Appendix — Robinson v. New Jersey

IN THE

Supreme Court of the Anite stat

OCTOBER TERM, 1984

PAUL ROBINSON, ef al.,

Petitioners,

vi

STATE OF NEW JERSEY, et al.,

Respondents.

JOSEPH W. ANTONACCI, et al.,

Petitioners.

V.

STATE OF NEW JERSEY, et ai.,

Respondents.

ALLEN OLSEN, et al.,

Petitioners,

Vv.

STATE OF NEW JERSEY, et al.,

Respondents.

Appendices to

Petition for a Writ of Certiorari to the

Unitea States Court of Appeals for the Third Circuit

NELSON KIEFF JEFFRY A. MINTZ

(Counsel of Record) Mesirov, Gelman, Jaffe,

800! Braddock Road, Suite 600 Cramer & Jamieson

Springfield, Virginia 22160 900 Kings Highway, North

(703) 321-8510 Cherry Hill. New Jersey 08034

(609) 667-9695

Appendix

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A-2

A-3

A-5

A-6

is

APPENDIX

TABLE OF CONTENTS

Page

Opinion of the U.S. District Court in

Robinson/ Antonacci v. State of New

Jersey, September 28, 1982. ............... 2a

Order of the U.S. District Court

Granting Preliminary Injunction in

Antonacci/ Robinson v. State of New

Seraay, eee 1D, TFG. os cidicccccccs. 68a

Opinion of the U.S. District Court

in Olsen v. CWA, March 16, 1983........ 72a

Order of the U.S. District Court

Granting Preliminary Injunction in

Olsen v. CWA, May II, 1983............ ll4a

Opinion of the U.S. District Court

in Robinson/ Antonacci/ Olsen v. State

of New Jersey/CWA, June 15, 1983..... 118a

Order of the U.S. District Court

For Additional Preliminary Injunctive

Relief and Consolidation in Robinson/

Antonacci/ Olsen v. State of New Jersey /

Ca en SUS ek eek ccaksdieuaees 135a

Opinion of the U.S. Court of Appeals for

the Third Circuit in Robinson/ Antonacci

Appendix

(cont.)

B-4

B-5

C-1

C-2

-ii-

Page

Olsen v. State of New Jersey/CWA,

August 6, 1906. ..4.i.seceeereeaneeieaess 139a

First and Fourteenth Amendments to the

United States Constitution, and

42 U.S.C. § ISBE. o2 sevens 187a

New Jersey [Public] Employer-Employee

Relations Act, N.J.S.A. 34:13A-2, -3(e),

a 189a

1980 “Representation Fee” Amendments to

the Act, N.J.S.A. 34:13A-5.5, -5.6.......194a

Legislative History of 1980 Amendments

to the New Jersey [Public] Employer-

Employee Relations Act ................ 198a

N.J.A.C. 1:2+0.0, 0 aay a eencse aces 212a

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............ 220a

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, 1906... ccccssccacvccaces 223a

Appendix

C-3

C-4

C-5

-ili-

Page

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,

I Ms oki vewdes casccdascesees 225a

Judgment of the U.S. Court of Appeals

for the Third Circuit in Robinson/

Antonacci/ Olsen v. State of New Jersey,

oe, SSE eee 228a

Transcript of Proceedings in Robinson

v. State of New Jersey Denying Motion

OO Bree, SONY 1S, IDES. ows ccccccecssnves 230a

Opinion of the U.S. Court of Appeals

for the Seventh Circuit in Hudson

v. Chicago Teachers Union Local

No. 1, September 6, 1984. ............... 236a

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APPENDIX A-1

Opinion of the U.S. District Court

in Antonacci/ Robinson v. State of

New Jersey, September 28, 1982

_

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

Civil Action

PAUL H. ROBINSON. ef ai., No. 82-1118

Plaintiffs.

Vv.

STATE OF NEW JERSEY, et ai.,

Defendanis.

Civil Action

JOSEPH W. ANTONACCL et al., No. 82-1119

Plaintiffs. (Consolidated

- Cases)

OPINION

STATE OF NEW JERSEY, et ai., September 28, 1982

Defendants. Debevoise, District

Judge

I. The Proceedings

These two consolidated actions each challenge the con-

Stitutionality of provisions of the New Jersey Employer-

Employee Relations Act, N.J.S.A. 34:13A-1, et seq. (the

Act), which permit public employers to withhold and

majority union representatives to receive representation

fees assessed against employees who are not members of

the union. Plaintiffs moved ‘or preliminary injunctive

relief; a hearing was held; and this opinion constitutes

my findings of fact and conclusions of law.

Il. The Statute

The Act creates a Division of Public Employment Re-

lations within the executive branch, N.J.S.A. 34:13A-5.1.

-3a-

and establishes in that division a New Jersey Public

Employment Relations Commission (PERC), N.J.S.A.

34:13A-5.2. PERC is required “to make rules and regu-

lations” and to implement fully all the provisions of this

act”. PERC is granted exclusive jurisdiction over unfair

practices, N.J.S.A. 34:13A-5.4c. The Act grants and

protects the right to freely join or assist or to refrain

from joining or assisting any employee organization,

N.J.S.A. 34:13A-5.3, and prohibits restraint of those

rights, N.J.S.A. 34:13A-5.4(a)(1) & (b)(1).

The Act designates the majority representative the ex-

Clusive representative to negotiate the terms and condi-

tions of employment of an employee unit, N.J.S.A.

34:13A-5.3 (4 2).

A majority representative of public employees in

an appropriate unit shall be entitled to act for and

to negotiate agreements covering all employees in

the unit and shall be responsible for representing the

interest of all such employees without discrimination

and without regard to employee organization mem-

bership ... In addition, the majority representative

and designated representatives of the public employer

shall meet at reasonable times and negotiate in good

faith with respect to grievances and terms and con-

ditions of employment.

When an agreement is reached on the terms and

conditions of employment, it shall be embodied in

writing and signed by the authorized representatives

of the public employer and the majority repre-

sentative.

Effective July 1, 1980, New Jersey amended the Act to

-4a-

permit public employers and majority representatives ot

employees to negotiate contract provisions which would

require employees who choose not to join the majority

representative to pay a representation fee in lieu of dues.

P.L. 1979, c 477, N.J.S.A. 34:13A-5.5 to 5.9. The pur-

pose of the amendment was to require the non-members

to bear a fair share of the expenses incurred in represent-

ing their interests during negotiations with their employer.

The Sponsor's Statement to Assembly Bill No. 688, Feb-

ruary 9, 1978, expressed this objective as follows:

For many years, the ‘New Jersey Employer-

Employee Relations Act’ has required that a major-

ity representative of public employees which has

negotiated a labor agreement covering such em-

ployees to represent the interests of a// employees in

the bargaining unit, regardless of organizational

membership, without discrimination. Non-members

of the majority organization, therefore, enjoy virtu-

ally equal benefits and protections without sharing

im the costs, incurred by collective negotiations,

grievance representation, and other services. In the

recent May, 1977 decision of the United States

Supreme Court (Abood et al. v. Detroit Board of

Education et al.) which upheld the constitutional

validity of state ‘agency shop’ legislation, the Court

pointed to the fact that the tasks of negotiating and

administering an agreement are continuing and dif-

ficult ones and entail the expenditure of much time

and money, often requiring the services of lawyers,

expert negotiators, economists, research staff, as

well as administrative personnel. In that decision,

the Court went on to state that ‘a union shop

arrangement has been thought to distribute fairly

the cost of these activities among those who benefit,

and it counteracts the incentive that empioyees

might otherwise have to become ‘free-riders —to

-Sa-

refuse to contribute to the union while obtaining

benefits of union representation that necessarily

accrue to all employees’ [sic] Many analysts feel

that union security agreements such as the agency

shop are vital to the stability and sense of responsi-

bility of public sector unions.

N.J.S.A. 34:13A-5.5(a) authorizes a majority represen-

tative and a public employer to include in a collective

agreement a provision requiring all employees in the

negotiations unit who are not members of the majority

representative to pay the majority representative a repre-

sentation fee in lieu of dues for services rendered by the

majority representative. N.J.S.A. 34:13A-5.5(b) provides

that the representation fee “shall be in an amount equiv-

alent to the regular membership dues, initiation fees and

assessments charged by the majority representative to its

own members /ess the cost of benefits financed through

the dues, fees and assessments and available to or bene-

fitting only its members, but in no event shall such fee

exceed 85% of the regular membership dues, fees and

assessments”. (Emphasis added.) The Act does not

define benefits available to or benefitting only the major-

ity representative’s members. However, the Statement of

the Assembly Labor Committee to Assembly Bill No.

688, June 19, 1978, referred to the cost of any other

benefits available only to members and gave as examples

“contributions to charitable or religious organizations or

causes; fines, penalties or damages arising from unlawful

activities of a bargaining agent; social or recreational

activities, costs of educational activities unrelated to col-

lective negotiations, contract administration or lobbying

for improved wages and benefits; costs of medical insur-

ance; retirement benefits or other benefit programs; and

-$a-

costs incurred by the bargaining agent to organize

employees who are not included in the bargaining unit”.

It would appear that in arriving at the representation

fee it is not required (although it would be permissible)

to deduct from membership dues the employee’s pro rata

share of expenditures by the majority representative for

political or ideological causes or for lobbying. That sub-

ject is covered in N.J.S.A. 34:13A-5.5(c).

That section provides that “[a]ny public employee who

pays 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 activities or causes of a partisan 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 representative”. A payor of a representa-

tion fee does not have the right to demand a refund of

his pro rata share of “the costs of support of lobbying

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 em-

ployer”. Thus there is potentially a very broad area of

lobbying activities for which the funds of non-members

can be spent without the right to a refund. This gives

rise to one of the areas of controversy in this case.

The public employer deducts the representation fee

-7a-

from the paychecks of non-members and forwards the

deductions to the majority representative. N.J.S.A.

34:13A-5.6.

N.J.S.A. 34:13A-5.6 prohibits the deduction of repre-

sentation fees unless the majority representative has

established and maintained a demand and return system

which provides pro rata returns as described in N.J.S.A.

34:13A-5.5(c). The majority representative’s demand and

retur™ system must include a provision permitting non-

members to obtain review of the amount returned

through full and fair proceedings. The majority repre-

sentative bears the burden of proof. N.J.S.A. 34:13A-

5.6. If dissatisfied with the result of demand and return

system proceedings, a representation fee payer may

appeal to a three-member board whose members the

Governor appoints with the Senate’s advice and consent.

N.J.S.A. 34:13A-5.6. One member of this board must be

a representative of public employers, one a representative

of public employee organizations, and one, the strictly

impartial chairman, is the representative of the public

interest.

Issues in this case include (i) whether any demand and

return system can validate a compulsory non-member

fee, part of which is used until the time of its return to

promote organizations and causes with which the non-

member disagrees and (ii) whether, if some forms of

demand and return systems are valid, this particular sys-

tem is invalid because it places such onerous burdens on

the non-member seeking a refund. An examination of

the facts developed in the consolidated cases now before

the Court throws light upon these issues.

-Ra-

{1I. Robinson yv. New Jersey

Plaintiffs in the Robinson case are thirteen profes-

sional employees of defendant Rutgers University. They

are not members of defendant Rutgers Council, Ameri-

can Association of University Professors (AAUP), which

acts as exclusive representative ot the employees in the

bargaining unit of which plaintiffs are a part.

Defendants in Robinson include the State of New Jer-

sey and its Governor, the Chairman of PERC, Rutgers

University and its Board of Governors and various of its

officers having labor relations duties, the Rutgers Coun-

cil of AAUP and various of its officers, and the National

AAUP and its General Secretary.

Extensive affidavits have been filed by or on behalf of

plaintiffs and defendants and there can be little, if any,

dispute as to the facts pertinent to the disposition of the

application for a preliminary injunction.

AAUP is a national organization of teachers and

research scholars in universities and colleges and in pro-’

fessional schools of similar grade. Its governing body is

a Council whose members are certain present and past

officers, the Chairman of the Collective Bargaining Con-

gress and thirty elected members. The Council estab-

lishes membership dues, subject to ratification at the

annual meeting of AAUP.

Whenever the active members of AAUP in a given

institution numbers seven or more, they may become a

chapter of AAUP. A chapter may establish local mem-

bership dues.

is

-9a-

According to AAUP’s chief executive officer. “AAUP

is not, and has never been. a national labor organization.

It does not engage in collective bargaining on behalf of

anyone. In 1973, the AAUP Annual Meeting endorsed

collective bargaining as a legitimate way to achieve the

Association’s goals, and agreed to provide assistance in

pursuing collective bargaining to local chapters.” (Spitz-

berg Aff., ¢q 3, 4.).

AAUP requires that collective bargaining chapters

which collect agency shop fees (representation fees) be

required to transmit to the national organization an

amount equal to full national dues “or a prorated share

based on local assessments” (Spitzberg Aff., % 7). Ac-

cording to AAUP’s chief executive officer, “[l]ocal chap-

ters of the AAUP engaged in collective bargaining have

full responsibility for the negotiation and implementation

of their collective bargaining agreements,” but neverthe-

less “[v]irtually all activities of the AAUP support the

efforts of its local chapters engaged in collective bargain-

ing” (Spitzberg Aff., 11 8. 9).

Be that as it may, an examination of the record dem-

onstrates that National AAUP engages in at least some

lobbying at the federal and state levels’ and that signifi-

cant funds are spent for activities which the Statement of

' For example, in the October, 1980 issue of AAUP’s house organ,

Academe, there appeared the following under Report of Committee R

on Government Relations, 1979-1980:

During the five years I have served as chairman of Commit-

tee R, I have watched our Association move from a short

agenda of legislative issues, primarily related to student assis-

tance programs, to a larger and more comprehensive agenda

which now encompasses a broad range of issues involving both

the legislative and executive branches of the federai and state

-10a-

the Assembly Labor Committee to Assembly Bill No.

688, June 19, 1978 gave as examples of benefits available

Only to members, e.g., costs of educational activities

unrelated to collective negotiations and costs incurred to

recruit members.

There is a Rutgers Council of AAUP Chapters

(Rutgers AAUP) serving as the negotiating representative

for faculty members and teaching and graduate assistants

at Rutgers, The State University. The constituent chap-

ters of the Council are located at Camden, Newark and

New Brunswick. An Executive Council has the respon-

sibility to establish dues subject to approval of the

membership.

In early 1980, after enactment of the amendments to

the Act but before the effective date of the amendments

(July 1, 1980), Rutgers AAUP sought and obtained from

governments ... Our collective voice is heard in Congress and

tu.¢ White House and, not surprisingly, we have an impact on

policies affecting the academic community. We contribute an

important element of expertise to debates over crucial issues

involving higher education, and in so doing we have seen a

measurable improvement in the quality of both the debate and

resultant legislation.

There follows in this single issue of Academe a description of the sub-

jects on which AAUP lobbied, none of which appear to have any direct

bearing on the negotiations between Rutgers AAUP and Rutgers Uni-

versity, e.g., the then new federal Department of Education, the FY

1980 and FY 1981 federal budgets, reauthorization by Congress of the

Higher Education Act, federal intelligence legislation, amending the

National Labor Relations Act to guarantee the right of faculty to orga-

nize and bargain collectively. (“We have begun planning the major lob-

bying effort which will be necessary to win Congressional approval of

the legislation.”] All of these subjects involve controversies about which

faculty members and other citizens can and do have widely divergent

views.

-lla-

its legal counsel advice as to how it should proceed to

take advantage of the new provisions. Counsel advised

that it would be proper to negotiate an agreement requir-

ing a representation fee provided the agreement did not

become effective before July 1, 1980. As to calculating

the representation fee, counsel recommended that first it

was necessary to compute all dues and other charges

assessed against members, including membership dues in

the national organization if such membership was required

of all members. Then, counsel advised, two categories of

expenses had to be deducted to determine what amount

could be charged to non-members: (i) amounts spent in

aid of activities or causes of a partisan political or ideo-

logical nature only incidentally related to the terms and

conditions of employment* and (ii) amounts expended

for benefits available only to members of the majority

representative.

