Amicus Curiae Brief — Lehnert v. Ferris Faculty Assn.

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INTEREST OF THE AMICI CURIAE

TABLE OF CONTENTS

INTRODUCTION AND SUMMARY OF ARGU-

MENT

ARGUMENT

I. THE NEW JERSEY LAW ON “REPRESEN-

II.

III.

CONCLUSION ..

TATION FEE” AGREEMENTS IN THE PUB-

LIC SECTOR .

THE NEW JERSEY PUBLIC SECTOR

LABOR RELATIONS SYSTEM

A. “Collective Negotiation” Within the New

Jersey System

B. The Relationship Between Statutes and Reg-

ulations Setting Terms or Conditions of Em-

ployment and Collective Negotiations

C. Terms and Conditions of Employment on

Which Negotiated Agreement Might Signifi-

cantly Interfere With The Determination of

Government Policy

NEW JERSEY’S INTEREST IN PERMIT-

TING UNIONS TO USE REPRESENTATION

FEES TO FINANCE LOBBYING ON TERMS

AND CONDITIONS OF EMPLO _

A. Lobbying on “Policy Goals in Collective

Negotéations and Contract Administration“.

B. Lobbying on Statutes and Regulations That

Set Terms and Conditions of Employment....

C. Lobbying on Government Policy Decisions

that Directly Affect Terms and Conditions

of Employment

NEW JERSEY’S LABOR RELATIONS IN-

TERESTS JUSTIFY THE STATE’S DECI-

SION TO ALLOW THE USE OF REPRE-

SENTATION FEES FOR EMPLOYMENT-

RELATED LOBBYING

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26

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TABLE OF AUTHORITIES

CASES Page

Abood v. Detroit Board of Education, 431 U.S.

209 (1977) 3, 28, 29

Alexander v. Gardner-Denver Co., 415 U.S. 36

(1974) 13

Barrentine v. Arkansas-Best Freight System, Inc.,

450 U.S. 728 (1981) 13

Bernards Board of Ed. v. Bernards Ed. Associa-

tion, 79 N.J. 311, 399 A.2d 620 (1979 18, 26

Bethlehem Twp. Board of Ed. v. Bethlehem Twp.

Ed. Association, 91 NJ. 38, 449 A.2d 1254

(1982) 15, 19

Boonton Board of Ed. v. Kramer, 99 N.J. 523, 494

A.2d 279 (1985), cert. denied, 475 U.S. 1070

(1986) 4, 7, 14, 23, 92

First National Maintenance Corp. v. NLRB, 452

U.S. 666 (1981) 17

Ft. Halifax Packing Co. v. Coyne, 481 U.S. 1

(1987) 3

IFPTE Local 195 v. State, 88 N.J. 393, 443 A.2d

187 (1982) 14, 18, 19

Keller v. State Bar of California,. U.S. ——,

110 S. Ct. 2237 (1990) 4, 5, 30

Lullo v. Fire Fighters Local 1066, 55 N. J. 409, 262

— 8 — passim

In re Maywood Board of Ed., 168 N.J. Super. 45,

401 A.2d 711 (App. Div.), certif. denied, 81

N. J. 292, 405 A.2d 836 (1979) 17

Minnesota Board for Community Colleges v.

Knight, 465 U.S. 271 (1984) 3

NLRB v. Wooster Div. of Borg-Warner Corp.,

356 U.S. 342 (1958) 12

Higher Ed., 91 N. J. 18, 449 A. 2d 1244 (1982) psi

Old Bridge Board of Ed. v. Old Bridge Ed. Asso-

ciation, 98 N. J. 523, 489 A.2d 159 (1985) 17

Patterson Police Local 1 v. City of Patterson, 87

N.J. 78, 482 A.2d 847 (1981) 17, 18, 28

a a

iii

TABLE OF AUTHORITIES—Continued

Page

Policemen Benevolent Association v. PERC, 187

N.J. Super. 202, 458 A.2d 1878 (App. Div.

1982), certif. denied, 98 N.J. 269, 460 A.2d 672

(1983) 25

Probation Officers v. Passaic County, 73 N.J. 247,

874 A.2d 449 (1977) 16, 24, 26

Red Bank Regional Education Association v. Red

Bank Board of Ed., 78 N.J. 122, 393 A.2d 267

(1978) 8, 10, 11, 17, 25

Ridgefield Park Ed. Association v. Ridgefield Park

Board of Ed., 78 N.J. 144, 398 A.2d 278 (1978) .. 12, 17,

18, 27, 28

Robinson v. State of New Jersey, 741 F.2d 598

(8d Cir. 1984), cert. denied, 469 U.S. 1228

/ A 4, 7, 8, 14, 23, 30

State v. State Supervisory Employees Association,

78 N. J. 54, 898 A.2d 233 (1978) passim

Teaneck Board of Ed. v. Teaneck Ed. Association,

94 N. J. 9, 462 A.2d 187 (1988) .................. 15, 17, 18, 26

Twp. of Mt. Laurel v. Mt. Laurel Police Officers

Association, 215 N.J. Super. 108, 521 A.2d 369

(App. Div. 1987) 19, 22

Twp. of West Windsor v. PERC, 78 N.J. 98, 393

, ...... passim

Woodstown-Pilesgrove Board of Ed. v. Woodstown-

Pilesgrove Ed. Association, 81 N.J. 582, 410

A.2d 1131 (1980) .... 12, 19

Wright v. East Orange Board of Ed., 99 N.J. 112,

r i EE 18

CONSTITUTIONS AND STATUTES

New Jersey Constitution

Article I, paragraph 199999 8, 9, 10, 26

New Jersey Statutes

e . 25

r ...... 25

r Sc 25

ERT ES eae 9,11

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TABLE OF AUTHORITIES—Continued \

Page

N. J. S. A. 34:18A-5.5 2, 6, 7, 21

N. J. S.A. 34:13 A-8.1 21

United States Constitution

First Amendment 7, 30

MISCELLANEOUS

Edwards, Clark and Craver, Labor Relations Law

in the Public Sector (8d ed. 19880) 8

Weilington & Winter, The Unions and the Cities

(1970) 24

In THE

Supreme Court of the United States

OCTOBER TERM, 1990

No. 89-1217

JAMES P. LEHNERT, et al.,

* Petitioners,

THE FERRIS FACULTY ASSOCIATION-MEA-NEA, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit ~ ,

BRIEF FOR THE AMERICAN FEDERATION OF STATE,

COUNTY AND MUNICIPAL EMPLOYEES COUNCILS 1,

52, 71, 73, COMMUNICATIONS WORKERS OF AMERICA,

NEW JERSEY STATE FEDERATION OF TEACHERS,

AND RUTGERS COUNCIL OF A.A.U.P. CHAPTERS AS

AMICI CURIAE IN SUPPORT OF RESPONDENTS

This brief amici curiae is filed with the consent of the

parties as provided for in this Court’s Rules.

