argued: October 29, 1986.
PAUL H. ROBINSON, CLIFFORD OWENS, PAUL B. KELLY, ALLAN ROTH, CALVIN W. CORMAN, EARL MALTZ, ELIHU ABRAHAMS, ARNOLD GLASS, CHARLES W. UPTOM, ALEX W. WYPYSZINSKI, MICHAEL CREW, HAROLD ZAPOLSKY AND JACKSON TOBY
STATE OF NEW JERSEY, THOMAS H. KEAN, GOVERNOR, JAMES W. MASTRIANI, CHAIRMAN, PUBLIC EMPLOYMENT RELATIONS COMMISSION, EDWARD J. BLOUSTEIN, PRESIDENT AND INDIVIDUALLY, RUTGERS STATE UNIVERSITY, RUTGERS UNIVERSITY, RUTGERS UNIVERSITY, BOARD OF GOVERNORS, STATE DEPT. OF HIGHER EDUCATION, MR. JAMES A. GORMLEY, DIRECTOR OF PERSONNEL AND INDIVIDUALLY, RUTGERS UNIVERSITY (CAMDEN), CHRISTINE MOWRY, DIRECTOR OF OFFICE OF EMPLOYEE LABOR RELATIONS & IND., RUTGERS COUNCIL, AAUP AND MS. SANDRA WALTHER, EXECUTIVE DIRECTOR, RUTGERS COUNCIL, AMERICAN ASSOCIATION, RICHARD LAITY, CHAIRMAN, AND INDIVIDUALLY, AAUP LEGISLATIVE RELATIONS COMMITTEE, AAUP AND IRVIN J. SPITZBERG, JR., GENERAL SECRETARY AAUP, RICHARD PESKIN, PRESIDENT AND INDIVIDUALLY, RUTGERS COUNCIL OF AAUP (D.C. CIVIL NO. 82-1118); JOSEPH W. ANTONACCI, MEVERIL JONES, THOMAS GAY, JOHN RUSSELL, RICHARD H. TREXLER, A. WILLIAM ONDER, LEON MATELSKI, EDWARD JAKUBCO, MRS. DOROTHY GRAY AND WILLIAM F. GRAY V. STATE OF NEW JERSEY, THOMAS H. KEAN, GOVERNOR, JAMES W. MASTRIANI, CHAIRMAN, PUBLIC EMPLOYMENT RELATIONS COMMISSION, WESTFIELD EDUCATION ASSOCIATION, SALLY VEJNOSKA, PRESIDENT AND INDIVIDUALLY, UNION COUNTY EDUCATION ASSOCIATION, WESTFIELD BOARD OF EDUCATION, DR. L.F. GREENE, SUPERINTENDENT AND INDIVIDUALLY, ROBERT WESTKERNA, PASCACK VALLEY REGIONAL EDUCATION ASSOCIATION, DAVID T. DIERKER, PRESIDENT AND INDIVIDUALLY, BERGEN COUNTY EDUCATION ASSOCIATION, PASCACK VALLEY REGIONAL BOARD OF EDUCATION, MRS. LAURIE THORTON, PRESIDENT AND INDIVIDUALLY, EDISON TOWNSHIP BOARD OF EDUCATION, AURORA BERNARD-SALIT, PRESIDENT AND INDIVIDUALLY, MIDDLESEX COUNTY EDUCATION ASSOCIATION, VARIA VERSOCKI, PRESIDENT AND INDIVIDUALLY, EDISON TOWNSHIP BOARD OF EDUCATION, CHARLES A. BOYLE, SUPERINTENDENT, RIDGEWOOD EDUCATION ASSOCIATION, FRANK SIDOTI, PRESIDENT AND INDIVIDUALLY, RIDGEWOOD BOARD OF EDUCATION, ROSEMARIE SCHUTT, PRESIDENT AND INDIVIDUALLY, TOWNSHIP OF OCEAN BOARD OF EDUCATION, JAMES F. JEFFRIES, PRESIDENT AND INDIVIDUALLY, NEW JERSEY EDUCATION ASSOCIATION, EDITH FULTON, PRESIDENT AND INDIVIDUALLY, NATIONAL EDUCATION ASSOCIATION, WILLARD H. MCGUIRE, PRESIDENT (D.C. CIVIL NO. 82-1119); ALLEN OLSEN, WILLIAM ANDERSON, PETER YULL, LARRY LANG, FRED S. SMARTT, AND WILLIAM J. HARRINGTON V. COMMUNICATIONS WORKERS OF AMERICA (CWA), GLENN E. WATTS, CWA DISTRICT ONE, CWA LOCALS 1031, 1032, 1033, 1034, 1037, 1038, 1039, 1040 AND STATE OF NEW JERSEY, THOMAS H. KEAN, GOVERNOR; PAUL H. ROBINSON, CLIFFORD OWENS, PAUL B. KELLY, ALLAN ROTH, CALVIN W. CORMAN, EARL MALTZ, ELIHU ABRAHAMS, ARNOLD GLASS, CHARLES W. UPTON, ALEX W. WYPYSZINSKI, MICHAEL CREW, HAROLD ZAPOLSKY AND JACKSON TOBY, APPELLANTS (CIVIL NO. 82-1118); JOSEPH W. ANTONACCI, MEVERIL JONES, THOMAS GAY, JOHN RUSSELL, RICHARD H. TREXLER, A. WILLIAM ONDER, LEON MATELSKI, EDWARD JAKUBCO, MRS. DOROTHY GRAY AND WILLIAM F. GRAY, APPELLANTS (CIVIL NO. 82-1119); ALLEN OLSEN, WILLIAM ANDERSON, PETER YULL, LARRY LANG, FRED S. SMARTT AND WILLIAM J. HARRINGTON, APPELLANTS (CIVIL NO. 82-3443)
