[117 NJSuper Page 349] The legality of an agency shop in public employment is at issue in this declaratory judgment action. The agency shop proposed for defendant authority's employees by plaintiff union would require the monthly payment by nonmembers of the union of their respective fair share of the cost of collective negotiations, processing of grievances and other activities related to union representation,
as a condition of employment. Initially the payments by nonmembers would be identical to the regular union dues and initiation fees, subject to reduction upon a determination that the pro rata cost was less.
The New Jersey Constitution (1947), Art. I, par. 19 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.
Collective negotiations through a majority representative were sanctioned for persons in public employment by N.J.S.A. 34:13A-1 et seq. , as amended by L. 1968, c. 303. The Supreme Court upheld the constitutionality of that statute in Lullo v. International Ass'n of Fire Fighters , 55 N.J. 409 (1970).
Lullo held further that the rule of good faith representation in processing a nonmember's grievance applied to a majority representative in public employment, as well as to a bargaining representative in private employment, under Vaca v. Sipes , 386 U.S. 171, 87 S. Ct. 903, 17 L. Ed. 2d 842 (1967), and Donnelly v. United Fruit Co. , 40 N.J. 61 (1963).
Whether an individual public employee retains the right to process his own grievance was mooted but undecided in Lullo. Defendant authority urges that this right is shielded constitutionally. Two specific provisions of N.J.S.A. 34:13A-5.3 warrant a construction that the Legislature intended to foreclose it:
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.
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.
An affidavit by its business manager makes clear that plaintiff union holds this view of the statute but, in addition, gratuitously offers:
To interpret the constitutional language in Art. 1, par. 19, to bar individual public employees from presenting proposals as to terms and conditions of employment whenever there is a majority representative, but to safeguard their right to present grievances under all circumstances would be to create a dichotomy between ...