INTEREST OF THE AMICI CURIAE

American Federation of State, County and Municipal

Employees Councils 1, 52, 71 and 73 represent 25,000

public employees in New Jersey, 9,000 of whom are em-

ployed by the State government. The Communications

Workers of America represents 55,000 public employees

in New Jersey, 40,000 of whom are employed by the

State government. The New Jersey Federation of Teach-

ers has forty-seven local affiliates, which represent 8,000

public employees, most of whom are employed by local

school systems. The Rutgers Council of A.A.U.P. Chap-

ters represents 5,000 faculty members and librarians

employed at the New Brunswick, Newark and Camden,

New Jersey campuses of Rutgers University.

Each of these labor organizations has negotiated rep-

resentation fee agreements, and each uses a portion of

the funds so collected to engage in the employment-

related lobbying expressly provided for by the New Jer-

sey Employer-Employee Relations Act. The organiza-

tions engage in this lobbying because they believe that

it is necessary to participate in the legislative and regu-

latory processes in order to effectively perform their

roles as employee representatives. Because one of the

issues in this case concerns the constitutionality of stat-

utes such as N.J.S.A. 34:13A-5.5, which authorize the

use of representation fees to support employment-related

lobbying, the above New Jersey labor organizations file

this brief addressed to this issue.

INTRODUCTION AND SUMMARY OF ARGUMENT

The Court of Appeals, in considering and rejecting the

objecting emvloyees’ constitutional challenge to the Fer-

ris Faculty Association’s charge to all the employees the

Association represents of the costs of the Association’s

“Preserve Public Education Program”, began from the

following premise:

To represent their members effectively, public sector

unions must necessarily concern themselves not only

with negotiations at the bargaining table but also

with advancing their members’ interest in [the] leg-

islative ... arena[] ....We therefore agree with

the opinion of the Third Circuit in Robinson v. State

of New Jersey, 741 F.2d 598 (3d Cir. 1984), cert.

denied, 469 U.S. 1228 (1985), and hold that lobby-

ing . . . by a public employee union that [is] per-

tinent to the duties of the union as a bargaining rep-

resentative” may be constitutionally charged to dis-

senting employees. 741 F.2d at 609. [Pet. App. 7a.]

employer. See Abood v. Detroit Board of Education, 431

U.S. 209, 223-224 (1977) (discussing the Michigan stat-

a far-reaching approach has never been attempted. In-

stead, in the public sector, as in the private sector, public

law establishes many of the basic employment conditions.

Compare, e.g., Ft. Halifax Packing Co. v. Coyne, 481

U.S. 1, 19-23 (1987) (in the private sector, state laws

establish minimum substantive labor standards).

State legislatures have, in other words, been reluctant

to allow the Executive Branch, acting as the public em-

ployer, to set all terms and conditions of public employ-

ment unilaterally or through collective bargaining. See,

e.g., Edwards, Clark and Craver, Labor Relations Law

in the Public Sector, 293-407 (3d ed. 1985) (collecting

relevant materials). And, it is, of course, for the legis-

lature to decide whether any given matter will be set-

tled through a process in which the legislature itself, and

hence the public, has an active role or through a process

such as collective bargaining in which the legislature and

the public do not play such a role. See Minnesota Board

for Community Colleges v. Knight, 465 U.S. 271, 285

(1984) (“However wise or practicable various levels of

public participation in various kinds of policy decisions

may be, this Court has never held, and nothing in the

Constitution suggests it should hold, that government

must provide for such participation“).

The New Jersey Legislature and the State Supreme

Court have given particularly explicit, detailed and ma-

New

ognized that the Legislatu > needs

in

of both the Executive Branch, as the employer, and

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(1986); Robinson v. New Jersey, 741

F.2d 598, 604-610 (3d Cir. 1984), cert. denied, 469 U.S.

fees for related lobbying are fully in accord

with this Court’s recent decision in Keller v. State Bar of

California, —— U.S. ——, 110 S.Ct. 2287 (1990), ad-

State Bar activities in which the officials and members

The state purpose in establishing such a requirement

for recommendations as to admission to practice, the

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have noted, it is common for state legislatures

“the ultimate responsibility of governing” the

conditions of public employment between the

ve Branch and the Legislative Branch. While

of the executive decisions in this regard are typi-

assigned to the process of collective bargaining,

important decisions are frequently reserved to the

legislature or to executive decisionmaking outside the

bargaining process. With respect to those employment

decisions excluded from bargaining, the state interest in

seeing that those with “ultimate responsibility” for de-

ciding such matters receive “specialized professional ad-

vice” on the employees’ interests from their chosen rep-

sentative is as great as the interest Keller identifies in

hearing from the state bar association on matters con-

cerning governance of the legal profession.

As we now demonstrate, the New Jersey Supreme

Court’s Boonton analysis, buttressing as it does the judg-

ment of the New Jersey Legislature with respect to the

Ut

Hed

best ordering of the State’s labor relations, makes a par-

ticularly cogent showing of what the state interest in

permitting public sector unions to charge all represented

employees for the cost of employment-related lobbying

consists of and why that interest overrides the consti-

tutional claims of objecting employees such as the one

made here. In what follows, we therefore carefully trace

the teachings of the New Jersey Supreme Court with re-

spect to the operation of that State’s labor relations

system.

In part 1 of the argument that follows we discuss the

New Jersey law governing representation fee agree-

ments in that State’s public sector. Pp. 6-8, infra. In

part 2, we describe in some detail the public sector labor

relations system established by the New Jersey legisla-

ture. Pp. 8-20, infra. In part 3, we discuss the State’s

interest in permitting unions to use representation fees

to finance employment-related lobbying. Pp. 20-28, infra.

Finally, in point 4 we show that New Jersey’s decision

to allow the use of representation fees for such lobbying

is constitutional. Pp. 28-30, infru.

ARGUMENT

I. THE NEW JERSEY LAW ON “REPRESENTATION

FEE” AGREEMENTS IN THE PUBLIC SECTOR.

_ +eemployees his i ive agreement a re-

uremem | Hpnmember ployee in the unit pay

: for services rendered

iva” N.. S.A. 34:13A-5.5a.

resentation fee may not exceed 85 percent of

membership dues, may not include any costs of

member-only benefits, and may not be based on “the em-

ployee’s additional pro rata share of expenditures by the

majority representative that is . . in aid of activities or

eauses of a partisan political or ideological nature only

incidentally related to the terms and conditions of em-

ployment... .” N. J. S.A. 34:13A-5.5b&c. Equally to the

point here, the New Jersey statute expressly provides

that

. . . the cost of support of lobbying activities de-

signed to foster policy goals in collective negotiations

and contract administration or to secure for the em-

ployees represented advantages in wages, hours and

other conditions of employment in addition to those

secured through collective negotiations with the pub-

lic employer are chargeable to all employees in the

bargaining unit. N. J. S. A. 34:13A-5.5c.]

