H.E. No. 83-33

Synopsis:

A Hearing Examiner recommends that the Commission find that the Board of Education of the Town of Boonton, the Boonton Education Associaiton and the New Jersey Education Association committed an unfair practice when they caused a deduction in the salary of Judith Kramer for a representation fee for the month of September, 1981. Although the contract between the parties provided for an agency shop fee, a demand and return system was not created by the Boonton Education Association until October 1, 1981. For that one month, the parties did not have a right to impose said representation fee.

It was recommended that other allegations of the charge concerning the impropriety of the amount of the fee be dismissed for such allegations are not within the jurisdiction of the Commission but rather belong before the Appeals Board.

It was further recommended that the Commission dismiss those portions of the allegations which attack the constitutionality of the agency shop fee portion of the New Jersey Employer-Employee Relations Act. Questions of constitutionality of legislation do not properly belong before the agency administering said legislation but rather are questions for the appellate courts.

A Hearing Examiner's Recommended Report and Decision is not a final administrative determination of the Public Employment Relations Commission. The case is transferred to the Commission which reviews the Recommended Report and Decision, any exceptions thereto filed by the parties, and the record, and issues a decision which may adopt, reject or modify the Hearing Examiner's findings of fact and/or conclusions of law.

PERC Citation:

H.E. No. 83-33, 9 NJPER 248 (¶14114 1983)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

24.132 24.181 24.11 73.117 24.191

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- HE 83-033.pdf
Appellate Division:
Supreme Court:

