TOWNSHIP OF WEST WINDSOR, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, APPELLANT, v. PUBLIC EMPLOYMENT RELATIONS COMMISSION AND P. B. A. LOCAL 130, RESPONDENTS.
Supreme Court of New Jersey
August 3, 1978
Argued May 8, 1978
78 N.J. 98
Conclusion
We affirm PERC‘s conclusion that proposals 3 and 4c are mandatorily negotiable. We affirm so much of PERC‘s order as holds that items 4d and 7 are not mandatorily negotiable. PERC‘s determinations that items 1, 2, 4a, b, e, 5 and 6 are mandatorily negotiable are reversed, as is PERC‘S holding in Local 195, supra. We disapprove PERC‘s determination concerning issue 6.
For affirmance in part and reversal in part—Chief Justice HUGHES, Justices SULLIVAN, PASHMAN, CLIFFORD, SCHREIBER and HANDLER and Judge CONFORD—7.
Opposed—None.
Mr. Don Horowitz, Deputy General Counsel, argued the cause for respondent Public Employment Relations Commission (Mr. Sidney H. Lehmann, General Counsel, attorney; Mr. Lehmann and Mr. James F. Schwerin, Deputy General Counsel, on the brief).
Mr. James R. Zazzali argued the cause for respondent P. B. A. Local 130 (Mr. William L. Bunting, Jr., attorney).
Ms. Erminie L. Conley, Deputy Attorney General, argued the cause for amicus curiae The Office of Employee Relations (Mr. John J. Degnan, Attorney General of New Jersey, attorney; Mr. Stephen Skillman, Assistant Attorney General, of counsel).
Mr. David A. Wallace submitted a brief on behalf of amicus curiae New Jersey State League of Municipalities (Mr. Gerald L. Dorf, attorney).
The opinion of the court was delivered by
PASHMAN, J. During negotiations between the Township of West Windsor and the majority representative of its police department employees, Patrolmen‘s Benevolent Association Local 130, concerning the adoption of a collective agreement, a dispute arose over the negotiability of a proposal made by the Local. This proposal concerned the contractual definition of a “grievance” which would be presentable under the negotiated grievance procedure contained in the agreement ultimately reached.
The Local contended that a grievance cognizable under the collective agreement had to be defined in terms as broad as those used in the applicable provision of New Jersey Employer-Employee Relations Act, L. 1968, c. 303, as amended by L. 1974, c. 123,
The Township refused to negotiate any proposal which would expand the contractual definition of a grievance to encompass disputes over matters other than those terms and conditions of employment which would be specified in the collective agreement as ultimately settled. The Township‘s refusal was based on its apparent belief that to so expand the grievance definition would necessarily subject such disputes to resolution under the contractual grievance procedure. The
As a result of the disagreement between the parties as to the negotiability of its proposal, the Local filed a petition seeking a scope-of-negotiations determination from the Public Employment Relations Commission (PERC). See
The Township appealed PERC‘s scope determination to the Appellate Division pursuant to
I
We agree with PERC that the applicable statutory language speaks in the imperative and accordingly precludes negotiated modification of the breadth of matters which public employees must be able to appeal under any contractual grievance procedure.2 The sentence of
Public employers shall negotiate written policies setting forth grievance procedures by means of which their employees or representatives of employees may appeal the interpretation, application or violation of policies, agreements, and administrative decisions affecting them, provided that such grievance procedures shall be included in any agreement entered into between the public employer and the representative organization.
A straightforward reading of the statutory language indicates that the word “negotiate” applies to the “grievance procedure[]” itself and not to the enumeration of the matters as to which the employees “may appeal.” Thus, the par-
It is indisputable that the range of matters as to which employees possess the ability to present grievances to their employer constitutes an important term and condition of public employment. We have interpreted
Our holding that
The parties may, at their option, agree that different classes of grievable matters will be subject to different types of terminal resolution or even to none at all. For example, grievances involving the application of the relevant provisions of the collective agreement or of any controlling statutes or regulations — which we have today held are incorporated by reference as terms of the collective agreement, see State v. State Supervisory Employees, supra, 78 N. J. at 80 — may be subjected to resolution by binding arbitration.
II
PERC‘s holding that
Public employees in New Jersey are vested with a constitutional right concerning the presentation of their grievances to their public employer.
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.
