
the Third Circuit in Robinson/ Antonacci/
Olsen v. State of New Jersey Lifting
Stay of Judgment, October 5, 1984.
-72a-
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
September 24, 1984
NOS. 82-5698, 82-5750, 83-5403,
83-5459, 83-5532/3, 83-5563 & 83-5569
PAUL H. ROBINSON, etc.
vs.
STATE OF NEW JERSEY, etc.
Present: ADAMS, Circuit Judge
1. Appellants’ Motion for Reconsideration of Issu-
ance of Stay and to Lift Stay.
2. For your information the order staying the issu-
ance of the mandate to and including October
18, 1984 was filed on September 20, 1984.
in the above-entitled cases. Any Answer which would be
due by October 4, 1984, will be forwarded upon receipt
of same.
Respectfully,
/s/ Sally Mivos/ bg
Clerk
-73a-
Appellants’ motion for reconsideration of the issuance
of the stay and to lift the stay is hereby granted.
In view of Judge Sloviter’s position on the merits, she
dissents from this order.
By the Court,
/s/ Arlin M. Adams
Circuit Judge
DATED: October 5, 1984
-74a-
APPENDIX i
Order of the U.S. Court of Appeals
for the Third Circuit in Robinson/ Antonacci/
Olsen v. State of New Jersey
Staying Issuance of Judgment, September 20, 1984
oo
Fa ll et
Sf he
-75a-
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NOS. 82-5698, 82-5750, 83-5403, 83-5459,
83-5532/3, 83-5563 & 83-5569
Paul H. Robinson, et al, Appellees, Cross-Appellants
vs.
State of New Jersey, et al, Appellants, etc.
Pursuant to Rule 41(b) of the Federal Rules of Appel-
late Procedure, it is ORDERED that issuance of the cer-
tified judgment in lieu of formal mandate in the above
cause be, and it is hereby stayed until October 18, 1984.
/s/ Arlin M. Adams
Circuit Judge
DATED: September 20, 1984
a
- ~
ad
in
-76a-
APPENDIX J
Decision of the U.S. Court of
Appeals for the Third Circuit in
Robinson/ Antonacci/ Olsen v. State
of New Jersey Denying Sur Petition
For Panel Rehearing and Rehearing
En Banc, September 11, 1984.
, @ ‘ y &, woe Oe ee eee ae, ee
ee ae
ar Bs,
= =.
-77a-
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NOS. 82-5698, 82-5750, 83-5403, 83-5459
83-5532, 83-5533, 83-5563, 83-5569
PAUL H. ROBINSON, et al.
Appellees, Cross-Appellants
Vv.
STATE OF NEW JERSEY, et al.,
(C. A. NO. 82-1118) Appellants
JOSEPH W. ANTONACCI, et ai.
Appellees, Cross-Appellants
Vv.
STATE OF NEW JERSEY, et ai.,
(C. A. NO. 82-1119) Appellants
ALLEN OLSEN, et al.
Appellees, Cross-Appellants
v.
STATE OF NEW JERSEY et ai.,
(C. A. NO. 82-3443) Appellants
SUR PETITION FOR PANEL REHEARING
AND REHEARING IN BANC
-78a-
Present: ALDISERT, Chief Judge, SEITZ, ADAMS,
GIBBONS, HUNTER, WEIS, HIGGINBO-
THAM, SLOVITER, and BECKER, Circuit
Judges, and TEITELBAUM, District Judge*
The petition for panel rehearing or rehearing in banc
filed by appellees/cross-appellants in the above-entitled
case having been submitted to the judges who partici-
pated in the decision of this Court and to all the other
available circuit judges of the circuit in regular active
service, and no judge who concurred in the decision hav-
ing asked for rehearing, and a majority of the circuit
judges of the circuit in regular active service not having
voted for rehearing by the Court in banc, the petition for
panel rehearing or rehearing in banc is denied.
By the Court,
/s/ Arlin M. Adams
Circuit Judge
DATED: September 11, 1984
* As to panel rehearing only.
-79a-
APPENDIX K
Opinion of the U.S. Court of Appeals for
the Third Circuit in Robinson/ Antonacci/
Olsen v. State of New Jersey/ CWA,
August 6, 1984.
-80a-
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NOS. 82-5698, 82-5750, 83-5403, 83-5459
83-5532, 83-5533, 83-5563, 83-5569
PAUL H. ROBINSON, et al.,
Vv.
STATE OF NEW JERSEY, THOMAS H. KEAN, Governor, et ai.,
(D.C. Civil No. 82-1118)
JOSEPH W. ANTONACCI, et al.,
Vv.
STATE OF NEW JERSEY, Thomas H. Kean, Governor, et al.,
(D.C. Civil No. 82-1119)
ALLEN OLSEN, et al.,
Vv.
COMMUNICATIONS WORKERS OF AMERICA (CWA), ef al.,
(D.C. Civil No. 82-3443)
On Appeal from the United States
District Court for the
District of New Jersey
(C.A. Nos. 82-1118/1119 and 82-3443)
Argued February 27, 1984
Before: ADAMS, SLOVITER, Circuit Judges,
and TEITELBAUM, District Judge*
(Opinion Filed August 6, 1984)
* Hon. Hubert I. Teitelbaum, United States District Court for the
Western District of Pennsylvania, sitting by designation.
-8la-
OPINION OF THE COURT
ADAMS, Circuit Judge.
These consolidated appeals present two important
questions posed by the representation fee arrangements
created under the New Jersey public employee statute:'
first, the constitutional permissibility under the First
Amendment of the use of mandatory representation fees
for lobbying activities by public employee unions; and,
second, the extent of due process protections afforded to
employees who object to the use of any portion of their
fees to further the political and ideological stands of
their bargaining representative.
