For reversal and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Francis, J.
This case requires a review of the power granted to the New Jersey Public Employment Relations Commission under Chapter 303, L. 1968, N.J.S.A. 34:13A-1 et seq., with respect to the discharge from the public service of a "temporary" employee because she joined and assisted in the organizational work of a public employees' union.
A short summary of the facts as asserted by the employee, Mrs. Dorothy Cooper, is necessary for purposes of perspective. Mrs. Cooper had been employed by the Burlington County Evergreen Park Mental Hospital from 1962 to 1966 at which time she moved out of the State. She was in good standing when she left her employment here. Subsequently, she returned to New Jersey, and on October 28, 1968 was reemployed as a hospital attendant. The nature of her reemployment arrangement is not entirely clear. The record indicates that she was given a non-competitive appointment (probably because of her previous experience and good record) to continue for four months. It was her understanding that, if her work was satisfactory, at the end of this probationary or "working test period" she would receive permanent Civil Service status. Cf. Revised Civil Service Rules, N.J.A.C. 4:2-40, 4:2-49, 4:2-61 and 4:13-7b. Mrs. Cooper's statements about the terms of her reemployment were not disputed.
Around the end of January 1969, organizational efforts began among the hospital employees on behalf of the American
Federation of State, County and Municipal Employees (Union). Mrs. Cooper participated in these activities and at a meeting on February 27, 1969 she was elected president of the local Union. On the previous day, John Franks, the Hospital Superintendent, called a meeting of all the hospital employees at which time he advised them not to join the Union. He warned them also that they might lose their jobs if they did join.
On February 27, 1969, Mrs. Cooper completed her four months period of temporary employment. Apparently her work had been satisfactory because on the morning of the 27th the routine procedure to give her permanent employee status was commenced; she was allowed to sign Civil Service Commission CS-6 Personnel Action Form. In the afternoon of that day she was elected president of the Union. On March 3, 1969 the CS-6 form, properly signed by Mrs. Cooper, the Hospital and the County, was received by the Civil Service Commission.
In the meantime, other events had taken place. On February 28, Mrs. Cooper reported to the Hospital that she was ill. A superior told her to come in "ill or not." When she said she was too sick to do so, the superior informed her that she was discharged; later the same day the discharge was confirmed by Mr. Franks. She attempted to return to work on the next two days but was asked to leave. Returning to the day of March 3, after the CS-6 form had been received by the Civil Service Commission, the County called the Commission and asked that the form be returned without action toward making Mrs. Cooper a permanent employee. The request was complied with and on March 4 the Commission received notice of the termination of her services. According to affidavits submitted on behalf of Mrs. Cooper, a meeting was held, on March 4, between Mrs. Cooper, a Union organizer and Hospital Superintendent Franks. At the meeting, Franks is said to have admitted that Mrs. Cooper was fired because of her union activities.
On March 13, through counsel, Mrs. Cooper appealed to the Civil Service Commission from her discharge. She alleged that it was based upon her union organizational activity. On April 3, the Commission notified her counsel by letter that Mrs. Cooper's appointment had been for four months' temporary employment, effective October 28, 1968, and that her services had been terminated on February 28, 1969. The letter continued "[i]nasmuch as the permanent appointment of Mrs. Cooper was not processed and approved by the Department of Civil Service, there is no basis for an appeal. The Commission directed, therefore, that your request for a hearing be denied." This letter was sent pursuant to the Revised Civil Service Rule, N.J.A.C. 4:16-8b, which says:
"b. A provisional or temporary employee may be terminated at any time at the discretion of the appointing authority. A provisional or temporary employee who has been terminated shall have no right of appeal to the Civil Service Commission."
If, as is alleged and not denied in the record before us, Mrs. Cooper's work record was satisfactory, and the Hospital not only refused to grant her permanent status but instead discharged her solely because of her union activity, the Civil Service Commission was in error in refusing to hear her appeal. The action of the Hospital in the circumstances constituted a violation of the right granted to her by Art I, par. 19 of the 1947 Constitution, and by the implementing statute, N.J.S.A. 34:13A-5.3, to form, join and assist a union of her fellow employees in an appropriate unit. By implication, this right became an integral part of her employment contract with the Hospital, irrespective of its temporary or probationary character. Denial of permanent status to an employee solely because she had engaged in her constitutional or statutory right to join or to persuade other employees to join a union clearly would be arbitrary and illegal conduct by an employer. State ex rel Missey v. City of Cabool, 441 S.W. 2d 35 (Mo. Sup. Ct. 1969); and cf.
