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PAUL H. ROBINSON 206 EAST COULTER AVE. COLLINGSWOO

September 28, 1982

PAUL H. ROBINSON CLIFFORD OWENS, PAUL B. KELLEY, ALLAN ROTH, CLAVIN W. CORMAN, EARL MALTZ, ELIHU ABRAHAMS, ARNOLD GLASS, CHARLES W. UPTON, ALEX W. WYPYSZINSKI, MICHAEL CREW, HAROLD ZAPOLSKY, JACKSON TOBY, Dept. of Sociology, Rutgers University, Murray Hall 026, New Brunswick, NJ 08903, Plaintiffs,
v.
STATE OF NEW JERSEY, THOMAS H. KEAN, GOVERNOR State House Trenton, NJ 80625, JAMES W. MASTRIANI, Chairman Public Employment Relations Commission 429 East State St. Trenton, NJ 08608, EDWARD J. BLOUSTEIN, President and Individually Rutgers State University New Brunswick, NJ 08903, RUTGERS UNIVERSITY, BOARD OF GOVERNORS State Dept. of Higher Education c/o Edward T. Hollander 225 West State Street Trenton, NJ 08625, Mr. JAMES A. GORMLEY, Director of Personnel and Individually Rutgers University (Camden) Camden, NJ 08102, CHRISTINE MOWRY, Director of Office of Employee Labor Relations and Individually Rutgers University, New Brunswick, NJ 08903, RUTGERS COUNCIL, AAUP and Ms. SANDRA WALTHER, Executive Director, Rutgers Council, American Association of University Professors (AAUP), and Individually, Bldg. 4103, Kilmer Campus Rutgers University New Brunswick, NJ 08903, RICHARD PESKIN, President and Individually Rutgers Council of AAUP Bldg. 4103, Kilmer Campus Rutgers University New Brunswick, NJ 08903, RICHARD LAITY, Chairman and Individually AAUP Legislative Relations Committee Kilmer Library 7 Thrush Mews North Brunswick, NJ 08902, AAUP and Irvin J. Spitzberg, Jr., General Secretary AAUP One DePont Circle, Suite 500 Washington, D.C. 20036, Defendants; JOSEPH W. ANTONACCI, MEVERIL JONES, THOMAS GAY, JOHN RUSSELL, RICHARD H. TREXLER, A. WILLIAM ONDER, LEON MATELSKI, EDWARD JAKUBCO, Mrs. DOROTHY GRAY and Mr. WILLIAM F. GRAY, Plaintiffs, v. STATE OF NEW JERSEY, THOMAS H. KEAN, Governor of New Jersey State House, Trenton, NJ 08625, JAMES W. MASTRIANI, Chairman and Individually Public Employment Relations Commission 429 East State Street Trenton, NJ 08068, WESTFIELD EDUCATION ASSOCIATION, SALLY VEJNOSKA, President and Individually Westfield Education Association 113 Central Avenue Westfield, NJ 07090, UNION COUNTY EDUCATION ASSOCIATION 524 South Avenue Cranford, NJ 07016, WESTFIELD BOARD OF EDUCATION, DR. L. F. GREENE, Superintendent and Individually Westfield Board of Education Administration Building 302 Dome Street Westfield, NJ 07090, ROBERT WESTKERNA PASCACK VALLEY REGIONAL EDUCATION ASSOCIATION Pascack Hills High School Montvale, NJ 07645, PASCACK VALLEY REGIONAL EDUCATION ASSOCIATION, DAVID T. DIERKER, President and Individually Pascack Valley Regional Education Association Pascack Hills High School Montvale, NJ 07645, BERGEN COUNTY EDUCATION ASSOCIATION 137 Bergen Mall Paramus, NJ 07652, PASCACK VALLEY REGIONAL BOARD OF EDUCATION, Mrs. LAURIE THORNTON, President and Individually Board of Education Pascack Valley Regional High School District 40 Acres Avenue Montvale, NJ 07645, AURORA BERNARD-SALIT, President and Individually EDISON TOWNSHIP EDUCATION ASSOCIATION 200 Lincoln Highway Edison, NJ 08817, MIDDLESEX COUNTY EDUCATION ASSOCIATION, MARIA VERSOCKI, President and Individually Middlesex County Education Association 1014 Livingston Ave. North Brunswick, NJ 08902, EDISON TOWNSHIP BOARD OF EDUCATION, CHARLES A. BOYLE, Superintendent Edison Township Board of Education, and EDISON TOWNSHIP BOARD OF EDUCATION 100 Municipal Boulevard Edison, NJ 08817, RIDGEWOOD EDUCATION ASSOCIATION, FRANK SIDOTI, President and Individually Ridgewood Education Association 49 Cottage Place, Ridgewood, NJ 07450, RIDGEWOOD BOARD OF EDUCATION, ROSEMARIE SCHUTT, President, Board of Education, Ridgewood Public Schools, and Individually 49 Cottage Place Ridgewood, NJ 07450, TOWNSHIP OF OCEAN TEACHERS ASSOCIATION, ELIZABETH CAMPANILE, President and Individually Township of Ocean Teachers Association 202 Sea Girt Sea Girt, NJ 08750, TOWNSHIP OF OCEAN BOARD OF EDUCATION, JAMES F. JEFFRIES, President, Board of Education, and Individually Township of Ocean School District Oakhurst, NJ 07755, NEW JERSEY EDUCATION ASSOCIATION, EDITH FULTON, President and Individually New Jersey Education Association 180 West State Street Trenton, NJ 08687, NATIONAL EDUCATION ASSOCIATION, WILLARD H. MCGUIRE, President National Education Association 1201-16th Street, N.W. Washington, D.C. 20036, Defendants



The opinion of the court was delivered by: DEBEVOISE

 I. The Proceedings

 These two consolidated actions each challenge the constitutionality 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 for preliminary injunctive relief; a hearing was held; and this opinion constitutes my findings of fact and conclusions of law.

 II. The Statute

 The Act creates a Division of Public Employment Relations within the executive branch, N.J.S.A. 34:13A-5.1, 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 regulations" 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 exclusive representative to negotiate the terms and conditions of employment of an employee unit, N.J.S.A. 34:13A-5.3 (para. 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 membership . . . 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 conditions 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 representative.
 
For many years, the 'New Jersey Employer-Employee Relations Act' has required that a majority representative of public employees which has negotiated a labor agreement covering such employees to represent the interests of all employees in the bargaining unit, regardless of organizational membership, without discrimination. Non-members of the majority organization, therefore, enjoy virtually equal benefits and protections without sharing in 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 difficult 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 employees might otherwise have to become "free riders" -- to refuse to contribute to the union while obtaining benefits of union representation that necessarily accrue to all employees'. Many analysts feel that union security agreements such as the agency shop are vital to the stability and sense of responsibility of public sector unions.

 N.J.S.A. 34:13A-5.5(a) authorizes a majority representative 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 representation 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 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 benefitting 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 majority 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 collective negotiations, contract administration or lobbying for improved wages and benefits; costs of medical insurance; retirement benefits or other benefit programs; and 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 subject is covered in N.J.S.A. 34:13A-5.5(c).

 The public employer deducts the representation fee from the paychecks of non-members and forwards the deductions to the majority ...


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