The district court determined that the use of manda-
tory representation fees for lobbying activities by public
employee unions was in conflict with the First Amend-
ment of the United States Constitution and that the var-
ious escrow account procedures advanced by the de-
A representation fee denotes the mandatory contribution of a non-
union employee to the bargaining representative in his or her work-
place. Representation fees, also termed agency fees or a fair share, are
assessed to help defray the costs of the union's negotiation and adminis-
tration of the collective bargaining contract, handling of grievances, and
other responsibilities under a collective bargaining agreement. Under
typical representation fee or agency fee arrangements, employees may
elect to join the union selected by the majority of employees in an ap-
propriate unit or pay a fee for services without agreeing to actual union
membership. See K. Hanslowe, D. Dunn, & J. Erstling, Union Security
in Public Employment: Of Free Riding and Free Association 4 (1978).
The present consolidated appeals were held under advisement by this
Court pending the Supreme Court's resolution of several agency fee
issues in Ellis v. Railway Clerks, 104 S. Ct. 1883 (1984).
NGS Ss ir be ries
-82a-
fendant-unions were insufficient to protect the constitu-
tional rights of non-consenting employees. Consequently,
the district court enjoined the operation of the represen-
tation fee provision of the New Jersey Act and ordered
that no fees be deducted from the payrolls of non-
consenting employees. For the reasons developed below,
we reverse the judgment of the district court, direct that
the injunctions be withdrawn, and order that the matter
be remanded for further proceedings. ©
In 1968, the New Jersey Employer-Employee Relations
Act granted state public employees the rights to bargain
collectively with the state employer. N.J.S.A. 34:13-5.1
et seq.’ A prime purpose of the Act was to promote the
State’s interest in the settlement of labor disputes and the
prevention of work stoppages through negotiations
between the state employer and a collective bargaining
representative selected by the majority of employees.’
See Caldwell-West Caldwell Ed. Assn. v. Caldwell-West
Bd. of Ed., 180 N.J. Super. 440, 435 A.2d 562, 567 (App.
Div. 1981). Under the terms of the Act, a public
* Under the National Labor Relations Act, the regulation of state
employee labor relations is left to the individual states. 29 U.S.C.
§ 152(2) (1982).
’ The declaration of policy contained in N.J.S.A. 34:13A-2 is premised
on similar statements of policy in the NLRA and the Railway Labor
Act, 45 U.S.C. §§ 151 et seq. (1976). The New Jersey Act provides:
It is hereby declared as the public policy of this State that the
best interests of the people of the State are served by the pre-
vention or prompt settlement of labor disputes, both in the pri-
vate and public sectors; that strikes, lockouts, work stoppages
and other forms of employer and employee strife, regardless
-83a-
employee union can collect dues from those employees
who choose to join the union; all other members of a
bargaining unit are free not to contribute to the union’s
expenses in any form. Nevertheless, the Act
require{s] that a majority representative of public
employees which has negotiated a labor agreement
covering such employees to represent the interests of
all employees in the bargaining unit, regardless of
organizational membership, without discrimination.
Non-members of the majority organization, there-
fore, enjoy virtually equal benefits and protections
without sharing in the costs, incurred by collective
negotiations, grievance representation, and other
services.
Sponsor’s Statement to Assembly Bill No. 688, February
9, 1978, quoted in Robinson v. State of New Jersey, 547
F. Supp. 1297, 1301 (D.N.J. 1982). See N.J.S.A. 34:13A-
5.3 (“majority representative . . . shall be responsible for
representing the interest of all such employees”).
This “free rider” problem was remedied by legislation
where the merits of the controversy lie, are forces productive
ultimately of economic and public waste; that the interests and
rights of the consumers and the people of the State, while not
direct parties thereto, should always be considered, respected
and protected; and that the voluntary mediation of such public
and private employer-employee disputes under the guidance
and supervision of a governmental agency will tend to promote
permanent, public and private employer-employee peace and
the health, welfare, comfort and safety of the people of the
State. To carry out such policy, the necessity for the enact-
ment of the provisions of this Act is hereby declared as a mat-
ter of legislative determination.
-84a-
in 1980.‘ The New Jersey statute was amended to allow
a majority bargaining representative to collect a repre-
sentation fee from all employees within an appropriate
bargaining unit who had not joined the union. N.J.S.A.
34:13A05.59(b) directed that the representation fee
shall be in an amount equivalent to the regular
membership dues, initiation fees and assessments
charged by the majority representative to its own
members less the cost of benefits financed through
the dues, fees and assessments and available only to
its members, but in no event shall such fee exceed
85% of the regular membership dues, fees and
assessments.
Under N.J.S.A. 34:13A-5.5(c), unions were empowered
to use representation fee funds for
the costs of support of lobbying activities designed
to foster policy goals in collective negotiations and
contract administration or to secure for the em-
ployees represented advantages in wages, hours, and
other conditions of employment in addition to those
secured through collective negotiations with the
employer.
Section 5.5(c) also requires that any public employee
paying a representation fee
shall have the right to demand and receive from the
majority representative . . . a return of any part of
that fee paid by him which represents the employee's
additional pro rata share of expenditures by the
majority representative that is either in aid of activi-
ties or causes of a partisan political or ideological
* N.J.P.L. 1979, c. 477, eff. July 1, 1980, N.J.S.A. 34:13A-5.5 to 5.9
-85a-
nature only incidentally related to the terms and
conditions of employment or applied to the cost of
any other benefits available only to members of the
majority representative.
Public employee unions are not allowed to avail them-
selves of a dues checkoff (the automatic deduction of
representation fees from an employee’s paycheck by the
employer), until they have established the demand and
return system required by statute. N.J.S.A. 34:13A-
5.5(c). Such a demand and return system must allow for
review of the amount returned “through full and fair
proceedings placing the burden of proof on the majority
representative.” N.J.S.A. 34:13A-5.6. Employees dissat-
isfied with the review proceeding have a right of appeal
to a three-member board consisting of a representative of
public employers, a representative of public employee
organizations, and a neutral member. Further appeals
from this board lie to the state courts.
