Lullo v. International Ass'n of Fire Fighters, Local 1066

• Decision Date: 09 March 1970
• Parties: , 73 L.R.R.M. (BNA) 2680 Alfred LULLO, Individually and as President of the Firemen's Mutual Benevolent Association of New Jersey, Branch #1, an Incorporated Association, and Richard Wood, Individually and as Delegate of the Firemen's Mutual Benevolent Association of New Jersey, Branch #1, an Incorporated Association, and the Firemen's Mutual Benevolent Association, Branch #1, an Incorporated Association of the State of New Jersey, Plaintiffs-Appellants, v. INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL 1066, a Labor Organization, the City of Jersey City, a Municipal Corporation of the State of New Jersey, and the New Jersey Public Employees Relations Commission, a Commission of the State of New Jersey, Defendants-Respondents.
• Court: New Jersey Supreme Court

Page 409

55 N.J. 409

262 A.2d 681, 73 L.R.R.M. (BNA) 2680

Alfred LULLO, Individually and as President of the Firemen's Mutual Benevolent Association of New Jersey, Branch #1, an Incorporated Association, and Richard Wood, Individually and as Delegate of the Firemen's Mutual Benevolent Association of New Jersey, Branch #1, an Incorporated Association, and the Firemen's Mutual Benevolent Association, Branch #1, an Incorporated Association of the State of New Jersey Plaintiffs-Appellants, v. INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL 1066, a Labor Organization, the City of Jersey City, a Municipal Corporation of the State of New Jersey, and the New Jersey Public Employees Relations Commission, a Commission of the State of New Jersey, Defendants-Respondents.

Supreme Court of New Jersey.

Argued Nov. 17 and 18, 1969.

Decided March 9, 1970.

Abram A. Lebson, Englewood, for appellants (Aaron Dines, Morristown, of counsel and on the brief, Lebson & Prigoff, attorneys).

Theodore W. Geiser, Newark, for New Jersey Highway Authority, amicus curiae (Pindar, McElroy, Connell, Foley & Geiser, Newark, attorneys).

David Friedland, Jersey City, for respondent Intern. Assn. of Fire Fighters, Local 1066 (Friedland, Schneider & Friedland, Jersey City, attorneys).

Francis X. Hayes, First Asst. Corp. Counsel for respondent, City of Jersey City (James F. Ryan, Corp. Counsel of City of Jersey City, attorney).

Theodore A. Winard, Deputy Atty. Gen., for respondent Public Employment Relations Commission (Stephen Skillman, Asst. Atty. Gen., and John S. Fitzpatrick, Deputy Atty. Gen., on the Supplemental Brief, Arthur J. Sills, Atty. Gen., attorney).

The opinion of the court was delivered by

FRANCIS, J.

In this action plaintiffs Lullo and Wood, individually and as officers of the plaintiff Firemen's Mutual Benevolent Association of New Jersey, Branch #1, attacked the constitutionality of L.1968, c. 303, known as 'New Jersey Employer-Employee Relations Act,' N.J.S.A. 34:13A--1 et seq. The challenge was two pronged. One was directed at section 7 (N.J.S.A. 34:13A--5.3) of the Act which provides that the representative duly elected by a majority of the public employees in an appropriate unit shall be The exclusive representative of all employees in the unit. The other challenged the portion of section 7 which authorizes such representative and the employer in the appropriate unit involved to engage in Collective negotiations concerning the terms and conditions of their employment. It was alleged that in these two respects section 7 is repugnant to Article I, paragraph 19 of the New Jersey Constitution of 1947. The trial court sustained the Act, and this Court certified the ensuing appeal while it was awaiting hearing in the Appellate Division.

Since 1895 the Firemen's Mutual Benevolent Association (FMBA), Branch #1, has been an incorporated association of this State. Its membership has always been made up of Jersey City firemen who desired to join. It is not a labor organization in the usual sense and has never held itself out as a negotiating agent for all the firemen of the City. However, on a purely voluntary basis it has interceded for and spoken on behalf of its members with the proper City representatives in matters affecting salaries, working conditions and grievances.