On Appeal from the United States District Court for the District of New Jersey (Newark), Civil Nos. 82-1118, -1119 and -3443.
Before: ADAMS, HIGGINBOTHAM, and VAN DUSEN, Circuit Judges.
This case present a a constitutional challenge to the 1979 amendment of the New Jersey Employer-Employee Relations Act ("the Act"), N.J.S.A. 34:13A-5.1 et. seq., which allows public employers and public employee unions to include in collective bargaining agreements a requirement that employees who do not join the union pay a representation fee in lieu of union dues in order to share in the costs of collective bargaining. Appellants, public employees in New Jersey who choose not to become union members, argue that the Act violates their first amendment right not to be required to support political positions with which they disagree.
Public employees in New Jersey have had the right to bargain collectively with the state as employer since 1968. N.J.S.A. 34:13A-5.3. Because public employee unions are required to represent the interests of all members of the bargaining unit, those workers who do not join such unions would, in the absence of some special arrangement, receive the benefits of collective bargaining without sharing in its costs. To ameliorate this situation, legislation was enacted in 1979 allowing public employers and public employee unions to provide in collective bargaining agreements that employees who do not join the union pay a representation fee in lieu of union dues. See Sponsor's Statement to L.1979, c. 477, N.J.S.A. 34:13A-5.5 to 5.9. The Act sets a limit on the amount of the representation fee that may be collected, stating that the 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.
N.J.S.A. 34:13A-5.5(b). The Act further refines this formula by allowing fees to be exacted for
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 public employer.
The legislation anticipates that at times unions may collect more in representation fees than they are entitled to under the foregoing provisions, and that some workers may object to being required to pay such overages. It therefore establishes a "demand and return" system, which offers such workers the right to receive a refund in the amount of the overcharge. The refund is limited to that part of the fee paid.
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.
Id. The demand and return system must include a procedure "by which persons who pay a representation fee in lieu of dues may obtain review of the amount returned through full and fair proceedings placing the burden of proof on the majority representative." N.J.S.A. 34:13A-5.6. An employee who is dissatisfied with this review arrangement is entitled to appeal to a board consisting of three members appointed by the Governor. The membership of the appeal board is prescribed:
Of such members, one shall be representative of public employers, one shall be representative of public employee organizations and one, as chairman, who shall represent the interest of the public as a strictly impartial member not having had more than a casual association or relationship with any public employers, public employer ...
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