Both the New Jersey Supreme Court and the United

States Court of Appeals for the Third Cireuit have up-

held this limited authorization to charge for lobbying ac-

tivities against First Amendment challenges. Boonton

Board of Education v. Kramer, 99 N.J. 523, 494 A.2d

179, 285-292 (1985), cert. denied, 475 U.S. 1070 (1986) ;

Robinson v. New Jersey, 741 F.2d 598, 604-610 (3d Cir.

1984), cert. denied, 469 U.S. 1228 (1985). The New

Jersey Supreme Court held that the authorization for

certain lobbying charges is constitutional “since it fur-

thers the state’s sgnificant interest in public-employment

stability withovt encroaching impermissibly on the rights

of free speech and association... 494 A.2d at 548. In

this regard, the New Jersey Court explained:

The statute’s broad recognition of lobbying activi-

ties as an essential element of nublic employee union

activity accurately reflects the significant quantum

of public employee rights and benefits that are deter-

mined outside the collective-negotiation process.

Public employees in New Jersey are substantially

affected by state and local budgetary decisions and

by the various laws and regulations that determine

conditions of employment as much as, if not more

than, by the negotiations conducted by their major-

ity representative. Indeed, many of the most impor-

tant benefits of public employment are determined

8

by statute and a public employee union that ignored

this reality would not represent properly the mem-

— . e in its bargaining unit. IId. at

II. THE NEW JERSFY PUBLIC SECTOR LABOR RE.

LATIONS SYSTEM.

The essence of New Jersey’s public sector labor rela-

tions system is set out in the New Jersey Employer-

Employee Relations Act, enacted in 1968. But the pro-

visions of that statute can only be fully understood

against the backdrop of rights provided to public em-

ployees by the New Jersey Constitution adopted in 1947.

As the New Jersey Supreme Court has put it, “[t]he

ultimate touchstone for any analysis of public employ-

ment labor relations in this state is Art. I, par. 19 of the

New Jersey Constitution of 1947. Red Bank Re-

gional Education Ass’n v. Red Bank Bd. of Ed., 78 N..

122, 393 A. 2d 267, 272 (1978).

Article I, paragraph 19 of the New Jersey Constitution

provides:

Persons in public employment shall have the right to

organize, present to and make known to the State,

or any of its political subdivisions, their grievances

and proposals through representatives of their own

choosing.

This constitutional provision imposes on an employer in

the public sector “the duty to meet with its employees or

In a decision that preceded Boonton Board of Education v.

Kramer, supra, the Third Circuit reached the same conclusion with

respect to the relationship between lobbying and collective bargain-

ing in the New Jersey public sector:

For New Jersey public employees, collective bargaining is

inextricably intertwined with legislative change. An examina-

tion of the mechanics of New Je:sey’s public employee collec-

tive bargaining agreements reveals the large extent to which

the standard terms and conditions of employment under the

NLRA or the RLA are governed by state statute or regulation.

[Robinson v. New Jersey, supra, 741 F.2d at 69.)

hy

peer avail ARIE COPY. |

9

their chosen representative and to consider in good faith

any grievance or proposals presented on their behalf.”

Lullo v. Fire Fighters Local 1066, 55 N.J. 409, 262 A.2d

681, 684 (1970). This right of public employees is in ad-

dition to their right as citizens to petition the goveri ment.

“New Jersey public employees possess a constitutional

right by virtue of their governmental employment which

they would not otherwise possess as citizens—the right

to compel government, in iis capacity as their employer,

to sit down and listen to their grievances and proposals.”

Twp. of West Windsor v. PERC, 78 N.J. 98, 393 A.2d

255, 262 (1978).

The New Jersey Employer-Employee Relations Act, in

turn, “extended [to public employees] rights of collective

representation more nearly approximating those enjoyed

by private sectcr employees than had been the case when

their sole source of organization rights was N. J. Const.

(1947), Art. I, para. 19.” State v. State Supervisory

Employees Ass’n, 78 N.J. 54, 393 A.2d 233, 239 (1978).

The centerpiece of this Act is section 5.3, which pro-

vides:

Representatives designated or selected by public

employees for the purposes of collective negotiation

by the majority of the employees in a unit appro-

priate for such purposes . . . shall be the exclusive

representative for collective negotiation concerning

the terms and conditions of employment of the em-

ployees in such unit. [N.J.S.A. 34:13A-5.3.]

That section further provides:

Proposed new rules or modification of existing rules

governing working conditions shall be negotiated

with the majority representative before they are es-

tablished. In addition, the majority representatives

of the puoiic employer shall meet at reasonable times

and negotiate in good faith with respect to griev-

ances, disciplinary disputes and other terms and con-

ditions of employment. Id.]

A union chosen as the majority representative under

the Employer-Employee Relations Act assumes an official

10

status as the employees’ representative for more than the

“collective negotiations” defined by the statute. The New

Jersey Supreme Court has found in the statute a legisla-

tive intent “that a majority representative be considered

as the ‘representative[] of the [unit employees’] own

choosing’ under Art. I, para. 19 [of the New Jersey Con-

stitution] with respect to grievance presentation as

well.” Red Bank Regional Ed. Ass’n v. Red Bank Bd. of

Ed., supra, 393 A.2d at 273.

The New Jersey Supreme Court has identified three

purposes served by the statutory system of exclusive rep-

resentation, in addition to furthering the “basic right[],”

accorded public employees by the New Jersey Consti-

tution, “to organize, present and make known to their

public employers their grievances and proposals through

representatives of their own choosing.” Lullo v. Fire

Fighters Local 1066, supra, 262 A.2d at 684.

First, the New Jersey Commission Report that led to

the passage of the Employer-Employee Relations Act

states unequivocally that “the public interest requires

that public employers and public employees be provided

with an effective procedure for the mutual resolution of

disputes involving terms and conditions of employment.”

Lullo v. Fire Fighters Local 1066, supra, 262 A.2d at

685 (quoting Final Report to the Governor and the Leg-

islature of the Public and School Employees Grievance

Procedure Sti, Commission). The Legislature deter-

mined that exuusive representation was essential to any

“effective procedure” for the resolution of labor disputes:

The purpose was to discourage rivalries among indi-

vidual employees and employee groups and to avoid

the diffusion of negotiating strength which results

from multiple representation. On the positive side

the Legislature was seeking through the medium of

the collective agreement to supersede separate agree-

ments with employees and to substitute a single com-

pact with terms which reflect the strength, negotiat-

ing power and welfare of the group. IId. at 692.]

11

Second, the Legislature determined that public employ-

ees “have a legitimate need for a special means of access

to government in its capacity as an employer with re-

spect to problems and concerns arising from and affecting

thle] [employment] relationship.” Twp. of West Wind-

sor v. PERC, supra, 393 A.2d at 262. “[S]uch preferred

access is necessary because of the fact that the political

interests of the voting public, both as taxpayers and

users of public services, are inherently adverse to the

employment interests of public employees in better pay

and working conditions.” Jd. To meet this need, New

Jersey law grants public employees “preferred access to

the governmental employer,” which results in an “en-

hancement of the effectiveness of their voice in govern-

mental decision-making” on terms and conditions of em-

ployment. Id. at 262-263.