Counsel advised that not all expenses for lobbying

activities should be excluded from the representation fee:

“Other political activities, of a nonpartisan or nonideo-

logical nature should, however, be included. As the bill

* I conclude that N.J.S.A. 34:13A-5.5(b) requires that in computing the

representation fee there need be deducted from the amount of the

members’ dues only the cost of benefits available only to members. The

cost of expenditures for causes in aid of activities of a partisan political

or ideological nature need not be deducted in the first instance. They

are recoverable under the demand and return system provided for in

N.J.S.A. 34:13A-5.S(c). Obviously, from the perspective of the non-

member who does not wish to have any portion of his fee used for po-

litical or ideological purposes it is preferable that such portion never be

taken from him at all rather than having to pay that portion and then

having to institute proceedings to compel its return. The procedure

recommended Sy Rutgers AAUP’s counsel, while perhaps not mandated

by the statute, would have had the effect of avoiding the necessity to

pursue the demand and return procedure.

-|2a-

itself notes, chargeable items should include ‘the cost for

support of lobbying activities designed to foster public

policy goals and collective negotiations and contract

administration or to secure for the employees represented

advantages in wages, hours, and other conditions of

emplovment in addition to those secured through collec-

tive negotiations with the public employer’... [T]he

union should not exclude sums spent on such activities

as testimony before legislative finance committees, mail-

ings to citizens seeking support of union demands or

other political activities directly related to collective

bargaining.”

To provide guidance to Rutgers AAUP in determining

what constituted member-only benefits counsel listed

(with two exceptions) the kinds of expenditures which

were set forth in the Assembly Labor Committee State-

ment referred to above. Counsel noted that the state-

ment had listed among the member-only benefits expenses

to administer the contract and for lobbying. However,

counsel observed that after the presentation of the

Assembly Labor Committee Statement the proposed

amendment to the Act had been revised specifically to

permit such expenses to be included in the representation

fee.

Counsel noted that under the statute the representa-

tion fee could not exceed 85% of charges to members

and then stated: “Experience in other states has demon-

strated that an 85% fee is defensible; therefore we suggest

that that amount be the established representation fee.”

This is a somewhat surprising recommendation. The

opinion letter had gone on for several pages to urge

meticulous record-keeping and had defined carefully just

-l3a-

what expenditures should and should not be included in

the representation fee. To then recommend reliance on

totally unidentified and unanalyzed “experience in other

states” which had proved to be “defensible” seems incon-

sistent with all the preceding advice.

In any event, in the spring of 1980 Rutgers AAUP

prepared to negotiate for contract provisions requiring

payment of a representation fee. In May, 1980, before

such an agreement had been negotiated, the Rutgers

AAUP Council adopted a budget for fiscal year 1980-81

based entirely on member revenue. The budget antici-

pated total revenues of $167,500 from which there was

deducted $45,000 representing National AAUP dues, for

net revenues for the use of Rutgers AAUP of $122,500.

Total expenditures were projected at $125,879.

In early June Rutgers AAUP’s Executive Director

advised the President and President-Elect that an

“expanded” budget should be prepared in anticipation of

receipt of additional revenues, in the form of representa-

tion fees; that expenditures should be separated so as to

identify those benefitting members-only and those bene-

fitting all persons in the bargaining unit, and that a rep-

resentation fee should be established.

In response to the Executive Director’s suggestions

committees were appointed to make recommendations as

to a revised dues structure and as to a new budget which

would reflect the receipt of representation fees. These

two committees reported to the Council’s July 30, 1980

meeting.

The budget committee anticipated that $157,100 would

Bis.

-|4a-

be received in representation fees (almost doubling the

income projected in the May, 1980 budget) and proposed

how that amount should be spent. It proposed adding

to the May membership-only budget the following:

$ 16,000 additional legal expenses;

§$ 3,750 additional temporary office help:

$ 10,950 additional administration expenses;

$126,400 additional program expenses.

The new programs were to be:

Subscriptions $ 600

Grievance support services 26,800

Newsletters and printing 2,500

Released time for AAUP President 8,000

Computer services 2,500

Travel and meetings 2,500

Special programs 1,000

Health and occupational safety study 3,000

Contingency fund 7,000

National services (i.e., payment

to National AAUP) 72,500’

Total. . . $126,400

The Council adopted the preposed supplemental budget

with certain modifications. At the same meeting the

Council voted to set the dues for members of Rutgers

* I am not able to ascertain from the record whether this payment of

$72,500 to National AAUP is in addition to the $45,000 payment

representing National AAUP dues shown in the May, 1980 member-

ship-only budget.

-1Sa-

AAUP at 4% of base salary and non-member representa-

tion fees at 85% of member dues (3.4% of non-members’

base salary). The dues were computed after the budget

was struck. In the words of the Executive Director:

“The dues figure was arrived at only after a computer

analysis of all existing salaries in the unit as of spring

1980° and the total salary for the unit, which was later

increased by seven percent to reflect July 1, 1980 raises

as a result of the negotiated contract. Generally, the

Council had attempted to arrive at the lowest fee sche-

dule possible to fund the base—specifically, this amounts

to 0.4 percent of salary for members and 85 percent

times 0.4 percent (0.34 percent) for non-members.”

Although the report of the budget committee lists a

few expenditures under the heading “Budget for

Members-only Expenditures”, there does not appear to

have been any serious analysis of expenses for the pur-

pose of determining what portion constituted expenses

for the benefit of members-only or what constituted

expenses in aid of political or ideological causes. As to

the new item of $77,900 to be paid to National AAUP.

the budget commirte. s report contains only the explana-

tion that: “The National Service fee is that portion of

National member dues and a poriion of the non-member

fee that National can justify according to the require-

ments of the New Jersey Statute. For this budget, the

amount is estimated as $25.00 per faculty person in the

* The affidavit submitted by AAUP’s Executive Director stated that

there are 3700 persons in the unit represented by AAUP (Walther Aff..

{ 2). The report of the special budget committee stated that as of Feb-

ruary 2, 1980 the unit consisted of 1351 members of Rutgers AAUP and

2572 non-members. The total is somewhat larger than the total given

by the Executive Director, but this may be explainable by the fact that

different dates were involved.

_ <<

-l6a-

unit.” This was a rather fragile base on which to struc-

ture a computation of representation fees. The fragility

of the base is emphasized when one considers that before

the adoption of this budget membership in Rutgers

AAUP was permitted (in violation of the National's

rules) even though a person did not pay dues to National

AAUP. Under the new budget membership in the

National organization was made compulsory and Rutgers

AAUP paid in a lump sum from its total receipts its

members’ National AAUP dues and a portion of the rep-

resentation fees. The effect of this method of payment,

of course, was to increase the base on which representa-

tion fees were computed.

It is quite apparent that there was no analysis of either

the Rutgers AAUP budget or the National AAUP

budget along the lines recommended by counsel for

Rutgers AAUP to determine the categories of expendi-

tures referred to in the amendment to the Act. Rutgers

AAUP proceeded on the assumption that whatever the

amount of the expenditures of the local and National

AAUP which could not be charged to non-members,

they were less than 15% of total expenditures.

I have no doubt that it would be a major operation to

perform the allocations required to insure compliance

with the Act. It would require a knowledge of the mean-

ing of the Act; it would require complete knowledge of

the functions of each local and National employee and of

the purposes of all non-employee related <~penditures; it

would require allocating all expenditures vetween the dif-

ferent categories contemplated by the Act. It is not sur-

prising, therefore, that the rule-of-thumb figure of 85%

of dues payments (the statutory maximum) was adopted

-17a-

as the amount of the representation fee tor budget

purposes.

In October, 1980 the Rutgers AAUP Council was

advised that Rutgers had agreed to include in the agree-

ment provisions for a representation fee. The provisions

read as follows:

VI—REPRESENTATION FEE

1. Representation Fee Deduction

The parties agree that effective Januarv |, 1981

all employees in the bargaining unit who do not

become members of the Rutgers Council of

AAUP Chapters shall have deducted from their

salaries and forwarded to the AAUP a repre-

sentation fee in a manner and in an amount as

provided below.

2. Representation Fee Amount

At least thirty (30) days before the effective date

of the representation fee, or any subsequent

modification thereof, the AAUP shall notify the

University of the representation fee sum to be

deducted from non-members’ salaries. Any

change in the representation fee shall be made

upon written notification to the University.

3. Representation Fee Deductions

The representation fee shall be deducted from

non-members’ salaries in equal bi-weekly install-

-18a-

ments. Representation fee deductions from the

salaries of all non-member employees shall

commence on or after but in no case sooner

than the thirtieth (30th) day following the

beginning of an employee’s employment in a

bargaining-unit position or the tenth (10th) day

following re-entry into the bargaining-unit for

employees who previously served in bargaining-

unit positions and who continued in the employ

of the University in a nonbargaining-unit posi-

tion. For the purpose of this Article academic-

year employees shall be considered to be in con-

tinuous employment.

If, during the course of the year, the non-

member becomes an AAUP member, the Uni-

versity shall cease deducting the representation

fee and commence deducting the AAUP dues

after written notification by AAUP of the

change in status. Conversely, if, during the

course of the year, the AAUP member directs

the University to cease AAUP dues deductions

in a manner appropriate under the terms of the

dues check-off agreement, the University shall

commence deduction of the representation fee

after written notification by the AAUP of the

change in status. After deduction, representa-

tion fees shall be transmitted to the AAUP in

the same manner and in the same time as

AAUP dues.

Indemnification

The AAUP hereby agrees to indemnify, defend,

-19a-

and save harmless the University from any

claim, suit or action, or judgments, including

reasonable costs of defense which may be

brought at law or in equity, or before any ad-

ministrative agency with regard to or arising

from the deduction from the salaries of any

employee of any sum of money as a represeata-

tion fee under the provisions of the Agreement.

The contract was ratified by the membership to take

effect January 1, 1981.

On November 20. 1980 the Council adopted a demand

and return system. The system was described in the

December, 1980 Rutgers AAUP newsletter:

DEMAND AND RETURN SYSTEM

The following procedure was adopted by

the Executive Council of the Rutgers

Council of AAUP Chapters on November

20. 1980 to comply with the requirements

of Section 20 of Chapter 477, Laws of

1980. Please retain it for your records.

Any person who makes representation fee payments

in lieu of dues who objects to the expenditure of

any portion of such payments in aid of activities or

causes of a partisan political or ideological nature

only incidentally related to the terms and conditions

of employment or applied toward the cost of bene-

fits available only to members of the Associa‘ on

ei eiaiaenei niente

-20a-

shall have the right to dissent from such expendi-

ture. An objector shail file written notice of an

objection by certified mail to the Representative Fee

Review Committee (“Committee”) care of the Exec-

utive Director of the AAUP.

Objections to expenditures made in any fiscal year

must be raised by October Ist of the following year.

Individuals not represented by the AAUP at the

beginning of the fiscal year may raise such objec-

tions within ninety (90) days of the date such repre-

sentation commences.

An objection may be renewed for eact? year by writ-

ten notification as noted above. At least annually,

the Association shall cause notice of its Demand

and Return system including the dates for notice of

objection to be printed in its newsletter.

The Executive Director shall promptly submit each

objection received to the Committee which shall

consider the objection for timeliness of submission

and on the merits. The Committee shall be com-

posed of three members of the faculty of Rutgers

University chosen by the Executive Council of the

Rutgers Council of AAUP Chapters. If the AAUP

contests the objection, it shall respond to the objec-

tion in writing within 15 working days of its trans-

mittal to the Committee. Upon receipt of the

AAUP response, if any, the Committee shall deter-

mine if additional information is necessary to com-

plete the record. It may, in its absolute discretion,

seek additional information from the objector or the

AAUP or hold a fact-finding hearing. When the

Committee is satisfied that it has sufficient facts to

rule, it shall close the record. The Committee shall

rule on the objection within 15 working days of the

-21a-

close of the record and shail notify all parties. The

burden of proof shail be placed on the AAUP

throughout the proceeding.

If the objector is dissatisfied with the decision of the

Committee, he or she may appeal to the State

Representative Fee Review Board provided for in

Chapter 477, Laws of 1980.

Representation fees became payable commencing Jan-

uary I, 1981. Rutgers AAUP’s Executive Director estab-

lished two budgets, one for what was deemed to be rep-

resentation expenditures and the other for member-only

expenditures. The former category of expenditures was

financed entirely from income from non-members matched

with 85% of the income from members’ dues. The bal-

ance of the members’ contributions went to members-

only activities. The Executive Director is of the opinion

that there were included in the representation budget

only items permissible under the Act. This included

“lobbying for legislation affecting terms and conditions

of employment of unit members . . . [These lobbying

activities] center almost exclusively on such issues as

pensions, medical coverage for members and legislation

affecting the scope of collective negotiations.” (Walthers

Aff., 1.17.) Whether there was a proper allocation of

expenditures is, of course, a major issue between the par-

ties to this action.

Plaintiffs are in disagreement with the representation

fee system. One of them, Michael Crew, had been Pres-

ident of the Newark Chapter of AAUP, a member of the

Rutgers AAUP Executive Council and a member of the

special budget committee. He resigned in December.

1980 to protest use of the representation fee law and

-22a-

requiring non-AAUP members to support lobbying and

other activities which they oppose.

A number of the plaintiffs pursued the procedures for

a return of portions of their representation fees which

they believed were being used for improper purposes.

The experiences of plaintiff Robinson are typical of the

experiences of the others who sought a return of por-

tions of their withheld fees.

Robinson received a December I, 1980 letter from

Rutgers AAUP inviting him to join and advising him

that in any event he would be required to pay a repre-

sentation fee of 85% of AAUP dues. On january 13,

1981 Robinson wrote to the Rutgers personnel office

objecting to the withholding of the representation fee

and on January 14, 1981 he wrote to the AAUP’s Repre-

sentation Fee Review Committee expressing similar

objections and asserting his opinion that less than 5% of

the AAUP budget expenditures dealt with contract

negotiations.

On January 22, 1981 Rutgers AAUP’s Executive

Director sent Robinson a form to be submitted to the

Fee Review Committee and advised that a filing making

a claim with respect to the fiscal year ending June 30,

1981 would be timely until October 1, 1981. The form

stated that certain categories of expenditures are subject

to return, namely:

1. Payments in aid of activities of a partisan polit-

ical nature.

2. Payments in aid of causes of a partisan political

nature.

-23a-

3. Payments in aid of activities or causes of an

ideological nature only incidentally related to

terms and conditions of employment.

4. Payment toward costs of benefits available only

to AAUP members.

The form then asked that the applicant. indicate for

which categories of those expenditures he believed

AAUP used his representation fees and directed the

applicant to “state your reason and/or information base

for the charge”.

Unbeknownst to Robinson, the Fee Review Commit-

tee had just been appointed in January, 1981 and was

not to meet until May 7, 1981. However, on January 27,

1981 he wrote to the Executive Director, with a copy to

the Fee Review Committee, stating, in part:

I believe you have already received my letter of

January 14, 1981 to the Representative Fee Review

Committee. care of the Executive Director, as direc-

ted by your Reports, Voi. Il, No. 5. I enclose

another copy. I believe that that letter is adequate

under Chapter 477 to file a claim under Demand

and Return.

I might add that I do not agree with vour claim,

implicit in the form you have devised, that the

return and demand system is limited to the four

kinds of expenditures you note. It is even more

clear that the form is also deceptive in suggesting

that a non-member must give ‘reasons and/or

information basis for the charge.” Chapter 477

makes it clear that the burden is at all times on

-24a-

majority representative. It is for the AAUP to jus-

tifv its claim that 85% of union dues are eligible for

inclusion under the ‘fair share fee.’

On May 7, 1981 the Fee Review Committee met to

consider the various demands filed with it. It accepted

Robinson’s January 14, 1981 letter as a proper challenge

to the representation fee and so notified him. After

deciding which challenges would be accepted for filing

the Committee deferred further action until it received

the audit of AAUP expenditures for the fiscal year end-

ing June 30, 1981.

