S2353

SENATE, No. 2353

STATE OF NEW JERSEY

INTRODUCED DECEMBER 18, 1997

By Senator LaROSSA

An Act concerning public employee organizations and amending P.L.1974, c.123 and P.L.1979, c.477.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 1 of P.L.1974, c.123 (C.34:13A-5.4) is amended to read as follows:

1. a. Public employers, their representatives or agents are prohibited from:

(1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act.

(2) Dominating or interfering with the formation, existence or administration of any employee organization.

(3) Discriminating in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage employees in the exercise of the rights guaranteed to them by this act.

(4) Discharging or otherwise discriminating against any employee because he has signed or filed an affidavit, petition or complaint or given any information or testimony under this act.

(5) Refusing to negotiate in good faith with a majority representative of employees in an appropriate unit concerning terms and conditions of employment of employees in that unit, or refusing to process grievances presented by the majority representative.

(6) Refusing to reduce a negotiated agreement to writing and to sign such agreement.

(7) Violating any of the rules and regulations established by the commission.

b. Employee organizations, their representatives or agents are prohibited from:

(1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act.

(2) Interfering with, restraining or coercing a public employer in the selection of his representative for the purposes of negotiations or the adjustment of grievances.

(3) Refusing to negotiate in good faith with a public employer, if they are the majority representative of employees in an appropriate unit concerning terms and conditions of employment of employees in that unit.

(4) Refusing to reduce a negotiated agreement to writing and to sign such agreement.

(5) Violating any of the rules and regulations established by the commission.

(6) Establishing in their constitutions or by-laws any provision for removing an employee from membership in the employee organization or fining an employee for exercising rights guaranteed to him by this act.

c. The commission shall have exclusive power as hereinafter provided to prevent anyone from engaging in any unfair practice listed in subsections a. and b. above. Whenever it is charged that anyone has engaged or is engaging in any such unfair practice, the commission, or any designated agent thereof, shall have authority to issue and cause to be served upon such party a complaint stating the specific unfair practice charged and including a notice of hearing containing the date and place of hearing before the commission or any designated agent thereof; provided that no complaint shall issue based upon any unfair practice occurring more than 6 months prior to the filing of the charge unless the person aggrieved thereby was prevented from filing such charge in which event the 6-month period shall be computed from the day he was no longer so prevented.

In any such proceeding, the provisions of the Administrative Procedure Act P.L.1968, c.410 (C.52:14B-1 et seq.) shall be applicable. Evidence shall be taken at the hearing and filed with the commission. If, upon all the evidence taken, the commission shall determine that any party charged has engaged or is engaging in any such unfair practice, the commission shall state its findings of fact and conclusions of law and issue and cause to be served on such party an order requiring such party to cease and desist from such unfair practice, and to take such reasonable affirmative action as will effectuate the policies of this act. All cases in which a complaint and notice of hearing on a charge is actually issued by the commission, shall be prosecuted before the commission or its agent, or both, by the representative of the employee organization or party filing the charge or his authorized representative.

d. The commission shall at all times have the power and duty, upon the request of any public employer or majority representative, to make a determination as to whether a matter in dispute is within the scope of collective negotiations. The commission shall serve the parties with its findings of fact and conclusions of law. Any determination made by the commission pursuant to this subsection may be appealed to the Appellate Division of the Superior Court.

e. The commission shall adopt such rules as may be required to regulate the conduct of representation elections, and to regulate the time of commencement of negotiations and of institution of impasse procedures so that there will be full opportunity for negotiations and the resolution of impasses prior to required budget submission dates.

f. The commission shall have the power to apply to the Appellate Division of the Superior Court for an appropriate order enforcing any order of the commission issued under subsection c. or d. hereof, and its findings of fact, if based upon substantial evidence on the record as a whole, shall not, in such action, be set aside or modified; any order for remedial or affirmative action, if reasonably designed to effectuate the purposes of this act, shall be affirmed and enforced in such proceeding.

(cf: P.L.1979, c.477, s.1)

2. Section 2 of P.L.1979, c.477 (C.34:13A-5.5) is amended to read as follows:

2. a. Notwithstanding any other provisions of law to the contrary and subject to the provisions of section 3 of P.L.1979, c.477 (C.34:13A-5.6) , the majority representative and the public employer of public employees in an appropriate unit shall, where requested by the majority representative, negotiate concerning the subject of requiring 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. Where agreement is reached it shall be embodied in writing and signed by the authorized representatives of the public employer and the majority representative.

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.

c. Any public employee who pays a representation fee in lieu of dues pursuant to the provisions of section 3 of P.L.1979. c.477 (C.34:13A-5.6) 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] P.L.1979, c.477 (C.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.

