# Appendix — Robinson v. New Jersey

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1985
- **Citation:** 469 U.S. 1228

## Text

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

A-|

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.

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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

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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

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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

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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

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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.

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{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.

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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

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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.

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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

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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-

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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.

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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-

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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

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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

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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

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to settle the form of order.

Dated: September 28, 1982.

/s/ Dickinson R. Debevoise

Dickinson R. Debevoise
United States District Judge

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_. 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

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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

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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

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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.

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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 r

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1819%3A2. Public record. Not legal advice.