# In Re Local 195, IFPTE

> Supreme Court of New Jersey · March 23, 1982 · 88 N.J. 393

URL: https://www.frixlaw.com/law-library/cases/9753951

## Case

- **Full name:** In the Matter of Local 195, Ifpte, Afl-Cio, Appellant, and State of New Jersey, Respondent. in the Matter of State of New Jersey, Appellant and Cross-Respondent, and State Supervisory Employees Association, A/W N. J. Civil Service association/n. J. State Employees Association (Primary Level Supervisors Unit), Respondent and Cross-Appellant. in the Matter of State of New Jersey, Appellant and Cross-Respondent, and N. J. Civil Service association/n. J. State Employees Association (Administrative & Clerical Services Unit), Respondent and Cross-Appellant. in the Matter of State of New Jersey, Appellant and Cross-Respondent, and N. J. Civil Service association/n. J. State Employees Association (Professional Unit), Respondent and Cross-Appellant
- **Court:** Supreme Court of New Jersey
- **Decided:** March 23, 1982
- **Citations:** 88 N.J. 393; 443 A.2d 187; 112 L.R.R.M. (BNA) 2214; 1982 N.J. LEXIS 1881
- **Precedential status:** Published
- **Opinion:** Concurring in part by Handler
- **Judges:** Handler, O'Hern, Pashman
- **Cited by:** 124 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9753951

## How later opinions describe it (automated extraction)

- noting that “the scope of negotiations in the public sector is more limited than in the private sector” because “the employer in the public sector is government, which has special responsibilities to the public not shared by the private sector[,]” and stating that “[i]f the Le…
- noting that mandatory negotiation 43 can be inapt solution to invoke, when other solutions for review of management action exist, because negotiation “route is cumbersome, inappropriate and potentially disruptive of governmental management”
- noting that mandatory negotiation can be inapt solution to invoke, when other solutions for review of management action exist, because negotiation “route is cumbersome, inappropriate and potentially disruptive of governmental management”
- holding a regulation providing an authority "'may'" lay off does not preempt because it "grants considerable discretion" and does not "speak[] in the imperative" (citation omitted)
- concluding that subcontracting as well as transfer or reassignment of employees are non-negotiable subjects