The consolidated appeals before the Court today
involve three separate challenges to the constitutionality
of the 1980 amendments brought by individual faculty
members at the state-owned and operated Rutgers Uni-
versity, individual teachers employed by five different
school boards in New Jersey, and individual employees
of the state.’ The defendants are the State of New Jersey,
* Plaintiffs in each case moved for class certification pursuant to Rule
23 of the Federal Rules of Civil Procedure. Class certification was
denied by the district court and plaintiffs appeal from this denial.
Because we rule that plaintiffs are not entitled to relief under the Con-
stitution in the consolidated appeals, we need not reach the issue of
class certification.
-86a-
its governor, the state public employment relations
commission (PERC), and various national and regional
affiliates of public employee unions.
In Robinson v. New Jersey, plaintiffs attack the repre-
sentative fee paid by all faculty members at Rutgers Uni-
versity to the American Association of University Profes-
sors (AAUP). In Westfield Education Association v.
Antonacci, the challenged majority representative is the
National Education Association (NEA) and its New Jer-
sey affiliates. In Olson v. Communications Workers of
America, the disputed representation fees are paid to the
Communications Workers of America (CWA) as bar-
gaining representative for four units of state employees.
Although the original actions filed in the district court
challenged a broad swath of the New Jersey statute,
including the authority of the state legislature to require
non-consenting employees to pay representation fees, the
consolidated appeals focus primarily on the authoriza-
tion of lobbying by public employee unions and the
demand and return systems established by the unions
involved in the present appeal. In a joint opinion cover-
ing the Robinson and Antonacci cases, the district court
held that “it is permissible to require non-members to
contribute to the cost of collective bargaining activities.”
547 F. Supp. at 1316. The court, however, found that
the New Jersey statute went beyond what was constitu-
tionally permissible in allowing the use of representation
fees for lobbying activities “designed to foster policy
goals in collective negotiations and contract administra-
tion.” N.J.S.A. 34:13A-5.5. Pointing to the possibility
of “very deep political and ideological differences of
-87a-
opinion” regarding the aims of such lobbying, the court
concluded:
Although plaintiffs are teachers and defendants can
argue that they might benefit personally from
changes in these laws, plaintiffs and other non-
members of the employee organizations may never-
theless oppose such legislative changes. They may
oppose for political or ideological reasons; they may
believe, as do many other citizens, that the legisla-
tive changes sought by the employee organizations
are bad public policy even though they, as teachers,
might receive certain benefits.
.. . New Jersey’s statute does permit such lobbying,
and to that extent it violates plaintiffs’ First
Amendment rights.
547 F. Supp. at 1317. The district judge entered an
injunction prohibiting the unions from using any agency
fees in lobbying efforts. The judge also directed that all
representation fees be placed in escrow under the super-
vision of the court until such time as the unions devised
a procedure under which the unions, rather than a chal-
lenging employee, would have the entire burden of prov-
ing that representation fees were not directed toward
constitutionally impermissible ends.°
* Following the district court's ruling on September 28, 1982, the
union-defendants appealed the district court's determination that repre-
sentation fee proceeds could not be directed toward collective-bargaining
related lobbying. Plaintiffs cross-appealed on the refusal of the district
court to enjoin the collection of all representation fees in light of the
ruling that the New Jersey statute was constitutionally infirm. The
court denied the request for broader injunctive relief for fear this might
“injure the collective bargaining process.” 547 F. Supp. at 1324.
Because of cur disposition of the merits of this case, we need not reach
the issue presented on cross-appeal whether the failure of the district
-88a-
In March 1983, the district court extended the injunc-
tion against the use of representation fees to the CWA
locals involved in the Olsen suit. Because the CWA had
already established a practice of escrowing 40 per cent o.
the fees during the pendency of the litigation, the district
judge did not grant preliminary injunctive relief against
the union’s collection mechanism. Rather, he consoli-
dated the three proceedings for final determination of the
constitutionality of the various demand and return
systems.
On June 15, 1983, the district court entered its injunc-
tion against the employment of any of the demand and
return systems designed by the three defendant unions.
The court acknowledged that the CWA system in partic-
ular “constituted genuine attempts to create as effective
demand and return systems as human ingenuity could
devise.” 565 F. Supp. at 945. The judge, however, con-
cluded:
[E]ach system is complex and overwhelmingly bur-
densome. Each requires an objecting member to
expend such major efforts to pursue his remedy that
no individual could be expected to avail himself of
the remedy. Thus under the very best demand and
return system no objecting non-member can devote
the time and money required to ascertain and, if
warranted, regain the portion of his representation
fee which the union may use for political and ideo-
logical purposes. The statutory requirement of a
demand and return system is an illusory remedy.
court to enjoin the collection of all representation fees in 1982 was an
abuse of discretion. We also do not reach the question whether the
court's sub sequent injunction against all representation fee payments
mooted the cross-appeal from the 1982 ruling.
ee
-89a-
As a practical matter, therefore, the statute permits
a union to take the funds of objecting nonmembers
and use them for the union's own political and ideo-
logical purposes. The good faith efforts of the
union defendants in these cases to create workable
systems demonstrate that no demand and return
system can protect an objecting non-member’s First
Amendment rights.
Id. at 945-46. The court then issued final injunctive
relief to the plaintiffs prohibiting the collection of any
representation fees from objecting employees:
If plaintiffs’ important constitutional rights are to be
protected, injunctive relief must be granted at this
time. . . . The injunction as to any plaintiff shall
remain in effect until the plaintiff withdraws his
objection or until the statute is amended (i) so as to
| exclude from the representation fee expenses for
| political, ideological and lobbying activities (other
than lobbying to secure approval or implementation
of a collective bargaining agreement) and (ii) so as
to include a provision for a hearing before a state
| tribunal on the validity of any representation fee
prior to payment of the fee to the union.
Id. at 949.
We begin our analysis by addressing the first of the
constitutional challenges to the New Jersey representa-
tion fee system, the claim that the lobbying provision
infringes the First Amendment rights of non-consenting
employees.
te
-90a-
A.