Finally, the Legislature was concerned that an indi-

vidual employee would “view[] the potential consequences

of presenting a grievance in his own name with great

trepidation. . . .” Red Bank Regional Ed. Ass’n v. Red

Bank Regional Bd. of Ed., supra, 393 A.2d at 275. To

relieve an individual of having “to put himself on the

line” in order to have his employment interests made

known, the State law gives employees the right to speak

on these matters through representatives. Id.

A. “Collective Negotiation” Within the New Jersey

System.

“Collective negotiation” under the New Jersey statute

is not synonymous with “collective bargaining” as is

practiced in the private sector. As the New Jersey Su-

preme Court has explained, “the authorization for ‘collec-

tive negotiations’ in the 1968 Act was designed to make

know that there are salient differences between public

and private employment relations which necessarily af-

fect the characteristics of collective bargaining in the pub-

lie sector.” Lullo v. Fire Fighters Local 1066, supra,

262 A.2d at 698. There are “significant differences be-

tween N.J.S.A. 34:13A-5.3, which grants a right to ‘col-

12

lective negotiations,’ and 29 U.S.C. § 157, which grants

a right to ‘collective bargaining.’” Ridgefield Park Ed.

Ass’n v. Ridgefield Park Bd. of Ed., 78 N.J. 144, 393

A.2d 278, 285 (1978).

(i) The scope of “collective negotiations” under the

New Jersey statute is defined as follows:

[N]egotiable terms and conditions of employment

are those matters which intimately and directly af-

fect the work and welfare of public employees and

on which negotiated agreement would not signifi-

cantly interfere with the exercise of inherent man-

agement prerogatives pertaining to the determina-

tion of governmental policy. [State v. State Super-

visory Employees Ass’n, supra, 393 A.2d at 239.]

Under this definition, “{p]ublic employment negotiation

in New Jersey has divided into two distinct categories:

matters that are nonnegotiable because they involve gov-

ernmental policy and ‘mandatorily negotiable terms and

conditions of employment.’” New Jersey State College

Locals v. State Board of Higher Ed., 91 N.J. 18, 449 A.2d

1244, 1250 (1982).

In general, there are no “permissive” subjects of nego-

tiation in the New Jersey public sector. Jd. at 1250. n.4.

Compare Ridgefield Park Ed. Ass’n v. Ridgefield Bd. of

Ed., 78 N.J. 144, 393 A.2d 278, 287 (1978), with NLRB

v. — Div. of Borg-Warner Corp., 356 U.S. 342

(1958).

Thus, if a term or condition of employment involves

“governmental policy,” the public employer is precluded

_ from negotiating about that term or condition.

(ii) In the New Jersey public sector, moreover, stat-

utes and regulations that set terms and conditions of

2 By an amendment to the Act, the New Jersey legislature created

a limited “permissive” category of negotiation with respect to bar-

gaining by police and firemen. See Woodstown-Pilesgrove Bd. of

Ed. v. Woodstown-Pilesgrove Ed. Ass’n, 81 N. J. 582, 410 A.2d 1131,

1134 n.1 (1980).

13

employment normally limit the scope of collective negotia-

tions rather than, as is frequently true in the private

sector, merely stating minima that can be supplemented

in collective bargaining:

SI peeifle statutes or regulations which expressly

set particular terms and conditions of employment

. . . for public employees may not be contravened by

negotiated agreement. For that reason, negotiation

over matters so set by statutes or regulations is not

permissible. [State v. State Supervisory Employees

Ass'n, supra, 393 A.2d at 246.)

On the other hand, New Jersey statutes and regulations

setting terms and conditions of employmen“ become an

integral part of the negotiated collective ag ement cov-

ering affected employees:

All such statutes and regulations which are appli-

cable to the employees whose comprise a particular

unit are effectively incorporated by reference as

terms of any collective agreement covering that unit.

IId. at 246 (footnote omitted) .]

Again, this New Jersey rule is distinct from the private

sector rule under which the collective agreement’s pro-

visions and public law requirements are entirely distinct.

Alexander v. Gardner-Denver Co., 415 U.S. 36, 53 (1974)

(in the private sector, [t] he arbitrator .. . has no gen-

eral authority to invoke public laws that conflict with the

bargain between the parties“); Barrentine v. Arkansas-

Best Freight System, Inc., 450 U.S. 728, 744 (1981)

(“the arbitrator is required to effectuate the intent of the

parties, rather than to enforce the statute”).

The New Jersey Supreme Court has “consolidate[d]”

its teachings with respect to the scope of “collective nego-

tiations” ints a “three-part test for scope of negotiations

determinations.” Wright v. East Orange Bd. of Ed., 99

N. J. 112, 491 A.2d 644, 646 (1985):

First, a subject is negotiable only if it intimately

and directly affects the work and welfare of public

employees. Second, an item is not negotiable if it

14

has been preempted by statute or regulation. Third,

a topic that affects the work and welfare of public

employees is negotiable only if it is a matter on

which negotiated agreement would not significantly

interfere with the exercise of inherent management

prerogative pertaining to the determination of gov-

ernment policy. [Citations and internal quotation

marks omitted. ]

See IFPTE Local 195 v. State, 88 N.J. 393, 443 A.2d

187, 191-192 (1982) (developing and explaining this

three-part test).

* * *

In sum, the New Jersey legislature has created a labor

relations system in which a “significant quantum of

public employee rights and benefits . . are determined

outside the collective-negotiation process.” Boonton Bd.

of Ed. v. Kramer, supra, 494 A.2d at 290. Under that

system, “(flor New Jersey public employees, collective

bargaining is inextricably intertwined with legislative

change.” Robinson v. New Jersey, supra, 741 F.2d at

609.

B. The Relationship Between Statutes and Regulations

Setting Terms or Conditions of Employment and

Collective Negotiations.

As we have seen, “specific statutes or regulation which

expressly set particular terms and conditions of em-

ployment” both preempt collective negotiations with re-

spect to such terms and conditions and “are effectively

incorporated by reference as terms of any collective

agreement covering that unit.” State v. Supervisory Em-

ployees Ass’n, supra, 303 A.2d at 246. With respect to

such statutes and regulations, “disputes concerning their

interpretation, application or claimed violation would be

cognizable as grievances subject to the negotiated griev-

ance procedure contained in the agreement.” Twp. of

West Windsor v. PERC, supra, 393 A.2d at 264. And,

disputes over the application of statutes or regulations

setting terms or conditions of employment may be sub-

=

15

mitted to arbitration, if the grievance procedu es so pro-

vides. Teaneck Bd. of Ed. v. Teaneck Ed. Ass’n, 94 N.J.