H.E. NO. 83-33 1. H.E. NO. 83-33 1. NOTICE TO EMPLOYEES PURSUANT TO AN ORDER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION AND IN ORDER TO EFFECTUATE THE POLICIES OF THE NEW JERSEY EMPLOYER-EMPLOYEE RELATIONS ACT, AS AMENDED, We hereby notify our employees that: H.E. NO. 83-33 STATE OF NEW JERSEY BEFORE A HEARING EXAMINER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of BOARD OF EDUCATION OF THE TOWN OF BOONTON, Respondent, -and- Docket No. CI-82-21-123 JUDITH M. KRAMER, Charging Party. BOONTON EDUCATION ASSOCIATION and NEW JERSEY EDUCATION ASSOCIATION, Respondents, -and- Docket No. CI-82-22-124 JUDITH M. KRAMER, Charging Party. Appearances: For the Boonton Public Schools McKeon, Curtin, Hubner & McKeon, Esqs. (Andrew M. Wubbenhorst, Esq.) For the Boonton Education Association and New Jersey Education Association, Ruhlman, Butrym & Friedman, P.A. (Cassel R. Ruhlman, Jr., Esq.) For Judith M. Kramer Nelson R. Kieff, Staff Attorney, National Right to Work Legal Defense Foundation, Inc., and Henry S. Kramer, Esq. HEARING EXAMINER = S RECOMMENDED REPORT AND DECISION On November 30, 1981, Judith M. Kramer ( A Kramer @ or A Charging Party @ ), an individual, filed an Unfair Practice Charge with the Public Employment Relations Commission ( A Commission @ ) alleging that her employer, the Board of Education of the Town of Boonton, engaged in unfair practices within the meaning of N.J.S.A. 34:13A-1 et seq. (the A Act @ ), specifically ' 5.4(a)(1) and (3) by A putting into effect an automatic dues checkoff provision without signing authorization cards, interfering with Charging Party = s right to refrain from union activity or to deal with the union directly and in violation of N.J.S.A. 52:14-15.9E. It was further alleged that A Since on or about October 15, 1981, the Boonton Public Schools have imposed an agency shop situation without requiring the pre-establishment of a demand and return system before granting any such program. @ Also on November 30, 1981, Kramer filed a charge with PERC alleging that the Boonton Education Association ( A BEA @ ) and New Jersey Education Association ( A NJEA @ ) engaged in unfair practices within the meaning of the Act and specifically ' 5.4(b)(1) by breaching their duty of fair representation since October 15, 1981, by refusing Charging Party the right to see or be told the content of the collective bargaining agreement, by attempting to coerce and intimidate Kramer from exercising the right to refrain from union activity by demanding in a letter of October 7, 1981 that Kramer become a member of BEA and further that the BEA and NJEA have imposed a dues checkoff procedure without the prior establishment of a demand and return system as required by ' 5.6 of the Act and have attempted to intimidate or coerce her to pay such dues. It was further alleged that the Respondent A imposed an automatic dues checkoff without individual signed cards in violation of N.J.S.A. 52:14-15.9 by refusing to give advance information the amount of dues; and by refusing to display a demand and return system until after the forced checkoff was in effect. @ Further, the BEA and NJEA established an agency fee system which charges lower amounts to certain members than it does to certain non-members, reflecting a dues system which is not uniform. On February 9, 1982, the Charging Party filed an amendment to her charge alleging that the conduct of the NJEA and the BEA as previously alleged violated her rights under both the United States and New Jersey Constitutions. It was additionally alleged that the nature of the agency fee and checkoff were unconstitutionally broad. It appearing that these allegations if true might constitute unfair practices within the meaning of the Act, an Order Consolidating Cases and a Complaint and Notice of Hearing were issued on May 17, 1982. A hearing was held on September 13, 1982, at which time all parties were given an opportunity to present evidence, examine and cross-examine witnesses and argue orally. All parties submitted briefs by November 19, 1982. Findings of Fact 1. Judith Kramer is a teacher employed as a resource room person by the Board and is a member of a unit represented by the BEA. 2. Kramer is not a member of the BEA. 3. The Board and the BEA entered into a Collective Negotiations agreement effective from July 1, 1981 to June 30, 1983, which provides that if a member of the negotiations unit does not become a member of the Association during a year covered by the contract said employee shall be required to pay a representation fee in lieu of dues not to exceed 85% of regular union dues, fees and assessments to the Association during that year. This provision became effective on July 1, 1981, and was to apply prospectively only. 4. This contract was ratified by the Board on June 22, 1981. 5. A A demand and return @ system was adopted by the BEA on September 30, 1981. It provides that one who pays a representation fee in lieu of dues to the Association may request a rebate which is determined by the percentage of the combined budgets for the Association and its affiliate that is used for political activity1/ and member only benefits. The difference between said percentage of regular membership dues fees and assessment of the Association and the representation fee shall constitute the rebate.2/ The system provides for a review procedure before a Review Panel of any claim that the rebate is insufficient. The burden of demonstrating that no part of the unrebated representation fee is used for political activities or member only benefits is on the Association and if the nonmember is not satisfied with the decision of the Review Panel, he or she may refer the matter to the Appeals Board created by ' 5.6 of the Act. 6. Kramer received a letter from Mary Jarema, the Membership Chairperson of the BEA. The letter dated October 7, 1981, invited Kramer to become a member in full standing of the Association and stated that A all bargaining unit members who do not join the Association will be subject to A a representation fee in lieu of dues. @ The letter concluded: We need your moral as well as financial support. Your needs as an employee are the same as those of your colleagues. The effort to represent you is no different from that expended to represent anyone else. Thus, we are asking that you voluntarily join us and give us your support. We offer you the following choices: 1. that you join as a cash member with payment in full of the dues by October 15. 2. that you join as an automatic payroll deduction member with dues to be deducted in monthly installments. 7. Ever year since Kramer was first employed by the Board in 1977 she was asked by a member of the Association to join the Association and every year she would decline. Kramer knew before and after reading the letter quoted in paragraph 6 that she did not have to join the BEA. 8. Kramer was first informed of the representation fee in the letter of October 7 (quoted in paragraph 6). 