Board of Ed., Borough of Union Beach v. New Jersey Ed. Ass'n

Decision Date25 November 1968
Docket NumberNo. A--16,A--16
Citation53 N.J. 29,247 A.2d 867
PartiesBOARD OF EDUCATION, BOROUGH OF UNION BEACH, etc., Plaintiff-Respondent, v. NEW JERSEY EDUCATION ASSOCIATION, a corporation, etc., Union Beach Teachers Association, Frederick L. Hipp and three other individual defendants, Defendants-Appellants.
CourtNew Jersey Supreme Court

Saul Z. Cohen, New York City, for appellants (Peter M. Fishbein, New York City, Murray J. Laulicht, Brooklyn, N.Y., Donald H. Wollett, Kaye Scholer, Fierman, Hays & Handler, New York City, of counsel, Joseph N. Dempsey, Asbury Park, and Cassel R. Ruhlman, Jr., Trenton, attorneys).

Theodore W. Geiser, Newark, for respondent (Pindar, McElroy, Connell & Foley, Newark, attorneys).

Norman Mesnikoff, Asbury Park, for Monmouth County Chapter, American Civil Liberties Union of New Jersey, amicus curiae (Lee Holley, Orange, of counsel).

Thomas P. Cook, Princeton, for State Federation of Dist. Boards of Education, amicus curiae.

The opinion of the court was delivered by


Plaintiff Board of Education (herein Board) obtained a judgment, after a plenary trial, restraining certain activities by defendants and directing them, in effect, to undo actions already taken. The trial court's opinion is reported in 96 N.J.Super. 371, 233 A.2d 84 (Ch.Div.1967). We certified defendants' appeal before argument in the Appellate Division.

The Board is a public body, N.J.S. 18A:10--1, N.J.S.A., charged with the conduct of the public school system in the Borough of Union Beach. Defendant New Jersey Education Association (NJEA), with a membership of about 57,000, represents teachers and administrators in public schools in New Jersey. Defendant Union Beach Teachers Association (UBTA) represented 46 of the 47 full-time teachers employed by the Board at the time of the events about to be related. It is affiliated with NJEA, and NJEA is affiliated with a national organization, the defendant National Education Association (NEA), with more than a million members. Defendant Haller was the president of UBTA, and the other individual defendants are officers or representatives of NJEA.


In February 1967 a dispute arose between the secretary of the Board and defendant Haller, president of UBTA. Haller was a teacher in plaintiff's system but had not yet acquired tenure. On March 14, 1967 the Board met to consider teacher contracts for the following school year and decided not to offer one to Haller and two other nontenure teachers who were active in UBTA. Haller was so notified on March 29. UBTA held a special meeting of its membership on March 31 at which a lengthy resolution was adopted listing 17 grievances.

The trial court found the resolution to be a sham in its assertion of alleged grievances, which finding is not, however, pivotal in the decision of the case. The grievances had not been presented before and no effort had been made to pursue established grievance procedures. The real controversy, which comes within the general terms of the 17th alleged grievance, involved the Board's decision not to reemploy Haller and the two other teachers. Indeed, at the meeting of March 31 representatives of NJEA scored the decision of the Board not to reemploy a nontenure teacher without giving a reason and on that basis urged the teachers to submit resignations En masse. At the Board's meeting of April 4 Haller presented the 'grievance' resolution described above, and also the resignations of 36 of the 47 teachers, to be effective on June 3, about two weeks short of the end of the school term. The Board called upon the teachers to withdraw their resignations. A few did, and on April 17, the Board accepted the remaining 31 resignations.

Meanwhile, on April 12 UBTA resolved that 'sanctions be imposed' against the Board and requested NJEA to follow suit. On April 21 the NJEA resolved to 'impose sanctions' on the Board, and gave wide circulation to its resolution.

We interrupt the chronology to explain what defendants mean by 'sanctions.' In 1962 the NEA resolved:

'The National Education Association believes that, as a means of preventing unethical or arbitrary policies or practices that have a deleterious effect on the welfare of the schools, professional sanctions should be invoked. These sanctions would provide for appropriate disciplinary action by the organized profession.

