I concur in that part of the order appealed from that grants PEF the membership dues for the reasons and upon the findings set forth in the opinion of Mr. Justice Cholakis at Special Term. I dissent, however, as to the agency shop fees and would grant the motion of the intervenors as to this aspect of the case. The prior decision of the Court of Appeals, the decisions of this court and Special Term did not consider the merits of the intervenors’ arguments and contentions.
There appears to be no precedent for the present proceeding and it becomes more or less a judgment call. Under these circumstances, it appears to me that there is a valid distinction between the rights of dues-paying members under the terms of a contract and the rights of those nonmembers required to pay fees pursuant to a statute which should be construed most favorably in favor of the intervenors. Such a result will do equity to all of the parties involved.
With that preamble as to agency shop fee deductions pursuant to section 208 (subd 3, par [a]) of the Civil Service Law, the rights of the proposed intervenors to relief are not so easily dismissed. Paragraph (a) of subdivision 3 provides, in part, as follows: "[E]very employee organization that has been recognized or certiñed as the exclusive representative of employees of the state within a negotiating unit of classified civil service employees or employees in a collective negotiating unit established pursuant to this article for the professional services in the state university, for the members of the state police or for the members of the capítol buildings police force of the office of general services shall be entitled to have deducted from the wage or salary of the employees in such negotiating unit who are not members of said employee organization, the amount equivalent to the dues levied by such employee organization, and the state comptroller shall make such deductions and transmit the sum so deducted to such employee organization. Provided, however, that the foregoing provisions of this subdivision shall only be applicable in the *128case of an employee organization which has established and maintained a procedure providing for the refund to any employee demanding the return any part of an agency shop fee deduction which represents the employee’s pro rata share of expenditures by the organization in aid of activities or causes of a political or ideological nature only incidentally related to terms and conditions of employment. Nothing herein shall be deemed to require an employee to become a member of such employee organization.” (Emphasis added.) Additionally, the following definition is set forth in section 201 (subd 2, par [b]) of the Civil Service Law as follows: "(b) The term 'agency shop fee deduction’ means the obligation or practice of a government to deduct from the salary of a public employee who is not a member of the certified or recognized employee organization which represents such employee for the purpose of collective negotiations conducted pursuant to this article, an amount equivalent to the amount of dues payable by a member. Such term also means the obligation or practice of government to transmit the sums so deducted to an employee organization.” (Emphasis added.) As set forth in the above statutory provisions, it is apparent that the agency shop fee deduction is not a simple withholding of salary but is, in fact, an amount never controlled by the employee. Unlike closed shop arrangements where a person must join a union in order to work, the agency shop does not require membership in a union. Recognizing that there can be other views presented as to agency shop fee, the fact remains that any employee who is not a member of the union currently recognized or certified as the representative of his unit is subjected to a salary deduction without his consent. An employee may question whether or not any withholding not personally directed by consent is done in accordance with law.
Based upon the foregoing statutory language and the present record as is more fully considered hereinafter, it seems evident that the proposed intervenors have established a legal interest in the funds in escrow which represent their agency shop fee deductions for the period at issue. Accordingly, as noted above, the motion to intervene must be granted as to Cohen, Murphy and Suss. However, I concur with Special Term as to denying any class action status to these proceedings. The principles of stare decisis are sufficient protection for the similarly situated State employees. (Matter of Jones v Berman, 37 NY2d 42, 57.)
*129Essentially, PEF has relied upon its contention that merely being certified entitled it to the amount withheld as agency shop fees because CSEA was not entitled to such fees, as it was not certified. However, as even a cursory view of the language hereinabove quoted (Civil Service Law, § 201, subd 2, par [b]; § 208, subd 3, par [a]) reveals, certification (recognition) is only essential as an initial condition for the withholding of any sums of money not authorized by the employee. As a result of the Court of Appeals decision on March 27, 1979, it is apparent that CSEA was not a union for which such deductions could be made because it was not certified. On the other hand, PEF was certified throughout the period at issue, and, therefore, the State was obligated to withhold an agency shop fee and pay it over to PEF in accordance with the statute.
However, PEF has not presented any of the legal requirements to establish a complete right to an agency shop fee deduction in any particular amount. There is nothing to indicate that the agency shop fees were only withheld for employees not members of PEF or that such fees are the equivalent of the dues charged members of PEF. In another aspect of this case under examination in the prior decision of this court on the merits of the underlying litigation (Matter of Civil Serv. Employees Assn, v Newman, 66 AD2d 38, 47, supra), its organization was described thusly: "[I]t has no membership, no employees, no bank accounts, no officers, nor any indicia of an organization.”
Accordingly, neither CSEA nor PEF has demonstrated any legal basis to receive the escrow moneys which represent agency shop fee deductions. It appears that those sums of money were withheld at the direction of the stay orders of this court and Special Term and should now be refunded by the Comptroller to the employees from whom withheld.
It must be recognized that, upon the prior proceedings culminating in the order of April 16, 1979 by this court, the proposed intervenors did not raise any issue as to proceeds collected on and after March 27, 1979 and no factual or legal issue was raised as to the entitlement of PEF to the agency shop fees on and after that date. We now have before us the entire record including the rights of the proposed intervenors.
The order should be modified by granting the motion of proposed intervenors Cohen, Murphy and Suss as to agency shop fees in escrow and affirming its denial in all other respects including a denial of class action status, and, by *130directing the Comptroller, as holder of the balance of the escrow funds pursuant to orders of this court and Special Term, to pay over the funds representing agency shop fees by the method of refunds to the employees from whom withheld or their legal representatives, and, as so modified, the order should be affirmed.
Sweeney and Staley, Jr., JJ., concur with Mahoney, P. J.; Kane and Herlihy, JJ., concur in part and dissent in part in separate opinions.
Order affirmed, without costs.