The audit became available in September, 1981 and

the three Fee Review Committee members reviewed it

and concluded that it “clearly delineated” expenditures

for members-only activities and those for all members of

the unit (Hillson Aff., % 13). The Committee’s review

could not be completed until information was received

from National AAUP as to expenditures of its funds.

This was not received until March, 1982, more than a

year after Robinson filed his claim and more than eight

months after the close of the fiscal year with respect to

which his claim was filed.

It is not disclosed in the record just what data

National AAUP furnished the Fee Review Committee.

Whatever the data was, the Chairman of the Committee

recites that “Upon review, the Committee was satisfied

that no part of the representation fee forwarded to the

National had gone for impermissible purposes... .”

(Hillson Aff., 414).

By letters dated March 8, 1982 (but sent near the end

-25a-

of the month) the Fee Review Committee advised each

claimant that his claim had been rejected. These letters

read as follows:

Dear Protessor:

The Representation Fee Review Committee has

completed its consideration of your objection to the

collection and expenditures of the Representation fee

you paid to the Rutgers Council of AAUP Chapters

during the period of January 1981 through June 30,

1981.

The Committee finds that it must reject your claim

against the 1980-81 fiscal year expenditures.

An 85% Representation fee is the legal maximum

under New Jersey law. Our analysis of the audited

local AAUP budget for FY 80-81 (available at the

AAUP office—Building 4103 Kilmer 8:30 to 4:30

Monday thru Friday) and National expenditures (see

attached letter from Stephen Finner) demonstrates that

expenses (both Local and National) accruing to mem-

bers only are less than 15% of totai expenditures.

Therefore there is no pro-rata refund of non-permissible

expenditures due you.

If you are dissatisfied with this finding, you have the

right to appeal to the State Representative Fee Review

Board, as provided for in Chapter 477, laws of 1980.

Please note that you may file an objection against

the collection and expenditures of the current fiscal

-26a-

year (July 1, 1981 to June 30, 1982) until October |.

1982.

Committee Chair

The letter from Stephen Finner to which reference»was

made in the rejection letters purports to recite the per-

centage of the National AAUP budget which is allocated

to various purposes during the applicable period:

No expenditure for political or ideological pur-

poses.

18% for academic freedom and tenure activities.

11% for economic status of the profession

activities.

18% for collective bargaining development ex-

penses.

16% for conference and Chapter development.

7% tor governmental relations.

8% for other Committee activities (e.g., academic

governance, status of women in the profession).

2% for organizing and membership recruitment.

20% for membership accounting, membership

services, and association administration.

After reciting these percentage allocations Mr. Finner

concluded “For your information, National dues were

-27a-

$47 in calendar year 1981. Thus, expenditures for allow-

able purposes were in excess of representation fees

received.” How Mr. Finner arrived at his “thus” and

reached this conclusion escapes me, but apparently he

satisfied the Rutgers AAUP Fee Review Committee.

As the Fee Review Committee’s rejection letters noted,

the claimants had a right under the Act to appeal to the

three-member Board appointed by the Governor pursu-

ant to N.J.S.A. 34:13A-5.6. None of the AAUP claim-

ants elected to pursue this option and instead instituted

this suit. A description of the Board and its workings

will be set forth in the next section of this opinion, as

certain of the plaintiffs in the Antonacci case did seek

relief in that forum.

IV. Antonacci v. New Jersey

The ten plaintiffs in this case are non-union teachers

employed by one or another of the defendant boards of

education—Westfield, Pascack Valley Regional, Edison

Township, Ridgewood, and Township of Ocean.

In addition, plaintiffs named as defendants each local

education association (of teachers) and its president and

the affiliated County education association. Certain su-

perintendents of education and presidents of boards of

‘education were joined as defendants.

Also named as defendants were the New Jersey Educa-

tion Association and its president and the National Edu-

cation Association and its president.

-28a-

State government defendants consisted of the State of

New Jersey and its Governor and James W. Mastriani,

Chairman of PERC.

As in the Robinson case, the Antonacci plaintiffs

attack the constitutionality of the amendments to the Act

permitting the withholding of representation fees from

their salaries.

While details of the events recited by the plaintiffs in

the various school districts may vary, the essential ele-

ments of what transpired in each district are the same.

The teachers in each of the school districts are repre-

sented by the local education associations. Persons who

are members of the local association are automatically

members of the county education association, the New

Jersey Education Association (NJEA), and the National

Education Association (NEA). The dues which members

of the local association pay include dues to the local,

county, state and national associations. The record

establishes that both NEA and NJEA spend substantial

sums for national and state candidates for office and for

lobbying at the national and state leveis.

NJEA provides very extensive organizational support

services to the local associations, and the uniformity in

the forms and procedures which the local associations

used in implementing the representation fee provisions of

the Act are attributable to the fact that they were pre-

pared or suggested by NJEA.

After the adoption of the representation fee amend-

ment the various school boards and the local education

-29a-

associations negotiated and agreed upon representation

fee provisious. These provisions required the withhold-

ing from salaries of non-association members and pay-

ment to the association of a sum equal to 85% of

members’ dues, initiation fees and assessments.

Upon negotiation of such a provision the local associa-

tion sent letters to non-members inviting them to join the

association and explaining that failure to join would

result in imposition of the representation fee. The letters

of the various local associations were of the same tenor.

The one to plaintiff Meveril Jones read, in part:

The climate in which we work today is not the best.

Attacks on the public schools by the press, by poli-

ticians, and by school board associations require us

to maintain a maximum effort to protect your rights

and to advance your interests. We must spend ever

increasing amounts of money to provide proper

legal defense for members, to bargain effectively, to

process grievances, to lobby for the protection of

tenure, pensions, sick leave, and other benefits. In

these crucial times we need your support.

Under the terms of Public Law 1979, Chapter 477,

the Westfield Education Association has negotiated

a fair share representation fee to be deducted from

the paychecks of all bargaining unit members who

do not join the Association by Qctober 15. This

representation fee amounts to 85% of our dues or

$179.35 to be collected in monthly installments over

the life of our contract with the Board of Education.

The dues on the basis of which the Westfield represen-

tation fee was computed amounted to $211 and were dis-

tributed as follows: $45 to NEA, $117 to NJEA, $12 to

-3a-

Union County Education Association, and $37 to West-

field Education Association.

Non-member teachers in the various school districts

objected to the withholding of representation fees, com-

municating their objections both to the boards of educa-

tion or superintendents and to the local associations.

The grounds for the objections included unwillingness to

make payments to state and national organizations

espousing social and political causes with which the non-

member disagreed and opposition to compulsory unioni-

zation as a matter of principle.

The various plaintiffs sought to utilize the demand and

return systems established in their districts to challenge

the 85% fees. [ypical of the experiences of each of the

plaintiffs are the experiences of John Russell and plain-

tiffs Richard H. Trexler, A. William Onder, Leon

Matelski and Edward Jakubco, who joined with him to

seek a refund of payments withheld and paid to the Edi-

son Township Education Association.

In December, 1980 the Board of Education had agreed

that by December 3lst the Association would determine

which teachers were to be assessed the representation fee,

the Association would establish a demand and return

system “through which non-members can challenge the

amount of the representation fee” and the 1980-81

Agreement would contain a provision obligating the

Teacher Association to indemnify and hold the board

harmless for liability and costs of suit arising out of

actions taken in conformity with the representation fee

provisions.

-3la-

By a letter dated December 30, 1980 Russell and the

other non-members were invited to join the Association

and were informed that the 85% fee would be deducted

from the salaries of non-members. On February 25,

1981 Russell wrote to the President of the Edison Town-

ship Education Association. He protested the amount of

the representation fee, particularly that part going to the

county, state and national associations. He asked for

copies of the 1980-81 budgets for the local, county, state

and national teacher associations.

On April 8, 1981 the President of the Edison Town-

ship Education Association respondei. She expressed

disagreement with Russell’s contentica that portions of

his representation fee could not be paid to the county,

state and national associations. She informed him that

at the end of the 1980-81 fiscal year he would be avle to

challenge the absence of a final rebate or the size of a

rebate under the Association’s demand and return sys-

tem. He was informed that at that time “you will be

provided with the appropriate information, including any

budgets that may be relevant”. His letter was treated as

a request for a rebate and he was told it would be pro-

cessed accordingly.

At some time prior to April, 1981, when Russell re-

ceived the reply to his letter, the Edison Township Edu-

cation Association had adopted a Demand and Return

System (the System) prepared by NJEA for use by all

local associations. The same System appears to have

been adopted in the other school districts which are

defendants in this case. It must be described in some

detail.

-32a-

The System defined the “fiscal year” as September |

through the following August 31. It defined “member

only benefits” as “benefits financed through the regular

membership dues, fees and assessments available to or

benefiting only members of the Association. but does nor

mean governance meetings which may be attended only

by members and other member only activities and func-

tions which are necessary for the operation and institu-

tional maintenance of the Association or the associations

with which it is affiliated”. (Emphasis added.) Thus, no

portion of the governance or institutional expenses were

to be apportioned to political or lobbying activities in

which any of the four levels of associations engaged.

Evidently all such expenses were to be included in repre-

sentation fees and to be treated as if they were incurred

only for contract negotiation and administration and

grievance proceedings from which non-members benefited.

“Political activity” was also defined, and there was

excluded (in line with the Act) “lobbying activities desig-

nated to foster policy goals in collective negotiations and

contract administration or to secure tor the employees

represented by the Association advantages in wages,

hours and other conditions of employment in addition to

those secured through collective negotiations with the

boards of education”.

The System required that not more than 30 days after

the beginning of each fiscal year in which a representa-

tion fee is in effect, the Association determine from the

budgets of the four levels of associations the “prelimi-

nary rebate”. The preliminary rebate was the amount by

which expenditures for political activities and member

oniy benefits exceeded the difference between member-

-33a-

ship dues and representation fees.

The System required that not more than 30 days after

the end of each fiscal year the Association determine the

“final rebate”, making the same computation but using

actual expenditures rather than budget allocations.

The System created a four-member Regional Review

Panel consisting of representatives designated (one each)

by the Edison Teachers Association, the Middlesex

County Teachers Association, NJEA and NEA.

Section II of the System provided that not more than

60 days after the representation fee agreement becomes

effective in any fiscal year the Association shall post a

notice stating whether there is a preliminary rebate and

the steps to be taken by a non-member to request it.

Section III states that a non-member may request a

rebate by filing a statement with specified information

not more than 30 days after he first paid any portion of

the representation fee or knew or reasonably should have

Known of his right to request a rebate. Section IV pro-

vides that upon receipt of the request the Association

will place any preliminary rebate attributable to the

claimant in escrow and advise the claimant that the final

rebate to which he is entitled wiil be sent to him after the

end of the fiscal year.

Section V of the System specifies that not more than

30 davs after the end of the fiscal vear the Association

shall send to each non-member who requested a rebate a

communication indicating whether there is a final rebate

and the steps to be taken to challenge the absence or

-34a-

amount of a final rebate.

Section VI governs challenges to final rebates or to the

absence of a rebate. A non-member must mail his chal-

lenge not more than 10 days after he received the notice

of final rebate provided for in Section V. The Associa-

tion must attempt to dispose of the challenge informally,

but if that is not successful the claimant may refer the

challenge to the Regional Review Panel. He must mail

this challenge no later than 10 days after he sent his orig-

inal challenge to the Association. The System provides,

in accordance with the statute, that “the burden of dem-

onstrating that no part of the unrebated representation

fee was used for political activity or member only bene-

fits shail be upon the Association”. The Panel is

required to render its decision not more than 30 days

after the non-member sent his challenge to it. A non-

member who is not satisfied with the decision of the

Panel may appeal to the three-member board established

under the Act.

Returning to Russell’s challenge to the representation

fee paid to the Edison Township Education Association,

the April 8, 1981 letter which he received from the Asso-

ciation’s President advised him, as noted above, that his

February 25, 1981 letter would be treated as a request

for rebate. The request was treated as being made under

Section III of the System, that’is to say, a challenge to

the amount of the preliminary rebate. The next com-

munication he received was a September 28, 1981 letter

from the Association advising him as follows:

The Edison Township Education Association having

is computed its actual expenditures for the 1980-81

ae

-35a-

fiscal vear, finds that it has expended $2.25 (of a

totai of $10.99 expended by all levels ot the Unified

Profession, including ETEA, MCEA,. NJEA and

NEA) per member for member-only benefits and

partisan political and ideological activities. This

amount is not in excess of the percentage allowable

by law and is, therefore, not subject to a rebate.

Should you wish to challenge this decision, the at-

tached instructions will provide you with the proper

procedures.

The September 28th letter was in compliance with Sec-

tion V of the System, i.e., notification of final rebate.

On October 5, 1981 Russell wrote the Association chal-

lenging the absence of a final rebate for the 1980-81

school year. He again asked for copies of the final

budgets for that year of the four education associations

to which his representation fee was paid. He asked for

an explanation of the line items.’ Under Section VI of

the System the Association was required to communicate

with Russell to seek to dispose of the challenge infor-

mally. That was not done and, consequently, on

October 15. 1981, the last day permitted under the Sys-

tem, Russell notified the Association that he wished to

* The experience of the non-union plaintiffs in a case similar to this

one instituted in Michigan, Lehnert v. Ferris Faculty Association, No.

G78-346 CA 1 (W.D. Mich., filed May 22. 1978), raises a doubt

whether NEA financial figures will ever be made available to Russell

however often he asks for them. In that case NEA withdrew us claim

against the non-union teachers for its share of the agency shop fees in

controversy. citing the extreme burdensomeness of complying with

financial discovery requests. If assembling such data imposes an intol-

erable burden on a wealthy and powerful national union, it requires lit-

tle imagination to picture the burden imposed upon individual teachers

seeking to determine if the fees withheld from their salaries have been

properly computed

== ll

-36a-

reter the challenge to the Regional Review Panel. He

again asked for copies of the applicable budgets and an

explanation of the line items.

On October 27, 1981 the President of the Edison

Township Education Association advised, Russell that

she had forwarded his letter “to the appropriate office”.

On November Sth she advised Russell that the Regional

Review Pane! would hear his claim at 7:00 p.m. on

November 17, 1981 (a date after the expiration of the 30

days within which the Review Panel was required to

render its decision). The hearing was held as scheduled.

By letter dated November 18, 1981 the Review Panel

advised Russell that it had rejected his challenge and the

challenges of Jakubco, Matelski, Onder and Trexler,

Stating, in part:

Pertinent budget material and testimony was pre-

sented by the following people for the respective

organizations:

1. Aurora Bernard-Salit for the Edison Town-

ship Education Association

2. Maria Versocki for the Middlesex County

Education Association

3. Cary Pitman for the New Jersey Education

Association and National Education Asso-

ciation

The challengers argued that:

1. The composition of the panel was unfair.

2. The demand and return system was unlaw-

ful.

-37a-

Following the hearing the Regional Review Panel

gave full consideration to all of the documents, tes-

timony and arguments presented to it and deter-

mined that the total dues required to be paid by

each member of Edison Township Education Asso-

ciation for 1980-81 was $248.00 and the per capita

cost for member only benefits and partisan political

and ideological activities was $11.02 which is less

than 15% of the total dues. The panel then con-

cluded that no part of the representation fee

req..‘*d to be paid by non-members was used for

member only benefits or partisan political or ideo-

logical activities. Therefore, there is no final rebate

due of any portion of that representation fee.

Should you not be satisfied with the above decision

of the Regional Review Panel, you may appeal to

the Board established pursuant to the statute

(34:13A-5.6).

