more, they may become a chapter of AAUP. A chapter may establish local membership dues.
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." (Spitzberg Aff., paras. 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., para. 7). According to AAUP's chief executive officer, "local chapters of the AAUP engaged in collective bargaining have full responsibility for the negotiation and implementation of their collective bargaining agreements," but nevertheless "virtually all activities of the AAUP support the efforts of its local chapters engaged in collective bargaining" (Spitzberg Aff., paras. 8,9).
Be that as it may, an examination of the record demonstrates that National AAUP engages in at least some lobbying at the federal and state levels
and that significant funds are spent for activities which the Statement of 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 chapters of the Council are located at Camden, Newark and New Brunswick. An Executive Council has the responsibility 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 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 requiring 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 ideological 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 nonideological nature should, however, be included. As the bill 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 employment in addition to those secured through collective negotiations with the public employer' . . . The union should not exclude sums spent on such activities as testimony before legislative finance committees, mailings 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 Statement referred to above. Counsel noted that the statement 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 representation fee could not exceed 85% of charges to members and then stated: "Experience in other states has demonstrated 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 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 inconsistent 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 anticipated 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 representation fees; that expenditures should be separated so as to identify those benefitting members-only and those benefitting all persons in the bargaining unit, and that a representation 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 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;