Board of Educ. of Town of Boonton, Matter of

• Decision Date: 25 June 1985
• Citation: 99 N.J. 523,494 A.2d 279
• Parties: , 119 L.R.R.M. (BNA) 3354, 25 Ed. Law Rep. 1169 In the Matter of BOARD OF EDUCATION OF the TOWN OF BOONTON, Respondent, and Judith M. KRAMER, Appellant. In the Matter of BOONTON EDUCATION ASSOCIATION and New Jersey Education Association, Respondents, and Judith M. KRAMER, Appellant.
• Court: New Jersey Supreme Court

Page 523

99 N.J. 523

494 A.2d 279, 119 L.R.R.M. (BNA) 3354,

25 Ed. Law Rep. 1169

In the Matter of BOARD OF EDUCATION OF the TOWN OF BOONTON, Respondent and Judith M. KRAMER, Appellant In the Matter of BOONTON EDUCATION ASSOCIATION and New Jersey Education Association, Respondents and Judith M. KRAMER, Appellant.

Supreme Court of New Jersey.

Argued Jan. 21, 1985.

Decided June 25, 1985.

Nelson R. Kieff, a member of the Virginia bar, Springfield, Va., for appellant (Mesirov, Gelman, Jaffe, Cramer & Jamieson, Cherry Hill, attorneys; Jeffrey A. Mintz, Cherry Hill, on briefs).

Robert H. Chanin, a member of the New York bar, Washington, D.C., for respondents Boonton Educ. Ass'n and New Jersey Educ. Ass'n (Ruhlman, Butrym & Friedman, Pennington, N.J., attorneys; Chanin and James J. Brudney, a member of District of Columbia bar, Washington, D.C., of counsel; Richard A. Friedman, Pennington, and Barbara Rapkin, Clark, N.J., on brief).

Andrew M. Wubbenhurst, Kinnelon, for respondent Board of Educ. of Town of Boonton (Curtin, Hubner & McKeon, Kinnelon, attorneys).

Robert E. Anderson, Jr., Gen. Counsel, Newtown, Pa., for Public Employment Relations Commission.

The opinion of the Court was delivered by

STEIN, J.

This appeal challenges the constitutionality of the 1979 amendments to the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-5.1 to -21, as amended, L.1979, c. 477. The amendments authorize agreements between majority union representatives and public employers that require nonunion public employees to pay their majority representative a representation fee for services rendered. N.J.S.A. 34:13A-5.5 and -5.6. The constitutional challenges were initially asserted by appellant, Boonton public schoolteacher Judith Kramer, when she filed unfair labor practice charges with the New Jersey Public Employment Relations Commission (PERC) against her employer, the Boonton Board of Education (Board), her majority representative, the Boonton Education Association (BEA), and the New Jersey Education Association (NJEA). PERC granted in part and denied in part the relief sought by appellant, but declined to rule on the constitutional issues raised. This Court certified the matter directly while her appeal was pending in the Appellate Division. 99 N.J. 173, 491 A.2d 681 (1984).

I

In 1968 the Legislature passed the New Jersey Employer-Employee Relations Act (the Act). L.1968, c. 303. This Act granted to all public employees the right to join or refrain from joining employee organizations, and the right to conduct collective negotiations with public employers through majority representatives. N.J.S.A. 34:13A-5.3.

The avowed purpose of the Act was to foster the prevention and prompt settlement of labor disputes in the private and public sectors. N.J.S.A. 34:13A-2. To that end, the Act authorized majority representatives to negotiate agreements with public employers on behalf of the employees in the relevant bargaining unit. N.J.S.A. 34:13A-5.3. It further required that the majority representative "be responsible for representing the interest of all such employees without discrimination and without regard to employee organization membership." Id. Accordingly, the Act afforded the bargaining unit's nonunion public employees substantial benefits from the majority representative, without any cost obligation. See Sponsors' Statement N.J. Assembly Bill No. 688, Feb. 9, 1978. The Act also established PERC. N.J.S.A. 34:13A-5.2. This administrative body was granted exclusive jurisdiction over unfair labor practices in the public sector and was authorized to make policy and establish rules and regulations governing employer-employee relations in public employment. N.J.S.A. 34:13A-5.2, -5.4.