It would have been a tour de force if, in one evening,

the Regional Review Panel could have made the ex-

traordinarily difficult financial analysis of the 1980-81

expenditures of the four education associations required

to determine what portions should be attributable to po-

litical and member-only purposes. It heard the testi-

mony of the three persons referred to in the decision let-

ter quoted above, none of whom appear to have had any

particular accounting expertise. Six very brief docu-

ments accompany the decision letter in the record and it

seems likely that, with the exception of the first, they

were submitted to the Review Panel: (1) The first doc-

ument was a form evidently prepared by NJEA, designed

to specify the dues payable to each of the four levels of

education associations and the per capita portion of each

|

-38a-

portion ot dues spent for member-only benefits and po-

litical activities. (2) The second document appears to be

the 1980-81 expenditures of the Edison Township Educa-

tion Association, totalling $87,140.34. (3) The third

document sets forth the income and expenditures of the

Middlesex County Education Association for the period

May | to June 30, 1980, with the 1979-80 budget figures

set forth. (4) The fourth document consists of handwrit-

ten notes and figures, the significance of which is not

immediately apparent. (5) The fifth document is entitled

“New Jersey Education Association Computation of

‘Member Only Services’ and ‘Political Activity of Parti-

san Nature’ for Period 9/1/80 to 8/31/81”. It shows

total expenditures of $12,227,000 by operating categories

and shows six items totalling $267,771 as the net cost of

member-only services, i.e., 2.19% of total expenditures.

Thus, it is stated, of the $117 dues payment, only $2.56

is attributable to member-only benefits. The document

further states that “All expenditures for partisan political

activity which are incurred have been reimbursed by the

NJEA PAC. A total of $1,406 was reimbursed for the

period covered.” The document does not appear to dis-

close what was spent for lobbying either of the kind for

which, under the Act, a representation fee may be

charged or of the kind for which, under the Act, a repre-

sentation fee may not be charged. (6) The final docu-

' ment is the NEA’s “Political Activity Rebate Preliminary

Estimate 1980-81”. Its full significance cannot be under-

stood from the face of the document, but it states that

the amount expended for political activity was $3,561,922

out of total expenditures of $37,059,124, constituting

9.61% of the total. Various adjustments were made

which resulted in a computation that political activity

accounted for 10.28% of total expenditures, resulting in

-39a-

$4.63 of each member’s dues of $45 going toward poi.ti-

cal activities. It cannot be ascertained trom the docu-

ment whether any lobbying expenses were included in

political activities expenditures, and, if so. what kind of

lobbying activities. It does not appear that any member-

only expenses were taken into account. An affidavit

filed in this case by Mitchell E. Roth, Esquire, a staff

attorney in the Office of General Counsel of NEA. de-

scribes the procedures NEA follows to compute political

activity rebates.

It is evident that if it is to be determined whether New

Jersey’s representation fee statute has been followed it

would be necessary to ascertain the assumptions which

were used in determining what items should be included

in membership-only and political activity expenses, and

it would be necessary for accountants to analyze the

books and records of each of the four constituent educa-

tion associations to determine if the computations had

been properly made.

Having been unsuccessful before the Regional Review

Panel, Russell and his fellow claimants tried to appeal to

the statutory Appeals Board. They had considerable dif-

ficulty obtaining information as to the whereabouts of

this Board. Nevertheless, on December 7, 1981, they

addressed a letter to it in care of PERC, notifying it of

their wish to appeal. On February 11, 1982 they re-

ceived a letter from defendant James W. Mastriani,

Chairman of PERC, advising that the Appeals Board

had not been fully constituted nor had administrative

rules been adopted to carry out its responsibilities under

the Act. PERC did take one definitive action—it as-

signed the case a docket number.

-40a-

No further action having been taken by the Appeals

Board, Russell and the other plaintiffs filed their com-

plaint in this Court on April 13, 1982.

There was considerabie delay in establishing the Board

of Appeals which, under N.J.S.A. 34:13A-5.6, was to

consist of three members appointed by the Governor

with the advice and consent of the Senate. Although the

Act became effective Julv 1, 1980, it was not until

December, 1981 that the Governor appointed the third

member. The person named as Chairman resigned in

February, 1982.°

However, by May 24, 1982 (after the instant cases had

been filed in this Court), the Board had concluded that it

would not hear the appeals itself and should refer them

to the Office of Administrative Law, pursuant to New

Jersey’s Administrative Procedure Act. N.J.S.A. 52:14B-

1, et seq. On that date the Board referred two appeals

to the Office of Administrative Law for de novo hearing

—the appeal filed by Russell, Jakubco, Matelski, Trex-

ler and Onder, and an appeal filed by another plaintiff

in this case, Thomas Gay. The persons who appealed

to the Board must now anticipate lengthy proceedings

of a judicial nature. See Williams v. Red Bank Bad.

of Ed., 662 F.2d 1008 (3d Cir. 1981). There will be

° Plaintiffs in a state court proceeding (not the plaintiffs in this case)

sought to restrain collection of representation fees on the ground that

the Board of Appeals had not been appointed as mandated by the stat-

ute. The trial court denied the requested relief holding that a Board of

Appeals had been duly constituted and could act even though one of its

three members had resigned. Olsen v. State of New Jersey, Docket No.

C-4286-81E (Super. Ct., Chan. Div. July 12, 1982). A notice of appeal

has been filed.

-4]a-

a full evidentiary hearing before an administrative law

judge, who will report his findings and recommendations

to the Board of Appeals. The Board will then render a

final decision. From that decision, the claimants (or the

education associations) will have the right to appeal to

the Appellate Division of the Superior Court of New

Jersey, N.J. Ct. Rule 2.2-3(a), with the possibility of

further review by the New Jersey Supreme Court. N.J.

Ct. Rules 2:2-1, 2:12—all this to contest the amount of

claimants’ 1980-81 representation fee. Of course, if any

claimant believes the defect in computing the fee extends

to the 1981-82 fee, or the 1982-83 fee, the tortuous route

beginning with an objection to the preliminary rebate

pursuant to Section III of the local education associa-

tion’s Demand and Return System must be resumed for

each year.

Conclusions of Law

The Court has jurisdiction over these actions by virtue

of 28 U.S.C. § 1343 to provide remedies for causes of

action arising under 42 U.S.C. § 1983.

Plaintiffs seek preliminary injunctive relief. This is an

equitable remedy and to prevail plaintiffs must show:

(i) a reasonable probability of ultimate success on the

merits of the litigation, (ii) irreparable harm to the plain-

tiffs if the injunction is not granted, (iii) the absence of

countervailing harm to other interested persons if the

injunction is granted, and (iv) the absence of countervail-

ing public interests should the injunction be granted.

Kennecott Corp. v. Smith, 637 F.2d 181 (3d Cir. 1981).

-42a-

A. The Merits

I turn first to the question whether plaintiffs have

shown that they have a reasonable probability of success

on the merits.

Two questions of constitutional law must be addressed.

First, does the provision of N.J.S.A. 34:13A-5.5c per-

mitting labor organizations to use the representation fees

of public employees for lobbying 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 coliec-

tive negotiations with the public employer violate the

First Amendment rights of non-member employees.

Second, do the statutory provisions providing for a

demand and return system for the recovery of impermis-

sible expenditures of representation fees overcome the

substantive and procedural due process challenges to the

New Jersey representation fee plan.

The resolution of these questions must start with the

state of the law as developed in a trilogy of United

States Supreme Court cases— Railway Employees’ Dept.

v. Hanson, 351 U.S. 225 (1956); International Assoc. of

Machinists v. Street, 367 U.S. 740 (1961); Abood v.

Detroit Board of Education, 431 U.S. 209 (1977).

The Court recognized an important governmental

interest which is advanced by agency shop provisions.

The confusion and conflict that could arise if rival

-43a-

teachers’ unions, holding quite different views as to

the proper class hours, class sizes, holidays, tenure

provisions, and grievance procedures, each sought

to obtain the employer’s agreement, are no different

in kind from the evils that the exclusivity rule in the

Railway Labor Act was designed to avoid.... The

desirability of labor peace is no less important in

the public sector, nor is the risk of “free riders” any

smaller.

Abood at 224.

The existence of the important government interests

advanced by the agency shop arrangement supports the

impingement upon associational freedom which an agency

shop entails. In Abood the Court dealt with a challenge

to a collective bargaining agreement provision which

required every teacher who had not become a union

member within 60 days of hire (or within 60 days of the

effective date of the provision) to pay the union a service

charge equal to the regular dues required of union

members. The Court observed that “insofar as the ser-

vice charge is used to finance expenditures by the Union

for the purposes of collective bargaining, contract admin-

istration and grievance adjustment, [the Hanson and

Street decisions] appear to require validation of the

agency shop agreement before us”, id. pp. 225, 226.

Under the principles of Hanson, Street and Abood,

New Jersey has the unquestioned power to enact legisla-

tion permitting collective bargaining agreements to require

that public employees in a bargaining unit who are not

members of the bargaining representative pay a service

fee for the benefits they receive from the bargaining

representative.

-44a-

In Abood, however, the Court was confronted with a

statute which sanctioned the use of non-union-member

fees for purposes other than collective bargaining, includ-

ing legislative lobbving and support of political candi-

dates. Plaintiffs in that case argued that such use of ser-

vice fees paid by them was a violation of their constitu-

tional rights. The Court agreed:

The fact that the appellants are compelled to

make, rather than prohibited from making, contri-

butions for political purposes works no less an

infringement of their constitutional rights. For at

the heart of the First Amendment is the notion that

an individual should be free to believe as he wiil,

and that in a free society one’s beliefs should be

shaped by his mind and his conscience rather than

coerced by the State...

These principles prohibit a State from compelling

any individual to affirm his belief in God . . . or to

associate with a political party .. . as a condition of

retaining public employment. They are no less

applicable to the case at bar, and they thus prohibit

the appellees from requiring any of the appellants to

contribute to the support of an ideological cause he

may oppose as a condition of holding a job as a

public teacher.

We do not hold that a union cannot constitution-

ally spend funds for the expression’ of political

views, in behalf of political candidates, or toward

the advancement of other ideological causes not

germane to its duties as collective bargaining repre-

sentative. Rather, the Constitution requires only

that such expenditures be financed from charges, —

dues, or assessments paid by employees who do not

-4Sa-

object to advancing those ideas and who are not

coerced into doing so against their will by the threat

of loss of government employment.

Id. at 234-236.

In a footnote, the Court deait with the contention that

non-members could not be required to pay for social

activities not open to non-members, stating, “It is

unclear to what extent such activities fall outside the

Union’s duties as exclusive representative or involve con-

stitutionally protected rights of association. Without

greater specificity in the description of such activities and

the benefit of adversary argument, we leave those ques-

tions in the first instance to the Michigan courts.” /d.,

n.33 p. 236. That question, of course, is not implicated

in this case because the New Jersey statute excludes from

the representation fee the cost of benefits available to or

benefitting only its members. N.J.S.A. 34:13A-5.5.

However, New Jersey’s statute does require that I

address the “difficult problems in drawing lines between

collective bargaining activities, for which contributions

may be compelled, and ideological activities unrelated to

collective bargaining, for which such compulsion is pro-

hibited”. While permitting a non-member to demand the

return of any part of a fee paid by him which was used

either in aid of activities or causes of a partisan political

nature only incidentally related to the terms and condi-

tions of employment or for member-only benefits, the

Statute specifically excludes from the refurld “the costs of

support of lobbying activities designed to foster policy

-46a-

goals in collective negotiations and contract administra-

tion or to secure for the employees represented advan-

tages in wages, hours and other conditions of employ-

ment in addition to those secured through collective

negotiations with the employer”.

Defendants argue that non-members should pay for

this kind of lobbying, since it is designed to secure for

them, as well as for members, increased benefits and

improved conditions of empioyment. Plaintiffs argue

that this kind of lobbying extends far beyond what

Abocd held to be permissible and permits their represen-

tation fees to be used for ideological and political pur-

poses.

The Abood opinion, while not deciding, suggests how

the line between permissible and impermissible lobbying

expenditures from representation fees should be drawn.

Repeatedly the Court stated that it is permissible to

require non-members to contribute to the cost of collec-

tive bargaining activities. The example of permissible

use of non-member representation fees for lobbying pur-

poses involved a direct relationship to on-going collective

bargaining: “The process of establishing a written collec-

tive bargaining agreement prescribing the terms and con-

ditions of public employment may require not merely

concord at the bargaining table, but subsequent approval

by other public authorities; related budgetary and

appropriation decisions might be seen as an integral part

of the bargaining process.” /d. at 236. Thus, this exam-

ple contemplated a situation in which negotiations have

led to agreement, but implementation requires legislative

or administrative action by a public body. Expenses

ae

-47a-

incurred to secure such action, it would appear. may

properly be made from representation fees.

The New Jersey statute permits much more extensive

use of representation fees for lobbying purposes—

“lobbying activities designed to foster policy goals in col-

lective negotiations and contract administration or to

secure for the employees represented advantages in

wages, hours, and other corditions of employment in

addition to those secured through collective negotiations

with the public employer”. N.J.S.A. 34:13A-5.5c

(emphasis added). This, i conclude, goes beyond the

permissible limits and has the effect of compelling non-

members to support ideological causes with which they

disagree.

The exainple which defendants themseives have

advanced illustrates the point. There are a number of

subjects which, under New Jersey law, are not the sub-

ject of negotiation in the collective bargaining process.

For instance, a majority representative of public em-

ployees cannot negotiate contractual clauses prohibiting

the loss of jobs through reduction in force or subcon-

tracting. Jn re Local 195, IFPTE v. State of New Jersey,

88 N.J. 393 (1982); In re Maywood Board of Education,

168 N.J. Super. 45 (App. Div. 1979), certif. den., 81 N.J.

292 (1979); Union Cty. Bd. of Ed. vy. Union Cty. Teach.

Assn., 145 N.J. Super. 435 (App. Div. 1976), certif. den.,

74 N.J. 248 (1977). Other terms and conditions of

employment—such as pension plans or seniority as it

relates to layoff, recall, “bumping” and reemployment of

Civil Service employees—are set by statute or regulation

which preempt collective negotiations. State v. State

Supervisory Employees Association, 78 N.J. 54 (1978).

-48a-

Defendants contend that they may constitutionally use

non-member representation fees to lobby to change these

statutes.

There are very deep political and ideological differ-

ences of opinion as to the merits of these statutes. On

the one hand there are those who believe that these sub-

jects which are not now the subject of collective bargain-

‘ng should be left completely in the hands of school

boards and legislators who are elected by and responsible

to the voters. These bodies should exercise their judg-

ment in these areas, so the argument goes, without being

subjected to the pressures brought to bear by employee

organizations. The contrary view, espoused most strongly

by employee organizations such as those which are

defendants in this case, is that these subjects should be

opened up to the bargaining process or dealt with

directly by legislation.

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 nevertheless oppose such

legislative changes. They may oppose for political or

ideological reasons; they may believe, as do many other

citizens, that the legislative changes sought by the

employee organizations are bad public policy even

though they, as teachers, might receive certain benefits.

I do not believe Abood permits a state to compel a

’ Some school boards are appointed by elected officials rather than

being elected directly, but the argument as to responsibility to the voters

to make decisions in critical areas uninfluenced by the pressures of

labor negotiations remains the same.

-49a-

non-member to support lobbying of this nature through

use of her representation fee. New Jersey's statute does

permit such lobbying, and to that extent it violates plain-

tiffs’ First Amendment rights.

The next question going to the merits which must be

addressed is whether, even assuming the validity of the

statute’s lobbying provisions, the demand and return sys-

t@n adequately protects plaintiffs’ First Amendment

rights.

As described above, the New Jersey statute specifies

that the representation fee “shall be in an amount equiv-

alent 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 bene-

fitting 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-5.5b. The representation

fee, therefore, may be spent for political, ideological and

lobbying activities, but the statute gives a payor of the

fee a right to demand and receive back his pro rata share

of expenditures for political and ideological purposes

and, as described above, for some lobbying purposes.

This system purports to find suppert in Abood.

An examination of Abood, however, suggests that

such support is tenuous at best. There the Court

addressed the question of an appropriate remedy if the

plaintiffs proved their allegations that their payments to

the union had been used for political or ideological pur-

poses. It noted with approval the remedies suggested in

Street and in Railway Clerks v. Allen, 373 U.S. 113

-50a-

(1963), namely. an injunction against expenditures for

political causes of the moneys paid by objecting non-

member emplovees and restitution of an appropriate

fraction of the sums paid representing expenditures for

political purposes.