(cf: P.L.1979, c.477, s.2)

3. Section 3 of P.L.1979, c.477 (C.34:13A-5.6) is amended to read as follows:

3. a. Where a negotiated agreement is reached, pursuant to section 2 of this act, a majority representative of public employees in an appropriate unit shall be entitled to a representation fee in lieu of dues [by payroll deduction] from the [wages or salaries of the] employees in such unit who are not members of a majority representative; provided, however, that membership in the majority representative is available to all employees in the unit on an equal basis and that the representation fee in lieu of dues shall be available only to a majority representative that has established and maintained a [demand and return] system which provides [pro rata returns as described in section 2(c).] employees in the unit who are not members with a bill for payment of the representation fee on a quarterly basis and, with the bill, an itemization of the expenses incurred for that unit which justifies the amount presented to the nonmember employees. Upon receipt of the bill and the itemized expenses justifying the amount, the employee shall pay the amount in full within five days; except that if the employee regards the justification of the amount of the bill as insufficient, the employee may request a review of the amount and the itemized expenses justifying the amount [The demand and return system shall include a provision by which persons who pay a representation fee in lieu of dues may obtain review of the amount returned] through full and fair proceedings placing the burden of proof on the majority representative. Such proceedings shall provide for an appeal to a board consisting of three members to be appointed by the Governor, by and with the advice and consent of the Senate, who shall serve without compensation but shall be reimbursed for actual expenses reasonably incurred in the performance of their official duties. Of such members, one shall be representative of public employers, one shall be representative of public employee organizations and one, as chairman, who shall represent the interest of the public as a strictly impartial member not having had more than a casual association or relationship with any public employers, public employer organizations or public employee organizations in the 10 years prior to appointment. Of the first appointees, one shall be appointed for 1 year, one for a term of 2 years and the chairman, for a term of 3 years. Their successors shall be appointed for terms of 2 years each and until their successors are appointed and qualified, except that any person chosen to fill a vacancy shall be appointed only for the unexpired term of the member whose office has become vacant. If an employee requests a review of the amount of the representation fee billed, the majority representative shall deposit the payment in an escrow account established pursuant to subsection b. of this section. Nothing herein shall be deemed to require any employee to become a member of the majority representative.

b. In order to be eligible to receive a representation fee in lieu of dues from nonmember employees, a majority representative shall establish an escrow account in a State or federally chartered bank, savings bank, savings and loan association or credit union into which the majority representative shall deposit the payments of a nonmember employee who requests a review of the amount as provided in subsection a. of this section.

c. The majority representative shall establish with the employer a procedure for use each fiscal year which provides the employees represented by that majority representative the choice of full membership with dues deducted by a payroll deduction system or nonmember status with a representation fee payable as set forth in subsection a. of this section. This choice shall be provided to employees no later than April of the fiscal year preceding the fiscal year in which the option chosen by an employee shall be effective.

d. The commission shall promulgate regulations in order to effectuate the provisions of this section including, but not limited to the:

(1) establishment and administration of escrow accounts;

(2) operation of the review system; and

(3) determination of how the disposition of the representation fee, including any interest earned, shall be made upon a decision by the review board with respect to the reasonableness of the representation fee.

(cf: P.L.1979, c.477, s.3)

4. Section 5 of P.L.1979, c.477 (C.34:13A-5.8) is amended to read as follows:

5. Payment of the representation fee in lieu of dues shall be made to the majority representative in accordance with the provisions of section 3 of P.L.1979, c.477 (C.34:13A-5.6) during the term of the collective negotiation agreement affecting such nonmember employees and during the period, if any, between successive agreements so providing, on or after, but in no case sooner than the thirtieth day following the beginning of an employee's employment in a position included in the appropriate negotiations unit, and the tenth day following reentry into the appropriate unit for employees who previously served in a position included in the appropriate unit who continued in the employ of the public employer in an excluded position and individuals being reemployed in such unit from a reemployment list. For the purposes of this section, individuals employed on a 10-month basis or who are reappointed from year to year shall be considered to be in continuous employment.

(cf: P.L.1979, c.477, s.5)

5. This act shall take effect on the 180th day following enactment.

STATEMENT

This bill makes it an unfair labor practice if a public employee organization, its representative or agent establishes in its constitution or by-laws any provision for removing an employee from membership in the employee organization or fining an employee for exercising rights guaranteed under the "New Jersey Employer-Employee Relations Act," P.L.1941, c.100, (C.34:13A-1 et seq.). In addition the bill changes the method by which employees in the unit who are not members of the unit pay representative fees in lieu of dues. The majority representative is required to establish a system by which employees in the unit are asked to select the option of becoming a member with dues paid by payroll deduction or becoming a nonmember billed on a quarterly basis for a representation fee in lieu of dues. This choice must be made by April of the fiscal year preceding the fiscal year in which an employee's choice would be effective. In addition to billing nonmembers on a quarterly basis, the majority representative is also required to provide the itemized expenses incurred for that unit that would justify the amount of the bill. The nonmember is required to pay this bill within five days of receipt. If the nonmember wishes to challenge the amount as not justified, the nonmember may appeal the amount to the existing board for a full and thorough hearing. If the nonmember challenges the amount, the majority representative is required to deposit the nonmember's payment into an escrow account established and administered in accordance with the provisions of the bill and regulations promulgated by the New Jersey Public Employment Relations Commission.

Clarifies certain rights of employees in public sector employee organizations.