Zimmerman v. Board of Education of Newark, 38 N.J. 65, 80 (1962) (concurring opinion), cert. den. 371 U.S. 956, 83 S. Ct. 508, 9 L. Ed. 2d 502 (1963); Dodd v. Van Riper, 135 N.J.L. 167 (E. & A. 1947); Divine v. Plainfield, 31 N.J. Super. 300 (App. Div. 1954); Lingrell v. N.J. Civil Service Commission, 131 N.J.L. 461 (Sup. Ct. 1944). Unquestionably, under the Constitution, Art. VII, § 1, par. 2 and the Civil Service Law the Commission had broad supervisory power over employment activities, including removal or discharge of employees in county and municipal public service. See Borough of Park Ridge v. Salimone, 21 N.J. 28, 44-45 (1956); N.J.S.A. 11:21-3, 4, 6 and 11:22-38; and cf. Revised Civil Service Rule, N.J.A.C. 4:13-7b (effective July 1, 1969) which says:
"For any reason other than unsatisfactory performance, separation during the working test period must conform to the procedures relating to removal of permanent employees, including the right to a hearing."
That power must be considered as broadened even further by reason of Art. I, par. 19 of the 1947 New Jersey Constitution, and particularly by section 7 of the Employer-Employee Relations Act, supra, which was enacted to implement and to protect the public employee's right to organize and to join unions. N.J.S.A. 34:13A-5.3. That statute made it plain that whatever the nature of the further implementation, the Legislature intended that, "Nothing herein shall be construed to deny to any individual employee his rights under Civil Service laws or regulations." Under the circumstances, the Commission's refusal to grant a hearing on Mrs. Cooper's appeal from what would appear to be the employer's arbitrary and illegal withholding of permanent employee status, represented, in our opinion, a self-imposed limitation of power. That limitation undoubtedly arose from a lack of awareness of the enhancement of the public employees' organizational rights vis-a-vis their employer by virtue of N.J.S.A. 34:13A-1 et seq., as well as the Civil Service Commission's
broadened authority and obligations in the public employment sector resulting from that statute.
At any rate, after the Civil Service Commission declined to hold a hearing to review the propriety of her discharge, Mrs. Cooper did not pursue an appeal to the Appellate Division. Instead, she filed a petition with the Public Employment Relations Commission (PERC) under the New Jersey Employer-Employee Relations Act, seeking (1) a determination that the Hospital was guilty of discriminatory and unfair labor practices in discharging her, and (2) a recommendation that she be reinstated in her employment with back pay. The Hospital objected to the jurisdiction of PERC, declined to file an answer to the petition, and notified PERC of its intention not to appear at the hearing scheduled in the matter but, rather, to continue its jurisdictional contest.
A hearing, at which the Hospital did not appear, was held before a Hearing Officer designated by PERC. Uncontradicted testimony was introduced showing that Mrs. Cooper was discharged because of her organizational union activities. The Hearing Officer found that the Hospital, in denying Mrs. Cooper permanent employment status and in discharging her, unlawfully interfered with the exercise of rights guaranteed to her by the Employer-Employee Relations Act. Consequently, he recommended: (1) that she should be reinstated to her position as hospital attendant; (2) that the Hospital should resubmit her CS-6 form to the Civil Service Commission with the recommendation that she be granted permanent employment; (3) that she should be paid all wages lost as a consequence of the Hospital's unfair discrimination; and (4) that the Hospital should be required to post the decision of PERC that it was guilty of the offense charged and had been ordered to comply with all provisions of the Act.
The Hospital filed exceptions to the report reiterating its claim of PERC's lack of jurisdiction and also asserting that PERC was without authority to hear a matter which had already been disposed of by the Civil Service Commission.
The exceptions were overruled and the Hearer's decision was affirmed. PERC ordered the Hospital to cease and desist from (a) discriminating against any employee in regard to hire, tenure and conditions of employment in order to discourage membership in the union, (b) unlawfully threatening employees concerning their employee organization membership or activities, or (c) directly or indirectly interfering with, restraining or coercing its employees in the exercise of rights guaranteed them by section 7 of the Act. In addition, the order directed the Hospital to take certain affirmative action which PERC found would effectuate the policies of the Act, i.e., (a) offer Mrs. Cooper immediate reinstatement to her former or a substantially equivalent position, resubmit the CS-6 form as the Hearer recommended, and make her whole for any loss of earnings, (b) post a certain notice at the Hospital as recommended by the Hearer, and maintain it there for 60 consecutive days, and (c) notify the Executive Director of PERC within 10 days that the mandated steps have been taken. The Hospital appealed to the Appellate Division from the order, and we certified the matter before it was argued there.
The New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq., L. 1968, c. 303, was adopted in 1968 as an amendment and supplement to the New Jersey Labor Mediation Act. It followed a long study by a Legislative Commission of the need for establishing a procedure for considering the grievances of public employees. L. 1966, c. 170. The history of the Act as well as a consideration of the final report and recommendations of the Commission appears in our recent opinion in Lullo v. International Ass'n of Fire Fighters, 55 N.J. 409 (1970) and need not be repeated here. From a substantive standpoint, this case centers largely about N.J.S.A. 34:13A-5.3. It provides that "public employees shall have, and shall be protected in the ...