Before we turn to the issues posed by the lobbying
activities of public employee unions, it bears emphasis
that the constitutional dimension of compelled employee
support for these activities does not arise in a vacuum.
All compulsory contributions to unions, whether in the
form of the closed or union shop or in the form of rep-
resentation or agency fees, to some extent implicate the
rights of association and free expression protected by the
First Amendment. As the Supreme Court has recognized,
To compel employees financially to support their
collective-bargaining representative has an impact
upon their First Amendment interests. An employee
may very well have ideological objections to a wide
variety of activities undertaken by the union in its
role as exclusive representative. His moral or reli-
gious views about the desirability of abortion may
not square with the union's policy in negotiating a
medical benefits plan. One individual might dis-
agree with a union policy of negotiating limits on
the right to strike. believing that to be the road to
serfdom for the working class, while another might
have economic or political objections to unionism
itself. An employee might object to the union's
wage policy because it violates guidelines designed
to limit inflation, or might object to the union's
seeking a clause in the collective-bargaining agree-
ment proscribing racial discrimination. The exam-
ples could be multiplied. To be required to help
finance the union as a collective-bargaining agent
might weil be thought, therefore, to interfere in
some way with an employee's freedom to associate
for the advancement of idea, or to refrain from
doing so, as he sees fit.
-9la-
Abood v. Detroit Boara of Education, 431 U.S. 209,
222 (1977).
To recognize the constitutional ramifications of com-
pulsory contributions to unions, however, does no more
than set the stage for the judicial inquiry. A constitu-
tional analysis under the First Amendment must also
consider the rights of the majority employees to associa-
tion for the purposes of advancing their interests, /nter-
national Association of Machinists v. Street, 367 U.S.
740, 773 (1960), and of the congressional determination
that collective bargaining best promotes industrial peace.
Thus, in Abood, the Court reiterated that “such interfer-
ence [with individual First Amendment rights] as exists
is constitutionally justified by the legislative assessment
of the important contribution of the union shop to the
system of labor relations established by Congress.” 431
U.S. at 222. As one commentator has observed:
[T]he most effective technique to produce acceptable
terms to resolve disputes is voluntary agreement of
the parties, and the best system we have for produc-
ing agreement between groups is collective bargain-
ing....
Kheel, Strikes and Public Employment, 67 Mich. L. Rev.
931, 942(1969).
The Supreme Court first confronted the First Amend-
ment issues in the union shop context in a series of cases
brought under the Railway Labor Act. In Railway
Employees Dept. v. Hanson, 351 U.S. 225, 231 (1956),
the Court took note of Congress’ intent that those “who
-92a-
enjoy the fruits and benefits of unions” should contribute
to the cost of collective bargaining, and that “the
requirement for financial support of the collective-
bargaining agency by all who receive the benefits of its
work is within the power of Congress under the Com-
merce Clause and does not violate either the First or
Fifth Amendments.” /d. at 238.
Beginning with Street, however, the Court recognized
that certain categories of union expenditures could not
properly be taxed against non-consenting employees.
Thus, while the Railway Labor Act did not curtail “the
traditional political activities of the railroad unions,”
unions could “not support those activities, against the
expressed wishes of a dissenting employee, with his
exacted money,” even in a closed shop. 367 U.S. at 770.
The Court concluded that the employees “who have par-
ticipated in this action have in the course of it made
known to their respective unions their objection to the
use of their money for the support of political causes. In
that circumstance, the respective unions were without
power to use payments thereafter tendered by them for
such political causes,” Jd. at 771.’
” But see Street, supra, 367 U.S. at 800-804, 812(Frankfurter, J., dissent-
ingXchallenging majority's reading of legisla tive history to bar tradi-
tional union use of funds to promote political interests of labor). The
distinction drawn in Street between general union activities that could
be charged to compulsory union fees and political activities that couid
not has been challenged as unworkable and as having such minimal
consequences on, any individual employee as to be without constitu-
tional significance. Cantor, Uses and Abuses of the Agency Shop, 49
Notre Dame L. Rev. 62, 70-71 (1983):
Forced payments to a service organization by all who benefit
from the service do not significantly impinge on associational
or speech interests, even if the beneficiary organization uses a
| “
-93a-
In Railway Clerks v. Allen, 373 U.S. 113 (1963), the
Court returned to the question of what funds could not
be taxed against non-consenting employees and the
remedies that would protect First Amendment rights of
these employees. Relying on the Railway Labor Act, the
Court distinguished “the union’s political expenditures
from those germane to collective bargaining, since only
the former, to the extent made from exacted funds of
dissenters, are not authorized by [the Act].” /d. at 121.
Although the holding rested on a statutory interpreta-
tion, the Court intimated that so long as mandatory con-
tributions were used to further activities “germane to col-
lective bargaining,” the demands of the First Amendment
would be met. The Court suggested that any constitu-
tional deficiencies could be cured by a proportional
refund to objecting employees of any funds expended in
furtherance of the union’s political agenda. /d. at
122-23.
The case law developed under the Railway Labor Act
portion of the extracted fees to support political or ideological
causes opposed by some payors. So long as the organization
does in fact perform a useful function for the fees payors, and
so long as the organization is legally bound to use the funds to
promote the related functions and goals of the organization,
then the disgruntled fees payor cannot complain any more than
the taxpayer whose funds are used by the government for pro-
grams ideologically offensive to the taxpayor. [Footnotes
omitted]
See also Cantor, Forced Payments to Service Institutions and Constitu-
tional Interests in Ideological Non-Association, 36 Rutgers Law Review
3(1983-84.) Fhere would appear to be a certain irony in the greater
scrutiny imposed on union expenditures as a result of the state action
nexus than is imposed on actions of the government itself. Cf. United
States v. Lee, 455 U.S. 252 (1982) (upholding constitutionality of re-
quirement that Amish pay social security taxes despite religious ob-
jection).
-94a-
was first applied to public employees in Abood. Pursu-
ant to Michigan law, the Detroit Federation of Teachers
signed a collective bargaining agreement with the Board
of Education that provided for an agency fee shop. D.