We recognized in Lullo v. Intern. Assoc. of Fire Fighters, 55 N. J. 409 (1970), that the purpose of Art. I, para. 19, was to secure the rights therein granted to public employees “against legislative erosion or denial.” 55 N. J. at 416; see also Board of Ed., Borough of Union Beach v. N. J. E. A., 53 N. J. 29, 44-45 (1968). PERC argues that since the constitutional provision does not explicitly limit the meaning of the word “grievances” to grievances concerning matters affecting the terms and conditions of public employment,
We find it unnecessary to reach the constitutional issues raised by PERC. In the use of the words “affecting them” in the relevant sentence of
Moreover, there is a very sound and pragmatic reason why the drafters of
Analysis of the scope of the right of public employees to present their grievances to their governmental employers must take cognizance of the fact that these persons possess rights not only as public employees but also as citizens of this State. Under
* * * [P]ublic employees, even without collective bargaining, can and normally do participate in determining the terms and conditions of employment. Many can vote and all can support candidates, organize pressure groups, and present arguments in the public forum. Because their terms and conditions of employment are decided through the political process, they have the right as citizens to participate
in the decisions which affect their employment. Such a right is not enjoyed by employees in the private sector. * * * [Summers, “Public Employee Bargaining: A Political Perspective,” 83 Yale L. J. 1156, 1160 (1974) (emphasis supplied, footnote omitted)]
And the United States Supreme Court has recently noted:
Through exercise of their political influence as a part of the electorate, [public] employees have the opportunity to affect the decisions of government representatives who sit on the other side of the bargaining table.
[Abood v. Detroit Bd. of Ed., 431 U. S. 209, 228, 97 S. Ct. 1782, 1796, 52 L. Ed. 2d 261 (1977)]
The Supreme Court has held that public employees do not give up their rights as citizens by virtue of their public employment. City of Madison Joint School District v. Wisconsin Employment Relations Commission, 429 U. S. 167, 97 S. Ct. 421, 50 L. Ed. 2d 376 (1976) (principle of exclusive representation cannot constitutionally bar a public employee who, like any other citizen, might wish to express his view about governmental decisions concerning labor relations); see also Abood, supra, 431 U. S. at 230, 97 S. Ct. at 1797 (“public employees are free to participate in the full range of political activity open to other citizens“).
In New Jersey and many other states, public employees have been endowed with rights in addition to those they enjoy as citizens. 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 its capacity as their employer, to sit down and listen to their grievances and proposals. In addition, the Legislature has granted them a statutory right, under
[T]he bargaining process gives public employees special access to the political process. They are not limited to speeches at public meetings, petitions, circulars or personal presentations, as other interest groups are. The union, representing all employees in bar-
gaining, can compel responsible officials to sit down at the bargaining table, confront them face to face, engage in discussion, respond to arguments, state positions, provide reasons and supply information. The process of interchange continues through countless meetings of interminable hours until either agreement is reached or all possibilities are exhausted. This direct and intensive access to responsible officials, with its structured process of persuasion, gives the union an especially effective voice in the decision-making. [Summers, “Public Sector Bargaining: Problems of Governmental Decision-Making,” 44 Cinn. L. Rev. 669, 674 (1976); see also Summers, supra, 83 Yale L. J. at 1164]
The combination of the public employees’ rights as citizens and their special rights as governmental employees arguably gives the employees more influence in the decision making process than is possessed by employees similarly organized in the private sector. [Abood, supra, 431 U. S. at 229, 97 S. Ct. at 1796]
Persons with a special relationship to government — that of employment — have a legitimate need for a special means of access to government in its capacity as an employer with respect to problems and concerns arising from and affecting that relationship. This access to government in its capacity as an employer is over and above the access to government available to them as citizens. As Professor Summers has noted, op. cit., such preferred access is necessary because of the fact that the political interests of the governmental decision-makers and the economic 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.
However, with respect to the presentation of public employees’ views to their governmental employers on matters not directly pertaining to the employment relationship, there would seem to be no justification for treating public employees any differently than citizens who are not employed by government. Their need for a means of direct access to government not enjoyed by other citizens is far less compelling with respect to matters less vitally concerned with their
This is not to say that as to matters other than terms and conditions of employment public employees should not have any access to their governmental employer. In many cases the employer would be “well-advised” voluntarily to consult with its employees to receive the benefit of their expertise in a particular field. See Ridgefield Park Ed. Ass‘n v. Ridgefield Park Bd. of Ed., 78 N. J. 144 (1978); Dunellen, supra, 64 N. J. at 31-32. However, the preferred access for public employees resulting from the statutory requirement of mandatory good faith negotiation and compulsory grievance presentation, with its consequent enhancement of the effectiveness of their voice in governmental decision-making, is inappropriate with respect to matters which do not affect the terms and conditions of public employment. Only when government acts in the capacity of an employer, as opposed to discharging governmental policy-making functions, is such preferred access necessary to protect the legitimate interests of public employees in the determination of the terms and conditions of their employment.