9, 462 A.2d 137, 140 (1983). “To this extent, the scope

of grievability is more expansive than the scope of nego-

tiability.” Twp. of West Windsor v. PERC, supra, 393

A.2d at 294.*

Given this rule and the fact that preemptive regula-

tions may be issued by the very state agency with which

a union otherwise negotiates, the New Jersey Supreme

Court developed a rule of qualified preemption where reg-

ulations have been adopted by an employer:

If the agency acts in dual capacities and promul-

gates a regulation affecting employees under its

As we have noted, statutes and regulations can also affect col-

lective negotiations by setting a range within which bargaining can

take place. “If the legislation, which encompasses agency regulations,

contemplates discretionary limits or sets a minimum or maximum

term or condition, then negotiation will be confined within these

limits.” Bethlehem Twp. Bd. of Ed. v. Bethlehem Twp. Ed. Ass’n,

91 N.J. 38, 449 A.2d 1254, 1257 (1982). “Thus, where a statute or

regulation mandates a minimum levei of rights or benefits for

public employees but does not bar the public employer from choosing

to afford them greater protection, proposals by the employees to

obtain that greater protection in a negotiated agreement are man-

datorily negotiable.” State v. State Supervisory Employees Ass'n,

supra, 393 A.2d at 246.

“For example, N.J.A.C. 9:2-3.6 [a regulation adopted by the

State Board of Higher Education] allows the Board ‘at least two

weeks’ in which to give notice of proposed layoffs. Setting a longer

period of time for giving notice remains open to negotiation. And

N.J.A.C. 9:2-3.7 requires the Board to give layoff notices to individ-

ual employees ‘as soon as possible.’ This indefinite time frame also

remains open for negotiation. In regard to reemployment, N.J.A.C.

9:2-3.8 authorizes the rehiring of faculty members ‘who the Presi-

dent believes, as a result of his academic judgment, are qualified to

fill the position.’ The procedures relating to rehiring, including

notice and rudimentary due process, vitally affect employment in-

terests and are nevotiable.” New Jersey State College Locals v.

State Board of Higher Ed., supra, 449 A.2d at 1252 (discussing the

effect of regulations adopted by the State Board of Higher Educa-

tion on negotiations between teachers unions, on one hand, and state

colleges and the Board, on the other).

Tea eae”) (ae ee

16

control, its regulations establishing terms and condi-

tions of employment will not necessarily preempt

negotiation on the subject matter covered therein.

In this latter setting, preemption will be presumed.

However, that . can be overcome by dem-

onstrating that the regulations were arbitrary,

adopted in bad faith, or passed primarily to avoid

negotiation on terms and conditions of employment.

[New Jersey State College Locals v. State Bd. of

Higher Ed., supra, 449 A.2d at 1249. ]

On the other hand, “if-the agency acts solely as a regula-

tor and has no direct employer interest over the employ-

ees affected, its regulations fixing terms and conditions of

employment must be given the same preemptive effect as

a statute.’ Id. Even where an employer-agency has

properly adopted preemptive employment regulations, the

union is entitled vtder the New Jersey Constitution to

discuss with the agency proposals to change the regula-

tion, either to make the matter negotiable or to change

the terms set by regulation. Probation Officers v. Passaic

County, 73 N.J. 247, 374 A.2d 449, 454 (1977).

C. Terms and Conditions of Employment on Which

Negotiated Agreement Might Significantly Interfere

With the Determination of Government Policy.

The New Jersey statute excludes from collective nego-

tiations any public employment decision that “is pre-

eminently a governmental policy responsibility that would

be significantly encumbered or impaired if it were sub-

ject to mandatory negotiations.” New Jersey State Col-

lege Locals v. State Bd. of Higher Ed., supra, 449 A.2d

at 1251. “Where an express or inherent management

prerogative is the dominant factor [in an employment

Because an agency’s regulatory authority ultimately derives

from statutory law, a union may challenge the validity of a pre-

empting employment regulation on the grounds that it exceeds the

scope of the agency’s authority or conflicts with a statute. See,

e.g., New Jersey State College Locals v. State Bd. of Higher Ed.,

supra, 449 A.2d at 1253-54.

„ a. ss ee . ae

- 3 N = oe bs

17

decision], the subject is not negotiable,” and “[n]ot even

the impact of such a subject on employment conditions is

negotiable. . . .” Patterson Police Local 1 v. City of Pat-

terson, 87 NJ. 78, 482 A.2d 847, 854 & n.3 (1981).5

Compare First National Maintenance Corp. v. NLRB

452 U.S. 666, 681 (1981) (discussing “ ‘effects’ bargain-

ing mandated by [NLRA] § 8 (a) (5)”). This exclusion

of matters affecting determination of government policy

is part of the definition of mandatorily negotiable sub-

jects, and is in addition to the statutory and regulatory

re . ‘ collective negotiations just discussed.

v. 1 . E ,

ree ype pervisory Employees Ass’n, supra, 393

For example, neither the decision to reduce teaching staff nor

the impact of such a reduction is negotiable.” New * State

Locals v. State Bd. of Higher Ed., supra, 449 A. 2d at 1251, citing

In re Maywood Bd. of Ed., 168 N.J. Super. 45, 55-58, 401 A.2d 711

(App. Div.), certif. denied, 81 N.J. 292, 405 A.2d 836 (1979).

Under New Jersey law, moreover, “[a] matter that is not legall

„ y

negotiable in the first place cannot be arbitrable.” Ridgefield Park

Ed. Ass’n v. Ridgefield Park Bd. of Ed., supra, 393 A.2d at 286.

Thus, unlike statutes or regulations setting terms and conditions

of employment, which may be subject to arbitration, employment

decisions affecting the formulation of government policy may not

be subjected to final and binding arbitration. Id. See, e.g., Old

Bridge Bd. of Id. v. Old Bridge Ed. Ass’n, 98 N.J. 523. 489 A2d

159, 163-164 (1985). “Unlike the private sector, prerogatives of

— [in the New Jersey public sector], particularly those

8 governmental policy making, cannot be bargained away

be determined by an arbitrator.” Teaneck Bd. of Ed. v. Teaneck

oo Ass'n, supra, 462 A.2d at 139 (1983).

rigor of that basic rule, however, is tempered by the refin

ment that Lallthough the scope of arbitrability is limited by the

test for negotiability, . . . the scope of matters about which public

—— — —- —. .. is broad, exceeding

- scope of issues that may be submitted to binding arbitration.”

eaneck Bd. of Ed. v. Teaneck Ed. Ass’n, supra, 462 A.2d at 139

See also Red Bank Ed. Ass'n v. Red Bank Bd. of Ed, supra, 393

A.2d at 274 (“The ability to have grievances so presented where a

majority representative exists is an integral element of the em-

ployees rights under Art. I, para. 19 [of the New Jersey Constitu-

tion].”). If the collective agreement so provides, it is permissible

18

New Jersey has excluded employment decisions impli-

cating the formation of government policy on the ground

that “[mJatters of public policy are properly decided,

not by negotiation and arbitration, but by the political

process l,]. . including public debate, lobbying, voting,

legislation and administration.” IFPTE Local 195 v.