9. On or about October 9, Kramer talked with Mary Jarema and asked about the representation fee. Kramer asked for a written statement of the dollar amount of this agency shop fee but Jarema refused. Kramer also asked to see the contract which gave the Association authorization for the fee. Jarema said it was being typed and Kramer would get a copy when it was typed. Kramer was given a copy of the contract on December 3. 10. On October 14, 1981, Kramer sent a letter to the Superintendent of Schools Ruth Krawitz stating that Kramer does not authorize deductions from her paycheck for the purpose of paying the BEA a representation fee in lieu of dues since she had not seen a copy of the demand and return system or the contract. Kramer further claimed that the BEA does not have the right to institute an automatic dues deduction check without Kramer herself giving a written authorization. 11. The President of the BEA, Marilyn Ward, testified that after the demand and return system was adopted (see paragraph 5), copies of the system were posted on the bulletin board in the faculty room of the school where Kramer worked, on or about October 1, 1981. This bulletin board was used to post notices of Association matters as well as affirmative action and personal matters. This was not disputed by Kramer who testified that she never looks at the bulletin boards. Accordingly, I so find that copies of the demand and return system were posted on or about October 1, 1981. 12. Agency shop fees were deducted from Kramer = s salary by the Board commencing February 1, 1982. The amount of the fees collected were double the monthly agency shop fee required under the contract. Such double fees continued for five months -- February through June. The fees were doubled to make up for the first five months of the school year -- September through January -- when no dues were deducted. These fees were taken from Kramer = s salary even though she did not sign any authorization card or otherwise agree. 13. From February to June 1982 the Board deducted $37.08 a month from Kramer = s salary. Kramer = s annual representation fee works out to be greater than the annual Association dues of some Board employees. 14. Kramer = s agency shop fee was based upon the Association dues paid by teachers, custodians, maintenance and clerical employees. 15. Other employees of the Board -- aides, bus drivers and cafeteria workers -- pay significantly lower Association dues than those employees listed in paragraph 14. These employees pay less dues because they all have significantly lower earnings than the employees listed in paragraph 14. 16. The dues structure of the BEA requires that all members of the BEA join the Respondent NJEA and NEA and a portion of the dues money is forwarded to the NJEA and NEA. Similarly, a portion of the representation fee deducted from Kramer = s salary was forwarded to the NEA and NJEA. Analysis Subsection 5.6 of the Act mandates that where a negotiated agreement provides for a representation fee, the majority representative (Association) shall be entitled to said fees provided that membership in the Association is available to all employees and that the Association A has established and maintained a demand and return system which provides pro rate returns @ in accordance with 2(c) (i.e. ' 5.5(2)). Here the BEA = s demand and return system was not established until September 30, 1981, yet the dues for the month of September were taken, albeit retroactively, from her salary. By the terms of the Act no representation fee should have bee deducted from Kramer = s salary for the month of September. Kramer failed to prove that she was not able to see a copy of the demand and return system. See paragraph 11. Accordingly, it is not necessary here to determine if a failure to publicize a demand and return system is violative of the act. Kramer argues that pursuant to N.J.S.A. 52:14-15.9(e), she does not have to have dues deducted from her salary but, rather, can make her fee payment directly to the Association. N.J.S.A. 5A:14-5.9(e) provides in part: whenever any person holding employment, whose compensation is paid by...(any) board of education...in this State...shall indicate in writing to the proper disbursing officer his desire to have any deductions made from his compensation, for the purpose of paying the employee = s dues to a bona fide employee organization, designated by the employee in such request, and of which said employee is a member, such disbursing officer shall make such deduction from the compensation of such person and such disbursing officer shall transmit the sum so deducted to the employee organization designated by the employee in such request. Kramer misconstrues the intent of the statute. It was enacted long before the enactment of ' 5.6 fo the Act. The intent of the statute was to allow an employee who was voluntarily paying dues to an association, as a member thereof, to have said dues automatically deducted from his or her salary and forwarded to that association. Subsection 5.6 of the Act expressly provides that representation fees, where otherwise appropriate, shall be taken by payroll deduction. Subsection 5.6 applies to a completely different class of employees than ' 52:14-5.9(e). The latter concerns association members, the former, nonmembers. Kramer as a nonmember of any association has no rights under N.J.S.A. 52:14-5.9(e).3/ Contrary to Kramer = s charge, the letter of October 15 (as quoted in Finding of Facts paragraph 6), is not coercive. It does not demand that Kramer become a member of the Association. As it states, A we are asking that you voluntarily join us and give us your support. @ The letter does not state that Kramer has two choices, join or not to join. The letter states that the Association offers two choices of membership. The Commission has adopted4/ the NLRB standard of the expressing of views as stated in ' 8(c) of the NLRA. A The expressing of any views...shall not constitute...an unfair practice...if such expression contains no threat of reprisal or force of promise of benefit. @ See, City of Camden & Int = l Assn. of Firefighters Local 788, AFL-CIO, P.E.R.C. No. 82-103, 8 NJPER 309 ( & 13137 1982). There is no threat of reprisal or force or promise of benefit contained in the letter of October 15. Kramer alleged that the lack of uniformity in the dues structure of the BEA constitutes an unfair practice. As seen in paragraphs 14 and 15, there are two different dues levels within the BEA based upon the salary level of the respective employees. Kramer, in her proposed Findings of Fact which were submitted