Robinson v. State of NJ
Decision Date | 28 September 1982 |
Docket Number | Civ. A. No. 82-1118,82-1119. |
Citation | 547 F. Supp. 1297 |
Parties | Paul H. ROBINSON, et al., Plaintiffs, v. 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. |
Court | U.S. District Court — District of New Jersey |
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Henry Stein, Stein & Shapiro, Medford, N. J., Nelson R. Kieff, National Right to Work Legal Defense Foundation, Springfield, Va., Jeffrey Cooper, Philadelphia, Pa., for plaintiffs.
Irwin I. Kimmelman, Atty. Gen., State of N. J. by Eugene J. Sullivan, Asst. Atty. Gen., Alfred E. Ramey, Jr., Deputy Atty. Gen., Trenton, N. J., for defendant Thomas H. Kean, Governor of the State of N. J.
Sidney H. Lehmann, Gen. Counsel, Robert E. Anderson, Jr., Deputy Gen. Counsel, Public Employment Relations Com'n, Trenton, N. J., for defendant James W. Mastriani, Chairman, Public Employment Relations Com'n.
Edward F. Ryan, Carpenter, Bennett & Morrissey, Newark, N. J., for defendant Rutgers University.
Mark D. Schorr, Sterns, Herbert & Weinroth, P. A., Trenton, N. J., for defendants Rutgers Council of American Ass'n of University Professors Chapters, Sandra Walther, Richard Peskin and Richard Laity.
Cassel R. Ruhlman, Jr., Ruhlman & Butrym, Pennington, N. J., Robert H. Chanin, James J. Brudney, Bredhoff & Kaiser, Washington, D. C., for defendant New Jersey Educ. Ass'n.
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.
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-5.4 c. 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 (¶ 2).
Effective July 1, 1980, New Jersey amended the Act to permit public employers and majority representatives of 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 purpose of the amendment was to require the non-members to bear a fair share of the expenses incurred in representing their interests during negotiations with their employer. The Sponsor's Statement to Assembly Bill No. 688, February 9, 1978, expressed this objective as follows:
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).
That section provides that "any 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 representation 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 employer". 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 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 representation 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 return system must include a provision permitting non-members to obtain review of the amount returned through full and fair proceedings. The majority representative 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...
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