State, supra, 443 A.2d at 191 (emphasis added). The

decision to exclude employment-related policy decisions

from negotiations is not based on a determination that

majority representatives have nothing of relevance to say

on such matters. To the contrary, the New Jersey Su-

preme Court has gone so far as to “encourage[] the es-

tablishment of grievance procedures for [such] issues,”

as a means to “provide an expedited resolution of.

claims and clear the air of much misunderstanding.”

Teaneck Bd. of Ed. v. Teaneck Ed. Ass'n, supra, 462

A.2d 142. In other words, the legislative intent was not

to silence such representatives on employment-related

issues, but to provide for legislative determination so

that the decision would be the product of a wider discus-

sion. Ridgefield Park Ed. Ass’n v. Ridgefield Park Bd.

of Ed., supra, 393 A.2d at 287; Patterson Police Local 1

v. City of Patterson, supra, 432 A.2d at 854.

To state that government policy issues are not ne-

gotiable is not to define with precision what is a govern-

ment policy issue. And that process of definition has

proved to be a large undertaking. “(W]hether an issue

is appropriately decided by the political process or by

collective negotiations,” requires a “sensitive determina-

tion” of the relative weight of “the competing interests

of the State and its employees. IFPTE Local 195

v. State, supra, 443 R.2d at 191. The New Jersey Su-

preme Court has made clear that this weighing process

requires more than “the mere invocation of abstract cate-

gories like ‘terms and conditions of employment’ and

‘managerial prerogatives’... .” Jd. Rather, “[i]ts res-

for the grievance procedure to culminate in advisory arbitration

regarding policy-related employment decisions. Bernards Bd. of

Ed. v. Bernards Ed. Ass’n, 79 N.J. 311, 399 A.2d 620, 628 (1979).

oe ee ee ee ee

19

olution r 2 factors.” Woodstown-Piles-

grove 0 v. Woodstcwn-Pilesgrove Ed. Ass'n,

81 N. J. 582, 410 A. 2d 1131, 1134 (1980).

The first consideration is “whether the public employer

is exercising an inhorent or express managerial preroga-

tive.” Id. This turns on the employer’s authority under

Statutes other than the Employer-Employee Relations

Act. If an employment decision “is a matter of essential

managerial prerogative which has been delegated by the

Legislature to the [employer], it cannot be bargained

away.” Id. (internal quotation marks omitted). Thus,

“Tilf the employer has acted pursuant to a managerial

prerogative, the inquiry may end at this point.” Id.

However, if the employer’s decision “falls within the gen-

eral category of management authority,” the concrete cir-

cumstances surrounding the decision must be considered

ina “weighing or balancing” of the State’s interest in

“a viable bargaining process in the public sector” against

its interest in opening policy decisions to public debate.

Id. at 1134 & 1135.

Given the nature of the inquiry defined by the New

Jersey Supreme Court, there is often a fine line between

negotiable and nonnegotiable decisions. Most notably,

that Court has recognized that while a policy decision

itself is not negotiable, employment-related questions

about the procedure for implementing the policy decision

are negotiable. New Jersey State College Locals v. State

Bd. of Higher Ed., supra, 449 A.2d at 1251. For exam-

ple, “promotional criteria are not mandatorily negotiable

while promotional procedures are so negotiable.” State v.

— Supervisory Employees Ass’n, supra, 393 A. 2d at

The primary focus is often on the duties assigned to

the employer-ageney by the legislature, and the effect of

the employment - decision on carrying out those duties.

Thus, the Court determined that a proposal for five days

notice prior to elassroom visitations for teachers evalua-

tion would interfere with the School Board's duty to

20

evaluate teachers. Bethlehem Twp. Bd. of Ed. v. Beth-

lehem Twp. Ed. Ass’n, 91 N.J. 38, 449 A.2d 1254, 1260

(1982). At the same time, the New Jersey Court deter-

_ mined that a proposai to limit successive classroom visita-

tions/observations would not significantly interfere with

the Scnool Board’s duty, and thus was mandatorily

negotiable. Id. at 1261.

In determining the possible effect of negotiations on

policy formulation, the New Jersey courts consider the

likely impact of the particular proposal being advanced

by the union. For instance, while decisions to transfer

employees are not generally negotiable, a proposal that

would limit the transfer of a relatively small number of

employees may be negotiable. JFPTE Local 195 v. State,

supra, 443 A.2d at 200-201. Similarly, the size of the

employer’s workforce has been a determinative factor in

whether or not a union proposal on work scheduling is

mandatorily negotiable. Twp. of Mt. Laurel v. Mt. Laurel

Police Officers Ass’n, 215 N.J. Super. 108, 521 A.2d 369,

372-373 (App. Div. 1987).

In short, many decisions New Jersey excludes from

collective negotiation because of their effect on formula-

tion of government policy nonethele s have important

effects on the terms and conditions of public employees.

Whether a decision is mandatorily negotiable is deter-

mined by a close examination of the public employer’s

statutory authority and duties, and a careful weighing

of the competing state interests in peaceful labor rela-

tions and public debate over policy decisions, all within

the context of the particular employment setting and the

particular demands under consideration.

III. NEW JERSEY’S INTEREST IN PERMITTING

UNIONS TO USE REPRESENTATION FEES TO

FINANCE LOBBYING ON TERMS AND CONDI-

TIONS OF EMPLOYMENT.

Having explored this complex body of labor-manage-

went relations law in some detail, we are now in a posi-

21

tion to return to a consideration of why the New Jersey

Legislature has authorized unions to use representation

fees for the “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 em-

ployment in addition to those secured through collective

negotiations with the public employer,” N.J.S.A. 34:13A-

5.56, and why the New J ersey Supreme Court has deter-

mined that this authorization “furthers the state’s sig-

nificant interest in public-employment stability. . . .”

Boonton Bd. of Ed. v. Kramer, supra, 494 A.2d at 292.

A. Lobbying on “Policy Goals in Collective Negotia-

tions and Contract Administration.”

The State’s interest in furthering the ability of a ma-

jority employee representative to state its position to the

Legislature with respect to “policy goals in collective ne-

gotiations and contract administration” is part and parcel

of its overall interest in the statutory collective bargaining

system. The New Jersey Supreme Court has stated that

the point of that system is to p.ovide public employers

and public employees “with an effective procedure for the

mutual resolution of disputes,” Lullo v. Fire Fighters

Local 1066, supra, 262 A.2d at 685 (emphasis added).

If that goal is to be realized, the Legislature must know

whether the employees believe that the system is “effec-

tive” and whether the resolutions the System achieve are

“mutual” and if not what changes will make the system

work as it is intended to work.

Not surprisingly, there have been numerous union sug-

gestions for change and on a number of occasions, the

Legislature has responded to proposals to broaden the

scope of collective negotiations by amending the Em-

ployer-Employee Relations Act. Fo, example, in 1974

the legislature amended N.J.S.A. 34:13A-8.1 to provide

that an administrative agency’s authority to promulgate

employment regulations does not preempt collective ne-

gotiations, only regulations actually adopted do so.

