A.B.D. No. 85-8


PERC Citation:

A.B.D. No. 85-8, 11 NJPER 123 (16052 1985)

Appellate History:



NJPER Index:



NJ PERC:.ABD 85 8.wpd - ABD 85 8.wpd
ABD 85 8.pdf

Appellate Division:

Supreme Court:

A.B.D. No. 85-8 1.

OAL DKT #PRB-5885-83






No appearance by or on behalf of petitioners

Michael T. Leibig , Esq. (Zwerdling, Schlossberg, Leibig & Schlossberg, attorneys) and Steven P. Weissman, Esq. (Counsel, District One) for respondent

On February 5, 1985, Administrative Law Judge Joseph Lavery entered an order dismissing Petitions of Appeal filed with the Public Employment Relations Commission Appeal Board (hereinafter Appeal Board) by Frank Campisi, James H. Allen, Seymour Kossak, Herbert Marlan and Dorothy Schatz on account of the petitioners' failure to appear at the hearing convened by the Office of Administrative Law pursuant to N.J.A.C. 1:20-1.1 et. seq . The proceeding was commenced following the conclusion of demand and return system proceedings conducted by the Communications Workers of America (hereinafter CWA), the majority representative organization

to which the petitioners pay a representation fee in lieu of dues. The petitions allege that the CWA is not entitled to the amounts it has assessed the petitioners.

N.J.S.A. 34:13A-5.6 and N.J.A.C . 1:20-3.2 provide, respectively, that the majority representative bears the burden of proof both in demand and return system proceedings and in cases within the jurisdiction of the Appeal Board. 1/ In order to commence a proceeding in CWA's demand and return system, an employee paying a representation fee in lieu of dues need only notify CWA that he or she desires a refund of the rebatable portion of the representation fee in lieu of dues, i.e . monies expended by CWA for member-only benefits or lobbying activities which are only incidentally related to the terms and conditions of employment, N.J.S.A . 34:13A-5.5. The employee requesting a rebate need not appear before the persons or bodies comprising the demand and return system in order to avail himself or herself of the procedure, because the burden is on the union to justify the amount of its fee.

N.J.S.A. 34:13A-5.6 created the Appeal Board to hear, inter alia , appeals from employees who pay a representation fee in lieu of dues to their majority representative organization. Such appeals are de novo proceedings with the burden of proof on the majority

1/ Our discussion of demand and return system proceedings in this opinion is for illustration purposes only and does not represent an opinion as to whether use of a demand and return system is a prerequisite to an appeal to this Board in general or in this specific case, nor is it a ruling on the validity of any particular demand and return system.

representative to establish that the fees assessed to non-member employees meet the requirements of the representation fee statute. Given the similarilties between proceedings before this Board and a majority representative's demand and return system, the obligations required of petitioners to the Appeal Board should not be greater than those necessary to pursue a demand and return system proceeding.

Employees paying representation fees to CWA did not forfeit a right to their rebates if they did not personally appear before CWA's Executive Board, the final step of CWA's demand and return system. Similarly, we hold that even if the petitioners do not appear at an OAL hearing and fail to exercise their right to cross-examine the majority representative's witnesses, or otherwise challenge the proofs put on by the union, they do not forfeit the right to require the majority representative to justify its assessments. The right of employees to rebates of funds expended by the union for partisan political and ideological purposes, unrelated to the terms and conditions of employment, is grounded upon the First Amendment to the U.S. Constitution. See Abood v. Detroit Bd. of Ed., 431 U.S . 209, 95 LRRM 2411 (1977).

While we do not know why the petitioners failed to notify the O.A.L. of their inability to attend the scheduled hearing, we cannot agree that the ultimate sanction of dismissal is warranted where the law imposes no obligation whatsoever on the petitioners to go foward with any proofs. Since this is among the first of our cases being heard by the O.A.L., there is undoubtedly some confusion as to the obligations imposed by the representation fee statute.

So long as the petitioners are afforded the right to appear, be heard and challenge the presentation of proofs by the majority representative in accordance with the rules governing the conduct of contested cases generally, and our cases in particular, the requirements of due process have been met. However, where petitioners choose to forego such rights, the majority representative must still justify its assessments unless the petitioners have affirmatively stated that they wish to forego their appeals.


The Initial Decision of the Administrative Law Judge is rejected and the matter is remanded to the Office of Administrative Law for hearing. 2/


Robert J. Pacca

DATED: Trenton, New Jersey
February 19, 1985
ISSUED: February 21, 1985

Chairman Pacca and Board Member Gerald L. Dorf voted in favor of this decision.

2 / The ALJ's decision refers only to petitioner Campisi. Four other employees also have petitions pending under the same docket number and our decision covers their petitions as well. It is not clear whether the Office of Administrative Law notified Campisi's co-petitioners of the hearing date and also dismissed their cases. If the petitions of Allen, Kossak, Marlan and Schatz have been dismissed by the OAL, then their cases are now also reinstated.
***** End of ABD 85-8 *****