The opinion of the court was delivered by: MUNSON
MEMORANDUM DECISION AND ORDER
The plaintiffs in this labor action are eighteen nonunion employees of the defendant New York Telephone Company (Telco) who contest, inter alia, the allegedly improper use by the defendant Communications Workers of America (CWA) of the plaintiffs' agency fees. The gravamen of this particular challenge is that the CWA has wrongfully applied their fees to activities unrelated to collective bargaining, contract administration, and grievance adjustment. For this asserted wrongdoing, the plaintiffs seek declaratory judgment relief.
Presently before the Court are motions by the plaintiffs for partial summary judgment on this issue, and by the defendant Telco for judgment on the pleadings on the ground that the complaint fails to state a claim against it upon which relief can be granted. Additionally, there are various discovery-related matters.
With respect to the plaintiffs' motion for partial summary judgment against CWA, these persons seek a declaratory judgment that their agency shop obligation, which is authorized under § 8(a)(3) of the National Labor Relations Act (NLRA), 29 U.S.C. § 158(a)(3), is limited to the costs of collective bargaining, contract administrations, and grievance adjustment. Insofar as the CWA spends agency fees for other purposes, the plaintiffs contend, the CWA has infringed their rights under the First and Fifth Amendments to the United States Constitution. Relying on Abood v. Detroit Board of Education, 431 U.S. 209, 97 S. Ct. 1782, 52 L. Ed. 2d 261 (1977); Beck v. Communications Workers of America, 468 F. Supp. 93 (D.Md. 1979).
In response to these arguments, CWA argues that the plaintiffs cannot prevail upon any First Amendment claims because of the absence of any governmental action. Relying on Buckley v. American Federation of Television and Radio Artists, 496 F.2d 305 (2d Cir.), cert. denied, 419 U.S. 1093, 95 S. Ct. 688, 42 L. Ed. 2d 687 (1974). Additionally, CWA maintains that the law of the case, as allegedly declared by this Court in the Memorandum-Decision and Order by Judge Foley, dated February 11, 1976, is that no governmental action is present in this case, and thus no cause of action exists under the First and Fifth Amendments. Finally, the defendant avers that there is a triable issue of material fact as to what, if any, expenditures were unrelated to the costs of collective bargaining, contract administration, and grievance adjustment.
This last objection by CWA is merely illusory. The plaintiffs have raised a threshold question of whether the First and Fifth Amendments require the defendant to expend agency fees only for the limited purposes of collective bargaining, contract administration, and grievance adjustment. A resolution of this issue provides no solution to the questions of what costs may be regarded as related to these specific purposes. See Abood v. Detroit Board of Education, 431 U.S. at 236, 97 S. Ct. at 1800. For this reason, the defendant's objections seem premature at this time.
In regard to the "law of the case" argument raised by the defendant, this Court indeed indicated in its earlier decision that the plaintiffs could not assert a cause of action under the First Amendment. Citing Buckley v. American Federation of Television and Radio Artists, supra. The language to this effect, however, was dictum asserted in the context of concluding that this Court had jurisdiction to adjudicate the plaintiffs' First Amendment claim. Moreover, Buckley plainly did not reach the question of whether governmental action was present. Id. at 310. Instead, the court assumed arguendo the involvement of governmental action, and then found that the contested practice did not violate the First Amendment. Id. at 311.