We have noted that in choosing to use the term “collective negotiation” in the Employer-Employee Relations Act, the Legislature sought to distinguish negotiation in the public sector from collective bargaining. See Lullo, supra, 55 N. J. at 440. The Legislature determined that the concept of collective bargaining as it had developed in the private
By its express terms,
A consequence of our holding herein is that the scope of mandatory grievability is substantially equivalent
Finally, in the 1974 amendment to
Notwithstanding any procedures for the resolution of disputes, controversies or grievances established by any other statute, grievance procedures established by agreement between the public employer and the representative organization shall be utilized for any dispute covered by the terms of such agreement.
[L. 1974, c. 123, § 4]
By reason of our holding today, the terms of all negotiated grievance procedures must “cover” grievances concerning the “interpretation, application or violation of policies, agreements and administrative decisions” affecting the terms and conditions of public employment. The negotiated grievance procedures to which the amendment accords primacy will therefore supplant statutory dispute resolution mechanisms only as to disputes of the type enumerated in
Subject to the foregoing modification, the decision of the Public Employment Relations Commission is affirmed.
CONFORD, P. J. A. D. (temporarily assigned), dissenting. This case originated in a scope-of-negotiations proceeding
PERC held, citing Lullo v. Intern. Assoc. of Fire Fighters, 55 N. J. 409, 419 (1970), that the foregoing quoted language was mandatory and imposed an affirmative duty on employers to “provide a forum by means of which public employees or their representatives may appeal the interpretation, application or violation of policies, agreements and administrative decisions affecting them.” However PERC made it clear that the extent of the grievance machinery to be adopted and whether it should include binding arbitration as a last step was subject to voluntary agreement of both parties.
I am only in partial agreement with PERC and with the Court, if I understand its opinion, as to the extent of grievance procedures to which the employer need agree. I concur in the view that agreement may be confined to specified stages of grievance prosecution, perhaps even to only a first-stage presentation. The obligation to negotiate does not imply an obligation to arrive at agreement for any given number of steps in the grievance procedure so long as there is bona fide interchange of views and proposals be-1
Consequently, to the extent that PERC‘s opinion would allow agreement for binding arbitration as to decisions resting in managerial discretion, I disagree with it.
My dissent from the Court‘s adjudication in this case is based upon its holding that grievance procedures may concern only such “‘policies, agreements or administrative decisions’ which affect the terms and conditions of public employment as that concept has been defined in our cases.” (p. 108). This would limit grievances to the area of mandatory negotiation defined in Dunellen Bd. of Ed. v. Dunellen Ed. Assn., supra, and therefore absolutely exclude from the grievance machinery matters predominantly of managerial policy even if also appreciably affecting employees. See 64 N. J. at 29, 31. I believe this determination is fundamentally erroneous. The whole cast of the statutory section,
It is, moreover, obvious that a whole array of items can “affect” employees, as such, beyond the narrow confines of terms and conditions of employment as closely circumscribed by Dunellen. So to limit the subject matter of grievance procedures would, in my judgment, stifle a healthy and stable labor relations atmosphere in the public sector and tend to defeat the originally stated purpose of the employer-employee relations act, i. e., “to promote permanent, public and private employer-employee peace * * *”
I am convinced that the practical implementation of the statutory provisions for negotiation of grievance procedures now widely practiced throughout the State is to comprehend areas of employment grievance beyond the limits of the Dunellen criteria of mandatorily negotiable terms and conditions of employment. I believe that PERC soundly perceives this to be the fact and that its holding here (subject to the qualification as to arbitration stated above) is consonant not only with the statutory intent but also with sound principles of employer-employee relations in the public sector.
For affirmance as modified—Chief Justice HUGHES and Justices SULLIVAN, PASHMAN, CLIFFORD, SCHREIBER and HANDLER—6.
Concurring in part and dissenting in part—Judge CONFORD—1.
Notes
- A claimed breach, mis-interpretation or improper application of the terms of [the collective agreement]; or
- A claimed violation, mis-interpretation or mis-application of rules or regulations, existing policy, or orders, applicable to the agency or Department which employs the grievant affecting the terms and conditions of employment.