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Lullo v. International Association of Fire Fighters

Decided: March 9, 1970.


For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Francis, J.


In this action plaintiffs Lullo and Wood, individually and as officers of the plaintiff Firemen's Mutual Benevolent Association of New Jersey, Branch No. 1, attacked the constitutionality of L. 1968, c. 303, known as "New Jersey Employer-Employee Relations Act." N.J.S.A. 34:13A-1 et seq. The challenge was two pronged. One was directed at section 7 (N.J.S.A. 34:13A-5.3) of the Act which provides that the representative duly elected by a majority of the public employees in an appropriate unit shall be the exclusive representative of all employees in the unit. The other challenged the portion of section 7 which authorizes such representative and the employer in the appropriate unit involved to engage in collective negotiations concerning the terms and conditions of their employment. It was alleged that in these two respects section 7 is repugnant to Article I, paragraph 19 of the New Jersey Constitution of 1947. The trial court sustained the Act, and this Court certified the ensuing appeal while it was awaiting hearing in the Appellate Division.

Since 1895 the Firemen's Mutual Benevolent Association (FMBA), Branch No. 1, has been an incorporated association

of this State. Its membership has always been made up of Jersey City firemen who desired to join. It is not a labor organization in the usual sense and has never held itself out as a negotiating agent for all the firemen of the City. However, on a purely voluntary basis it has interceded for and spoken on behalf of its members with the proper City representatives in matters affecting salaries, working conditions and grievances.

After L. 1968, c. 303, became effective, the New Jersey Public Employment Relations Commission (PERC) which was created by the Act, acceded to a request of defendant International Association of Fire Fighters, Local 1066 (IAF), a labor organization, and ordered an election to determine if those firemen eligible to vote wished to be represented by IAF for purposes of collective negotiation with Jersey City. N.J.S.A. 34:13A-5.2, 5.3, 6. Notice of the time and place of the election and a sample ballot were given to the firemen. As stated in the ballot the question to be voted upon was:

Do you desire to be represented for purposes of collective bargaining by International Association of Fire Fighters, Local 1066?

(Plaintiffs contend the form of this question was improper and invalidated the election. The issue will be discussed later in this opinion.)

Plaintiffs were notified of the election but declined to participate because of their view that L. 1968, c. 303 is unconstitutional. Instead they instituted this action in the Superior Court, Chancery Division, seeking a declaration of the statute's invalidity and a temporary and permanent injunction against holding the election. The trial judge declined a temporary restraint and directed that the election be held, the result not to be certified until disposition of the court proceeding. See N.J.S.A. 34:13A-11; PERC Rule 19:11-19(g). The election was held and 417 of the 430 eligible firemen voted; 399 voted for representation by IAF, 17 voted against such representation, and one vote was not

counted. Thereafter the trial court heard the attack on the statute, and as already indicated sustained its constitutionality.



The right of employees in private and public employment to organize and to deal with their employers was dealt with in general terms in Article I, paragraph 19 of the 1947 Constitution. It provides:

Persons in private employment shall have the right to organize and bargain collectively. Persons in public employment shall have the right to organize, present to and make known to the State, or any of its political subdivisions or agencies, their grievances and proposals through representatives of their own choosing.

The broad terminology of this Article comports with the overall purpose of the delegates to the Constitutional Convention. That purpose was to make the Constitution a repository of the fundamental rights of New Jersey citizens, and of the form and functions of our State government. The delegates' philosophy was to create a document which would be sufficiently descriptive and expressive to serve the needs of a basic charter and yet remain free of the detail and methods of implementation that might best be left to the legislative process. The general guidelines for constructing the document were discussed by the then Governor Alfred E. Driscoll at the opening of the Convention. He said among other things:

In the course of your debates you will, on many occasions, be tempted to adopt legislative enactments. You will be wise to guard against this natural temptation by the judicious and conscientious exercise of statesmanship and will power. The State Constitution is an organic document -- a basis for government. It should not be a series of legislative enactments. Our search for a modern government in this State has all too frequently been frustrated by legislation enacted by our ancestors over a century ago and embalmed in

our Constitution. When legislation is permitted to infiltrate a constitution, it shackles the hands of the men and women elected by the people to exercise public authority. The longer a constitution, the more quickly it fails to meet the requirements of a society that is never static. To quote one authority: "The more precise and elaborate" the provisions of a constitution, "the greater are the obstacles to the reform of abuses. Litigation thrives on constitutional verbosity."

Accordingly, I earnestly recommend that all proposals of a legislative character be rejected. * * * II. Proceedings, Constitutional Convention of 1947, 7.

It is obvious that the drafters of Article I, paragraph 19, were mindful of that admonition. The conclusion is inescapable from a reading of the article. In general language it grants and secures to employees in the private and public sectors certain basic rights. At the same time, it recognizes and clearly projects a difference as between private and public employees in the quality and substance of the rights thus elevated to constitutional stature. Obviously, as Delaware River & Bay Auth. v. International Org., etc., 45 N.J. 138, 145 (1965) suggests, employees in private employment were endowed in broad terms with the right to organize and bargain collectively. However, public employees were invested inviolably in significantly narrower terms with the right to organize, present and make known to their public employers their grievances and proposals through representatives of their own choosing. But it is important to note that the delegates made no effort to detail or to prescribe the nature or scope of the representation or the authority of the representative to act for the employees whether their employment was in the public or private sector. The decision as to whether there should be a single representative to speak exclusively for all the employees, or multiple representatives to speak for different groups of employees or whether an individual employee should have the right to represent himself in all dealings with his employer, or whether all three forms of representation should be authorized, was left to the Legislature.