Louis Abood and other teachers filed suit in state court
challenging the authorizing legislation as abridging both
state and federal constitutional protections. The Supreme
Court upheld the state statute as a permissible exercise
of the state’s power to regulate labor relations matters:
“(t]he desirability of labor peace is no less important in
the public sector, nor is the risk of ‘free riders’ any
smaller.” 431 U.S. at 224. Applying the trilogy of cases
decided under the Railway Act, the Court concluded:
The very real differences between exclusive agent
collective bargaining in the public and private sec-
tors are not such as to work any significant infringe-
ment upon the First Amendment interests of public
employees. A public employee who believes that a
union representing him is urging a course that is
unwise as a matter of public policy is not barred
from expressing his viewpoint.
Id. at 230. Simply put, “{t}he differences between public-
and private-sector collective bargaining do not translate
into differences in First Amendment rights.” /d. at 232.
Having determined the constitutional validity of an
agency fee shop in the public sector, the Court narrowed
the issue to one of fashioning a guarantee that no
employee shall be forced to subsidize the political or
ideological positions of a union:
There will, of course, be difficult problems in draw-
ing lines between collective-bargaining activities, for
-95a-
which contributions may be compelled, and ideolog-
ical activities unrelated to collective bargaining, for
which such compulsion is prohibited. The Court
held in Street as a matter of statutory construction,
that a similar line must be drawn under the Railway
Labor Act, but in the public sector the line may be
somewhat hazier. The process of establishing a
written collective-bargaining agreement prescribing
the terms and conditions of public employment may
require not merely concord at the bargaining table,
but subsequent approval by other public authorities;
related budgetary and appropriations decisions might
be seen as an integral part of the bargaining pro-
cess. We have no occasion in this case, however, to
try to define such a dividing line.
Id. at 236 (footnote omitted).
It is this task of line drawing we now address.
This past term, the Supreme Court reaffirmed the
“germane to collective bargaining” standard for judging
the use of mandatory fees over an employee’s objection:
[T]he test must be whether the challenged expedi-
tures are necessarily or reasonably incurred for the
purpose of performing the duties of an exclusive
representative of the employees in dealing with the
employer on labor-management issues.
Ellis v. Railway Clerks, 102 S. Ct. 1883, 1892 (1984).
Applied to the issue of lobbying, two possible analytic
frameworks are advanced by the litigants. First, we
-96a-
could decide, as plaintiffs urge, that the union may tax
representation fee payers only for contract negotiations
that occur exclusively at the bargaining table. Second,
we could distinguish between union expenditures based
upon the subject matter of the expenditure, rather than
the forum.
1.
There is nothing in the case law governing public
employee unionism that mandates the conclusion drawn
by the plaintiffs. Abood itself recognizes that “(t]he pro-
cess of establishing a written collective-bargaining
agreement prescribing the terms and conditions of public
employment may require not merely concord at the bar-
gaining table.” 431 U.S. at 236. Similarly, in a case
brought under the NLRA, the Supreme Court defined
the statutory “mutual aid or protection” clause under the
NLRA to extend to activities in which employees “seek
to improve working conditions through resort to admin-
istrative and judicial forums” and added that “employees’
appeals to legislators to protect their interests as em-
ployees are within the scope of this clause,” Eastex, Inc.
v. NLRB, 437 U.S. 556, 566-57 (1978) (footnote omit-
ted). See also id. at 565 n.13 (reviewing policy consider-
ations underpinning legislative decision to allow employ-
ees to act collectively with regard to terms and conditions
of employment and “the welfare of labor generally”).
Taken as a whole, the agency fee case law points to a
focus on collective bargaining as a process whereby
unions must advance the collective interests of their
members in a number of arenas. We are therefore un-
able to conclude under the First Amendment that New
Jersey cannot extend the same scope of bargaining pow-
ers to public employee unions under state statute as has
-97a-
been created by Congress under the NLRA.
To decide otherwise would seriously hamper the ability
of public employee unions to bargain effectively for the
employees they represent. Public employee bargaining is
distinctive in that at least a portion of a union’s attention
is directed away from the bargaining table, even for what
would be designated the standard terms and conditions
of employment under the NLRA:
[I]n the private sector, the employer must send
someone to the bargaining table with authority to
make a binding agreement. In the public sector this
may not be legally possible or politically sensible.
Wages and other benefits directly affect the budget
and the tax rates; but adopting budgets and levying
taxes are considered, within our governmental sys-
tem, fundamental legislative policies to be decided
b: che legislative body, not by a negotiator at the
bargaining table. Dismissal procedures may be sub-
ject to constitutional requirements which limit the
procedures which can be negotiated. Promotion
policies may be governed by civil service principles
which are written into the city charter and cannot
be eliminated by bargaining. Modifications in state
pension plans cannot, in most states, be made bind-
ing by negotiators, but must be ratified by the legis-
lature. In the public sector, agreement at the bar-
gaining table may be only an intermediate, not a
final, step in the decisionmaking process.
Summers, Public Sector Bargaining: Problems of Gov-
ernmental Decisionmaking, 44 U. of Cin. L. Rev. 669,
670-71 (1975)."
It is possible to question whether meaningful bargaining can even
-98a-
2.
These appeals do not represent the first time that a
court has been asked to evaluate the underlying constitu-
tional implications of mandatory contributions to unions.
In Abood the teacher-plaintiffs contended that the bar-
gaining activity of a public sector union is inherently po-
litical and that compulsory financial support of such
activity therefore transgresses First Amendment associa-
tional rights. This argument was rejected in Abood and
potentially occur at the bargaining table in the public employment
context:
Collective bargaining in state and local govern ment typically
takes place in two steps. First, the employee organization
hammers out an agreement with an administrator. Second,
they take their agreement to the appropriate legislative body
for validation of its economic portions. Occasionally, they
lobby jointly for validation. More often, the employee organi-
zation “renegotiates” for better terms at the legislative level by
partisan lobbying.
