The opinion of the court was delivered by: LAMBERTH
ROYCE C. LAMBERTH, UNITED STATES DISTRICT JUDGE.
Plaintiffs in this action have filed a complaint on behalf of themselves and putative class members alleging that defendant has violated the first amendment, the National Labor Relations Act (NLRA) § 8(a)(3) and the duty of fair representation owed by the defendant to plaintiffs. Plaintiffs are employees of private telephone companies who work in collective bargaining units represented by Communications Workers of America (CWA) and pay agency fees to CWA pursuant to collectively bargained union security provisions.
Plaintiffs maintain that the current collection of agency fees is in excess of the amount of such fees which the union spends on collective bargaining activities and thus violates the first amendment, the NLRA, and the duty of fair representation. Defendant acknowledges the collection of fees in excess of those needed to support collective bargaining activity, but maintains that because the excess is not spent on non-collective bargaining activity, but rather held in an interest-bearing escrow account to be later refunded to plaintiffs, defendant is not in violation of any duty to plaintiffs. Defendant further maintains that no state action is involved such as to make defendant subject to the first amendment.
Defendant has filed a motion to dismiss, and plaintiffs have filed a motion for a preliminary injunction. The Court addresses each of these motions in turn.
I. Defendant's Motion to Dismiss
Plaintiffs' complaint, the facts of which are taken as true for purposes of this motion, alleges that the agency fees collected by defendant are spent on political and ideological activities not authorized by plaintiffs, in violation of plaintiffs' first amendment rights. Defendant argues that, insofar as plaintiffs' complaint states a first amendment claim, that complaint fails for want of state action.
This issue was recently before the Supreme Court in Communications Workers of America v. Beck, 487 U.S. 735, 56 U.S.L.W. 4857, 101 L. Ed. 2d 634, 108 S. Ct. 2641 (1988). In that case, the court found that the exaction of agency fees from dissenting employees in excess of the amount spent for collective bargaining activities violated § 8(a)(3) of the NLRA, but declined to reach the first amendment question. In light of the Supreme Court's failure to settle the issue, this court agrees with defendant that the holding of the D.C. Circuit in Kolinske v. Lubbers, 229 U.S. App. D.C. 157, 712 F.2d 471 (D.C.Cir. 1983) controls, and has not, as plaintiffs suggest, been overruled sub silentio or successfully distinguished on its facts.
In Kolinske, the Court of Appeals addressed the issue of whether the defendant union violated the constitutional rights of the nonmember employee plaintiff when it refused to pay him strike benefits. Plaintiff had refused to participate in any strike activities except to honor the picket line. The strike benefits were paid from fees collected under an agency shop clause similar to the one at issue in this action. The Court of Appeals addressed at length the issue of whether or not the agency shop clause negotiated between a private union and a private employer pursuant to the NLRA constituted state action. This discussion encompassed all but one of the line of cases relied upon by plaintiffs, beginning with Railway Employes' Department v. Hanson, 351 U.S. 225, 100 L. Ed. 1112, 76 S. Ct. 714 (1956) and ending with Abood v. Detroit Board of Education, 431 U.S. 209, 52 L. Ed. 2d 261, 97 S. Ct. 1782 (1977).
This line, which also includes International Association of Machinists v. Street, 367 U.S. 740, 6 L. Ed. 2d 1141, 81 S. Ct. 1784 (1961) and Brotherhood of Railway and Steamship Clerks v. Allen, 373 U.S. 113, 10 L. Ed. 2d 235, 83 S. Ct. 1158 (1963), all involve the interpretation of and limit on union security provisions under the Railway Labor Act (RLA). In Hanson, according to the Kolinske court, the preemption by the RLA of a state law outlawing union shop laws constituted state action. The Court found that in preempting the state law the government created a right or privilege on the part of the union the exercise of which deprived the nonmembers of his constitutional rights. Kolinske, 712 F.2d at 476. In Street and Allen, the Court avoided the plaintiffs' constitutional claims by interpreting Section 2 (11) of the RLA to prohibit the use of fees collected from dissenting employees under union security agreements for non-collective bargaining purposes. The Kolinske court found that unlike the RLA, the NLRA expressly preserves the power of the states to outlaw union security laws. Therefore, the Court concluded, the preemption theory of state action discussed in Hanson was inapplicable to cases arising under the NLRA.
More troubling to the Kolinske court, and to plaintiffs in the present action, is the Supreme Court's expansive dicta in Abood, in which the court stated that "differences between public- and private -sector bargaining simply do not translate into differences in First Amendment rights." 431 U.S. at 232, quoted in Kolinske at 476. The appellees in Kolinske, like plaintiffs here, urged the court "to adopt the full sweep of that dictum from Abood and apply the first amendment full force. . . ." 712 F.2d at 476. The Kolinske court declined to do so, for reasons which remain persuasive today.
Plaintiffs argue that Kolinske has been overruled by the Supreme Court sub silentio in Ellis v. Railway Clerks, 466 U.S. 435, 80 L. Ed. 2d 428, 104 S. Ct. 1883 (1984). In Ellis, another RLA case, the court applied constitutional restraints to the collection and expenditure of agency fees, despite the fact that they were collected from employees in California, which does not have a right to work law. Because California does not have a state law to preempt, plaintiffs argue, ...