New Jersey Turnpike Employees Union, Local 194 of Am. Federation of Technical Engineers, AFL-CIO v. New Jersey Turnpike Authority

Decision Date18 April 1973
Docket NumberAFL--CI,P
Citation123 N.J.Super. 461,303 A.2d 599
CourtNew Jersey Superior Court — Appellate Division

Thomas L. Parsonnet, Newark, for plaintiff-appellant (Parsonnet, Parsonnet & Duggan, Newark, attorneys).

Joseph R. Postizzi, Clark, for defendant-respondent (David W. Dowd, Livingston, attorney).

Francis A. Mastro, Springfield, amicus curiae for The National Right to Work Legal Defense Foundation (Apruzzese & McDermott, Springfield, attorneys; Rex H. Reed, Legal Director; Vincent J. Apruzzese, Springfield, of counsel).

Before Judges CARTON, MINTZ and HANDLER.

The opinion of the court was delivered by

HANDLER, J.S.C., Temporarily Assigned.

Plaintiff New Jersey Turnpike Employees' Union, Local 194, of the American Federation of Technical Engineers (Union) appeals from an adverse decision on the validity of an agency shop clause in a contract with defendant New Jersey Turnpike Authority (Authority). On March 5, 1970, the New Jersey Public Employment Relations Commission certified plaintiff union as the majority representative of the employees of defendant Authority. Thereafter, the union and the Authority engaged in collective bargaining negotiations and on August 12, 1970 entered into a collective bargaining agreement.

Article VI-D of that collective bargaining agreement contains the following language: language:

The Authority and Union agree to file a complaint seeking a 'Declaratory Judgment' before a court of competent jurisdiction to determine the legality of an 'Agency Shop' provision. Should such a provision be declared legal then Agency Shop shall be effective on the first day of the month of the second month succeeding the date of the decision.

Pursuant to this provision, the union filed such an action and proposed that, if its suit were successful, the following agency shop arrangement be added to the collective bargaining agreement:

It is therefore agreed that it is a condition of employment or continued employment that commencing on the thirtieth day following the initial employment of any employee covered by this agreement, all employees shall pay to the union an amount, equal to the amount of the regular dues of the union, plus an amount equal to the regular initiation fee of the union, and that failure to make such payments during the month when the same is due shall constitute good cause for, and require separation from employment. It is further agreed that all funds paid to the Union by or on behalf of persons not members of the union because of this agreement shall be used exclusively to defray the costs of collective negotiations, the negotiation and adjustment of grievances with the Authority and other expenses relating to the representation of such persons. Should it be determined that the funds thus paid by said nonmembers exceed their fair share of such expenditures, it is agreed that adjustments in said amount of initiation fee and/or dues shall be made to eliminate such excess.

On motion for summary judgment the court below declared the above provision invalid because it was contrary to the New Jersey Employer-Employee Relations Act, L.1968, c. 303; N.J.S.A. 34:13A--1 et seq.

On this appeal the union urges that the proposed agency shop is valid and does not violate any constitutional or statutory stricture and is consistent with public policy. The Authority contends in effect that any agency shop arrangement would be contrary to the specific provisions of N.J.S.A. 34:13A--5.3 which confers the right upon individual employees to desist from union activity; that it would violate the constitutional guarantee to employees of the right to process their grievances individually or through their representatives, and that the proposal would also be at variance with statutory restrictions applicable to the hire of veterans and is otherwise illegal by compelling dues deduction; also, such a provision is not justified by considerations of equity.

An agency shop has been defined as an arrangement whereby, as a condition of continued employment, all employees not already members of the union and new employees hired thereafter must pay to the union, within a stated time after agreement or initial employment, a sum equal to the initiation fees charged to members of the union and monthly sums equal to regular membership dues required of members. Hopfl, 'The Agency Shop Question,' 49 Cornell L.Q. 478 (1964). Focusing upon the constitutional argument, the Authority contends that an agency shop is in direct conflict with N.J.Const. (1947) Art. I, par. 19. This 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.

More pointedly, it is asserted that the proposed agency shop requires payments by nonmember employees for the purpose of defraying the union's expenses incurred for the processing of grievances. This, it is suggested, is at war with the constitutional right in public employees to process grievances individually or through their designated representatives. The thesis seems to be that under an agency shop non-union employees would either be compelled to forfeit this right to handle their own grievances or be discouraged in the exercise thereof. The argument is tendered notwithstanding judicial recognition that the constitutional guarantee does not confer the right upon individuals to bargain or negotiate terms and conditions of employment. Lullo v. International Ass'n of Fire Fighters, 55 N.J. 409, 262 A.2d 681 (1970). Nor do we perceive that it affirmatively confers such a right to process grievances, at least where an employee representative has been duly elected for that purpose by a majority of employees.

The trial court properly rejected this constitutional attack:

To interpret the constitutional language in Art. I, par. 19, to bar individual public employees from presenting proposals as to terms and conditions of employment whenever there is a majority representative, but to safeguard their right to present grievances under all circumstances would be to create a dichotomy between 'grievances' and 'proposals' which has no basis in constitutional history or otherwise. (117 N.J.Super. at 351, 284 A.2d 566 at 567.)

It may be noted that the Public and School Employees Grievance Procedure Study Commission, in proposing comprehensive legislation to govern public employment, recommended a rule which would recognize individual or minority handling of grievances. The Commission proposed When a majority of employees in a given negotiating group or unit indicate by secret election a preference for a specific representative organization, no other organization should be designated, certified, or recognized for the purpose of collective negotiations, but this should not preclude an employee's right to process grievances individually. (Report, p. 22, par. (c))

The Legislature, in the adoption of the New Jersey Employer-Employee Relations Act, apparently adopted a different tack. N.J.S.A. 34:13A--5.3 provides:

Nothing herein shall be construed to prevent any official from meeting with an employee organization for the purpose of hearing the views and requests of its members in such unit so long as (a) the majority representative is informed of the meeting; (b) any changes or modifications in terms and conditions of employment are made only through negotiation with the majority representative; and (c) A minority organization shall not present or process grievances. * * * (Emphasis added).

It is only

(w)hen no majority representative has been selected as the bargaining agent for the unit of which an individual employee is a part, (that) he may present his own grievance either personally or through an appropriate representative or an organization of which he is a member and have such grievance adjusted. (Ibid.)

There are cogent reasons sounding in public policy why the majority representative of a unit of public employees should be authorized to act as the sole or exclusive representative on behalf of all employees in the handling of grievances. As mentioned in Lullo, exclusivity in the processing of grievances is conducive to greater stability and minimizes unrest; individual employees secure greater leverage vis-a$-vis their governmental employer and administrative efficiency is enhanced. Moreover, the responsibility is crystallized in the elected majority representative to process grievances in good faith without discrimination and with the same...

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