The ideal arrangement would centralize management bargain-
ing authority in a single person or administrative body, but
legislatures seem to hate giving up power, particularly over the
purse-strings; hence the governmental structure tends to en-
courage the two-step procedure. This discourages meaningful
bargaining at the first step.
E. Beal, E. Wickersham & P. Kienast, The Practice of Collective Bar-
gaining 499 (1976). See generally, id. at 456-57 (traditional recourse to
lobbying by public employee unions); Hildebrand, The Public Sector in
J. Dunlop & N. Chamberlain, eds., Frontiers of Collective Bargaining
129 (1967) (legislative body is ultimate authority for committing a pub-
lic agency to a collective bargain); M. Lieberman, Public Sector Bar-
gaining 116-121 (1980) (overlap between bargaining over terms and
conditions of employment in public sector and statutory regulation of
employment; lack of certainty in many jurisdictions over which pre-
vails); H. Wellington & R. Winter, The Unions and the Cities 137-153
(1971) (problems of scope of bargaining in public sector).
-99a-
again in Minnesota State Board for Community Colleges
v. Knight, 104 S. Ct. 1058(1984). In the latter case, the
Court held that, although an agency fee arrangement
could bolster the political position of a public employee
union, the pressure to support the majority representa-
tive’s political positions “is inherent in our system of
government; it does not create an unconstitutional inhi-
bition on associational freedom.” The Court left
untouched the reasoning of the three-judge district court
in Knight, 111 LRRM 3156, 3169 (D. Minn. 1982)’ that,
based upon Abood, the “crucial distinction is union po-
litical activity unrelated to collective bargaining.” /d.
(emphasis in original).
This Court has also previously discussed the scope of
Abood’s restriction on the forcible underwriting of polit-
ical and ideological concerns. In a case involving the use
of student fees at a state university for purely political
lobbying activities, we distinguished Abood as restricting
only “that portion of the union service fee used for polit-
ical or ideological purposes unrelated to collective bar-
gaining. . . . [T]o the extent the service fee was used for
purely political purposes, it could be extracted only from
those employees who do not object to advancing those
ideas and who are not coerced into doing so against their
will by the threat of loss of governmental employment.”
Galda v. Bloustein, 686 F.2d 159, 164 (3d Cir. 1982)
(emphasis added).
* The opinion of the three-judge court upheid a Minnesota fair share
statute which provided for agency fees to be paid by all state university
professors to the Minnesota Community College Faculty Association.
This decision was affirmed by the Supreme Court without opinion. 103
S. Ct. 1493 (1983). The district court's subsequent injunction modifying
the election procedures for faculty representatives was reversed. 104 S.
Ct. 1058 (1984).
:
:
-100a-
For New Jersey public employees, collective bargain-
ing is inextricably intertwined with legislative change.
An examination of the mechanics of New Jersey’s public
employee collective bargaining agreements reveals to
what extent the standard terms and conditions of
employment under the NLRA or the RLA are governed
by state statute or regulation. Cf. Fibreboard Paper
Products v. NLRB, 379 U.S. 203 (1964); R. Gorman,
Basic Text on Labor Law 496-523 (1976) (review of
mandatory subjects of bargaining under NLRA). For
example, an affidavit submitted by M. Don Sanchez, the
New Jersey Area Director of the CWA, in the Olsen
proceeding, listed no fewer than fifteen traditional sub-
jects of bargaining that are governed by New Jersey stat-
utes, civil service rules, administrative regulations, or
executive orders. Among these are pensions, overtime,
subcontracting, employee transfers, safety and health,
medical plans. App. at 101-15."
"© By way of example, Mr. Sanchez recounts:
[Ojne of the fundamental responsibilities of the Union is to
protect unit members from arbitrary and capricious disciplinary
actions by an employer. Consequently, every collective bar-
gaining agreement that I have helped to negotiate in the private
sec tor contained a disciplinary grievance procedure terminat-
ing in binding arbitration. . . . However, a Court decision
(State v. Local 195, IFPTE, 179 N.J. Super. 146 (App. Div.
1981)) declared the imposition of disciplinary sanctions to be
non-negotiable and non-arbitrable. . . . Shortly after this Court
decision was handed down, legislation was introduced to per-
mit binding arbitration for discipline. . . . Given the importance
to our unit members of an impartial and indepedent review of
disciplinary action, CWA actively supported [the proposed bill]
and related measures, designed to reinstate the right to arbi-
trate discipline. This support assumed the form of testifying
before the Senate Government Committee, speaking with and
writing to various legislators, and asking our unit members to
support this legislation.
App. at 106-108.
-10la-
Since many of the essential terms and conditions of
employment that are mandatory subjects of bargaining
under Sections 8(d) and 9(a) of the NLRA are governed
by state authorities in the public employment context, a
public employee union unable to lobby the state author-
ity would be severely handicapped in performing its
duties as a bargaining representative.
As the Supreme Court noted in Ellis,
objecting employees may be compelled to pay their
fair share of not only the direct costs of negotiating
and administering a collective bargaining contract
and of settling grievances and disputes, but also the
expenses of activities or undertakings normally or
reasonably employed to implement or effectuate the
duties of the union as exclusive representative of the
employees in the bargaining unit.
104 S. Ct. at 1892. We do not read the legislative his-
tory of the New Jersey Act to seek the creation of inef-
fectual public employee unions, nor do we find any con-
stitutional prohibition against the fulfillment of the
legislative goal of promoting labor peace by permitting
the enumerated activities of public employee unions.
