On certification to the Superior Court, Appellate Division, whose opinion is reported at 151 N.J. Super. 435 (1977).
For affirmance -- Chief Justice Hughes and Justices Sullivan, Pashman, Clifford, Schreiber and Handler. For reversal -- Judge Conford. The opinion of the court was delivered by Pashman, J. Conford, P.J.A.D. (temporarily assigned), dissenting.
[78 NJ Page 127] Plaintiff Red Bank Regional Education Association and defendant Red Bank Regional High School Board of Education were parties to a collective negotiation agreement covering a unit comprised of the Board's teaching employees. That agreement incorporated a grievance resolution procedure with binding arbitration as its terminal step. A "grievance" is defined therein as "a complaint by a teacher that there has been as to him a personal loss, injury or inconvenience because of a violation, misinterpretation or inequitable application of Board policy, this Agreement or an administrative decision affecting teachers." Identical definitional language appears in the previous and subsequent collective agreements between the parties. The Association claimed a right to file grievances otherwise within the contractual definition of a grievable issue in its own name, as the majority representative of the unit employees, whenever it deemed such action necessary. An attempt by the Association to file such a grievance was rebuffed when the Board successfully sought temporary injunctive relief against that maneuver. The Association thereupon instituted this separate action in the Chancery Division seeking a judicial declaration that it possessed a statutory right to "institute and process grievances in its own name and upon its own impetus" which superseded any provision of the collective agreement purporting to deny it that ability.*fn1 [78 NJ Page 128] The Board argued before the trial judge that the right sought by the Association was one which could be acquired only through negotiated agreement. Over the course of negotiations for several contracts, the Board has steadfastly refused to accede to the Association's proposals to expand this aspect of the contractual definition of "grievance." The Board claimed that the Association had always abandoned its demand in exchange for other negotiating concessions from the Board. The result of this trade off, according to the Board, is a contractual grievance procedure under which only an individual employee possesses the right to initiate a grievance, with the Association retaining a contractual right to process all grievances so initiated until a resolution satisfactory to it has been achieved.*fn2 In the
Board's view, this situation did not offend any statutory requirements.
The Association claimed that the right of a majority representative to file grievances was mandated by the New Jersey Employer-Employee Relations Act, L. 1968, c. 303, as amended L. 1974, c. 123, N.J.S.A. 34:13A-1 et seq. (the Act), which provides, in pertinent part:
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. * * *
[ N.J.S.A. 34:13A-5.3 (emphasis added)]
The Association found in this statutory language a legislative command that both the individual employees and their chosen representative must be able to present grievances to the public employer. Thus, in the Association's view, a majority representative did not need to negotiate to acquire the right to have grievances it presents in its own name (hereinafter "organizational" grievances) accepted for processing by a public employer, since that right is explicitly granted by a statute. According to the Association, any contractual provision purporting to abrogate that right is unenforceable.
The trial judge, in an oral opinion, denied the declaratory relief sought by the Association. He construed the word "or" in N.J.S.A. 34:13A-5.3 to have a disjunctive meaning and agreed with the Board that according the right to initiate grievances solely to the individual employees was sufficient to comply with the statute. In his view, a majority representative's statutory role in grievance presentation was only that of filing a grievance in the name of an individual teacher who had requested that such action be taken on his behalf. He held that a grievance is a personal right of an
individual employee. Although no individual employee opposing the filing of an organizational grievance over a contractual violation allegedly suffered by him exists in this case, the judge was concerned with the rights of such a person. He reasoned that the statute could not be construed in such a manner as would sanction a majority representative's filing of an organizational grievance against the wishes of an employee.
The Appellate Division, acknowledging that the "matter is a difficult and close one of statutory interpretation," reversed in a brief per curiam opinion, 151 N.J. Super. 435, 437 (App. Div. 1977). It avoided reliance on a construction of the "or" in N.J.S.A. 34:13A-5.3 in favor of the "more fruitful endeavor" of ascertaining the legislative purpose underlying the statute. 151 N.J. Super. at 438. The appeals court found that a restatement of the question before it eased its task:
With the question thus posed, the focus of the Appellate Division's analysis was on the rights of the timorous employee who fears the effect on his employment tenure of his entering the highly-visible role of a grievant. This emphasis on the potential "chilling" effect on individual action by reason of the threat of adverse employment consequences viewed the issue from a perspective different from that of the trial judge, whose concern was with an individual employee being involuntarily thrust into that spotlight by the Association's filing of a grievance where he chose not to do so. The Appellate Division envisioned a situation where an employee might feel aggrieved but be afraid to file a grievance in his own name for fear of harmful repercussions to his relationship with the employer. In such a case the employee would want a grievance filed not in his name but in the
name of all employees in the unit -- i.e., in the name of the Association as the unit's majority representative. The Appellate Division stressed the principles of collectivity underlying the legislative scheme expressed in the Employer-Employee Relations Act and the constitutional right of public employees to organize, N.J. Const. (1947) Art. I, para. 19. 151 N.J. Super. at 439. The court stated its reasoning in support of its holding as follows:
We cannot conceive that the Legislature would on the one hand forcefully implement the constitutional guarantee of the benefits of collectivity in negotiation and then totally shortcircuit the system by requiring individual activity at the moment of truth when the results of the collective bargaining came into question. Such a construction would challenge the integrity of the collective bargained contract and insult legislative purpose.
From a strictly pragmatic viewpoint we can think of many reasons causing a teacher to resist the individual filing of a grievance, among which might be a wholly salutary concern for her relationship and effectiveness with her students, or, less altruistically, a human concern for nontenure status. Redress for a violation should not "be made contingent upon the intrepidity of the individual employee." Industrial Union of Marine & Shipbuilding Wkrs. v. N.L.R.B., 320 F.2d 615, 619 (3 Cir. 1963), cert. den. 375 U.S. 984, 84 S. Ct. 516, 11 L. Ed. 2d 472 (1964).
[151 N.J. Super. at 439-440]
From this determination, the Board sought review by this Court. Its petition for certification was granted, 75 N.J. 529 (1977), and we requested the parties and the Public Employment Relations Commission, as amicus curiae, to file supplemental briefs concerning an issue not considered below -- whether any existing statutory right of a majority representative to file organizational grievances could be the subject of a contractual waiver. This issue arose from the fact that the terms of the collective agreement did not give the Association the right to initiate a grievance in its own name.
In attempting to determine the proper meaning of the relevant statutory language, both lower courts were correctly concerned with interpreting ...