in lieu of a brief, argues that the demand and return system implemented by the BEA did not A comport @ with the Act. However Kramer did not demonstrate how a graduated structure for all Association members = dues based on income constitutes discrimination against her as a nonmember. Further this issue was not raised in her pleadings. These arguments are not timely and will not be considered. Kramer attempted to argue at the hearing and in her post- hearing submission that an indeterminate portion of Kramer = s representation fee went to uses that were not within the guidelines of subsection 5.5 and, moreover, were unconstitutionally broad. As stated at the hearing5/ questions concerning what portion of the assessed fees paid by Kramer went to uses not within the guidelines of ' 5.5, belong before the Appeal Board created by ' 5.6, this Commission has no jurisdiction to hear such matters. Finally Kramer alleged that the enforcement of the representation fee and checkoff provision were violative of both the United States and New Jersey Constitutions as to freedom of speech and association. However no argument was made either at the hearing or in post-hearing submissions by Kramer. Given that it is the duty of an administrative body to accept a statute as constitutional until such time as it has been declared unconstitutional by a qualified judicial body,6/ I have no alternative but to recommend that the Commission, to the degree that it has jurisdiction over Kramer = s charges, dismiss those portions of the charge which claim the Act is unconstitutional. See Johnson v. Robinson, 415 U.S. 361, 368, 94 S.Ct. 1160, 1166, 39 L.Ed. 2d 389, 398; Hunterdon Central H.S. Bd/Ed v. Hunterdon Central H.S. Teachers Assn, supra; Fischer v. Bedminster Tp., 5 N.J. 534, 542 (1950); Baldwin Constr. Co. v. Essex Cty. Bd. of Tax., 24 N.J. Super. 252, 279-282 (Law Div. 1952), aff = d 27 N.J. Super. 240 (App. Div. 1953), aff = d 16 N.J. 329 (1954); and cf. River Dell Ed/Assn. v. River Dell Bd/Ed, 122 N.J. Super. 350 (Law Div. 1973). Accordingly for the reasons expressed above it is hereby recommended that the Commission find that the Respondents, Town of Boonton Board of Education, Boonton Education Association and New Jersey Education Association caused a representation fee to be deducted from the salary of Judith Kramer for the month of September 1981 when contrary to the provision of the Act no demand and return system was in place which would enable Kramer to seek a refund of moneys paid to the BEA and NJEA which were used for purposes not approved by the Act. It is further recommended that all other charges be dismissed in their entirety. Upon these findings it is recommended that the Commission Order: 1. That the Respondents Board of Education of the Town of Boonton, Boonton Education Association and New Jersey Education Association A. Cease and desist from deducting a representation fee in lieu of dues from Judith Kramer = s salary during any month that a demand and return system is not in place. B. Pay to Judith Kramer the sum of $18.54 as representation fees in lieu of dues improperly deducted from Judith Kramer = s salary for the month of September 1981 and pay interest of 12% per annum on $18.54 to be computed commencing from the date of February 1, 1982. 2. Post in all places where notices to employees are customarily posted, copies of the attached notice marked as Appendix A A. @ Copies of such notice, on forms to be provided by the Commission, shall be posted immediately upon receipt thereof and, after being signed by the Respondents = authorized representatives, shall be maintained by them for at least sixty (60) consecutive days thereafter. Reasonable steps shall be taken by the Respondents to ensure that such notices are not altered, defaced or covered by other materials. 3. Notify the Chairman of the Commission within twenty (20) days of receipt what steps the Respondents have taken to comply herewith. /s/Edmund G. Gerber Hearing Examiner DATED: March 25, 1983 Trenton, New Jersey WE WILL NOT deduct a representation fee in lieu of dues from Judith Kramer = s salary during any month that a demand and return system is not in place. WE WILL pay Judith Kramer the sum of $18.54 plus 12% interest per annum for the period of time in which dues were deducted from Judith Kramer = s salary when a demand and return system was not in place. 1/ The definition of political activity stated in the demand and return system uses the language of 2(c) of Ch. 477 (i.e. ' 5.5c). 2/ This somewhat simplifies the actual procedure. The plan provides for a preliminary rebate which is based on allocated funds for political activity and members only benefits and a final rebate based on funds actually spent. 3/ PERC has primary jurisdiction to construe statutes outside its own Act in order to determine issues arising under its jurisdiction. Hunterdon Central H.S. Teachers Assn. and Hunterdon H.S. Bd. of Ed., 174 N.J. Super. 468 (App. Div. 1980), aff = d o.b. 86 N.J. 43 (1981); Bd/Ed of Bernards Tp. and Bernards Tp. Ed/Assn., 79 N.J. 311 (1979). 4/ The N.J. Supreme Court = s reasoning in Galloway Tp. Bd/Ed v. Galloway Tp. Assn. of Educ = l Secys, 79 N.J. 1 (1978) was that the Act was based on the NLRA and accordingly, A the absence of specific phraseology in a statute may...be attributable to a legislative determination that more general language is sufficient to include a particular matter within the purview of the statute without further elaboration. @ At p. 15. 5/ At the hearing the undersigned quashed a subpoena of the records of NEA, NJEA and the BEA. The expressed purpose of that subpoena was to demonstrate that moneys deducted from Kramer = s salary were being spent for purposes which are improper under the Act. The subpoena was quashed because the Commission lacked jurisdiction to hear such a matter, and the rationale for said decision was expressed on the record. 6/ In this regard the parties here are familiar with an action in Federal District Court, District of New Jersey, Jodeph W. Atonadi et al. v. State of New Jersey et al., Civil Action No. 82-119, consolidated with Paul Robinson et al. v. State of New Jersey et al., Civil Action No. 82-119, in which the constitutional issues raised by Kramer are being litigated. Docket No. Board of Education of the Town of Boonton, Boonton Education Association and New Jersey Education Association (Public Employer) Date: By: This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced or covered by any other material. If employees have any question concerning this Notice or compliance with its provisions, they may communicate directly with the Public Employment Relations Commission, 495 West State Street, PO Box 429, Trenton, NJ 08625-0429 (609) 984-7372 APPENDIX A A @ ***** End of HE 83-33 *****