So long as the lobbying activities are pertinent to the
duties of the union as a bargaining representative and
are not used to advance the political and ideological
positions of the union, lobbying has no different consti-
tutional implication than any other form of union activ-
ity that may be financed with representation fees. The
district court’s contrary conclusion—that the New Jersey
Act is facially unconstitutional insofar as it permits lob-
bying by public employee unions—must therefore be
-102a-
reversed. Under N.J.S.A. 34:13A-5.5, a union is allowed
to charge against representation fees the “costs of lobby-
ing activities designed to foster policy goals in collective
negotiations and contract administration or to secure for
the employees represented advantages in wages, hours,
and other conditions of employment in addition to those
secured through collective negotiations with the public
employer.” Without prejudice to any future challenge to
lobbying acts beyond the statutory authorization, we
hold that the statute on its face is a legitimate means of
achieving the state interest in labor peace and does not
unnecessarily burden the First Ameadment rights of rep-
resentation fee payers.
C.
The recent decision in Ellis does not depart from the
governing case law developed in the Railway Act trilogy
and Abood. In Ellis, the Supreme Court entertained
challenges under the Constitution and the RLA to the
use of agency fees to support six categories of union
expenditures: conventions, social activities, publications,
organizing, litigation, and death benefits. The Court
held that, under the RLA, non-consenting agency fee
payers could not be charged for organizing expenses or
the costs of reporting activities that were themselves not
properly taxable against fees. Examining the remaining
categories under the Constitution," the Court found no
constitutional infirmity to the use of agency fees to sup-
port traditional union activities:
[B]y allowing the union shop at all, we have already
'' Because the union in question had been decertified during the pen-
dency of the appeal, the Supreme Court did not reach the constitution-
ality of the use of agency fees for death benefits.
-103a-
countenanced a significant infringement on First
Amendment rights. . . . It has long been held that
such interference with First Amendment rights is
justified by the governmental interest in industrial
peace. .. . Petitioners may feel that their money is
not being well-spent, but that does not mean they
have a First Amendment complaint.
104 S. Ct. at 1896.
The Court’s discussion of the First Amendment impli-
cations of the use of agency fees for publications and
conventions is directly apposite to the present case. Ellis
acknowledges that the use of compelled contributions to
finance expressive activity (as is also the case with lobby-
ing) comes closest to the First Amendment protection of
communicative content and the free expression of ideas.
However, the Court concluded,
[W]e perceive little additional infringement of First
Amendment rights beyond that already accepted,
and one that is not justified by the governmental
interest behind the union shop itself. . . . The very
nature of the free-rider problem and the governmen-
tal interest in overcoming it require that the union
have a certain flexibility in its use of compelled
funds. . . . These expenses are well within the accept-
able range.
Id.
_ Thus, Ellis confirms the basic tenet of the RLA trilogy
and Abood: the First Amendment is not an insuperable
obstacle to the effective representation of a bargaining
unit by a union, either in the private or public sectors.
-104a-
Unions advancing the collective interests of the employees
they represent need not shoulder the financial burden of
non-members simply because effective representation
necessarily includes taking positions on the issues affect-
ing the membership. To conclude otherwise would di-
minish the expressive rights of the majority of employees
whose full union contributions would be depleted to
cover the costs incurred in the representation of free rid-
ers. Such a result is not required by the First Amend-
ment.
IV.
The second issue pressed on appeal is the constitution-
ality of the demand and return systems authorized by
state statute and implemented by the defendant-unions.
The district court’s injunction against the operation of
the demand and return systems was premised on two dis-
tinct constitutional rulings. First, the court held that
even optimal demand and return systems violate the
First Amendment rights of employees wishing to con-
tribute the withheld monies to alternative political causes
of their choosing. Second, the court determined that the
procedures for the return of withheld funds in this situa-
tion were unwieldy and burdensome and therefore vio-
lated the Fifth Amendment’s protection of due process.
A.
The district court concluded that “no demand and
return system can protect an objecting non-member’s
First Amendment rights.” 565 F. Supp. at 946. The
locus of the deprivation of First Amendment rights,
according to the district judge, is the withholding of
-10Sa-
funds that the employee might wish to bestow upon an
alternative political view and the involuntary loan a non-
consenting employee may be forced to grant to a major-
ity bargaining representative. Thus we must determine
not whether one or another system of public employee
representation is advisable as a matter of public policy—
a task uniquely suited to the legislature—but whether the
demand and return systems authorized by the New Jer-
sey statute unconstitutionally infringe the First Amend-
ment and due process rights of non-consenting employees.
Turning first to the constitutional significance of the
temporary deprivation of funds from an empoyee’s per-
sonal political use, we are cautioned by Abood that “{a]
public employee who believes that a union representing
him is urging a course that is unwise as a matter of pub-
lic policy is not barred from expressing his viewpoint.”
431 U.S. at 230. Where the obstacle to free expression is
the temporary deprivation of money, rather than a pro-
hibition of access to a forum, the Supreme Court has
allowed far greater leeway to challenged state proce-
dures. In Buckley v. Valeo, 424 U.S. 1 (1976), for
example, limitations on individual contributions to polit-
ical campaigns were examined under a lesser standard of
scrutiny than restrictions on the expenditures of the po-
litical campaign itself. Buckley held that ceilings on con-
tributions entail “only a marginal restriction upon the
contributor’s ability to engage in free communication.”
Id. at 20-21. Similarly, a temporary loss of funds does
not have the same impact on constitutionally protected
speech that the denial of a forum or the forcible contri-
bution to a political cause against one’s will would have.
See Lathrop v. Donohue, 367 U.S. 820, 859 (196!) (Har-
lan, J., concurring) (First Amendment harm remote in
-106a-
context of bar association dues supporting American Bar
Association political positions); Hamilton v. Regents,
293 U.S. 245, 265 (1934) (First Amendment harm is
remote when money is all that is involved). Cf. Buckley
v. Valeo (compelling governmental interest in fair elec-
tions may be furthered by use of matching funds despite
some impact of money on First Amendment concerns);
Pruneyard Shopping Center v. Robins, 447 U.S. 74
(1980) (lesser First Amendment concern where state
action is content neutral, there is no likelihood of confu-
sion between speaker and state, and an individual is free
to disavow statements disagreed with).