This Court declared in Board of Ed., Borough of Union Beach v. N.J.E.A., 53 N.J. 29, 44-45 (1968) that the purpose of Article I, paragraph 19 was to secure the specified rights of employees in private and public employment against legislative erosion or denial. It reveals no intention to deprive the Legislature of the power to grant to public employees a further right designed to implement or effectuate those rights secured by Article I, paragraph 19, or to grant more expansive relevant rights which do not conflict with that article. Id., at 45.

In analyzing Article I, paragraph 19, this Court recognized that the rights secured thereby to public employees are less than those similarly entrenched for private employees. Further, we accepted the thesis that the right of collective bargaining in the full sense in which it obtains in the private employment sector is not guaranteed by the paragraph to public employees. With respect to the latter employees we interpreted the language to impose on the employer in the public sector only the duty to meet with its employees or their chosen representative and to consider in good faith any grievance or proposals presented on their behalf. Id., at 44; Delaware River & Bay Auth. v. International Org., etc., supra, 45 N.J., at 144-145. It was in this connection that we referred to the continuing power of the lawmakers to enact such further statutes as may be compatible with Article I, paragraph 19, to both substantively and procedurally flesh out the constitutional guarantees. Board of Ed., Borough of Union Beach v. N.J.E.A., supra, 53 N.J., at 45; Johnson v. Christ Hospital, 45 N.J. 108, 111 n. 1 (1965); Independent Dairy Workers, etc. v. Milk Drivers & Dairy Employees, Local No. 680, 30 N.J. 173, 180-182 (1959).

In 1966 the Legislature, noting that Article I, paragraph 19 of the Constitution "explicitly distinguishes between persons in private employment and persons in public employment with respect to the constitutional right to bargain collectively," created a commission to study the need for establishing an effective procedure for considering the grievances of public

employees. L. 1966, c. 170. A number of other states have created similar study groups. See Smith, "State and Local Advisory Reports on Public Employment Labor Legislation: A Comparative Analysis," 67 Mich. L. Rev. 891 (1969). The New Jersey Commission Report*fn1 which was filed on January 9, 1968 asserted broadly 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." It recommended "legislation setting forth a procedure that is fully compatible with and complementary to existing Civil Service systems and present laws and regulations governing personnel matters in public employment at all governmental levels in New Jersey." In particular it said that such legislation, among other things, "should establish the obligation of public employers * * * to meet with employees through representatives of their own choosing for the mutual resolution, within the law, of grievances and proposals." Id. In this connection also, the Report noted:

d. The essential distinction between joint negotiations in public and private employment is that the parties in the public sector do not enjoy the formal coercive power of parties in the private sector, namely the legal right to strike and lockout. In other respects, the broadest latitude for collective negotiations should be available to public employers and public employees. (Report, p. 1).

Under the heading "Administrative Procedures," the Report contains a strong recommendation respecting a primary problem in the present case. It says:

a. When a majority of employees in a given negotiating group or unit indicate by secret election a preference for a specific representative organization, no other organization should be designated, certified, or recognized for the purpose of collective negotiations. (Report, p. 2).

In a later portion of the Report setting forth the recommendations in greater detail, the following appears at the end of the above paragraph and as a continuation thereof:

On the subject of exclusive representation by a representative duly elected by public employees in an appropriate unit, the Commission observed:

Multiplicity of organizations claiming or possessing representation rights for the same group or unit of employees has long been regarded as undesirable. Multiple representation of employees encourages rivalries among employee groups and severely handicaps private and public employers in the development of effective negotiations and stable relationships.

Expert witnesses and representatives of interested employer and employee groups appearing before the Commission were almost unanimous in their opposition to multiple representation within any employee negotiating unit. * * * The New Jersey Department of Civil Service, in its presentation to the Commission, accepted this viewpoint and advocated restriction of multiple bargaining following the pattern of the federal executive order. * * * (Report, p. 15).

In preparing the article in 67 Michigan Law Review, supra, Professor Smith surveyed similar reports of special advisory groups of other states.*fn2 In discussing them he said:

It was generally agreed that public sector labor legislation should embrace the principle of exclusive recognition of the union or organization selected by the majority of employees in a defined bargaining unit.*fn3 67 Mich. L. Rev. at 897.

Chapter 303, L. 1968, was adopted in response to the New Jersey Commission Report and incorporated most of its recommendations. The controversy now before us centers around section 7 of Chapter 303. N.J.S.A. 34:13A-5.3. It provides among other things:

Representatives designated or selected by public employees for the purposes of collective negotiation by the majority of the employees in a unit appropriate for such purposes or by the majority of the employees voting in an election conducted by the commission as authorized by this act shall be the exclusive representatives for collective negotiation concerning the terms and conditions of employment of the employees in such unit. Nothing herein shall be construed to prevent any official from meeting with an employee organization for the purpose of hearing the views and requests of its members in such unit so long as (a) the majority representative is informed of the meeting; (b) any changes or modifications in terms and conditions of employment are made only through negotiation with the majority representative; and (c) a minority organization shall not present or process grievances. Nothing herein shall be construed to deny to any individual employee his rights under Civil Service laws or regulations. When no majority representative has been selected as the bargaining agent for the unit of which an individual employee is a part, he may present his own grievance either personally or through an appropriate representative or an organization of which he is a member and have such grievance adjusted.

A majority representative of public employees in an appropriate unit shall be entitled to act for and to negotiate agreements covering all employees in the unit and shall be responsible for representing the interests of all such employees without discrimination and without regard to employee organization membership. Proposed new rules or modifications of existing rules governing working conditions shall be negotiated with the majority representative before they are established. In addition, the majority representative and designated representatives of the public employer shall meet at reasonable times and negotiate in good faith with respect to grievances and terms and conditions of employment.

When an agreement is reached on the terms and conditions of employment, it shall be embodied in writing and signed by the authorized representatives of the public ...

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