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HAVAS v. COMMUNICATIONS WORKERS

July 10, 1978

Stephen R. HAVAS, Sue Havas, George Albeck, Stanley Borek, Melvin J. Brink, William H. Cator, Kenneth L. Collins, Donald R. Drake, Elizabeth Emrich, William F. Foote, Edward S. Fulmer, Jr., David P. Gibson, Theodore F. Jamba, J. T. LaBalbo, Lorraine E. Mercier, Clayton E. Mitchell, Paul Muscarnera and Norma W. Paquin, Plaintiffs,
v.
COMMUNICATIONS WORKERS OF AMERICA (C.W.A.), an unincorporated labor organization, C.W.A. District I, C.W.A. Committee on Political Education, Local 1101 of C.W.A., Local 1111 of C.W.A., Local 1123 of C.W.A., Local 1124 of C.W.A., Local 1126 of C.W.A., Local 1127 of C.W.A., Local 1128 of C.W.A., American Federation of Labor-Congress of Industrial Organizations (AFL-CIO), a federation of national and international labor organizations, AFL-CIO New York State Central Body, AFL-CIO Committee on Political Education and New York Telephone Company, a corporation, Defendants



The opinion of the court was delivered by: MUNSON

HOWARD G. MUNSON, D.J.

 MEMORANDUM-DECISION AND ORDER

 This is an action for declaratory and injunctive relief in which plaintiffs, employees of defendant New York Telephone Company, challenge the use by various defendant labor organizations, of plaintiffs' agency fees for purposes unrelated to collective bargaining or the handling of employee grievances. Jurisdiction is alleged under section 301 of the National Labor Relations Act, 29 U.S.C. § 185, together with 28 U.S.C. §§ 1331, 1337 and 1343.

 Presently pending before the Court are several motions, including one for Summary Judgment in favor of defendant American Federation of Labor-Congress of Industrial Organizations (hereinafter AFL/CIO) and AFL/CIO Committee on Political Education (AFL/CIO C.O.P.E.), as well as some discovery-related motions. *fn1"

 The plaintiffs herein are employees of the New York Telephone Company, and are all employed within New York State. Named as defendants are the New York Telephone Company, a New York corporation; the Communications Workers of America (hereinafter CWA), an interstate labor organization; Locals 1101, 1111, 1123, 1124, 1126, 1127 and 1128 of the CWA; CWA District I, a regional subordinate of the CWA; the AFL/CIO, an affiliation of labor organizations, including the CWA; the New York State Central Body of the AFL/CIO, a sub-unit of the AFL/CIO operating within the confines of New York State; and the Committees on Political Education (C.O.P.E.) for both the AFL/CIO and the CWA.

 I.

 For a number of years, the New York Telephone Company and the CWA have been parties to several successive collective bargaining agreements, the latest of which took effect in July of 1971. Under the terms of that agreement, the plaintiffs and other New York Telephone Company employees similarly situated are required to either be members of the CWA, or to pay an "agency fee," equivalent in monetary terms to union dues paid by regular members of the CWA. The CWA, in turn, is recognized under the agreement as the sole bargaining agent for all New York Telephone Company employees within the plaintiffs' bargaining unit.

 In substance, the plaintiffs allege in their Complaint that the CWA commingles all monies received from agency fee payors, such as the plaintiffs, with regular dues received from members of the union. Any payments or disbursements made by the CWA, whether relating to collective bargaining activities or not, *fn2" therefore allegedly are made from a single fund from which agency fees are not segregated. Included in such payments are taxes paid to the AFL/CIO, calculated on a per capita basis according to the number of full-fledged members of CWA (thereby excluding payment of taxes for agency fee payors). Neither the AFL/CIO, nor its affiliates AFL/CIO C.O.P.E. and AFL/CIO New York State Central Body directly engages in any collective bargaining activities.

 The plaintiffs in this case maintain that portions of their agency fees are being expended for activities unrelated to collective bargaining, some of which activities include agitation, the distribution of propaganda, lobbying, giving political gifts and contributions, and providing of union benefits and activities. *fn3" Plaintiffs have registered, by letter, several objections to the union's use of their agency fees for non-collective bargaining purposes.

 Defendant New York Telephone Company is bound by the terms of the collective bargaining agreement to which it is a party. Included in that agreement is Article 33, relating to establishment of an agency shop. The company stands ready to honor its contractual agreement and require its employees to pay or tender the equivalent of union dues to the CWA.

 II.

 A. SUMMARY JUDGMENT -- AFL/CIO and AFL/CIO C.O.P.E.

 Defendants AFL/CIO and AFL/CIO C.O.P.E. have moved for a Summary Judgment in their favor, pursuant to Rule 56 of the Federal Rules of Civil Procedure. Their claim, simply stated, is that plaintiff's grievance is with the CWA, the union which receives their agency fees, and in turn allegedly indiscriminately expends them. The AFL/CIO and AFL/CIO C.O.P.E. receive no per capita tax from the CWA for its agency fee payors, and as such, they claim, are in no different position than any other of CWA's creditors. Plaintiffs, on the other hand, contend that the CWA is a trustee of all agency fee monies and, because those monies are commingled in an account from which the CWA pays its per capita taxes to the AFL/CIO, the AFL/CIO should be held accountable. This, they claim, is especially true since it is in such a position, vis-a-vis the CWA, that it could prevent such a breach of trust. The plaintiffs also contend that the Fifth Claim for Relief contained within their Complaint sufficiently alleges all of the defendants' participation in a conspiracy under 42 U.S.C. §§ 1985 and 1986, so as to be able to properly withstand a motion for Summary Judgment.

 Union security clauses, of which an agency shop agreement is an example, have been consistently upheld as being a legitimate component of collective bargaining agreements, both under section 2 Eleventh of the Railway Labor Act, 45 U.S.C. § 152 (11th), and section 8(a)(3) of the National Labor Relations Act, 29 U.S.C. 158(a)(3). Abood v. Detroit Board of Education, 431 U.S. 209, 52 L. Ed. 2d 261, 97 S. Ct. 1782 (1977), reh. den., 433 U.S. 915, 97 S. Ct. 2989, 53 L.E.2d 1102 (1977); International Association of Machinists v. Street, 367 U.S. 740, 6 L. Ed. 2d 1141, 81 S. Ct. 1784 (1961); Retail Clerks v. Schermerhorn, 373 U.S. 746, 10 L. Ed. 2d 678, 83 S. Ct. 1461 (1963); Yott v. North American Rockwell Corporation, 501 F.2d 398 (9th Cir. 1974); Peltzman v. Central Gulf Lines, Inc., 497 F.2d 332 (2d Cir. 1974), cert. den., 423 U.S. 1074, 47 L. Ed. 2d 83, 96 S. Ct. 857 (1976), reh. den. 424 U.S. 979, 96 S. Ct. 1487, 47 L. Ed. 2d 750 (1976). In fact, national labor policy favors designation of sole collective bargaining agents for members of a particular work group, with a concomitant union security clause to prevent "free riders" from reaping the rewards of collective bargaining efforts by such agents without underwriting their fair share of the agents' expenses. N.L.R.B. v. General Motors Corp., 373 U.S. 734, ...


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