After L.1968, c. 303, became effective, the New Jersey Public Employment Relations Commission (PERC) which was created by the Act, acceded to a request of defendant International Association of Fire Fighters, Local 1066 (IAF), a labor organization, and ordered an election to determine if those firemen eligible to vote wished to be represented by IAF for purposes of collective negotiation with Jersey City. N.J.S.A. 34:13A--5.2, 5.3, 6. Notice of the time and place of the election and a sample ballot were given to the firemen. As stated in the ballot the question to be voted upon was:

Do you desire to be represented for purposes of collective bargaining by International Association of Fire Fighters, Local 1066?

(Plaintiffs contend the form of this question was improper and invalidated the election. The issue will be discussed later in this opinion.)

Plaintiffs were notified of the election but declined to participate because of their view that L.1968, c. 303, is unconstitutional. Instead they instituted this action in the Superior Court, Chancery Division, seeking a declaration of the statute's invalidity and a temporary and permanent injunction against holding the election. The trial judge declined a temporary restraint and directed that the election be held, the result not to be certified until disposition of the court proceeding. See N.J.S.A. 34:13A--11; PERC Rule 19:11--19(g). The election was held and 417 of the 430 eligible firemen voted; 399 voted for representation by IAF, 17 voted against such representation, and one vote was not counted. Thereafter the trial court heard the attack on the statute, and as already indicated sustained its constitutionality.

I.

The exclusive representation issue.

The right of employees in private and public employment to organize and to deal with their employers was dealt with in general terms in Article I, paragraph 19 of the 1947 Constitution. It 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 if its political subdivisions or agencies, their grievances and proposals through representatives of their own choosing.

The broad terminology of this Article comports with the overall purpose of the delegates to the Constitutional Convention. That purpose was to make the Constitution a repository of the fundamental rights of New Jersey citizens, and of the form and functions of our State government. The delegates' philosophy was to create a document which would be sufficiently descriptive and expressive to serve the needs of a basic charter and yet remain free of the detail and methods of implementation that might best be left to the legislative process. The general guidelines for constructing the document were discussed by the then Governor Alfred E. Driscoll at the opening of the Convention. He said among other things:

In the course of your debates you will, on many occasions, be tempted to adopt legislative enactments. You will be wise to guard against this natural temptation by the judicious and conscientious exercise of statemanship and will power. The State Constitution is an organic document--a basis for government. It should not be a series of legislative enactments. Our search for a modern government in this State has all too frequently been frustrated by legislation enacted by our ancestors over a century ago and embalmed in our Constitution. When legislation is permitted to infiltrate a constitution, it shackles the hands of the men and women elected by the people to exercise public authority. The longer a constitution, the more quickly it fails to meet the requirements of a society that is never static. To quote one authority: 'The more precise and elaborate' the provisions of a constitution, 'the greater are the obstacles to the reform of abuses. Litigation thrives on constitutional verbosity.'

Accordingly, I earnestly recommend that all proposals of a legislative character be rejected. * * * II, Proceedings, Constitutional Convention of 1947, 7.

It is obvious that the drafters of Article I, paragraph 19, were mindful of that admonition. The conclusion is inescapable from a reading of the article. In general language it grants and secures to employees in the private and public sectors certain basic rights. At the same time, it recognizes and clearly projects a difference as between private and public employees in the quality and substance of the rights thus elevated to constitutional stature. Obviously, as Delaware River & Bay Auth. v. International Org., etc., 45 N.J. 138, 145, 211 A.2d 789 (1965) suggests, employees in private employment were endowed in broad terms with the right to organize and bargain collectively. However, public employees were invested inviolably in significantly narrower terms with the right to organize, present and make known to their public employers their grievances and proposals through representatives of their own choosing. But it is important to note that the delegates made no effort to detail or to prescribe the nature or scope of the representation or the authority of the representative to act for the employees whether their employment was in the public or private sector. The decision as to whether there should be a single representative to speak exclusively for all the employees, or multiple representatives to speak for different groups of employees or whether an individual employee should have the right to represent himself in all dealings with his employer, or whether all three forms of representation should be authorized, was left to the Legislature.

This Court declared in Board of Ed., Borough of Union Beach v. N.J.E.A., 53 N.J. 29, 44--45, 247 A.2d 867 (1968) that the purpose of Article I, paragraph 19 was to secure the specified rights of employees in private and public employment against legislative erosion or denial. It reveals no intention to 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 45, 247 A.2d 867.

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...