Division of Criminal Justice State Investigators, Matter of

• Decision Date: 16 April 1996
• Citation: 674 A.2d 199,289 N.J.Super. 426
• Parties: , 152 L.R.R.M. (BNA) 2274 In the Matter of the DIVISION OF CRIMINAL JUSTICE STATE INVESTIGATORS. Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 426

289 N.J.Super. 426

674 A.2d 199, 152 L.R.R.M. (BNA) 2274

In the Matter of the DIVISION OF CRIMINAL JUSTICE STATE INVESTIGATORS.

Superior Court of New Jersey,

Appellate Division.

Argued Jan. 16, 1996.

Decided April 16, 1996.

Leon B. Savetsky, Hackensack, for appellant New Jersey Division of Criminal Justice State Investigators (Loccke & Correia, attorneys, Hackensack; Mr. Savetsky and Joseph Licata, Dumont, on the brief).

Carol Johnston, Deputy Attorney General, for respondent State of New Jersey (Deborah T. Poritz, Attorney General, attorney; Catherine M. Brown, Senior Deputy Attorney General, of counsel, and Ms. Brown and Ms. Johnston, on the brief).

Before HAVEY, D'ANNUNZIO and CONLEY, JJ.

The opinion of the court was delivered by

D'ANNUNZIO, J.A.D.

Petitioner, the New Jersey Division of Criminal Justice State Investigators, appeals from an order of the Public Employment Relations Commission (PERC) dismissing its petition for representation. Respondent, State of New Jersey, Division of Criminal Justice (Division), is the public employer of the petitioning employees. Petitioner attacks the validity of N.J.S.A. 52:17B-100(b) (hereafter section 100(b)), which classifies the petitioning employees as "confidential" for the purposes of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 to -21, thereby relieving respondent of any duty to engage in collective negotiations with them.

Petitioner argues that section 100(b) deprives the petitioning employees of their rights: (1) to organize, pursuant to N.J. Const. art. I, p 19; (2) of association and assembly, pursuant to U.S. Const. amends. I and XIV; (3) to equal protection, pursuant to N.J. Const. art. I, p 1 and U.S. Const. amend. XIV; and (4) to freedom from special legislation, pursuant to N.J. Const. art. IV, § 7, p 7. PERC declined to decide any of these issues.

N.J. Const. art. I, p 19 provides:

Persons in private employment shall have the right to organize and bargain collectively. Persons in public employment shall have the right to organize, present to and make known to the State, or any of its political subdivisions or agencies, their grievances and proposals through representatives of their own choosing.

Thus, the New Jersey Constitution distinguishes between private sector and public sector employees regarding the right to bargain collectively. The New Jersey Supreme Court recognized this distinction in Delaware River and Bay Auth. v. International Org. of Masters, Mates and Pilots, 45 N.J. 138, 144-48, 211 A.2d 789 (1965). The Court ruled that public employees did not have the constitutional right to strike or to bargain collectively. The Court relied in part on a 1942 report of the Governor's Committee on State-Employee Relations. Id. at 144, 211 A.2d 789. The Court noted that the report

recogniz[ed] the right of public employees to organize and be heard through representatives of their own choosing on questions of wages, hours, and working conditions generally, but point[ed] out that public employees do not have, in any full sense, the collective bargaining rights available to private employees and may not engage in the coercive activities available to the latter.

[Ibid.]

The Court also cited a 1954 Opinion of the Attorney General issued in response to an inquiry made by the South Jersey Port Commission. Id. at 145, 211 A.2d 789. The Attorney General concluded:

(1) that the Commission's employees have the right to form a union, (2) that they have no right to collective bargaining in its full sense but do have a right to meet, through representatives of their own choosing, with representatives of the Commission who are obligated to hear proposals and grievances and determine, in good faith, whether they are meritorious, feasible and satisfactory to the Commission.

[Ibid.]

The Court concluded that " Article I, par. 19 of the Constitution clearly recognizes the distinction between public and private employees." Ibid.

In 1968, the Legislature extended to certain public employees the right to bargain collectively through employee organizations, and established the correlative duty of a public employer to negotiate with the duly selected representatives of its employees. N.J.S.A. 34:13A-5.3 (hereafter section 5.3). The Supreme Court upheld the validity of section 5.3 in Lullo v. International Ass'n of Fire Fighters, 55 N.J. 409, 262 A.2d 681 (1970). In so ruling, the Court restated the constitutional distinction between public and private sector employees:

In analyzing Article I, paragraph 19, this Court recognized that the rights secured thereby to public employees are less than those similarly entrenched for private employees. Further, we accepted the thesis that the right of collective bargaining in the full sense in which it obtains in the private employment sector is not guaranteed by the paragraph to public employees. With respect to the latter employees we interpreted the language to impose on the employer in the public sector only the duty to meet with its employees or their chosen representative and to consider in good faith any grievance or proposals presented on their behalf.