In Abood, after the commencement of litigation, the

union had adopted a plan whereby a dissenting employee

who filed a protest against political expenditures was

entitled to a pro rata refund of his service charge in

accordance with the calculation of the portion of total

union expenses for the specified purposes. The calcula-

tion was made by the union in the first instance, but was

Subject to review by an impartial board. In view of that

development the Supreme Court, upon remanding the

case, suggested that “[i]n view of the newly adopted

Union internal remedy, it may be appropriate under

Michigan law, even if not strictly required by any doc-

trine of exhaustion of remedies, to defer further judicial

proceedings pending the voluntary utilization by the par-

ties of that internal remedy as a possible means of set-

tling the dispute”. Jd. at 242. In a footnote the Court

stated, “We express no view as to the constitutional suf-

ficiency of the internal remedy described by the appel-

lees. If the appellants initially resort to that remedy and

ultimately conclude that it is constitutionally deficient in

some respect, they would of course be entitled to judicial

consideration of the adequacy of the remedy.” /d., n.45,

p. 208. This is hardly an endorsement of the constitu-

tionality of a demand and return system.

Justice Stevens’ concurring opinion confirms that

Abood left open the question of the constitutionality of

any demand and return system:

By joining the opinion of the Court, including its

-5la-

discussion of possible remedies, I do not imply—nor

do I understand the Court to imply—that the reme-

dies described in Machinists v. Street, 367 U.S. 740.

and Railway Clerks v. Allen, 373 U.S. 113, would

necessarily be adequate in this case or in any other

case. More specifically, the Court’s opinion does

not foreclose the argument that the Union should

not be permitted to exact a service fee trom non-

members without first establishing a procedure

which will avoid the risk that their funds will be

used, even temporarily, to finance ideological activi-

ties unrelated to collective bargaining. Any final

decision on the appropriate remedy must await the

full development of the facts at trial.

Id. at 244.

In a recent decision the Court of Appeals for the

Ninth Circuit relied upon Abood for the proposition that

“The rebate remedy formulated to avoid statutory viola-

tions was thus approved to protect against constitutional

violations as well.” Ellis v. Brotherhood of Railway and

Airline and Steamship Clerks, F.2d y (9th

Cir. 1982) (Docket Nos. 80-5562, 5603). Relying upon

that proposition the Court sustained the district court’s

finding that the union’s rebate pian protected from con-

stitutional attack the Brotherhood’s union shop agree-

ment and the resulting use of dues of dissenting members

for political and ideological purposes. In light of foot-

note 45 in Abood’s majority opinion and in light of Jus-

tice Stevens’ comments in his concurring opinion, it

appears to me that the major premise for the Ninth Cir-

cuit’s conclusion is flawed.

I set forth in some detail in the findings of fact in this

-52a-

case the efforts which various of the plaintiffs expended

in an attempt to pursue the demand and return system

contemplated by the New Jersey statute. Were it not

apparent from the face of the statute, it certainly

becomes apparent when one reviews these facts that the

demand and return system created by N.J.S.A. 34:13A-

5.6 imposes heavy burdens on a non-member who pays a

representation fee to a multi-tiered union. Even though

the burden of proof is on the union, that initial burden

can be readily met, as it was in the case of the AAUP

and education association proceedings in this case. In

each case very simple and conclusory statements as to

expenditures were submitted by each union tier—two

tiers in the case of AAUP, four tiers in the case of the

education associations. Confronted with such a showing,

the non-members must then go behind those statements

to test not only the propriety of the accounting invo!ved

but also the assumptions which were made in allocating

expenses to member-only benefits, partisan political

activities, and varying kinds of lobbving activities. This

the non-members must do before the internal union

bodies and then before an administrative law judge.

They must proceed before the Appeal Board after the

administrative law judge makes his findings and recom-

mendations and they are confronted with an appeal to

the Appellate Division of the Superior Court of New

Jersey and possibly to the New Jersey Supreme Court.

This system does not prevent “compulsory subsidiza-

tion of ideological activity by employees who object

thereto”, Abood, at 237. Unless a public interest law

firm represents the non-members as in the present cases,

a non-member could not be expected to expend the time

and money required to recover that portion of his repre-

-S3a-

sentation fee used for political or tdeological purposes.

See Railway Clerks v. Allen, supra, at 118.

The defendants urge that limiting the representation

fee to 85% of a member’s dues and assessments 1s a prac-

tical guarantee that a non-member’s fees will not be used

for improper purposes. There might be some merit in

this contention if only expenses of the local bargaining

representative were involved and if, in advance of the

collection of the representation fee, there was available a

detailed budget showing receipts and expenditures of the

local organization. That is not the case here, however.

In the AAUP situation there is a tri-partite local associa-

tion covering the Camden, New Brunswick and Newark

campuses and over it there is a very large national organi-

zation with headquarters in Washington, D.C. In the

education association situation there are relatively mod-

est local and county associations functioning under the

umbrella of large and powerful state and national organi-

zations. To assume that membership-only expenses and

political, ideological and lobbying expenses of each of

those organizations total 15% or less of pertinent total

expenses requires an exercise of faith which should not

be required of plaintiffs.

The fault inherent in the New Jersey statutory system

is that it shifts the burden to the wrong party and in so

doing, as a practical matter, it either permits non-con-

sensual expenditures for political and ideological pur-

poses or else it creates a situation where it cannot be

ascertained without intolerable efforts whether such ex-

penditures have been made.

I do not believe anything in Abood permits this result.

-S4a-

One highly respected state court has so held. School

Committee of Greenfield v. Greenfield Education Asso-

clation, Docket No. SJC-2442 (Sup.Jud.Ct. Mass. Jan.

14. 1982).

In Greenfield the Court dealt with a rebate procedure

established under a statutorily authorized collective bar-

gaining agreement which required teachers who were not

Association members to pay an agency service fee to the

Association commensurate with the cost of collective

bargaining and contract administration as determined by

the Association. The service fee for the year in question

was $153; dues in that year were $158. There was no

dispute that a portion of the $153 was used for social.

political and speech activities of the Association. The

School Committee instituted suit against the Education

Association and two teachers who refused to pay the

service fee, seeking a declaratory judgment as to whether

it could dismiss the teachers without violating the statu-

tory and constitutional rights of the teachers.

The Massachusetts statute authorizing the payment of

a service fee as a condition of employment required that

the employee organization receiving the fee establish “a

procedure by which any employee so demanding may

obtain a rebate” of the portion of the fee which involves

expenditures by the “organization or its affiliates” of

moneys for political, social, or charitable purposes.

Mass. General Laws c. ISOE, § 12, as amended by St.

1977, c. 903. The Association urged that the rebate

procedure met the requirements of Abood. The teachers

argued that the rebate procedure infringed on their rights

in two ways: “first, it would deny them due process of

law if the initial decision on fee allowability is made by

-55a-

the association. which has an obvious stake in the con-

troversy: and second, it would violate their First

Amendment rights if they must first pay the entire

amount to the association, allowing it to use the funds in

the interim for social, political, and speech activities, and

depriving them of the use of the funds for their own

expressive activities”. J/d., Slip Op. 11, 12.

The Court described the rebite procedures available to

the teachers in that case. The procedures were similar to

the procedures required by the education associations in

the present case, although in Greenfield there were three

instead of four tiers of education associations. The

Court concluded that “[t]he procedures appear not only

cumbersome but designed to discourage all but the most

zealous employee”. /d., Slip Op. 11, n.4. The Massa-

chusetts statute did not create an Appeal! Board to which

an employee could appeal an adverse determination of

the Association. Such an appeal introduces impartiality

into the proceedings and adds to their cumbersomeness.

In Greenfield the Court held that:

Mandating resort to the rebate procedure here

would produce a further constitutional difficulty

because of the requirement that the entire fee be

paid to the association pending proof of legitimacy.

This interim payment, as the teachers contend, not

only deprives them of the opportunity to engage in

expressive activities with those funds but aiso forces

them to subsidize the objectionable activities of the

organization. Justice Stevens wrote a concurring

opinion in Abood primarily to warn against any

implication that employees could be forced to sub-

sidize, even temporarily, activities they found objec-

-56a-

tionable. Abood, supra at 244. We agree: the

teachers shouid not be required to suffer an interim

constitutional deprivation, while the association is

deprived only of funds to which it is entitled by stat-

ute and agreement.

We find unpersuasive those cases which uphold a

requirement that the fee be paid to the organization

pending a determination, judicial or otherwise, of

the permissible amount. See White Cloud Educ.

Ass'n v. White Cloud Bd. of Educ., 101 Mich. App.

309 (1980); Browne v. Milwaukee Bd. of School

Directors, 83 Wis.2d 316, 335-340 (1978).

Id., Slip Op. 17, 18.

The Court further held that as a matter of statutory

interpretation the Massachusetts statute gave the dissent-

ing employee the option of using the rebate procedure or

bringing a complaint before the Labor Relations Com-

mission:

We conclude that § 12 does not require dissenting

employees to pay the disputed fee to the association,

pending adjudication. ... The [Labor Relations]

Commission may require the employee to pay the

disputed fee into an escrow account, but may not

require that it be paid to the organization until the

Commission has determined the permissible fee.

Once the employee has brought a complaint, the

burden of justifying the fee as permissible must rest

on the organization.

Id., Slip Op. 19.

The facts in the Greenfield case differ from the case at

-57a-

hand in two important respects. First, in Massachusetts

there was no provision for the employer to withhold

from the teacher’s salary the representation or service fee

as there is in New Jersey. Thus the New Jersey teacher

does not have the option available to the Massachusetts

teacher of preventing use of his money for impermissible

purposes by not paying the fee. Second, under the New

Jersey statute there does not appear to be any alternative

to the cumbersome statutory rebate procedure. These

differences make it even more difficult to square the New

Jersey statute with the United States Constitution.

I am of the opinion that Greenfield was a reasoned

and correct application of Abood to a situation having

significant similarities to the present case. Applying

Abood and the same reasoning to the present case

requires a holding that N.J.S.A. 34:13A-5.5 and 5.6 vio-

late plaintiffs’ constitutional rights in that (i) these statu-

tory provisions permit labor organizations to receive and

use plaintiffs’ representation fees for political. ideological

and impermissible lobbying purposes over plaintiffs’

objections, and (ii) the demand and return system pur-

portedly designed to enable plaintiffs to recover the por-

tion of their representation fees used for political, ideo-

logical and impermissible lobbying purposes does not

avoid or cure the improper use of representation fees

because it is extraordinarily cumbersome and places

heavy burdens upon a claimant.

In Opinion of the Justices, 401 A.2d 135 (Sup. Jud.

Ct. Me. 1979), the Court rendered an advisory opinion

that an agency fee of 80% of union dues would be valid

absent a prior evidentiary hearing, although the fact that

such a fee was fixed by a collective bargaining agreement

-58a-

would not make the amount conclusive upon a non-

member who puts the amount in issue in an appropriate

judicial proceeding. I am not at all sure that, faced with

the facts of the present case and not an abstract ques-

tion, the Justices of the Supreme Judicial Court of

Maine would uphold the validity of the representation

fee set without prior evidentiary hearing in this case.

The demand and return system in the present case

differs significantly from the refund system which was

upheld in Ay. Educators, Etc. v. Ky. Registry, Etc., 677

F.2d 1125 (6th Cir. 1982). There a teacher not only had

the right to claim a refund of dues and political contri-

butions deducted from his salary; he had the right to

prevent deductions for political purposes by notifying the

school district. The demand and return system in the

present case more closely resembles the plan which was

disapproved in Federal Election Commission v. National

Education Association, 457 F. Supp. 1102 (D.D.C.

1978). There the check-off system for political funds was

held to violate the Federal Election Campaign Act of

1971 because it required any member who did not wish

to contribute to submit a separate written request for

refund and did not enable such member to prevent the

deduction. The Court held that the system placed an

undue burden on the dissenter—a very mild burden in

comparison with the dissenter’s burden in the present

case. Cf. Arrow v. Dow, 51 U.S.L.W. 2065 (D.N.M.

1982) (use of dues of integrated bar for lobbying

purposes).

The recent opinion of the Court of Appeals for the

Third Circuit in Galda v. Bloustein, Docket No. 81-2433

(Aug. 4, 1982), is instructive. The plaintiffs in Galda,

-59a-

Rutgers students, filed suit alleging that their First and

Fourteenth Amendment rights had been violated by the

University’s requirement that they pay a refundable fee

to support the New Jersey Public Interest Research

Group (PIRG), an organization which engaged in politi-

cal and ideological activities with which plaintiffs dis-

agreed. The district court granted summary judgment

upholding the PIRG funding arrangement because it

contained a refunding mechanism. Galda v. Blousiein,

516 F. Supp. 1142 (D.N.J. 1981). The refunding arrange-

ment was the ultimate in simplicity. All a student was

required to do was to submit a “Refund Request” form

to PIRG. PIRG then ascertained that the claimant was

a Rutgers student and had paid the fee. It issued a

check directly to the student. The entire process from

request to refund took only several months.

The Court of Appeals reversed, holding that if, im fact,

the exaction of the fee was unconstitutional the refund

provision would not be adequate to cure the defect. The

case was remanded to the district court for a ruling on

the constitutionality of the mandatory fee. That, in turn,

hinged upon the controverted issue whether there was a

compelling state interest justifying this impingement

upon plaintiffs’ constitutional rights.

The Court referred to the Abood case and noted that

“(w]e need not decide today whether, in a situation iden-

tical to that in Abood, a refund mechanism would be

sufficient to cure am otherwise unconstitutional fee

assessment”. Slip Op. at 20. However, observations of

the Court suggest that it would not approve the refund

system established in N.J.S.A. 34:13A-5.6.

-6UVa-

The Court pointed out that in Ahvod the Supreme

Court tound that there was a compelling state interest in

labor peace, fostered by the collective bargaining process,

and that this interest “was deemed sufficiently compelling

to justify some intrusion on the employees’ rights to

associate”. Slip Op. at Il. This justified compulsory

fees to nev for collective bargaining, contract administra-

tion and grievance adjustment. The Court went on to

observe that “{e]xtraneous activity in the political sphere,

however, could not be so justified; thus, any political

expenditures ‘not germane to [the union’s] duties as col-

lective bargaining representative’ could not be financed

from fees paid by those who affirmatively objected to the

union's ideological viewpoint. 431 U.S. at 235” Slip Op.

at 11.

The present case differs from Galda in at least one

significant respect. In Galda it was conceded that the

student fee at issue was used for political and ideological

purposes. In the present case, at least some portion of

the fees paid by plaintiffs are used for lawful purposes—

to pay the non-members’ share of collective bargaining,

contract administration and grievance expenditures.

Fach union tier makes member-only expenditures and

each makes political, ideological and lobbying expendi-

tures. Plaintiffs are asked to accept on little more than

faith that these expenditures at each tier do not exceed

15% of total expenditures and that, therefore, no portion

of the representation fee (which is limited to 85% of

union dues and assessments) is used by any level of the

unions for impermissible purposes. The unions are not

required to make any advance showing that the fees are

in an amount required for permissible purposes, and the

reality of the situation is such that non-members do not

-6la-

have a viable procedure to determine after the fact

whether their fees were used only for permissible pur-

poses. This, I think, creates an insupportable situation.

To take a non-member’s involuntary fee under circum-

stances where the non-member does not know in ad-

vance of payment and is unable to ascertain after pay-

ment whether the fee is used for political and ideological

purposes which he opposes cannot be squared with the

First Amendment.

As described above, the demand and return system

created by the New Jersey statute places such heavy

burdens on the objecting non-member and takes such an

inordinately long time to complete, that in reality it does

not constitute a system by which a non-member can re-

cover that portion of the fees paid by him which is used

for impermissible purposes. This burdensome demand

and return system is in marked contrast to the very sim-

ple and effective system which in Galda the Court found

inadequate to protect constitutional rights.

