Labrecque, Kolovsky and Matthews. The opinion of the court was delivered by Kolovsky, J.A.D.
The final judgment entered herein on July 22, 1971
Ordered that, upon demand by plaintiff in writing, the defendant shall bargain collectively as to wages, hours, and working conditions with the plaintiff, which is hereby certified as the sole and exclusive bargaining agent for the full-time professional lay teachers, librarians and guidance counselors in the 13 regional high schools operated by defendant.
On filing of plaintiff's verified complaint an order to show cause issued. Plaintiff served notice that it would move to proceed summarily. R. 4:67-2(b). The complaint alleged that plaintiff represented a majority of the "lay faculty members" in defendant's secondary schools in Essex, Bergen, Hudson and Union Counties; that it had offered to demonstrate such representation to defendant and had requested that defendant meet with it for the purposes of collective bargaining; that, in violation of Article I, Paragraph
19 of the 1947 New Jersey Constitution, defendant had refused to bargain collectively with plaintiff; and that
7. Plaintiff is unable to obtain relief or remedy from the National Labor Relations Board because defendant is not an employer within definition of the National Labor Management Relations Act and regulations appended thereto.
The relief prayed was a judgment "ordering defendant to bargain collectively with plaintiff or to participate in a representation election as soon as possible." Cf. Johnson v. Christ Hospital , 84 N.J. Super. 541 (Ch. Div. 1964), aff'd 45 N.J. 108 (1965).
A second count sought to restrain defendant from proffering contracts to individual lay faculty members until such time as collective bargaining between plaintiff and defendant had been completed.
On the return day of the order to show cause, April 30, 1971, defendant submitted an answering affidavit of its assistant superintendent of schools and plaintiff filed a reply affidavit. In pertinent part the affidavit submitted by defendant read as follows:
The Archdiocese has never contested the right of teachers to either organize or present their proposals through representatives of their own choosing. Quite the contrary. The Archdiocese entered into agreements with the Lay Faculty Association [hereinafter L.F.A.] in behalf of its teacher members for the school year 1969-70 and the school year 1970-71. The Archdiocese has honored these contracts and this is not controverted.
[A meeting scheduled for January 5, 1971 to discuss a contract for the 1971-1972 school year was called off by plaintiff and was not held until March 3, 1971.]
I am advised that L.F.A. is not entitled to sole and exclusive representative status. The facts establish that it does not represent
a majority, witness the Newsletter * * * issued on March 22, 1971. Further, many of the agency appointment cards are suspect in view of the circumstances under which they were procured. * * *
Even assuming that L.F.A. could establish that it represents a majority of the lay teachers it is nevertheless not entitled to sole and exclusive status as representative of all the teachers. I have already indicated we have at all times been ready and willing, now as in the past, to review proposals submitted by L.F.A. and enter into a contract with it in behalf of its teacher members.
The Affidavit of the plaintiff [para. 15] takes the position that whatever rights the plaintiff may have flow from the case of Johnson v. Christ Hospital. This case is clearly distinguishable from our situation. We have not at any time disputed the right of our teachers to organize and have, in fact, entered into contracts with L.F.A. in behalf of its teacher members.
I am aware there is no legislation in the State of New Jersey to guide the Court and that the Court will, therefore, be called upon to exercise its discretion under all the circumstances. While we are not 'public employers' in the literal sense, we most certainly must be considered quasi-public institutions in the operation of our schools. Neither the Constitution nor Johnson create the right in L.F.A. to serve as sole and exclusive representative for those by whom it has not been chosen to act. The constitutional rights of those who do not desire to be represented by L.F.A. have a right to be protected as much as those who choose to be represented by L.F.A. The Court, I am certain, will therefore take judicial notice of the vital public interest in continuing our schools without interruption.
Argument on the issues raised by the conflicting affidavits took place on three separate days, with the primary dispute involving the question whether plaintiff represented the majority it claimed. To resolve that question, the court entered its order of May 13, 1971 directing that a representation election be conducted on June 4, 1971. The body chosen by the court to conduct the election was defendant's nominee, the Honest Ballot Association. (Plaintiff had nominated the New Jersey State Board of Mediation.)
Among the provisions regulating the election embodied in the order of May 13, in addition to details relating to the voting and polling procedures, were:
4. Those eligible to vote shall be all full-time lay teachers, degreed librarians and guidance counselors, of the defendant's 13 regional
secondary schools, who are employed on the last payroll period prior to the signing of this Order, except as hereinafter provided.
5. All Principals, Vice Principals, part-time teachers, nurses and all other personnel not specifically mentioned in paragraph 4 shall be excluded from voting. Ballots of teachers, librarians and guidance counselors shall be segregated and reported separately by the Board, subject to determination by the Court as to the appropriate bargaining unit.
B. The question of whether plaintiff shall be the sole and exclusive bargaining representative for all those in the unit found to be appropriate, is hereby reserved for decision by the Court after hearing and with full opportunity to present Briefs on the question.
The court's subsequent order of May 27, 1971, entered pursuant to directions given by the Supreme Court when it on May 26, 1971 vacated an Appellate Division stay of the election, provided for a further separate tabulation, that of "the votes of any full time lay teachers, degreed librarians and guidance counsellors who will not be re-employed for any reason for the 1971-72 school year."
The representation election was held on June 4, 1971 and the certification thereof filed by the Honest Ballot Association showed the following breakdown of the votes cast by each category of employees on the question, "Do you wish to be represented for purposes of collective bargaining by -- Lay Faculty Association?":