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June 15, 1983

PAUL H. ROBINSON, et al., Plaintiffs,
STATE OF NEW JERSEY, Thomas H. Kean, Governor, et al., Defendants; JOSEPH W. ANTONACCI, et al., Plaintiffs, v. STATE OF NEW JERSEY, Thomas H. Kean, Governor, et al., Defendants; ALLEN OLSEN, et al., Plaintiffs, v. COMMUNICATIONS WORKERS OF AMERICA (CWA), et al., Defendants

The opinion of the court was delivered by: DEBEVOISE

 Plaintiffs in these three cases challenge the constitutionality of the 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. It is now necessary to determine whether additional preliminary injunctive relief must be granted.

 In April 1982 plaintiffs in the Robinson and Antonacci cases (now consolidated) filed their complaints. On September 28, 1982 I rendered an opinion in which I concluded: (1) N.J.S.A. 34:13A-5.5(c) is unconstitutional to the extent that it permits use of representation fees over a non-member's objections 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 collective negotiations with the employer" and (2) N.J.S.A. 34:13A-5.5 and 5.6 "violate plaintiffs' constitutional rights in that (i) these statutory 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 purportedly designed to enable plaintiffs to recover the portion of their representation fees used for political, ideological 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."

 I entered an order preliminarily enjoining the defendant union from using any portion of plaintiffs' representation fees for impermissible lobbying. In light of the strictures in International Ass'n of Machinists v. Street, 367 U.S. 740, 771-775, 6 L. Ed. 2d 1141, 81 S. Ct. 1784 (1961), I did not at that time enjoin collection of representation fees from plaintiffs. Instead I entered an order requiring that certain portions of the fees be placed in escrow and providing that if within six months from the date of the order a representation fee system meeting constitutional requirements had not been established, plaintiffs could apply for additional injunctive relief. Robinson v. State of N.J., 547 F. Supp. 1297 (D.N.J. 1982), appeal pending.

 In October 1982 plaintiffs in the Olsen case filed their complaint. On March 16, 1983 I rendered an opinion in which, among other things, I reaffirmed my earlier ruling that the lobbying provisions of N.J.S.A. 34:13A-5.5(c) are unconstitutional, and I deferred passing on the constitutionality of CWA's demand and return system until the return date in Robinson and Antonacci when I was to determine if a representation fee system had been established in those cases which met constitutional requirements. Olsen v. Communications Workers of America (CWA), 559 F. Supp. 754 (D.N.J. 1983), appeal pending.

 On May 3, 1983 a hearing was held on that question in all three cases and on various summary judgment motions which the parties had filed in Robinson and Antonacci. This opinion is directed to the adequacy of the demand and return systems in the three cases as they now exist and to the need for additional preliminary injunctive relief.


 The statute is described in some detail in Robinson. The very rudimentary demand and return systems originally established by the AAUP units and the teacher association units are described in Robinson. The highly sophisticated CWA demand and return system which CWA instituted is described in Olsen. The other facts pertinent to the present inquiries are set forth in those cases and are incorporated by reference.

 Nothing was done after I entered the order in Robinson and Antonacci either by the defendants in those cases or by the New Jersey legislature to seek to cure or to cure the constitutional defects in the representation fee statute. The union defendants devised and prepared to implement new demand and return systems. The new systems contemplate escrowing a sufficient portion of each objecting non-member's representation fee to ensure that no part of the fee would be spent for political, ideological or improper lobbying purposes prior to exhaustion of the union and state demand and return procedures. The new systems also contemplate the creation of revised union demand and return procedures whereby the unions would be required to establish before outside, independent arbiters the correctness of their fees and the absence of improper expenditures from such fees. Further, the Robinson and Antonacci union defendants take the position that any objecting non-member may skip the union's demand and return system and proceed directly to the State board of appeals.

 These attempts by the Robinson and Antonacci unions to create effective demand and return systems and the demand and return system established by CWA represent good faith attempts to devise systems which can impartially and accurately determine what portion of a non-member's representation fee is used for contract negotiation, contract administration and processing grievances and what portion is used for other purposes. Sincere and conscientious as these efforts have been, however, they do not avoid or cure the basic constitutional defects in the New Jersey statute.


 N.J.S.A. 34:13A-5.5b 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 available only to members and subject to a maximum of 85% of regular membership dues, fees and assessments. Unless in any case the aggregate cost of member only benefits and of political, ideological and impermissible lobbying activities happens to be less than 15% of regular membership dues, fees and assessments, the statute compels an objecting non-member to pay for the union's partisan political and ideological activities. The only recourse which the objecting non-member has is to proceed under a demand and return system provided for by the statute. I described the original systems involved in Robinson and Antonacci as follows:

I set forth in some detail in the findings of fact in this 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 involved but also the assumptions which were made in allocating expenses to member-only benefits, partisan political activities, and varying kinds of lobbying activities. This the non-members must do before the internal union bodies ...

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