When confronted with the realities of union financing

in this case, particularly in view of the fact that we are

dealing with multiple tiers of unions, it becomes appar-

ent that a demand and return system cannot protect a

non-member’s First Amendment rights. Those rights can

be protected only if there is an advance determination of

the amount to which the unions are entitled for collective

bargaining services and only if the enforced payments are

limited to those amounts.

From the conclusions set forth above, it follows that

plaintiffs are likely to prevail on the merits.

-62a-

B. Other Equitable Considerations

It becomes necessary to determine whether plaintiffs

have established the other elements which are a prerequi-

site to granting a preliminary injunction.

Plaintiffs are suffering and, unless relief is granted, will

continue to suffer deprivations of their First Amendment

rights. The statute in question permits unions to collect

fees and use them for certain impermissible lobbying

expenses with no right in non-members to obtain a

refund of their fees used for those purposes. Further,

the statute permits the unions to use the involuntary fees

of non-members for political and ideological purposes

with a right to demand a refund through proceedings so

onerous that they are unusable. The fact that each

plaintiff's monetary stake is small does not render the

deprivation of a constitutional right less important.

Fuentes v. Shevin, 407 U.S. 67 (1972); Sniadack v. Fam-

ily Fin. Corp. of Bay View, 395 U.S. 337 (1969).

The education association defendants and the AAUP

defendants have no legitimate interest in receiving funds

for purposes other than collective bargaining, contract

administration and grievance processing.

The public and the education association and AAUP

defendants have an interest in protecting the integrity

and continued functioning of the collective bargaining

process. To the extent that this depends upon payment

of a fair share by non-members, they have an interest in

the continued payment of the portion of the representa-

tion fees applicable to that process.

The public has an interest in insuring that public em-

-63a-

ployees are not deprived of their First Amendment rights.

Balancing these interests precludes an immediate blan-

ket injunction forbidding the collection of all representa-

tion fees until procedures meeting constitutional stan-

dards are adopted. JI/nternational Ass'n of Machinists v.

Street, 367 U.S. 740, 775 (1961). However, further

balancing these interests requires that plaintiffs be

accorded certain preliminary injunctive relief which will

minimize the injury inflicted upon them pending a final

hearing and until a valid representation fee system can

be established.

C. Preliminary Relief

The first constitutional defect in the New Jersey stat-

ute is the permission it gives to representatives of public

employees to use non-member fees over the non-

member’s objections for lobbying purposes over and

beyond lobbying designed to secure agency or legislative

action required to implement a collective bargaining

agreement. The AAUP defendants and the education

association defendants will be preliminarily enjoined

from using any portion of plaintiffs’ representation fees

for lobbying other than lobbying to secure such action.

Further, those defendants will be ordered to include in

any computations which they make of amounts refund-

able to plaintiffs any portion of plaintiffs’ representation

fees used for impermissible lobbying authorized by the

New Jersey statute.

The second constitutional defect of the New Jersey stat-

ute rests in its permitting public employee unions to use

-64a-

representation fees tor political and lobbying purposes

and its attempt to cure this deprivation by providing a

demand and return system which is unduly burdensome.

An examination of the rather voluminous factual record

in this case suggests that ultimately the only cure for this

unconstitutional deprivation of constitutional rights will

be to shift the burden of establishing a proper represen-

tation fee from the individual non-members (where in

effect the burden now lies) to the AAUP and education

association defendants who receive the payments and

have readily available to them both the financial resources

and the accounting data required to do this work. The

more one examines the facts and the realities of the

Situation the more one becomes convinced that the

potential for serious constitutional deprivations will exist

unless the organizations receiving the fees are required to

establish in advance of payment the amount required to

reimburse them for services rendered for collective bar-

gaining, contract administration and processing griev-

ances. The burden must be on them to establish this

amount with detailed financial and other appropriate

data which satisfies some impartial body capable of ana-

lyzing the data.

To enjoin payment of all representation fees until

some such system is established might injure the collec-

tive bargaining process. To avoid that result such an

injunction will not be issued at this time. An order will

be entered, however, requiring that the portions of the

representation fees paid by plaintiffs going to National

AAUP and to the New Jersey Education Association

and the National Education Association shall be placed

in escrow with a third party and held until further order

of the Court. These state and national organizations are

-65a-

less directly involved in the collective bargaining vrocess

and will, in any event, be unlikely to feel anv substantial

impact as a result of their inability to use their portions

of plaintiffs’ fees. The Rutgers Council of AAUP and

the local and county education associations are more

directly involved in the collective bargaining process and

may require their portions of the representation fees in

order to perform their important functions. The record

Suggests that they are much less likely to engage in

extensive political and lobbying activities than the state

and national organizations and, therefore, it is less likely

that the moneys they receive from plaintiffs will be used

for those purposes. They will not be prohibited at this

time from receiving their portions of plaintiffs’ fees.

I appreciate that the loss of plaintiffs’ representation

fees will not critically affect the operations of any of the

tiers of the organizations involved in this case, but in

shaping the order to be entered I take into account the

possibility that other non-memters may seek similar

relief.

The order will also provide that if a final hearing has

not been held within six months, and if within that time

there has not been established a representation fee sys-

tem meeting constitutional requirements, plaintiffs may

apply for additional injunctive relief.

Plaintiffs’ attorneys are requested to submit to me and

circulate among the other parties a proposed form or

forms of order implementing this opinion on or before

October 4, 1982. If there is disagreement as to the form,

a hearing will be held at 2:00 p.m. on October 18, 1982

-66a-

to settle the form of order.

Dated: September 28, 1982.

/s/ Dickinson R. Debevoise

Dickinson R. Debevoise

United States District Judge

-67a-

_. APPENDIX A-2

Order of the U.S. District Court

Granting Preliminary Injunction in

Antonacci/ Robinson v. State of New

Jersey, October 19, 1982.

-68a-

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JOSEPH W. ANTONACCI, et al., Civil Action

seas No. 82-1119

Plaintiffs, _ consolidated with

V. * Civil Action

: No. 82-1118.

STATE OF NEW JERSEY, et ai., Dickinson R

Defendants. ' Debevoise

sdsihareinensepiailnaiasesinte ccemmemomeeceecnenne To 00S

PAUL H. ROBINSON, et al., . District Judge

Plaintiffs,

- ORDER GRANT-

v. . ING PRELIMI-

; ’ NARY INJUNC-

STATE OF NEW JERSEY, et ai., - TION

Defendants. . October 19, 1982

This cause came to be heard on plaintiffs’ motion for a

preliminary injunction, and the Court having considered

the verified complaints, answers, affidavits and exhibits

submitted by plaintiffs and defendants, the memoranda

of points and authorities in support of the motion sub-

mitted by plaintiffs, the briefs and memorandum of law

in opposition to the motion submitted by defendants,

and the Court having heard oral argument on the 10th

day of June, 1982, the Court having made its findings of

fact and conclusions of law as set forth in its opinion of

September 28, 1982, IT IS ORDERED;

1. The AAUP defendants and the Education Associa-

tion defendants are preliminarily enjoined from using

any representation fees hereinafter paid by plaintiffs for

lobbying purposes other than lobbying by the majority

representative specifically to secure agency or legislative

-69a-

action required to implement the collective bargaining

agreement.

2. The defendants, National Education Association,

New Jersey Education Association and the National

American Association of University Professors are pre-

liminarily enjoined from using any portion of representa-

tion fees hereafter paid by plaintiffs and received by said

defendants for any purpose whatsoever other than to

place such fees in escrow as set forth below.

3. The AAUP defendants and the Education Associa-

tion defendants, their officers, agents, servants, employees

and attorneys are ordered to place in escrow accounts

mutually agreed upon by the parties (or, absent such

agreement, designated by the Court) all representation

fees hereafter collected from plaintiffs which would,

under formulas previously established by the Education

Association and AAUP defendants, be transmitted to the

National Education Association, New Jersey Education

Association and the National AAUP. Said funds may

not be released without further order of this Court.

4. If a final hearing in this matter has not been held

within six months and if within six months there has not

been established a statutory representation fee system

meeting constitutional requirements, plaintiffs may apply

for additional injunctive relief.

5. Within sixty days of the date of this order defen-

dants other than The Honorable Thomas H. Kean and

Mr. James W. Mastriani shall serve upon the plaintiffs

and file with the Court a statement or statements setting

forth what steps they have taken or propose to take in

-70a-

order to bring the representation fee system into corn-

pliance with constitutional requirements, including pro-

posed statutory changes and changes in their systems of

establishing the amount of representation fees which can

lawfully be collected from employees who object to their

use for purposes other than collective negotiations, con-

tract administration and processing of grievances.

6. The question of an interim award of disbursements

and attorney fees pvrsuant to Fed. R.Civ. P. 54(d) and 42

U.S.C. § 1988 will be deferred until a later date.

Dated: October 19, 1982.

is) Dickinson R. Debevoise

Dickinson R. Debevoise

United States District Judge

-7 la-

APPENDIX A-3

Opinion of the U.S. District Court

in Olsen v. CWA, March 16, 1983.

-72a-

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

ALLEN OLSEN. et al., Civil Action

Plaintiffs, No. 82-3443

Vv.

OPINION

COMMUNICATIONS WORKERS

OF AMERICA (CWA), et al., March 16, 1983

Defendants. Debevoise, District Judge

Plaintiffs, employees of the State of New Jersey who

are not members of the union which is the majority

representative of their employment unit, instituted this

action attacking the validity of N.J.S.A. 34:13A-5.5 and

5.6. These statutory provisions permit a public employer

and a majority representative to include in a collective

bargaining agreement provisions requiring non-members

to pay a representation fee to the union. Plaintiffs also

assert that they have been deprived of First Amendment

rights to oppose implementation of the statute and to

seek to persuade other State employees to join them in

their opposition.

Defendants are Communications Workers of America,

AFL-CIO (“CWA”) (the majority representative), CWA

District 1, CWA Locals 1031, 1032, 1033, 1034, 1037,

1038, 1039 and 1040, the State of New Jersey and Thomas

H. Kean, Governor of the State of New Jersey.

In their complaint, plaintiffs seek to be designated

representatives of a class pursuant to Fed.R.Civ.P.

23(b)(2) and (b)(3). The class is asserted to consist “of

all public employees represented by CWA’s locals, but

-73a-

who exercised their right not to be a member of defen-

dant union and, therefore, have paid, and are paving, a

representation fee pursuant to [N.J.S.A. 34:13A-5.5 and

5.6].” Plaintiffs seek injunctive and declaratory relief,

nominal and punitive damages, and attorneys fees and

expenses of suit.

On December 6 and 7, 1982, a hearing was held on

plaintiffs’ application for preliminary injunctive relief.

Decision was reserved. Thereafter, plaintiffs’ motion for

class certification was denied for the reason that the

positions and interests of non-members of the union are

likely to be diverse and for the reason that the principal

objective of a class action can be realized by treating this

as a test case. This opinion constitutes my findings of

fact and conclusions of law upon the preliminary injunc-

tion application.

FINDINGS OF FACT

A. The Statute: The statutory provisions which are

applicable in this case are described in the opinion in

Robinson v. State of N.J., 547 F. Supp. 1297, 1299-1301

(D.N.J. 1982).

B. The Majority Representative: CWA is a national

labor organization which has established Districts as ge-

ographic subdivisions. The Districts are staffed and fi-

nanced as divisions of the national union and are not in-

dependent organizations.

The national union charters local unions which are

separate organizations, electing their own officers and

setting their own budgets. Under the CWA constitution,

-74a-

collective bargaining within the established bargaining

units must be conducted under the direction of the CWA

Executive Board, and all contracts and agreements en-

tered into must be in the name of the national union.

In March 1981, CWA was certified as the majority

representative for a State-wide unit of Administrative

and Clerical State Employees. In August 1981, CWA

was certified as the majority representative for three

additional State-wide bargaining units consisting of Pro-

fessional Employees, Primary Level Supervisors and

Higher Level Supervisors. Eight State Locals were char-

tered by CWA for the purpose of representing employees

in the four bargaining units—Locals 1031, 1032, 1033,

1034, 1037, 1038, 1039 and 1040. The Locals are not the

certified bargaining representatives. Rather, as men-

tioned above, the CWA national union is the collective

bargaining representative and signs all collective bargain-

ing agreements.

Plaintiff Anderson is employed within Local 1032’s

jurisdiction (Department of Transportation and New Jer-

sey Public Broadcasting Authority). Plaintiff Lang is

employed within Local 1034’s jurisdiction (Departments

of Environmental Protection, Health, and Labor and

Industry employed in Mercer County). Plaintiffs Olsen,

Smartt and Harrington are employed within Local 1039’s

jurisdiction (Departments of Human Services, Correc-

tions and Parole and Community Affairs employed in

designated counties). Plaintiff Yull is not an employee in

a CWA bargaining unit and, unlike the other plaintiffs,

has not paid representation fees.

CWA and the State of New Jersey entered into nego-

-75a-

tiations and in October 1981 the negotiations resulted in

four two-year collective bargaining agreements (one for

each bargaining unit), retroactive to July 1, 1981.

Article II, Section B(2) of each contract provides for

the deduction of a representation fee in lieu of dues from

the regular paychecks of non-union members in the re-

spective units. Deductions commenced on or about July

12, 1982. The amount of the deduction is determined as

follows:

b. Amount of Fee

Prior to the beginning of each contract year, the

Union will notify the State in writing of the amount

of regular membership dues, initiation fees and as-

sessments charged by the Union to its own mem-

bers for that contract year, and the amount of the

representation fee for that contract year. Any

changes in the representation fee structure during

the contract year shall be in accordance with B.1.d.

above.

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, but in no event shall such fee exceed 85%

of the regular membership dues, fees and assess-

ments.

CWA member dues were set at an amount equal to

two hours pay. Dues and representation fees are for-

warded directly to national CWA. National CWA re-

-76a-

tains 40% of the funds: it places 50 cents for each em-

ployee into a CWA Defense Fund; and it remits the bal-

ance of almost 60% to the locals. It will be noted that

(subject to the 85% limitation) the representation fee is

to be an amount equal to regular member dues, initia-

tion fees and assessments less the cost of member only

benefits but nor less the amounts spent for activities of a

partisan or political or ideological nature. This, of

course, iS consistent with the New Jersey statutory provi-

sion permitting representation fees.

Article II, Section B(2) of each contract also provides

for the creation of a Demand and Return System:

d. Demand and Return System

The representation fee in lieu of dues only shall

be available to the Union if the procedures hereafter

are maintained by the Union.

The burden of proof under this system is on the

Union.

The Union shall return any part of the representa-

tion fee paid by the employee which represents the

employee's additional pro rata share of expenditures

by the Union that is either in aid of activities or

causes of a partisan political or ideological nature

only incidentally related to the terms and conditions

of employment, or applied toward the cost of other

benefits available only to members of the majority

representative.

The employee shall be entitled to a review of the

amount of the representation fee by requesting the

Union to substantiate the amount charged for the

representation fee. This review shall be accorded in

-77a-

conformance with the internal steps and pr cedures

established by the Union.

The Union shall submit a copy of the Union re-

view system to the Office of Employee Relations. The

deductic.. vi the representation fee shall be available

only if the Union establishes and maintains this

review system.

If the employee is dissatisfied with the Union's

decision, he may appeal to a three-member board

established by the Governor.

C. Details of the Demand and Return System: In

contrast to the Demand and Return System described in

Robinson v. State of N.J., supra, CWA has established a

highly sophisticated method for determining what ex-

penditures are reimbursable, what expenditures are not

reimbursable and how to apportion expenditures which

are for both reimbursable and non-reimbursable items.

Under the New Jersey CWA Demand and Return Sys- |

tem, an employee seeking reimbursement must submit a

request in writing to CWA’s secretary-treasurer in Wash-

ington, D.C. Upon receipt of the request, 40 percent of

the payments received from the objecting fee payer is

placed in an escrow account to be held until a rebate is

paid to the objector and any dispute concerning the

amount of the rebate has been resolved. The account

bears interest at 5.25% annually and rebates to objectors

include interest at this rate for the period their money is

held. For the fiscal year ended September 30, 1982.

CWA received more than 2000 rebate requests from

workers employed by the State of New Jersey and rep-

resented by CWA.

