Too Little, Too Late? As the dust settles from the initial shock and concern regarding the new TUFA-2 ruling, one should keep in mind the purpose and intent of the proposed rule-making, as well as the process. TUFA-2 is the first proposed rule-making under the new law. A review of previous rule-making and court cases concerning union security and the NLRA reflects that in both cases, the National Labor Relations Board (NLRB) has held that certain union security clauses are inherently deceptive and therefore are not allowed under the NLRA. Moreover, these were not isolated examples but rather were part of a broader strategy by the NLRB and union officials to defeat fair-share agreements. Therefore, as the rule-making process begins, it should be remembered that the TUFA-2 rule-making is not meant to be a final answer. It is meant to provide a set of rules to deal with union security clauses and the law. As with previous rules, the NLRB can and will rule against the new rule as being overly broad. The only difference is that under the previous rulings, which were part of an overall strategy, union officials were given time to work around these overly broad rulings. That won’t be the case with TUFA-2. Rather, the U.S. government is sending a strong signal to unions that while some of its rules may not survive legal challenges, others will be given serious consideration. There is no way to know what will happen, but the reality is that the NLRB’s role as an independent decision-maker is being questioned. Should TUFA-2 withstand all challenges and be implemented, it will be a signal that there will be no more “sliding scale” rules or rulings that will allow the NLRB to change a position on a certain issue over time. While today’s ruling may be seen as an unfair labor practice strike by the company and the union, as the process is rolled out, it would be a mistake to automatically assume that the companies won’t win out in a challenge to any part of the rule. In its statement, the NLRB says that “employers’ rights to withhold fees pursuant to valid, voluntarily executed security agreements, or those authorized by a union in connection with union security clauses under the Taft-Hartley Act are protected. The Board will follow the [D.C. Circuit Court of Appeals’] recent approach in the recent ruling in International Union of Operating Engineers, Local 501, AFL-CIO v. NLRB.” The NLRB may get the final word, but it won’t be without some level of challenge and conflict. No wonder lawyers are smiling. ]]>https://www.newjerseylegalnews.com/2010/01/how-the-nuanced-nuance-of-the-unions-recent-move-against-big-business-may-become-a-chimera/feed/0New Jersey State Supreme Court: Who Is the Boss of the Legislature?https://www.newjerseylegalnews.com/2009/09/new-jersey-state-supreme-court-who-is-the-boss-of-the-legislature/ https://www.newjerseylegalnews.com/2009/09/new-jersey-state-supreme-court-who-is-the-boss-of-the-legislature/#commentsTue, 25 Sep 2012 15:53:00 +0000http://njleagle.com/?p=3875The justices have their say on who is the boss when a bill has been vetoed by the governor. The New Jersey State Constitution says that the governor shall be the official to represent the State in negotiating international treaties and compacts, and shall see that the laws of the state are faithfully executed. However, a law approved by the Legislature must be delivered to the governor’s office for signing or veto. If the Governor fails to act within ten days, the bill becomes law, and the governor is deemed to have approved it. In this case, Governor Corzine waited over a year before vetoing the proposed legislation and the attorney for New Jersey’s Senate argued that this was not prompt action by the governor. At issue was HB 3643, which dealt with the rights of employers to make medical payments and other payments to employees. An insurance industry representative testified to the Legislature that he opposed the legislation because it would “severely impede employers from having a meaningful opportunity to bargain over medical payment issues,” and it could have “a crippling effect on large and small employers alike.” The Legislature disagreed and passed the bill with enough votes to override a veto. After the bill passed, Governor Corzine vetoed it and his veto message took the position that the State Constitution permits the Legislature to enact laws and the Legislature in turn could not use its legislative power to make and enforce laws binding the Governor. The governor’s veto stated that HB 3643 would: “…effectively remove the Governor’s budget power from the hands of the Legislature, allowing the Legislature to control the State budget by refusing to authorize sufficient revenues in its annual budget to fund the State’s programs.” The Governor’s veto message also stated that the bill would: “…deprive the Legislature of the authority to veto certain State expenditures, or reduce state employee compensation or benefits, thus undermining the Legislature’s constitutional responsibilities. For example, New Jersey’s school employees’ contractual rights are negotiated annually by the New Jersey Council of Education and, while this may have been appropriate in the past, the Governor is not persuaded that a broad delegation of budget authority to the Legislature would enable it to achieve its constitutional responsibilities to operate a sound school system, especially if the Legislature can impose budget-driven reductions in compensation or benefits that compromise a school district’s ability to provide a viable public education.” The Governor’s veto message then stated: “This veto concludes that the Legislature has failed to comply with the State Constitution in that it lacks authority to impose legislative conditions in the context of other State laws. That power belongs to the people of New Jersey. Voters have already spoken on this matter and rejected this proposed legislation. When the legislative power is exercised in the wrong place or for the wrong reason, its exercise is a nullity and should be declared void.” The Legislature then called on the courts to determine whether the veto was lawful or not. The Court’s Ruling According to the Court, the issues in this case included: 1) Whether the Governor has the right to veto a bill; 2) Whether the Governor’s veto can be lawfully exercised by “unanimous consent” when a sufficient number of Senators or Assemblymen are absent for the day; 3) The significance of the governor’s veto message; 4) The Legislature’s arguments in support of the constitutionality of the bill; and 5) Whether the Governor’s veto complied with the procedural requirements for the use of that veto. First, the Court said that the bill was a vetoed bill. Since some of the lawmakers that were in attendance didn’t vote on it, the Court held that the bill was never officially passed. The Court also agreed with the Governor that he is allowed to place conditions on legislation before it is adopted by the Legislature. As for the Governor’s argument that HB 3643 was never enacted, the Court held that if this was the case, it would have been sent back to the Legislature for another vote. However, if the Governor wished to have legislation on his desk so that he could sign it or veto it, then it should be enacted. Second, the Court also stated that the Legislature can place conditions on bills that are passed. The Court stated that HB 3643 was never passed. Therefore, the Governor’s veto of HB 3643 was valid and binding and HB 3643 was never enacted. Third, the Governor’s veto message was considered by the Court. The Governor stated that “the power to amend the appropriation of State funds without such authorization is not properly delegated to the Legislature.” The Court stated that since the Legislature has the power to alter the appropriations made by the Governor, the Governor had the same power to amend the legislation with an alternative appropriation. However, the Legislature did not change its vote or do anything to alter the conditions or impact on the spending of State funds. The Court agreed that the Governor’s veto statement concerning “necessary provisions” was too vague to find a valid appropriation. The Court stated that if a condition imposed on an appropriation is too vague, the Legislature can either revise or reject that condition, not the Governor. The Court, however, noted that it is important that the conditions imposed be constitutional. If this cannot be done, the condition would be considered unconstitutional. The Court also pointed out that if the condition required a new appropriation, it was just as burdensome as a condition that didn’t require a new appropriation, i.e., HB 3643. Because the