On appeal from the Public Employment Relations Commission.
Shebell, A.m. Stein and Conley. The opinion of the court was delivered by Shebell, J.A.D.
This is an appeal by petitioner, New Jersey Education Association (NJEA), the representative body of New Jersey teachers, from the Public Employment Relations Commission's (PERC) denial of petitioner's demand that PERC amend regulations adopted in 1987. NJEA demanded an amendment requiring that political-activity deductions only be required for nonmembers who object. Under the existing regulation the representative body is required to deduct the political-activity portion of the fee as to all nonmembers, not just those nonmembers who affirmatively object. PERC denied the petition on the ground that the regulation was required by language in the Supreme Court's opinion in Matter of Board of Educ. of Town of Boonton, 99 N.J. 523, 494 A.2d 279 (1985), cert. denied, 475 U.S. 1072, 106 S. Ct. 1388, 89 L. Ed. 2d 613 (1986) (hereinafter " Boonton ").
Petitioner contends that PERC misinterpreted Boonton, asserting that the case did not dispense with the prerequisite that a nonmember object in order to obtain a deduction from his or her fee. We affirm as we consider the holding in Boonton to be clear, and conclude that the PERC regulation is a reasonable implementation of that holding.
Before 1979, public employees who chose not to join their bargaining unit derived the benefits of representation without having to pay for them. In 1979 the Legislature amended the Employer-Employee Relations Act (Act) to permit collective bargaining agreements to "requir[e] the payment by all nonmember employees in the unit to the majority representative of a representation fee in lieu of dues for services rendered by the majority representative." N.J.S.A. 34:13A-5.5a. The amendment provided that the amount of the fee was to be calculated as follows:
b. The representation fee in lieu of dues shall be in an amount equivalent to the regular membership dues, initiation fees and assessments charged by the majority representative to its own members less the cost of benefits financed through the dues, fees and assessments and available to or benefitting only its members, but in no event shall such fee exceed 85% of the regular membership dues, fees and assessments. [ N.J.S.A. 34:13A-5.5b.]
The amendment further established a "demand and return" system, whereby a nonmember could, upon request, obtain a refund of that portion of his or her fee that the representative spent on political causes or on activities benefitting members only:
c. Any public employee who pays a representation fee in lieu of dues shall have the right to demand and receive from the majority representative, under proceedings established and maintained in accordance with section 3 of this act [ N.J.S.A. 34:13A-5.6], a return of any part of that fee paid by him which represents the employee's additional pro rata share of expenditures by the majority representative that is either in aid of activities or causes of a partisan political or ideological nature only incidentally related to the terms and conditions of employment or applied toward the cost of any other benefits available only to members of the majority representative. The pro rata share subject to refund shall not reflect, however, the costs of support of lobbying activities designed to foster policy goals in collective negotiations and contract administration or to secure for the employees represented advantages in wages, hours, and other conditions of employment in addition to those secured through collective negotiations with the public employer. [ N.J.S.A. 34:13A-5.5c (footnote omitted).]
The Legislature also established a procedure whereby any nonmember wishing to challenge the amount of his or her refund may obtain review before a three-member board (now known as the Appeal Board). N.J.S.A. 34:13A-5.6.
On June 15, 1987, following our Supreme Court's decision in Boonton, supra, PERC adopted regulations governing representation fees. N.J.A.C. 19:17-3.1 through -4.5. The key features of the regulations are (1) an advance deduction for expenses attributable to political activities (N.J.A.C. 19:17-3.4); (2) a written statement to nonmembers of how the deduction was computed (N.J.A.C. 19:17-3.3); (3) an opportunity for nonmembers to object that the fee still includes prohibited expenses (N.J.A.C. 19:17-4.1); (4) an escrow account in which the objecting nonmember's fees could be deposited pending resolution of the dispute (N.J.A.C. 19:17-4.2); and (5) procedures for resolving any dispute (N.J.A.C. 19:17-4.3).
The regulation pertinent to this appeal is N.J.A.C. 19:17-3.4(a). The effect of the regulation is to require that political expenditures be deducted in calculating the initial representation fee charged to ...