-78a-

The CWA Executive Committee determines the amount

of the union’s rebatable activities for the vear on the

basis of the calculation described below and on the basis

ot data which the CWA locals representing New Jersey

State employees forward to the Executive Committee.

The Executive Committee is required to make its deter-

mination by the January | following the close of the fis-

cal year.

Along with any rebate payment, an objector receives

an explanation of the calculation and a copy of the pol-

icy statement explaining the appeals procedure. A fee

payer who is dissatisfied with the amount of the rebate

may appeal to an impartial hearing officer operating

under the rules of procedure of the CWA Review Board,

or he may appeal directly to the Appeal Board created

by the New Jersey statute or he may appeal first to the

CWA hearing officer and then to the New Jersey Appeal

Board.

Effective February 13, 1981 CWA created a Public

Review Board to decide complaints by members and

non-members of CWA about rebates of sums paid to the

union under union or agency shop contract provisions.

The initial members of the Board were the Chairman of

the Georgetown University Law Center, the President of

Hunter College. and the minister of Peoples’ United

Church of Christ in Washington, D.C. CWA adopted

detailed rules governing the filing of appeals with the

Board and the procedures to be followed at hearings by

the Board.

As mentioned above, CWA has developed a sophisti-

cated procedure for determining reimbursable expendi-

-79a-

tures and non-reimbursable expenditures and for appor-

tioning expenditures which are devoted to both reimburs-

able and to non-reimbursable items. The necessity for

developing this procedure arose in the course of an

action in the United States District Court in Maryland in

which Maryland employees of American Telephone and

Telegraph Company and of Chesapeake and Potomac

Telephone Company who had paid agency fees sought

reimbursement for expenditures not made for collective

bargaining, contract administration and grievance adjust-

ment. Beck v. Communications Workers of America.

Civil Action No. M-76-839. On May 3, 1979, the court

referred the matter to Special Master Wilson K. Barnes.

The Special Master filed his Report on August 18, 1980,

ruling that CWA was entitled to retain 19% of its expen-

ditures and was required to reimburse to the plaintiffs in

that case 81% of its expenditures.

After the Special Master issued his Original Report,

CWA and various local unions moved to recommit the

matter to the Special Master to make additional findings

on the basis of new evidence assembled by CWA. The

motion was granted and the Special Master took addi-

tional testimony and received new exhibits. In his Sup-

plemental Report the Special Master stated, “[t]he

Defendants [CWA and various locals] have also accepted

the holding that the record-keeping and bookkeeping

methods of the Defendants before the filing of the Origi-

nal Report were not adequate to enable them in a

number of instances to meet the required burden of

proof by clear and convincing evidence, and generally

accept the method of calculations used by the Special

Master in reaching the results in the Original Report. It

is recognized that the 19 percent of permissible expendi-

-80a-

tures (and 81 percent of nonpermissible expenditures)

continue in effect until the Defendants are able to meet

their burden of proof by clear and convincing evidence

that other percentages are appropriate.”

CWA sought by its additional evidence to show that it

had developed a methodology which enabled it to estab-

lish a different (and higher) percentage of expenditures

which it was entitled to charge to non-members in the

form of agency fees. The new evidence consisted of tes-

timony of and exhibits prepared by experts. The data

which CWA has presented in this action are a somewhat

modified version of the data presented to the Special

Master.

CWA retained Edward C. Bryant, Chairman of the

Board of Westat, Inc., a scientific survey research organ-

ization. He developed a system of time recording which

would be capable of producing estimates of “retainable,

nonretainable and administrative time for the employees

of CWA.” He also collected data by sampling proce-

dures, developed forms and engaged in pretesting the

data collections. The work which he performed and

submitted to the Special Master is described in the Sup-

plemental Report of the Special Master. This work and

certain additional work which he and his firm performed

after the Special Master issued his Supplemental Report

are described in his affidavit filed in the present action.

Counsel for CWA had provided Bryant with a list of

25 descriptive categories of activities in which CWA

engaged. '

The Special Master’s Supplemental Report listed the categories pro-

-8la-

The Westat Report allocated the 25 descriptive categories

set forth in footnote No. | to five major categories:

|. Retainable (Nos. 1-9); 2. Other Retainable (Nos. 15

and 23): 3. Administrative (Nos. 10-13). The allocation

of time in this category was to be made on the basis of

the allocation of the nonadministrative time of each dis-

trict or department; 4. Allocable (Nos. 6, 16, 20, 22 and

25). CWA contended that if the portion of the allocable

activity was directly related to the working lives of CWA

represented employees, it would be retainable and if the

portion of the allocable activity was related to the every-

day lives of CWA represented employees as citizens

generally, it would be nonretainable; 5. Nonretainable

(Nos. 14, 17, 18, 19 and 24).

Given these descriptive categories and major categories

Westat devised the system described in the Bryant affi-

davit for determining and analyzing time spent by CWA

employees on their various tasks so as to provide a basis

vided to Brvant and used in the Westat Report as follows:

1. Formulating contract proposals, contract negotiations. and contract

ratification; 2. Handling questions and complaints about working con-

ditions, benefits and contract rights; 3. Handling grievances and arbi-

trations; 4. Other meetings, phone calls, etc. with company representa-

tives: §. Reading or discussing background information and news re-

lated to wages, working conditions, etc.; 6. Government agency, board

or regulatory body matters; 7. Demonstrations, leafletting, strikes

about CWA wages, working conditions, etc.; 8. Steward meetings or

training: 9. CWA schools; 10. CWA conventions or monthly, area, etc.

meetings; 11. CWA local union meetings; 12. Local union admunistra-

tion; 13. Office management and administration; 14. Meetings or con-

ventions of other labor organizations; 15. Organizing: 16. Legislative

activities: 17. Registration and get out the vote activity, 18. COPE

fundraising; 19. Other political activity; 20. Community service activ-

ity; 21. Time off—e.g., sick time, vacation; 22. CWA publications; 23.

Public relations; 24. International affairs; 2S. Other.

-82a-

for estimating reimbursable (nonretainable) and non-

reimbursable (retainable) time.

Harvey J. Nuland, a certified public accountant with

the firm of Buchbinder, Stein, Tunick & Platkin, also

appeared as a witness before the Specia! Master. Nuland

and his firm had been retained by CWA to recommend a

system of apportionment that would distribute or catego-

rize CWA’s expenditures as reflected in its accounting sys-

tem as reimbursable or nonreimbursable. The systems

devised by Nuland are described in the Special Master's

Supplemental Report and in Exhibits J and K to the

affidavit of Emanuel Saxe filed in the present action.

Nuland recommended, among other things, that the

Salaries of the 17 elected Executive Board members of

CWA be considered as retainable and not subject to

apportionment.

CWA also retained Dr. Emanuel Saxe, a certified pub-

lic accountant and professor. He was asked to review

the reports prepared by Nuland’s firm and to determine

their compliance with accepted cost allocating standards

and thereafter to devise a prograra based on those stan-

dards which, when applied to the audited financial

statements of CWA would yield data that would disclose

the amount of retainable expenses and the amount of

non-retainable expenses. Dr. Saxe devised such a pro-

gram. It is described in the Special Master’s Supplemen-

tal Report and in the Saxe affidavit filed in this action.

Plaintiffs in the Maryland District Court action also

produced expert witnesses who challenged certain of the

methods and conclusions of CWA’s experts. It is unnec-

essary for present purposes to go into the details of

-83a-

their opinions. Suffice it to say, they appeared to be as

experienced and competent as CWA’s very experienced

and competent experts.

The Special Master reviewed the evidence and arrived

at a number of conclusions. Those having the most per-

tinence for present purposes are:

. the Court expected that the record-keeping

position of the CWA Defendants at the time of the

hearing before the Special Master would be in place

and in actual operation so that they could be ap-

plied to the specific figures disclosed by the audited

financial reports and records. This, however, has

not been the case. The CWA Defendants produced

evidence to set forth a system of record-keeping and

allocation of costs which they hope and expect to

apply in the future. This is clear from Nuland |

and Nuland 11, the Westat Report and the Saxe

Format Report, as well as from the testimonies of

Mr. Nuland, Dr. Bryant dnd Dr. Saxe, considered

supra, and particularly at pages 8 through 28 of this

Supplemental Report.

b. There appears to be no dispute that the per-

centage of retainable (19 percent) and nonretainable

expenditures (81 percent) held to be applicable in

the Original Report continues in effect until modi-

fied upon a proper motion by CWA for such modi-

fication and the establishment by CWA at the time

of hearing on such a motion that amounts in excess

of 19 percent of CWA expenditures were properly

chargeable in the future to the Plaintiffs as Agency

Fee Payors.

The new system designed by CWA experts is gen-

-844a-

erally sufficient subject to the correction of certain

defects, supplying certain omissions and being prop-

erly monitored and administered.

The Special Master has concluded, and so finds,

that the new system as set forth in Nuland 1, Nu-

land Il, the Westat Report, the Saxe Format Study

and in the testimonies of Mr. Nuland, Dr. Bryant

and Dr. Saxe is generally sufficient, prima facie, to

enable CWA to meet its burden of proof as set

forth in the Original Report, provided, however,

that certain defects and omissions, later mentioned,

are corrected or supplied and provided further that

the system is properly monitored and administered

as later considered.

The Special Master is not unmindful of the var-

ious objections forcefully made by counsel for the

Piaintiffs. He is however of the opinion that these

objections either do not substantially affect the gen-

eral sufficiency of the proposed new system or will

be met and overcome by the proper monitoring and

administration of the proposed new system.

After the Special Master issued his Supplemental Re-

port on September 14, 1981, Dr. Saxe revised his format

designed to enable an accountant to calculate retainable

and nonretainable expenses. The first application of the

Saxe Format in terms of a rebate calculation was made

for the year ending March 31, 1982. That calculation

resulted in a special report issued and certified by the

accounting firm of Main Hurdman (Exhibit D to the

Shepperson affidavit filed in this action). The special

report concluded: “In our opinion the schedules referred

to previously, present fairly the retainable (84.98%) and

nonretainable (15.02%) expenses for the year ended

-85a-

March 31, 1982. computed on the basis of the Westat

study and in accordance with the format developed by

Dr. Saxe.”

Plaintiffs in the present case have filed the affidavit of

Irving B. Ross, a certified public accountant who had

participated as an expert on behalf of the plaintiffs in

Beck v. CWA. Ross challenges the validity of the alloca-

tion computed by Main Hurdman on a number of

grounds. Among the grounds are:

6. Main Hurdman, however, do not give their

opinion on the CWA computation of Retainable

Expenditures.

7. Main Hurdman’s special report was not pre-

pared for the purpose of determining the portion of

CWA’s retainable versus non-retainable expenses for

the fiscal year. Main Hurdman merely rearranged

data provided to them by the CWA in accordance

with the format developed by Dr. Saxe. They in

fact state “we have performed no additional review

or verification procedures”.

8. In the Supplemental Report of Wilson K.

Barnes, Speciai Master in the Beck litigation, cer-

tain changes were recommended in CWA’s proposed

system. The CWA computation of Retainable Ex-

penses does not meet either its burden of proof or

the criteria established by the Court in regard to its

(1) treatment of organizing expenses,

(2) its proper monitoring, and

(3) its timeliness, specifically:

(A) The CWA admits that its report is not in

-86a-

conformance with the Special Master's

conclusions with respect to its Organizing

Categories.

(B) The Special Master as well as the expert

witnesses stressed that monitoring the sys-

tem is “extremely important.” Although

WESTAT monitored the data collection

plan including interviewing employees on

a sample basis, there was no monitoring

of the data in terms of verifying that the

timekeeping records accurately reflected

actual employee activities.

(C) The computation for the year ended

March 31, 1982, was not completed until

September, 1982. This unreasonable time

delay could increase the difficulty of any

independent verification because of the

risk of document and memory loss.

10. The specific agreed-upon procedures to test

the veracity of a computation of retainable expenses

should include but not be limited to the following:

(A) Review and testing of the worksheets which

(B)

compile the retainable information. This

procedure would include tests of the mathe-

matical accuracy of the calculations includ-

ing tracings to individual activity reports.

Development of a program for testing the

accuracy of the information contained on

the source documents, i.e. the activity

reports. This procedure would include the

gathering of corroborating evidence which

is sufficient, competent and reliable to

afford reasonable assurance that the time

-87a-

allocations are proper. Testing of currobo-

rating evidence should inciude but not be

limited to the examination of:

1. Travel vouchers,

. Employee Job Descriptions.

. Personnel Files,

2

3

4. Correspondence Files.

5. Other Work Progress Reports,

6

. Individual Employee Interviews.

11. In connection with Beck, et al. v. CWA, et

al., the defendant Union has calculated its retainable

versus non-retainable expenses and applied them to

the agency fee payment it received from a group of

Maryiand private sector employees. No evidence

has been provided among the Olsen documents to

demonstrate that the same causal-beneficial relation-

ship exists between the retainable non-retainable ex-

penses applicable to Maryland private sector employ-

ees and New Jersey public sector employees. Conse-

quently, the veracity of any calculation in this

regard lacks a sound accounting basis.

12. In addition to supporting the national CWA

effort, the Plaintiffs representative fees are also

expended at the district and local levels. The CWA

is presently relying on a sampling system designed

by the WESTAT Corporation to allocate its retain-

able and non-retainable expenses. This system is

based on the assumption that all CWA districts are

relatively homogeneous units. No evidence has been

provided among the Olsen documents to substan-

tiate that CWA'’s District retainable versus non-

retainable expenses bear the same relationship to

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New Jersey state government employees as they do

to American Telephone and Telegraph Company

and Chesapeake and Potomac Telephone Company

emplovees in Maryland.

13. Each local makes its own rebate calculation

based on guideline instructions from CWA national

office. The veracity of all such caiculations should

be subject to the gathering of similar corroborating

evidence as described in 10(B) herein. This factor is

more critical in relation to the defendant locals in

view of the fact that the suggested rebate calculation

forms only require the reporting of detail concern-

ing rebatable expenses and time and not al// expenses

and time. Furthermore, Schedule C of the forms

which report officers’ rebatable time is not the pro-

duct of contemporaneous recordkeeping and there-

fore warrants expanded verification procedures.

It is unnecessary and impossible at the present junc-

ture of this lawsuit to determine whether the Main

Hurdman computation of retainable and non-retainable

expenses is proper for constitutional purposes and for

New Jersey statutory purposes. Assuming that a similar

computation is made for the period July 12, 1982 to Sep-

tember 30, 1982 to which plaintiffs’ demands for rebates

relate, CWA’s internal hearing procedure and ultimately

New Jersey’s Appeals Board would have to address that

question. The Special Master’s Supplemental Report

and the Saxe, Bryant and Ross affidavits and the Main

Hurdman special report filed in this case demonstrate the

complexity of the question and the insurmountable diffi-

culties an objecting employee would encounter were he

-89a-

to seek to challenge the rebate computation.’

D. Plaintiffs’ First Amendment Activities: Each oi

the plaintiffs in this action is a State employee in a unit

for which CWA is the bargaining representative. None

of the plaintiffs is a member of CWA and each objects

to the deduction of representation fees from his pay as

permitted by the New Jersey statute. Each of the plain-

tiffs has sought to organize resistance to the representa-

tion fees among fellow employees, and each has been

threatened with disciplinary action as a result of his

activities. There follows a recital of the events relating

to the plaintiffs who testified at the preliminary injunc-

tion hearing.

1. Olsen: Plaintiff, Allen Olsen, is employed in the

Department of Community Affairs. In May of 1982 he

read in the newspapers that employees in the Depart-

ment who were not CWA members would be required to

pay a representation fee. He received an official notice

of the deduction from his pay when he received his pay-

check on July 15, 1982. On July 10, he had received

from CWA a notice of its Demand and Return System.

Olsen disagrees with political and social positions

which CWA takes and objected to the fee deducted from

his pay for the reason that he had no way of knowing

for what purpose the money would be spent. He com-

municated with the National Right to Work Legal

Defense Foundation, Inc. to seek assistance in combat-

ting what he considered to be a deprivation of his rights.

