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Board of Education of Town of West Orange v. International Union of Operating Engineers

Decided: January 21, 1970.

BOARD OF EDUCATION OF THE TOWN OF WEST ORANGE IN THE COUNTY OF ESSEX, A CORPORATION, APPELLANT,
v.
INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL NO. 68, AND THE PUBLIC EMPLOYMENT RELATIONS COMMISSION, AN AGENCY OF THE STATE OF NEW JERSEY, RESPONDENTS



Sullivan, Carton and Halpern. The opinion of the court was delivered by Carton, J.A.D.

Carton

West Orange Board of Education (board) appeals from a determination of the Public Employment Relations Commission (PERC) that the International Union of Operating Engineers, Local 68, is entitled to act as negotiating agent for "all custodians, assistant custodians, drivers, maintenance workers, firemen and matrons" employed by the board in its school system.

The dispute centered around the board's refusal to recognize the union's right to represent head custodians, the board contending that employees in this category were management or supervisory employees and should not be included in the same unit as the custodians whom they supervise. The governing legislation (New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq.) specifically prohibits supervisory personnel having the power to hire, discharge, discipline or to effectively recommend the same, to be represented by a bargaining unit which includes nonsupervisory personnel.

After a hearing conducted at the direction of PERC, the hearing officer, a member of the New York Bar, filed a

report concluding that these employees were properly included in the same unit as the rank-and-file custodians. PERC adopted this report and recommendation and ordered a secret election to be held to decide whether its members desired to be represented by the union. The union won.

The board raises two issues: (1) the decision of PERC should be set aside because it is infected with a conflict of interest in that one of its commissioners is a partner in the law firm which represented the union in the proceeding before it, and (2) the finding that head custodians should be included in the bargaining unit was improper. In view of the conclusion we have reached, we do not reach the second issue.

The pertinent facts are brief and undisputed. One of the seven members of the Commission is an attorney who is also a partner in the law firm representing the union. This member participated in the decision challenged here. The vote of the Commission was unanimous.

The Rules Governing New Jersey Courts mandate that a judge in any court disqualify himself when he is closely related to any party or any attorney in the action. R. 1:12-1. These rules further provide that he disqualify himself if he "is interested in the event of the action" or "when there is any other reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so." R. 1:12-1(e), (f). See also Canons 13, 24 and 34 of the Canons of Judicial Ethics.

We perceive no valid reason why the conduct of those acting in a quasi -judicial capacity should be governed by a lesser standard. Cf. Kremer v. City of Plainfield , 101 N.J. Super. 346, 352 (Law Div. 1968). The same considerations of public policy expressed in the rules which require neutrality and impartiality on the part of a judge rendering decisions in a court of law are present in the adjudicative process involved here.

These considerations are well known and require little elaboration. The presence or absence of good faith or honest motives is not the test. Representatives of the public acting in a judicial or quasi -judicial capacity must be required to perform their duties free of any interest, personal or pecuniary, possessing the potentiality of influencing their judgment.

As the court succinctly pointed out in S & L Associates, Inc. v. Washington Tp. , 61 N.J. Super. 312 (App. Div. 1960), rev'd in part on other grounds, 35 N.J. 224 (1961), the interest which disqualified an official need ...


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