State v. State Supervisory Employees Ass’n, supra, 393

A.2d at 246. Similarly, the legislature amended the Act

to create a limited category of permissive subjects of ne-

gotiation for police and firemen. Twp. of Mt. Lourel v.

Mt. Laurel Police Officers Ass’n, supra, 462 A.Zd at 371

& n. 1. Since these changes affect the role of unions as

majority representatives, and do not aZect workplaces

where there is no union representative, it seems self-

evident that the Legislature would have been most inter-

ested in hearing the views of unions before adopting such

amendments, and would have been severely handicapped

in its deliberations if there were no provision for the

expression of those views. .

B. Lobbying on Statutes and Regulations That Set

Terms and Conditions of Employment.

New Jersey statutes and regulations that establish

“terms and conditions of employment” have a direct and

immediate impact on the role of the majority representa-

tive in the statutory system of collective negotiation and

grievance resolution. As already explained, such statutes

and regulations preclude bargaining on matters that

would otherwise be subject to collective negotiation, and

are effectively incorpora ed into the collective agreement

and are subject to the agreement’s grievance procedure.

State v. State Supervisory Employees Ass’n, supra, 393

A.2d at 246; Twp. of West Windsor v. PERC, supra,

393 A.2d at 264. Thus, not only is the majority repre

sentative precluded from negotiating with respect to the

terms set by these statutes and regulations, the union is

required to enforce these terms in representing employees

through the grievance procedure. See Lullo v. Fire

Fighters Local 1066, supra, 262 A.2d at 694.

Precisely tecause there is such a close relationship

between statutes and regulations setting terms and condi-

tions of employment and collective negotiations and griev-

ance handling, the New Jersey Supreme Court has recog-

nized that “a public employee union that ignored this

ES es TE ee ee * 9 nung

reality would not represent properly the members and

nonmembers in its bargaining unit.” Boonton Bd. of Ed.

v. Kramer, 494 A.2d at 291. We do not see how any

ge mean is possible. That “collective

inextricably intertwined with legislative change,”

Robinson v. New Jersey, supra, 741 F.2d at 609, becomes

een Wh ‘he 5 instances in which union lobby-

directly d to employment terms might

— adare ploym might occur

(i) Because statutes and regulations may preempt. the

terms of collective agreements, it is always possible that

a change in a statute or regulation will invalidate what

was once a valid term of a collective agreement and re-

place it with another term. The same interest in labor

peace that Justified the agreement in the first place is

served by allowing the majority representative to defend

the agreement. See supra pp. 10-11 (discussing the

State interest as articulated by the New Jersey Supreme

Court). The employees are not likely to feel that they

have participated in “an effective procedure for the mu-

tual resolution of disputes involving terms and conditions

of employment,” Lullo v. Fire Fighters Local 1066,

supra, 262 A.2d at 685, if having once reached agree-

ment through that procedure the employees as a group

must stand by mute while the agreement is changed

through the legislative or regulatory process.

a This is especially so if the New J ersey Court’s percep-

tion is correct and those employees are peculiarly dis-

advantaged when their terms of employment are con-

sidered in the political arena. Twp. of West Windsor v.

PERC, supra, 393 A.2d at 262. Moreover, the better

understanding achieved by the exchange of views during

negotiations is lost if the union does not express its views

to the legislature or agency that intends to substitute

statutory or regulatory provisions for those contained in

the collective agreement.’ Finally, the public employer

™ “The chief advantage which comes from the practice of periodi-

cally determining the conditions of labor by collective bargaining

24

will undoubtedly have the opportunity to express its

views, and the State has an obvious interest in hearing

the views of both the employer and the union before it

acts to change certain terms of their agreement.

(ii) Where an existing statute or regulation preempts

negotiations on a particular term of employment, the

union may lobby to change the statute or regulation in

order to open the matter to bargaining or to ratify a

tentative agreement reached with the employer. Both

activities are closely related to collective negotiations.

When a union lobbies to change a statute or regulation

that preempts collective negotiations, its activity is a

necessary prelude to negotiations. The State interest in

fostering this sort of union activity is identical to its

interest in establishing a system of collective negotia-

tions. Indeed, since the very employer with which the

union negotiates may have promulgated the preemptive

regulation, this sort of union lobbying is a particularly

close analogue to collective negotiations. New Jersey

State College Locals v. State Bd. of Higher Ed., supra,

449 A.2d at 1249. While the exclusive representative

does not have a statutory right to negotiate for changes

of the preemptive regulation, the union does have a right

under the New Jersey Constitution to present proposals

to the employer for a change in the regulation. Proba-

tions Officers’ Ass’n v. Cty. of Passaic, supra, 374 A.2d

at 454. In lobbying of this sort, the union would be en-

gaged in discussions with the same agency and on the

same subject matter as would otherwise occur in collec-

tive negotiations. A change in the regulation does, of

course, involve public debate that would not be part of

collective negotiations, but the New Jersey Constitution

directly between employers and employees is that thereby each side

obtains a better understanding of the actual state of the industry,

of the conditions which confront the other side, and of the motives

which influence it.” Wellington & Winter, The Unions and the

Cities 8 (1970) quoting Final Report of the Industrial Commission

(1902).

gives the employees an enhanced voice and confers an

official status on their representative in that debate. Twp.

33 v. PERC, supra, 398 A. 2d at 262;

Reg. Ed. Ass’n v. Red Bank Bd. Ed.,

393 A. 2d at 135. ns yh

While employers and unions may not reach a binding

agreement with respect to a term of employment set by

250. See, e.g., Policemen Benevolent Ass’n v. PERC, 187

N.J. Super. 202, 453 A.2d 1373 (App. Div. 1982), certif.

denied, 93 N.J. 269, 460 A.2d 672 (1983).

— — pedal N. J. S.A. 11A:3-7 & 11A :6-24,

requi employee proposals regardin

such regulations, N.J.S.A. 11A:2-11m. While the —

ployer lacks the authority to bind the Department of

Personnel] by collective agreement,” State v. State Su-

pervisory Employees Ass’n, supra, 393 A.2d at 254, em-

ployers frequently agree to jointly approach the Depart-

ment along with the union to request changes in regula-

(iii) Finally, the majority representative may support

the adoption of legislation or a regulation that sets a

term of employment in a way that is advantageous to

represented employees, or that improves a term of em-

ployment already set by statute or regulation. If the

union succeeds in this effort, the term is incorporated

into the collective agreement just as if it had been col-

lectively negotiated directly with the employer. The

union achieves precisely the same result through lobbying

without first reaching agreement as it does in the first

two examples by lobbying after reaching agreement.

The difference is merely a tactical one, and if the first

two sorts of lobbying further the State interest in “an

effective procedure for the mutual resolution of disputes

involving terms and conditions of employment,” Lullo v.

Fire Fighters Local 1066, supra, 262 A. 2d at 685, the

third sort must as well.

C. Lebbying on Government Policy Decisions that

Directly Affect Terms and Conditions of Employ-

ment.