* In a memorandum opinion dated March 4, 1983 the Maryland United

States District Court adopted with minor modifications the original

report of the Special Master as modified by the supplemental report.

-90a-

The Fund provided Olsen with a specimen protest letter

to be sent to the union and to state officials. Olsen

showed the letter to his colleagues, and nineteen agreed

to join with him in signing the letter and sending it to

the President of CWA Local 1039 and to Frank Mason,

Director of Employee Relations in the Governor’s Office.

Copies were mailed to the Commissioner of the Depart-

ment of Community Affairs, the Chairmen of the New

Jersey House and Senate Labor Committees and to the

Chairman of PERC.

The letter was dated June !, 1982. It was written on

stationery bearing Olsen’s home address. The letter pro-

tested the representation fee and asked that the constitu-

tional rights of the signers of the letter be protected. It

demanded that the State and CWA provide data to show

what costs were incurred by the union for contract nego-

tiation, contract administration and processing grievances.

On June 14, 1982 Mason responded. He alluded to

the statute which authorized the deduction of a represen-

tation fee, referred to pending litigation which, he said,

might affect actions taken by the State, and expressed

regret that he was unable to satisfy Olsen’s views on the

issue.

Not having heard from the President of Local 1039,

on June 25, 1982 Olsen, on behalf of the signers of the

earlier letter, wrote another letter on his home stationery.

It was addressed (and copied) to the same persons as

those who received the first letter. The letter repeated

Olsen’s contentions that the deduction of representation

fees was illegai until a proper amount was established in

advance and requested that the deductions cease. There

-9la-

was no response to the letter.

Olsen informed his supervisors of his activities and

none had any objections.

The persons opposing the representation fees were

loosely associated in an organization which they called

Committee for a Rational Union Representation Fee.

During the first or second weeks in July 1982, Olsen and

plaintiffs William Anderson, Peter Yull, and Larry Lang

prepared a Status Report addressed to Non Exempt

Nonmembers of CWA. The Report stated that there

was evidence that the amount of the representation fee

was “at least four times as high as it should be.” The

letter urged that demands for rebates be filed in a timely

manner and described certain pending litigation contest-

ing the New Jersey fee plan. A form of demand letter

was included. The names of the four signers were typed

on the report along with their telephone numbers.

On July 16. 1982, a memorandum was sent to all

department managers. Its author was Valerie L. Sun-

kett, Principal Personnel Assistant, Bureau of Employee

Relations. The subject: “Distribution of Literature from

Employee Organizations other than the Certified Major-

ity Representative.” The memorandum stated:

The Office of Employee Relations has advised us

that it has come to their attention that some super-

visors and managers have distributed or allowed the

’ One can surmise that the calculation was derived from the conclusion

of the Special Master in the Maryland District Court case that 81°% of

the agency fee involved there had to be refunded. The 81% figure was

changed to 79% by the District Court after correcting one of the Special

Master’s calculations.

-92a-

distribution of literature from employee organiza-

tions other than the certified majority representa-

tive. With this in mind, we are advising all mana-

gers that there is a long standing State policy and a

matter of commitment set forth in the various con-

tracts between the State and the employee majority

representative that the State, through its supervisors

or managers, will not undertake to distribute any

materials from employee organizations other than

the majority representative. We are requesting that

each manager advise their supervision that in no

case should they distribute, post, or allow the distri-

bution or posting of any literature from employee

Organizations other than the certified majority rep-

resentatives.

If you have any questions regarding this matter,

please contact the Bureau of Employee Relations.

On or about September 15, 1982 Kenneth J. Horton,

Personnel Officer, sent to Olsen a memorandum which

read:

We have been informed by the Office of Emplovee

Relations that you have been engaging in the pro-

motion of the interests of the “Committee for a

Rational Representation Fee” using State time.

This letter is to advise you that such activity is

not permitted if it involves State time, equipment or

the distribution of such literature.

The Office of Employee Relations has also urged

us to remind you that continuation of this type of

activity can lead to disciplinary action.

Olsen’s supervisor had been approached a week prior

-93a-

to Olsen’s receipt of the September 15 letter and had

been asked to write a similar letter to Olsen.

On September 20, 1982 Olsen wrote to Horton, deny-

ing implications of misuse of State time and facilities and

questioning the procedures which Horton pursued when

receiving “third part allegations.”

On September 30, 1982 Ms. Nancy Schaefer, Employee

Relations Coordinator wrote Olsen to the following

effect:

Your memo to Kenneth Horton, Personnel Officer

for the Department of Community Affairs was

referred to me for response.

The memo of September 15 you refer to did not

“imply” misuse of State time and facilities. In fact,

it was a misuse of State time and facilities and I

directed the Department advise you to discontinue

these activities if you had not already done so.

The information was not, as you say, “third

hand.” In fact your supervisor spoke to you regard-

ing distribution of such material on State property

and it is my understanding you did admit to distri-

bution of the leaflet. Your name and work number

are clearly printed on the leaflet with an invitation

to call you. Such information would be considered

“first hand.” Use of a State phone for business

other than that of the State’s is clearly inappropriate.

The Governor’s Office of Employee Relations has

been the agent for developing and enforcing labor

relations policy throughout the State. It has been a

long standing policy of the State that distribution of

-94a-

any literature on State property at any time by any

organization without the express permission of the

State is not allowed.

The Department is aware of the State’s policies

regarding union activity, as well as permissible ac-

tivities spelled out in the negotiated agreement.

Should vou have any further questions regarding

this matter please fee! free to contact me.

Olsen wrote to Schaefer and asked for a copy of the

State’s policies concerning union/nonunion activities.

Numerous other forms of literature are distributed in

State offices by State employees concerning organiza-

tions, activities and contributions. Olsen received no

reply to his inquiry.

2. Lang: Lang is employed in the New Jersey De-

partment of Labor. He pursued a course of action sim-

ilar to Olsen’s.

He first obtained 44 signatures on a letter to the Pres-

ident of Local 1034 and to Frank Mason. It was similar

in content to Olsen’s first letter. He had received per-

mission from his director to engage in this activity if he

did it on his lunch hour, which he did. He distributed

copies of the status report urging the filing of requests

for rebates at this work place before 8:00 a.m.

On August 11, 1982, the Chief of Personnel Services

wrote to Lang stating:

It has come to the attention of this office that you

have been using state time to promote the interests

of the Committee For A Rational Representation

-9Sa-

Fee. This letter will serve as notice to vou that vou

must cease and desist from such practice in the

future if it involves state time, equipment. supplies,

or the distribution of material in state offices.

The Governor's Office of Employee Relations has

urged us to remind you that continued activity of

this sort can lead to a disciplinary action.

Lang had also became aware of the Valerie Sunkett

memorandum of July 16, 1982 concerning the distribu-

tion of literature from employee organizations other than

the certified majority representative. As a result of these

communications, Lang removed all material concerning

the representation fee from his office.

3. Anderson: Anderson's efforts to persuade fellow

employees to contest the representation fee system fol-

lowed the same course as Olsen’s and Lang’s. After

initial approval of distribution of literature and discus-

sions during lunch hours or breaks, Anderson was

directed to stop his activities.

On August 5, 1982 Nancy Schaefer, Employee Rela-

tions Coordinator, wrote to Jeffrey Bodholt, Chief,

Bureau of Employee Relations, Department of Transpor-

tation, as follows:

Attached is a copy of a leaflet the CWA alleges is

being distributed by employees of the State who are

part of the “Committee.” Please investigate and

advise me as to whether the leaflet was distributed

on State time and whether or not the employee in

question has been receiving phone calls on work

time.

-96a-

I would suggest vou advise this employee in writ-

ing that such activity is not permitted on State time

and continuation of this may lead to discipline.

Attached to the Schaefer memorandum was a copy of

the July 15, 1982 Status Report of the Committee for a

Rational Representation Fee urging employees to apply

for a rebate.

On August 12, 1982, Bodholt wrote to Anderson as

follows:

This is to confirm my telephone conversation of

August 10, 1982 wherein I advised you that the

“Committee for a Rational Representation Fee”

cannot distribute literature on State premises nor

can persons accept calls on State telephones during

working hours to discuss Committee business. Only

the majority representative organization, the Com-

munications Workers of America, has contractual

rights to utilize State facilities as outlined in the

Union Rights and Representative portion of the

contracts.

If you receive a call at your work telephone from

employees interested in the Committee business,

please advise the caller to contact you after working

hours or on public telephones while you are at

lunch, on your own time, or on your rest break. As

I understand it, you indicated that the July 15, 1982

information sheet entitled “Status Report” (copy

attached) was not distributed on the Department of

Transportation premises. Any information the

Committee wishes to disseminate can be accom-

plished off of State premises.

-97a-

Your cooperation in this matter is appreciated.

4. Yull: Without detailing all the events, Yull expe-

rienced treatment similar to that described above. In

addition, one episode illustrates the special consideration

given to the union with respect to communications to

employees.

Pursuant to Article XXVIIC of the various collective

bargaining agreements, the union is given the right to

maintain a bulletin board at each work place and to dis-

tribute literature in central locations. The material

which may be posted on the bulletin boards or distrib-

uted to employees may concern union matters and mat-

ters of concern to unions generally. The only express

limitations are that the “material shall not contain any-

thing profane, obscene or defamatory of the State or its

representatives and employees, nor anything constituting

election campaign material.”

At least one union bulletin board was used to post

information attacking the Committee for a Rational

Representation Fee and threatening those who espoused

its goals. The circular involved read as follows:

Fellow Workers:

The National Right to Work Committee, an anti-

worker, right-wing organization funded by the worst

union busting corporations in America, is behind a

drive to weaken your union. A front group of dis-

gruntled State employees calling themselves “A

Committee for a ‘Pational’ Union Representation

Fee” along with a group called “United Professional

Employees,” is attempting to discredit your union

-Y8a-

by spreading half truths and feeding on rumors.

These cowardly individuals (many of whom are

supervisors) refuse to use the Democratic proce-

dures established in our union to resolve controver-

sial issues. They prefer to attack our union—the

only organization currently eie:ted by State em-

ployees to help us defend our interests as workers.

The National Right to Work (FOR LESS) Commit-

tee and its front groups do nothing but keep work-

ing people from getting decent wages and benefits

for their families. They try to destroy the only

Organizations established to protect and defend

workers—unions. Unlike unions, these groups are

not controlled by workers. They do not hold elec-

tions. They are the exact opposite of the Demo-

cratic procedures they purport to defend. Recently,

these anti-worker groups have been posting material

on CWA bulletin boards. This is a violation of

your contract. If you witness this happening, get

the name of the individual! and contact your steward

or the Union office. A grievance will be filed

against any supervisor posting anti-union material

on these boards, or handing out anti-union material

on the job.

DEFEND YOUR CONTRACT—DEFEND YOUR

UNION—DEFEND YOUR FAMILY. JOIN CWA

—BUILD YOUR LOCAL—STOP ATTEMPTS

TO ATTACK YOUR UNION.

5. General Observations: It is quite apparent from

the evidence that plaintiffs’ activities when opposing the

representation fee were consistent with previously permit-

ted conduct by State employees on State property. Most

of these activities took place before work or during

breaks or lunch hours. Use of the phone was limited in

-99a-

nature and of a kind generally permitted in the offices

where they worked. The distribution of literature was an

activity in which employees were permitted to engage for

other non-emplovment related causes. Under the collec-

tive bargaining agreement, however, the State has agreed

that one group of employees (members of CWA) may

express themselves on bulletin boards and through the

distribution of literature, while non-members may not

enjoy the same privilege.

I find that the sole reason plaintiffs were directed to

cease their activities on behalf of the Committee for a

Rational Representation Fee and were threatened with

discipline was because of the ideas and policies which

they advocated. Their activities in no way interferred

with their work and in no way intruded upon other

employees. The State, apparently at the instigation of

the union, sought to prevent expression of the views and

policies espoused by plaintiffs.

CONCLUSIONS OF LAW

The Court has jurisdiction over this action by virtue of

28 U.S.C. § 1343 to provide remedies for causes of

action arising under 42 U.S.C. § 1983.

Plaintiffs, who now seek preliminary injunctive relief,

must show: (i) a reasonable probability of ultimate suc-

cess on the merits of the litigation, (11) irreparable harm

to themselves if the injunction is not granted, (iii) the

absence of countervailing harm to other interested per-

sons if the injunction is granted, and (iv) the absence of

countervailing public interests should the injunction be

-100a-

granted. Aennecott Corp. v. Smith, 637 F.2d 181 (3d

Cir. 1981).

Three substantive issues must be addressed at this time

to determine whether plaintiffs have a reasonable proba-

bility of ultimate success on the merits: (i) Did the

actions which the state and the union defendants took to

prevent plaintiffs from expressing their views through the

Committee for a Rational Representation Fee violate

plaintiffs’ First Amendment rights? (ii) Did I correctly

decide in Robinson v. State of N.J., supra, that the New

Jersey statutory provision permitting the majority repre-

sentative to use non-members’ fees for certain lobbying

purposes is unconstitutional? and (iii) Does CWA’s

demand and return system adequately protect plaintiffs’

First Amendment rights?*

A. Plaintiffs’ Rights to Express Themselves: As

described above, plaintiffs’ superiors, upon the urging of

union officials, have forbidden plaintiffs to express their

views about the representation fee procedures on state

property and have threatened them with disciplinary

action if they do so. The conclusion is inescapable that

this action was taken because of the content of plaintiffs’

speech and writings and not because of any interference

* At this time it is unnecessary to address the different constitutional

and statutory questions which plaintiffs raise as to the propriety of

charging non-members for union expenditures for items such as repre-

senting employees before the New Jersey Civil Service Commission,

union organizational efforts, the union sponsored ne 2per, and the

CWA “Defense Fund” designed to assist members who go on strike. It

may well be that the New Jersey courts first should decide if these are

expenses which the New Jersey statute permits to be charged to non-

members before a federal court reaches the constitutional issues. Rail-

road Comm'n v. Pullman Co., 312 U.S. 496 (1941).

-10la-

with their work or the work of any other state

employees. The prohibition extends to activities during

recess and recreation periods and it extends to activities

conducted on all portions of state property - hallways.

sidewalks, dining rooms, and social areas as well as offi-

ces and other work areas.

It is well established that pubic employees have pro-

tected First Amendment rights. Linker v. Des Moines

Independent Community School District, 393 U.S. 503

(1969). The First Amendment prohibits governmental

discrimination among viewpoints on particular issues fal-

ling within the realm of protected speech. Niemotko v.

Maryland, 340 U.S. 268 (1951). Such discrimination has

occurred in this case. The State has permitted pro-union

views to be expressed both on the bulletin board devoted

exclusively to union materials and apparently elsewhere.

The State has prohibited contrary views from being

expressed anywhere or at anytime on state premises.

This is a clear violation of plaintiffs’ First Amendment

rights.

The recent Supreme Court case of Perry Education

Assn. v. Perry Local Educators’ Assn., 51 U.S.L.W. 4165

(Feb. 23, 1983) is instructive. There the Court upheld a

collective bargaining agreement provision which gave the

exclusive bargaining representative access to the inter-

school mail system and teacher mailboxes and denied

such access to a rival organization. The Court found

that the internal mail system was not a public forum and

held that exclusive use was necessary to permit the bar-

gaining representative to perform its responsibilities

effectively. This reasoning would tend to validate the

provision in the contract involved in this case granting

-102a-

CWA the exclusive use of certain bulletin boards in

working areas.

The reasoning of Perry, however, clearly does not val-

idate the State’s actions in the present case which pro-

hibit those opposed to the union’s representation fee sys-

tem from expressing their views anywhere on State

property. In fact, the language in Perry suggests that the

Court would consider such a prohibition unlawful:

The exclusive access policy applies only to use of

the mailboxes and school mail system. PLEA is not

prevented from using other school facilities to

communicate with teachers. PLEA may post noti-

ces on school bulletin board

This text is long and has been trimmed here. Open the source document for the complete record.