Effective July 1, 1980, the Legislature amended the Act to authorize agreements between public employers and majority representatives that would require employees who were not members of the majority representative to pay a representation fee not exceeding 85% of regular membership dues, fees, and assessments. L.1979, c. 477, § 2. The Sponsors' Statement clearly indicated that the purpose of the amendment was to eliminate the "free ride" enjoyed by nonunion members of the bargaining unit who received the benefit of services performed by the majority representative without sharing in the costs incurred. Sponsors' Statement, Assembly Bill No. 688, supra. The Statement cited Abood v. Detroit Bd. of Educ., 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261, reh'g denied, 433 U.S. 915, 97 S.Ct. 2989, 53 L.Ed.2d 1102 (1977), as authority for requiring nonunion members to help meet the costs of services rendered by the union.

Consistent with Abood, the statute required that the majority representative refund to nonunion employees any part of the representation fee used "either in aid of activities or causes of a partisan political or ideological nature only incidentally related to the terms and conditions of employment or applied toward the cost of any other benefits available only to members of the majority representative." N.J.S.A. 34:13A-5.5(c). This refund, however, was not to reflect "the costs of support of lobbying activities designed to foster policy goals in collective negotiations and contract administration or to secure for the employees represented advantages in wages, hours, and other conditions of employment in addition to those secured through collective negotiations with the public employer." Id.

The amended Act authorized public employers to withhold the representation fee by payroll deduction, but only if the union had established and maintained a "demand and return" system that provided a pro rata refund of those expenditures that the statute expressly determined should not be shared by nonunion member employees. N.J.S.A. 34:13A-5.6. The statute also required that the demand-and-return system provide for a procedure to review the amounts refunded, with the burden of proof on the majority representative. Id. The statute further provided that nonunion members have the right to appeal to a three-member board, consisting of a representative of public employers, a representative of public employee organizations, and a neutral member. Id.

II

In June, 1981, pursuant to N.J.S.A. 34:13A-5.5, the Board and the BEA entered into an agreement that obligated Kramer, as a nonunion member of the negotiating unit, to pay a representation fee to the BEA commencing September, 1981. Although the BEA posted notices on September 22, 1981, informing members of the negotiating unit of the amount of the representation fee and a rebate procedure, Kramer claimed to have first learned about the representation fee in a letter from the BEA dated October 7, 1981. This letter invited her to become a member of the BEA and advised her that pursuant to L.1979, c. 477, all members of the negotiating unit who chose not to join the BEA would be required to pay a representation fee in lieu of dues. After receiving the letter, she asked a representative of the BEA for a written statement of the amount of the representation fee and for a copy of the contract authorizing the fee. According to Kramer, the statement was never furnished but a copy of the contract was given to her in December, 1981.

Shortly after receiving the letter from the BEA, Kramer notified the superintendent of schools that she refused to authorize payroll deductions for the representation fee since she had not seen a copy of the contract or of the demand-and-return system mandated by statute. In fact, the BEA had adopted a demand-and-return system on September 30, 1981 and had posted a copy on the bulletin board in the faculty room on or about October 1, 1981.

Commencing February 1, 1982, the Board began deducting $74.16, an amount equal to twice the monthly representation fee, from Kramer's salary. This double deduction was made in order to recover the fees payable for the first five months of the school year--September through January--when no fees had been deducted.

In November, 1981, Kramer filed an unfair labor practice charge with PERC alleging that the Board had engaged in unfair practices by putting into effect an automatic payroll deduction for dues without signed authorization cards, thereby interfering with her right to refrain from union activity, in violation of N.J.S.A. 34:13A-5.3 and -5.4, and N.J.S.A. 52:14-15.9e. Kramer also alleged that the Board had imposed automatic payroll deductions for the representation fee without requiring the pre-establishment of a demand-and-return system, in violation of N.J.S.A. 34:13A-5.6. Simultaneously, Kramer filed unfair practice charges against the BEA and the NJEA, alleging that they had interfered with her rights under N.J.S.A. 34:13A-5.3 and -5.4 by refusing to allow her to see the agreement; by intimidating her from exercising her right to refrain from union activity; by demanding that she become a member of the union; by imposing a procedure for the automatic payroll deduction of representation fees without the establishment of a demand-and-return system in violation of N.J.S.A. 34:13A-5.6; by imposing a procedure for the automatic payroll deduction of dues without signed authorization cards, in violation of N.J.S.A. 52:14-15.9e; and by establishing an agency-fee system that charged certain union members lower amounts than certain nonmembers, reflecting a discriminatory dues system.

In February, 1982, Kramer filed an amended unfair practice charge against the BEA and NJEA, alleging that their attempt to collect the representation fee had violated her constitutional rights to freedom of speech and association. She also alleged that the representation fee was "unconstitutionally broad," since it could be used not only to pay for activities related to bargaining and contract administration, but also to subsidize lobbying activities in support of various partisan political and social issues.

In September, 1982, a hearing was held...