The National Education Association calls upon its affiliated state associations to cooperate in developing guidelines which would define, organize, and definitely specify procedural steps for invoking sanctions by the teaching profession.'

In its 'Guidelines' NEA states:

'As used by a professional education organization, sanctions mean censure, suspension or expulsion of a member; severance of relationship with an affiliated association or other agency; imposing of a deterrent against a board of education or other agency controlling the welfare of the schools; bringing into play forces that will enable the community to help the board or agency to realize its responsibility; or the application of one or more steps in the withholding of services.'

With reference to 'sanctions' imposed by NEA upon a school district, the 'Guidelines' include the following 'types of sanctions':

'3. Notification to certification and placement services of unsatisfactory conditions of employment for educators.

4. Warning to members that acceptance of employment as a new teacher in the school district would be considered as unethical conduct and could lead to discharge from and future refusal of membership in the national professional association.

5. Advice to members presently employed that, if their private arrangements permit, they should seek employment elsewhere.'

As to a member of NEA who is guilty of 'unethical' conduct, the 'sanctions' authorized are private or public censure, suspension from membership or expulsion from membership.

The 'Guidelines' deal with the imposition of 'sanctions' by a local education association and also by a state association. As to an offending member, the 'sanctions' are those just listed, I.e., private or public censure, suspension or expulsion. As to the school districts, the local education association and the state association also impose 'sanctions,' and we quote the following from the 'Guidelines' with respect to such action at the state level:

'3. Notification to state and national accrediting agencies of professionally unsatisfactory conditions in a school district;

4. Withholding of placement services, when the state association maintains a placement office; notice to public and private placement agencies of unsatisfactory conditions in a school district and request to observe professional disapproval;

5. Notification to members of association of unacceptable conditions for employment in such district and the professional significance of accepting or refusing employment in a school district against which sanctions have been invoked.'

In harmony with the 'Guidelines,' NJEA made wide distribution of its notice of imposition of 'sanctions' on the school district, sending notices to its 57,000 members, to the presidents and placement directors of all teacher colleges in New Jersey, to like officials and others connected with state preparatory colleges in Pennsylvania, New York, West Virginia, Connecticut, Delaware and Maryland, and to all state association executive secretaries. It sent sanction notices to building representatives in selected key districts surrounding plaintiff school district. It also sent a letter to teachers considering employment by the Board, warning that 'If a contract is signed by you while professional sanctions are in effect at Union Beach, you will be in violation of the professional code of ethics.'

All of the notices referred to above quoted NEA Resolution 66--16, which reads:

'A violation of sanctions by a member of the profession is a violation of the 'Code of Ethics of the Education Profession.' Therefore, the offering or accepting of employment in areas where sanctions are in effect should be evaluated in terms of the Code, and local, state, and national associations should continue to develop procedures for disciplining members who violate sanctions.'

NJEA proclaimed through the local press that it would be 'a violation of the professional code of ethics for any teacher to accept employment in Union Beach or for any administrator to offer employment in Union Beach as long as the sanctions which had been invoked were in effect.


It has long been the rule in our State that public employees may not strike. We recently refused to hold that teachers are beyond that ban, saying in In re Block, 50 N.J. 494, 499--500, 236 A.2d 589, 592 (1967):

'* * * Nor can defendants claim a right to strike under the State Constitution, Art. I, 19, upon the thesis that they are in private employment because teaching can be pursued under private auspices.

We rejected the relevancy here of the distinction between 'governmental' and 'proprietary' functions in Delaware River and Bay Authority (v. International Organization of Masters, Mates and Pilots), supra, 45 N.J. (138), at 146, 211 A.2d at 789. When government undertakes itself to meet a need, it necessarily decides the public interest requires the service, and its employees cannot reverse or frustrate that decision by a concerted refusal to meet that need. In any event, teachers are ill-situated to profit from the distinction we have rejected, since the maintenance of a free public school system is mandated by the State Constitution itself. Art. VIII, § 4, 1.'

And we have rejected the notion that public employees may resort to strike because they think their cause is just or in the public good. So, in discussing the contempt sentences imposed in In re Buehrer, 50 N.J. 501, 508, 236 A.2d 592, 596 (1967), we said:

'* * * Defendants say the trial court gave no weight to their claim that they struck and...

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