Under Art. I, para. 19 of the New Jersey Constitution,

public employers must discuss personnel policy matters

that are essentially managerial prerogatives with the

majority representatives chosen by their employees. Tea-

neck Bd. of Ed. v. Teaneck Ed. Ass’n, supra, 462 A.2d at

142; Probation Officers Ass’n v. City of Passaic, supra,

374 A.2d at 454. While such matters are not subject to

negotiation or binding arbitration, decisions with respect

to personnel policy may be subject to the contractual

grievance procedure and to advisory arbitration. Ber-

nards Bd of Ed. v. Bernards Ed. Ass’n, supra, 399 A.2d

at 627. The State Supreme Court has repeatedly ac-

knowledged the beneficial labor-relations effects of dis-

cussing employment-related policy decisions, even though

such matters are not subject to collective negotiations.

Teaneck Bd. of Ed. v. Teaneck Ed. Ass’n, supra, 462

A.2d at 142; Bernards Bd. of Ed. v. Bernards Ed. Ass'n,

supra, 399 A.2d at 454.

As we have seen, New Jersey has taken care to insure

that its employees are heard on matters affecting terms

of employment, “because of the fact that the political in-

terests of the governmental decision-makers and the eco-

nomie interests of the voting public . . . are inherently

27

adverse to the employment interests of public employ-

ees... .” Twp. of West Windsor v. PERC, supra, 393

An example will show how these two basic considera-

tions come into play in a typical non-negotiable policy

determination. Under New Jersey law, employee trans-

fers are considered an “essential managerial preroga-

tive,” and thus are not negotiable. Ridgefield Park Ed.

Ass'n v. Ridgefield Park Bd. of Ed., supra, 393 A.2d at

284. However, a transfer may affect employees in a

variety of ways from such .nundane matters as whether

there will be adequate parking to more crucial matters

such as the safety of the new location. These considera-

tions may not occur to the legislators or administrators,

who are frequently remote from the employment setting,

but they are obviously relevant to whether the transfer

is a good idea and are matters the decisionmaker would

sensibly take into account. However, without some estab-

lished channel for the expression of employee sentiment,

the employees’ point of view is not likely to reach the

decisionmaker.

The close relationship between policy decisions affect-

ing; terms of employment and the terms established by

collective negotiations justifies assigning a special role

to the majority representative in the process of deter-

mining policy. In the first place, many of the terms of

the collective agreement will be intertwined with the

policy decision itself. This is so, because, while policy

decisions are not negotiable, the procedure for imple-

menting policy decisions is negotiable. New Jersey State

28

College Locals v. State Bd. of Higher Ed., supra, 449

A.2d at 1251. |

If the employer is going to negotiate over the pro-

cedure for implementing a policy, it makes sense for the

employer to hear the views of its employees on how the

policy itself affects their employment, even though that

is not open to negotiation. Moreover, decisions of per-

sonnel policy are likely to affect the positions taken by

the majority representative on negotiable matters beyond

implementation of the policy. This is so, because the em-

ployees, and consequently their representatives, do lot

tend to distinguish between their terms and conditions of

employment that are negotiable and those that are not,

they consider them by and large to be an integrated

whole. Since the goal of the majority representative is

to improve those terms as a whole, improvements or im-

pairments in non-negotiable terms of employment are

likely to be balanced by demands with respect to negoti-

able terms. Thus, the representative’s views in this re-

gard are also useful to the decisionmaker.

Employment matters that affect government policy

were left non-negotiable by the New J ersey statute to in-

sure that such matters would be decided in a forum

where “citizen participation will not be precluded.” Pat-

ferson Police Local 1 v. City of Patterson, supra, 482 A.2d

at 854. See Ridgefield Park Ed. Ass’n v. Ridgefield Park

Bd. of Ed., swpra, 393 A.2d at 287. It is not at all incon-

sistent with this goal for the legislature to encourage

majority representatives to express the views of public

employees by lobbying with respect to policy decisions

that affect their terms of employment.

IV. NEW JERSEY’S LABOR RELATIONS INTERESTS

JUSTIFY THE STATE’S DECISION TO ALLOW

THE USE OF REPRESUNTATION FEES FOR

EMPLOYMENT-RELATED LOBBYING.

In Abood v. Detroit Board of Education, 431 U.S. 209,

219 (1977), this Court began by recognizing that it is

ee i ee ee ee ee en stint, oe

rr Te ae ee * *

* *

eo,

.

the legislature that “is charged with identifying It] he

ingredients of industrial peace and stabilized labor-man-

agement relations, and that a legislative determination

that “it would promote peaceful labor relations to per-

mit a union and an employer to conclude an agreement

requiring employees who obtain the benefit of union rep-

resentation to share its costs, [is] .. . surely an allow-

able one.” While “compel [ling] employees financially to

support their collective-bargaining representative has an

impact upon their First Amendment interests,” the hold-

ing of Abood is that “such interference as exists is con-

stitutionally justified by the legislative assessment of the

important contribution of the union shop to the system

of labor relations established by [the legislature].” Id.

at 222.

The New Jersey Legislature has designed a public sec-

tor labor relations systems in which some decisions affect-

ing terms of emyployment are assigned to collective nego-

tiations, and some are assigned to the legislative and

regulatory processes. The Legislature has determined,

moreover, that it is beneficial for those deciding non-

negotiable employment-related questions to hear the views

of the employees’ majority representatives, and to this

end the legislature has allowed unions to use representa-

tion fees for employment-related lobbying.

As the foregoing discussion demonstrates in some de-

tail, the New Jersey Supreme Court was correct in its

conclusion that “the state’s significant interest in public-

employment stability” justifies the authorization for

lobbying charges in the New J ersey Employer-Employee

Relations Act. Boonton Bd. of Ed. v. Kramer, supra,

494 A.2d at 292. As we have seen, “many of the most

important benefits of public employment are determined

by statute” and regulation. Id. at 291. [A] public em-

ployee union that ignored this reality would not repre-

sent properly the members and nonmembers in its bar-

gaining unit.” Id. In adopting the Employer-Employee

Relatioi.s Act, the New Jersey legislature did not “seek

the creation of ineffectual public employee unions, ... .”

:

i

|

f

for employment-related lobbying is plainly “reasonably

related to the advancement of such goals,” and thus is an

allowable legislative choice under the First Amendment.

Keller v. State Bar of California, supra, 110 S. Ct. 2228,

2237 (1990).

CONCLUSION

For the above-stated reasons as well as those stated by

the respondent, the judgment below should be affirmed.

Respectfully submitted,

LAWRENCE A. PoLTROCK

125 South Wacker Drive

Chicago, IL 60606

RICHARD KIRSCHNER

1615 L Street, N.W.

Washington, DC 20036

PAUL SCHACHTER

744 Broad Street

Newark, NJ 07102

PATRICK M. SCANLON

JAMES B. CopPess

(Counsel of Record)

1925 K Street, N. W.

Washington, DC 20006

(202) 728-2456

Counsel for Amici Curiae