Even assuming some cognizable harm occasioned by
the temporary deprivation of a small amount of return-
able fees, adequate post-deprivation procedures may suf-
fice to withstand the constitutional challenge. The dis-
trict court’s final injunctive order is premised on its
determination that any remedies after a deprivation of
property in violation of the First Amendment right to
contribute free of state interference would necessarily be
constitutionally inadequate. However, an emerging line
of case law has undermined the’ premise that post-
deprivation remedies cannot protect what might other-
wise be an unconstitutional taking. In Mathews v.
Eldridge, 424 U.S. 319 (1976), the Supreme Court sané-
tioned the discontinuation of disability benefits prior to a
full evidentiary hearing. The Court reasoned that the
notice provisions of the challenged social security termi-
nation procedure combined with the “fairness and relia-
bility of the pre-termination procedures,” 424 U.S. at
343, rendered the likelihood of harm remote and the
extent of actual harm, were it to occur, de minimus. See
also Board of Curators v. Horowitz, 435 U.S. 78 (1978)
-107a-
(dismissal of medical student prior to full evidentiary
hearing permissible); Dixon v. Love, 431 U.S. 105 (1977)
(summary revocation of drivers license); /ngraham vy.
Wright, 430 U.S. 651 (1977) (on-the-spot corporal pun-
ishment permissible, even with sole remedy that of state
law tort action); Baksalary v. Smith, 579 F. Supp. 218,
235 (1984) (Adams, J., concurring) (Mathews standard of
reliability requires notice and adequacy of post-depriva-
tion procedures).
Based upon Mathews and its progeny, we conclude
that the constitutional infirmity of the demand and
return systems, if any, depends on the adequacy of the
return arrangements. We hold that, standing alone, the
deprivation of the non-consenting employee's ability to
contribute the withheld funds to an alternative political
view does not constitute a First Amendment violation.
Rather, the question is one of the due process protec-
tions in the assessment of the withholding and the ade-
quacy of the post-withholding return systems.
Under Ellis, the First Amendment interest of an
objecting employee is narrowly defined: no employee
may be forced to grant the majority representative “an
involuntary loan for purposes to which the employee
objects.” 104 S. Ct. at 1890. This constitutional interest
of an individual employee is not adequately protected by
what the Supreme Court termed “a pure rebate system,
under which the union would have unrestricted use of
the objecting employee's funds until such time as repay-
ment is made. It was the absence of any advance reduc-
tion, combined with the lack of a compelling state inter-
“ | ae eesti
-108a- 7
est in ancillary campus political activities, that occa-
sioned this Court’s ruling in Galda. In the union con-
text, however, where the Supreme Court has recognized
the compelling governmental interest in labor peace, the
constitutional issue is the establishment of a system that
would protect against the involuntary subsidization of
union political and ideological expenditures without
unduly burdening legitimate union functioning. Thus, in
Ellis, the Court approved as satisfying the First Amend-
ment either an advance reduction of dues or the placing
of contested funds in an interest-bearing escrow account.
104 S. Ct. at 1890.
The challenged representation fees in the present litiga-
tion incorporate both of the protective mechanisms
approved by Ellis. By statute, there is a fifteen percent
differential between the amounts chargeable to fee payers
and the union dues of full union members; the ceiling on
fees to the former is set at 85 percent of the dues of the
latter. In addition, each of the defendant-unions has
created an escrow system for a portion of the representa-
tion fee. In order for the representation fees collected by
the unions to be susceptible to constitutional challenge,
therefore, the expenditures for political and ideological
activities by them must exceed the sum of the fifteen
percent statutory “cushion” and the amount escrowed by
the union.”
" The dissent would read Ellis to require that the statute on its face
preclude any possibillity of forced loans to unions in order to survive
constitutional scrutimy. By its own terms, Ellis allows for two “accept-
able alternatives” thait would protect the rights of dissenting employees:
an advance reductiom of dues and/or interest bearing escrow accounts.
104 S. Ct. at 1890. The statute on its face satisfies one of these two
“acceptable alternati'ves.” All representation fee payers are, without
request, given a fifteen percent advance reduction from the dues charged
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The district judge concluded that any withholding
would violate the Constitution and, accordingly, made
no findings of fact concerning the protections against
unauthorized union expenditures contained within each
of the demand and return systems:
Nothing was done after I entered the order in
Robinson and Antonacci either by the defendants in
those cases or by the New Jersey legislature to seek
to cure or to cure the constitutional defects in the
representation fee statute. The union defendants
devised and prepared to implement new demand
and return systems. The new systems contemplate
escrowing a sufficient portion of each objecting non-
member's representation fee to ensure that no part
of the fee would be spent for political, ideological or
improper lobbying purposes prior to exhaustion of
the union and state demand and return procedures.
The new systems also contemplate the creation of
revised union demand and return procedures where-
by the unions would be required to establish before
outside, independent arbiters the correctness of their
fees and the absence of improper expenditures from
such fees. Further, the Robinson and Antonacci
to union members. This protection is all that Ellis mandates. Thus
there is no occasion in this appeal for this Court to attempt to conjure
up an unconstitutional application of the representation fee provision.
As the Supreme Court noted in Ellis, “[w)hen the constitutionality of a
statute is challenged, this Court first ascertains whether the statute can
be reasonably construed to avoid the constitutional difficulty.” 104 S.
Ct. at 1890.
Although the dissent characterizes the challenged New Jersey represen-
tation fees as “not substantially different” from those reviewed by the
Supreme Court in Ellis, the presence of both advanced reductions and
the escrow system calls this characterization into question.
a
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union defendants take the position that any object-
ing non-member may skip the union's demand and
return system and proceed directly to the State
board of appeals.
These attempts by the Robinson and Antonacci
unions to create effective demand and return sys-
tems and the demand and return system established
by CWA represent good faith attempts to devise
systems which can impartially and accurately deter-
mine what portion of a non-member'’s representa-
tion fee is used for contract negotiation, contract
administration and processing grievances and what
portion is used for other purposes. Sincere and
conscientious as these efforts have been, however,
they do not avoid or cure the basic constitutional
defects
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