## Opinion text

HANDLER, J.,
concurring and dissenting.
I have only one point of difference with the majority’s disposition of this case. I cannot agree that the transfer and reassignment of union officers and shop stewards should be a mandatory subject for collective negotiations. I therefore dissent on that single point.
At the outset let me note that I fully subscribe to the majority’s analytical approach for determining whether a particular subject is mandatorily negotiable. The Court has correctly reaffirmed the principles expressed in Bd. of Ed. of Woodstown-Pilesgrove v. Woodstown-Pilesgrove Ed. Ass’n, 81 N.J. 582 (1980), which require a balancing of competing interests to make scope-of-negotiation determinations. This approach does not depend on the talismanic application of labels such as “terms and conditions of employment” or “managerial prerogatives.” Rather, the inquiry focuses on the extent to which collective negotiations will interfere with the establishment and effectuation of governmental policy. Negotiation is required only for those terms and conditions of employment “which intimately and directly affect the work and welfare of public employees and on which negotiated agreement would not significantly *421 interfere with the exercise of inherent management prerogatives pertaining to the determination of governmental policy.” Id. at 591 , quoting State v. State Supervisory Employees Ass’n, 78 N.J. 54, 67 (1979).
In applying this balancing test to the subject of transfers and reassignments, the majority properly holds that such matters are not mandatorily negotiable because the substantive decision to transfer or reassign an employee is preeminently a governmental policy decision which would be significantly encumbered or impaired if it were subject to mandatory negotiation. Ante at 416. See Ridgefield Park Education Association v. Ridgefield Park Board of Education, 78 N.J. 144, 156 (1978). In drawing a distinction between the public employer’s substantive decision to transfer or assign employees and the procedural process to be followed in making such decisions, the majority clearly recognizes that the former constitutes inherent managerial prerogatives, while the latter does not. Hence, I agree with the majority that procedures for implementing substantive decisions relating to transfers and reassignments are subject to mandatory negotiation because procedural matters pose no significant threat of interference with the public employer’s ability to make substantive policy determinations. Ante at 417. See State Supervisory, 78 N.J. at 90-91 .
Nevertheless, the Court deviates from this sound and logical analysis when it focuses more narrowly upon the question of transfers of union officials and shop stewards. While the majority acknowledges that negotiation on such matters would “impinge on the ability of the employer to decide who will be transferred or reassigned,” it concludes that, in this one area, “the interest of the employees predominates over the minimal interference with the employer’s policy choices.” Ante at 419.
The majority does not explain why this is so. The majority simply takes an inconsistent position on these transfer/assignment questions. It refuses to require negotiation regarding the transfer or assignment of employees in general because of the *422 “significant interference” that would pose to the formulation of government policy, yet it finds, without explication that the infringement on policy-making functions is only “minimal” when these decisions involve an employee who at the time of decision happens to hold a union position.
From the employer’s standpoint, it is no less an interference with the implementation of governmental policy to have to negotiate the transfer or assignment of an employee who holds a union office, than it would be regarding any other employee. Our balancing approach requires us to determine the extent to which collective negotiations will interfere with the exercise of government policy. Where negotiation on a particular subject would cause significant interference with policy-making functions, it will not be required. Therefore, since, as the majority itself points out, subjecting employee transfer and assignment questions to negotiation would significantly interfere with the effectuation of government policy, I would affirm the finding of the Appellate Division that the transfer and reassignment of all employees, regardless of union status, is nonnegotiable.
Nevertheless, I share the majority’s justifiable concern for public employees who enjoy union leadership and responsibility. Union officials and shop stewards can be the target of employer victimization because of their very visible and vocal position as employee representatives. Transfers of such persons may be for improper purposes, such as to silence them or to cut them off from the very working environment where they are needed most. Such improper or retaliatory measures by management against union officers can breed disruption and instability in labor relations and can disserve the proper administration of collective bargaining, grievance procedures and other cooperative union practices. See, e.g., Aeronautical Industrial Dist. Lodge v. Campbell, 337 U.S. 521 , 69 S.Ct. 1287 , 93 L.Ed. 1513 (1949); D’Amico v. NLRB, 582 F.2d 820 (3 Cir. 1978) (relating to private sector labor relations).
*423 The majority attempts to address these real concerns by requiring mandatory negotiation on the transfer or assignment of such officials. There is, however, a much more direct, effective and pragmatic way to defend against nefarious managerial decisions designed to remove or weaken union leadership. I would not hesitate to consider it an unfair practice under the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-5 et seq., for a public employer to transfer or assign union officials or shop stewards for impermissible reasons or for motives ulterior to the legitimate needs of government to promote efficiency and economy in the delivery of public services. Our Act specifically prohibits public employers from interfering with the functioning of employee organizations or from coercing employees by burdening terms and conditions of employment in order to discourage employees from exercising their guaranteed rights. N.J.S.A. 34:13A-5.4(a)(l), (2) and (3). Any employee transfer or assignment which separates union leaders from their membership must be scrupulously scrutinized to determine whether the public employer has violated these statutory standards by acting out of anti-union animus or bad faith for reasons unrelated to proper governmental ends.
In the private sector federal courts have often found unfair labor practices where an employee’s transfer, demotion, discharge or layoff was related to the employee’s union activities. See, e.g., Osteopathic Hospital Founders Ass’n v. NLRB, 618 F.2d 633, 636-637 (10 Cir. 1980) (hospital refused to promote union activist and failed to hire two others because of their union activities); NLRB v. Marmon Transmotive, 551 F.2d 733 (6 Cir. 1977) (employer threatened not to promote employees who filed grievances and failed to promote employees who did file grievances); Cameron Iron Works, Inc. v. NLRB, 464 F.2d 609 (5 Cir. 1972) (company issued employee an ultimatum to either resign his post as union steward or face demotion); Food Store Emp. Union, Local 347 v. NLRB, 418 F.2d 1177 (D.C.Cir.1969) (employee who helped union organize and refused to assist company president in spying on union activities transferred out of that *424 unit); Steves Sash & Door Co. v. NLRB, 401 F.2d 676 (9 Cir. 1968) (employees offered promotion into supervisory jobs so that they would have to discontinue union activity). In addition, courts have invoked state labor laws to find unfair labor practices where an employee’s job status changed after engaging in union activities. See, e.g., Trustees of Forbes Library v. Labor Relations Commission, - Mass. -, 428 N.E.2d 124 (1981); Pennsylvania Labor Relations Board v. Ficon, 434 Pa. 383 , 254 A.2d 3 (1969); St. Joseph Hospital v. Pennsylvania Labor Relations Board, 16 Pa.Cmwlth. 533 , 330 A.2d 561 (Commw.Ct.1974).
Moreover, this Court has recognized that “[i]t would certainly constitute an unfair labor practice if public employees, having engaged in lawful organizational activities, were to be penalized or denied promotions because of that protected participation.” Hackensack v. Winner, 82 N.J. 1, 20 (1980). Our public Employer-Employee Relations Act focuses upon unfair labor practices as an appropriate area for administrative remediation. N.J.S.A. 34:13A-5.4. Thus, unfair labor practice charges are clearly an available and preferred means for addressing transfer or assignment controversies involving union officials.
Because of the inherently suspect nature of transfers or reassignments of union officials, it may well be that circumstances would exist in which the public employer’s decision to shift such an employee would support an unfair practice charge, even without a detailed showing that the decision was made in bad faith or motivated specifically by anti-union animus. Cf. Saginario v. Attorney General, 87 N.J. 480, 497 (1981) (Clifford, J., concurring and dissenting) (union’s failure to give notice to employee of grievance proceeding contrary to his interest found to be unfair practice under N.J.S.A. 34:13A-5.4). However, in this case we are not presented with the question of what standard or test applies to determine whether decisions to transfer or assign union officers and stewards can constitute an unfair practice under the Public Employer-Employee Relations Act.
*425 I believe that it would suffice on this point to identify the statutory and administrative weaponry that is available to vindicate the rights guaranteed public employees under the New Jersey Employer-Employee Relations Act. Genuine concerns for the strength and welfare of public employee organizations arising from potential threats directed against union leadership by public employers can be adequately defensed and redressed under the Act. I am sure that these same concerns have induced the majority to invoke mandatory negotiation as a solution. As I have indicated, this route is cumbersome, inappropriate and potentially disruptive of governmental management. Moreover, the Act itself provides a sound and effective remedy for these problems. Therefore, I dissent from the majority’s conclusion on this particular issue.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9753951. Public record. Not legal advice.