Turning, then, to the merits of the employees' arguments, it is well-settled that ordinary principles of local contract law usually govern the relationship between a union and its members. See, e.g., NLRB v. Boeing Company, 412 U.S. 67, 75-76, 93 S. Ct. 1952, 1957, 36 L. Ed. 2d 752 (1973). Of course, the reach of common law contract principles may stop at the point where any statutes supply the governing rules. For example, union security agreements, like an agency shop arrangement, have been upheld as permissible features of collective bargaining agreements under both § 8(a)(3) of the NLRA, 29 U.S.C. § 158(a)(3) and § 2, Eleventh of the Railway Labor Act (RLA), 45 U.S.C. § 152. See, e.g., Retail Clerks International Association v. Schermerhorn, 373 U.S. 746, 83 S. Ct. 1461, 10 L. Ed. 2d 678 (1973) (NLRA); NLRB v. General Motors Corp., 373 U.S. 734, 83 S. Ct. 1453, 10 L. Ed. 2d 670 (1963) (NLRA); International Association of Machinists v. Street, 367 U.S. 740, 81 S. Ct. 1784, 6 L. Ed. 2d 1141 (1961) (RLA). In addition, the Supreme Court of the United States has interpreted the RLA as restricting the expenditure by unions of agency fees to "costs of negotiating and administering collective agreements and ... of the adjustment and settlement of disputes." International Association of Machinists v. Street, 367 U.S. at 764, 81 S. Ct. at 764. See First National Bank of Boston v. Bellotti, 435 U.S. 765, 794-95 n. 34, 98 S. Ct. 1407, 1425-26 n.34, 55 L. Ed. 2d 707 (1978); Brotherhood of Railway & Steamship Clerks v. Allen, 373 U.S. 113, 120, 83 S. Ct. 1158, 1162, 10 L. Ed. 2d 235 (1963). Furthermore, at least one circuit court appears to have interpreted the NLRA, in light of the RLA decisions of the Supreme Court, as requiring a limitation of the use of agency fees to the costs of negotiating and administering collective bargaining agreements and of adjusting and settling disputes. See Seay v. McDonnell Douglas Corporation, 427 F.2d 996, 1000-01 & n. 3 (9th Cir. 1970) (citing Allen, supra; Street, supra.)
In their present motion, the plaintiffs raise a constitutional challenge under the First and Fifth Amendments, and not contractual or statutory claims. In this regard, certain rights protected by the First Amendment have received special attention in the labor context. For example, in Railway Employes' Department v. Hanson, 351 U.S. 225, 76 S. Ct. 714, 100 L. Ed. 1112 (1956), the Supreme Court found no evidence that a contested union-shop arrangement authorized by § 2, Eleventh of the RLA impaired the employees' First Amendment rights to freedom of conscience, freedom of association, and freedom of thought. In International Association of Machinists v. Street, 367 U.S. at 748-51, 81 S. Ct. at 1789-90, the Court avoided the "grave" constitutional questions raised concerning the freedoms of association and expression. More recently, in Abood v. Detroit Board of Education, 431 U.S. 209, 97 S. Ct. 1782, 52 L. Ed. 2d 261 (1977) the Court concluded that a state statutory scheme permitting agency shop arrangements, which allowed the expenditure of monies, for purposes unrelated to collective bargaining, violated the employees' freedoms of association and expression, as guaranteed by the First and Fourteenth Amendments.
It is not unsurprising that employees do not lose their First Amendment rights under a union security arrangement. The guarantees under the First Amendment, however, embrace only abridgments by federal or state governments. See, e.g., First National Bank of Boston v. Bellotti, 435 U.S. at 794 n. 34, 98 S. Ct. at 1425 n. 34; Abood v. Detroit Board of Education, 431 U.S. at 226-27 & n. 23, 97 S. Ct. at 1794-95 & n. 23; Columbia Broadcasting System, Inc., v. Democratic National Committee, 412 U.S. 94, 114, 93 S. Ct. 2080, 2092, 36 L. Ed. 2d 772 (1973); Railway Employees' Department v. Hanson, 351 U.S. at 232, 76 S. Ct. at 718; Jensen v. Farrell Lines, Inc., 625 F.2d 379, 384, (2d Cir. 1980); Buckley v. American Federation of Television and Radio Artists, 496 F.2d at 309; Reid v. McDonnell Douglas Corp., 443 F.2d 408, 410 (10th Cir. 1971); Linscott v. Millers Falls Company, 440 F.2d 14, 16 (1st Cir.) cert. denied, 404 U.S. 872, 92 S. Ct. 77, 30 L. Ed. 2d 116 (1971). The Second Circuit has recently identified two general approaches of the Supreme Court in determining whether private conduct is actually governmental action:
One is the state-function approach, in which courts must find that the conduct of the private actor is equivalent to the performing of a state function, or is traditionally associated with sovereignty .... (The private entity) must exercise powers "traditionally exclusively reserved to the State.' ... The other general approach is to examine the conduct of the private actor and ask whether the state and the private actor have a "symbiotic relationship,' ..., making them so ...