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

547 F. Supp. 1297

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.

Civ. A. Nos. 82-1118, 82-1119.

United States District Court, D. New Jersey.

September 28, 1982.

COPYRIGHT MATERIAL OMITTED

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.

OPINION

DEBEVOISE, District Judge.

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-5.4 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).

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.

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:

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. 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261) 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).

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...