[Id. at 416, 262 A.2d 681 (citing Board of Ed., Borough of Union Beach v. N.J.E.A., 53 N.J. 29, 44, 247 A.2d 867 (1968)).]

The Court held that Article I, paragraph 19 does not "deprive the Legislature of the power to grant to public employees a further right designed to implement or effectuate those rights secured by Article I, paragraph 19, or to grant more expansive relevant rights which do not conflict with that article." Id. at 416, 262 A.2d 681 (citing Board of Ed., Borough of Union Beach, supra, 53 N.J. at 45, 247 A.2d 867).

Section 5.3 recognizes exceptions to the statutorily created right to collective bargaining in the public sector. It provides that, "this right shall not extend to elected officials, members of boards and commissions, managerial executives, or confidential employees." Ibid.

N.J.S.A. 34:13A-3(g) defines the phrase "confidential employees." It provides:

(g) "Confidential employees" of a public employer means employees whose functional responsibilities or knowledge in connection with the issues involved in the collective negotiations process would make their membership in any appropriate negotiating unit incompatible with their official duties.

Section 100(b), the statute at issue in this appeal, was a 1981 amendment to the Criminal Justice Act of 1970, N.J.S.A. 52:17B-97 to -117. It provides:

All employees of the division, except for secretarial and clerical personnel, shall be in the unclassified service of the civil service of the State. All unclassified employees of the division shall be deemed confidential employees for the purposes of the "New Jersey Employer-Employee Relations Act", P.L.1941, c. 100 (C. 34:13A-1 et seq.).

[ N.J.S.A. 52:17B-100(b).]

Section 100(b), in effect, broadens the definition of "confidential employee" contained in N.J.S.A. 34:13A-3(g) to include certain division personnel, including petitioner herein. Consequently, under section 100(b), the respondent has no duty to engage in collective bargaining with the petitioning employees in the present case.

Petitioner's contention that section 100(b) deprives the petitioning employees of their rights under Article I, paragraph 19, and their rights of association and assembly under the First Amendment of the United States Constitution, is without merit. As previously indicated, Article I, paragraph 19 provides only limited rights to public employees. Section 100(b) does not impair those rights; it merely withholds rights created by statute. Similarly, section 100(b) does not burden the petitioning employee's rights of association and assembly; rather, it merely eliminates the employer's duty to negotiate collectively. The United States Supreme Court considered a similar issue in Smith v. Arkansas State Highway Employees, 441 U.S. 463, 99 S.Ct. 1826, 60 L.Ed.2d 360 (1979). There, the State Highway Commission refused to consider a grievance unless the employee submitted it personally. Id. at 463, 99 S.Ct. at 1827, 60 L.Ed.2d at 362. In the private sector, this policy probably would have constituted an unfair labor practice, as it impaired or undermined the union's effectiveness in representing its members. Id. at 465, 99 S.Ct. at 1828, 60 L.Ed.2d at 363. The Court explained:

The First Amendment protects the right of an individual to speak freely, to advocate ideas, to associate with others, and to petition his government for redress of grievances. And it protects the right of associations to engage in advocacy on behalf of their members....

But the First Amendment is not a substitute for the national labor relations laws.... The public employee surely can associate and speak freely and petition openly, and he is protected by the First Amendment from retaliation for doing so. But the First Amendment does not impose any affirmative obligation on the government to listen, to respond or, in this context, to recognize the association and bargain with it.

[Id. at 464-65, 99 S.Ct. at 1827-28, 60 L.Ed.2d at 362-63 (citations omitted) (footnote omitted).]

The Court concluded that "all that the Commission has done in its challenged conduct is simply to ignore the union. That it is free to do." Id. at 466, 99 S.Ct. at 1828, 60 L.Ed.2d at 363.

Hanover Tp. Fed'n of Teachers Local 1954 v. Hanover Community School Corp., 457 F.2d 456 (7th Cir.1972), and Atkins v. City of Charlotte, 296 F.Supp. 1068 (W.D.N.C.1969), explained why the First Amendment guarantees public employees a right to join unions, but not to bargain or negotiate collectively. In Hanover, the local school board "refused to engage in meaningful bargaining with the union," and discharged nine of the union's most active leaders. 457 F.2d at 458. The school board then mailed individual contracts to the remaining employees which, according to the union, "violated a duty to...