Civil action in lieu of prerogative writs.
This is an action in lieu of prerogative writs. Plaintiff requests summary judgment commanding defendant Board of Higher Education to meet at reasonable times and negotiate in good faith with plaintiff Association (hereinafter referred to as plaintiff), and to enjoin the Deputy Director of the Office of Employee Relations from interfering with the negotiations between plaintiff and defendant Board of Higher Education. This is also an action for a judgment declaring the Office of Employee Relations and the Governor's Employee Relations Advisory Council to be illegal and void, and for a judgment declaring unconstitutional L. 1970, c. 96, and also to enjoin defendants from the implementation of the Hay Associates Report.
Defendants have made a cross-motion for summary judgment. They contend that the Governor and his duly constituted representatives may exercise authority over the conduct of collective negotiations in the State Government and that the provisions, and the implementation of the Hay Associates Report are constitutional and do not interfere with good faith negotiations.
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 Mediation Act. This statute created the Public Employment
Relations Commission consisting of seven members, to be appointed by the Governor by and with the consent of the Senate. Of such members two shall be representatives of public employers, two shall be representatives of public employee organizations, and three shall be representatives of the public, including the appointee who is designated as chairman. The act 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. 70. The commission recommended "legislation setting forth a procedure that is fully compatible with and complementary to existing Civil Service systems and present laws and regulations governing personnel matters in public employment at all government levels in New Jersey." In particular, it said that such legislation, among other things, "should establish the obligation of public employers * * * to meet with employees through representatives of their own choosing for the mutual resolution within the law of grievances and proposals." The detailed history of the act appears in the opinion of the Supreme Court in Lullo v. International Ass'n of Firefighters , 55 N.J. 409 (1970). The law was enacted on September 13, 1968 over the conditional veto of Governor Hughes.
On the same day an act authorizing management consultant contracts for study of state employment conditions was adopted by the Legislature for the purpose of providing the Governor and Legislature with standards and guidelines in the preparation of budgets, to permit the State to gain and maintain a competitive position in its recruitment and retention of employees. L. 1968, c. 304.
On December 19, 1968 Governor Hughes announced that he had established a State Employee Relations Policy Council to act as a policy unit for the State of New Jersey in all matters concerning employee relations. The Governor further announced that the Council would consult on a continuing basis with directors of state departments and agencies in order to resolve the entire range of policy issues
concerning employee relations. On January 17, 1969 the Governor issued a directive to all members of the Cabinet, heads of all divisions, departments, bureaus, institutions and agencies in the State of New Jersey. The Governor directed that "any action, or judgment or decision on any question or issue falling within the meaning of the law, should be taken only after consultation with the State Employee Relations Consultant."
On July 15, 1969 the Public Employment Relations Commission created by L. 1968, c. 303, supra , issued a certification of Public Employee Representative to the effect that plaintiff is the duly certified collective negotiations representative of the faculties of the six state colleges. Plaintiff and defendant Board of Higher Education commenced collective negotiations on July 19, 1969 and met periodically until February 18, 1970, when an impasse in negotiations was declared by plaintiff and a mediator was appointed by the Public Employment Relations Commission according to the provisions of N.J.S.A. 34:13A-6(b) (L. 1968, c. 303), supra. Mediation sessions were held between February 20, 1970 and May 6, 1970. The mediator was unable to resolve the impasse in collective negotiations, thereby resulting in the appointment of a fact-finder by the Commission on May 15, 1970, also according to the terms of N.J.S.A. 34:13A-6(b). Fact-finding hearings were held on May 26 and 27, at which defendant Frank Mason, the Deputy Director of the Office of Employee Relations, presented the position of the State and participated in the negotiations.
On April 2, 1970 Governor Cahill issued Executive Orders Nos. 3 and 4 creating the Governor's Employee Relations Policy Council and the Office of Employee Relations. The purpose of the Council, as set forth in the Executive Order, was to make recommendations to the Governor concerning employee relations and relative matters involving state employees. The purpose of the Office of Employee Relations, as set forth in Executive Order No. 4, was to
assist the Council and to act as the Governor's agent in collective negotiations. The Director of Employee Relations was also empowered to make recommendations and reports to the Council on state employee relations.
On or about July 1, 1970 the state of New Jersey, pursuant to the provisions of L. 1968, c. 303 establishing a study of state employment, and the provisions of L. 1970, c. 96 appropriating funds for the implementation of the management consultant (Hay) report, placed state employees on appropriate salary scales and ranges corresponding to the guidelines set down by the report. On July 13, 1970 the President of the Civil Service Commission advised that aggrieved state employees may appeal to a Hay Appeals Review Board from salary ranges assigned to their class titles, with a review by the Civil Service Commission.
The issues to be decided are: (1) whether the Board of Higher Education is a public employer within the meaning of the 1947 New Jersey Constitution and the New Jersey Employer-Employee Relations Act; (2) whether the Governor's Employee Relations Policy Council and the Office of Employee Relations are duly constituted bodies in the Executive Branch of the State Government in accordance with the provisions of the 1947 Constitution (Executive Orders 3 and 4); (3) whether L. 1970, c. 96 provides for an unconstitutional delegation of legislative power and whether it violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution , and (4) whether the implementation of the recommendations of the Hay Report interferes with good-faith collective negotiations.
N.J.S.A. 34:13A-3(c), in pertinent part, provides as follows:
Plaintiff contends that defendant Board of Higher Education or its representatives is the "public employer" in these negotiations and that the Governor, through his representative, the Deputy Director of the Office of Employee Relations, Frank Mason, has interfered and continues to interfere in the conduct of negotiations and in the means for the resolution of the impasse.
In support of its argument plaintiff cites Art. V, § IV, par. 1 of the 1947 New Jersey Constitution , which provides, inter alia:
All executive and administrative offices, departments, and instrumentalities of the State government, * * * shall be allocated by law among and within not more than twenty principal departments, in such manner as to group the same according to major purpose so far as practicable * * *.
Pursuant thereto the Legislature enacted L. 1966, c. 302 (18A:3-1 et seq.), whose title reads:
An Act concerning higher education, establishing a Department of Higher Education as a principal department in the Executive Branch of State Government and providing an appropriation therefor.
By virtue of N.J.S.A. 18A:3-1, the Department of Higher Education consists of a Board of Higher Education, a Chancellor, and such divisions, bureaus, branches, committees, officers and employees as are specifically referred to in the Higher Education Act.
General supervision of higher education in the State is reposed in the Board of Higher Education by N.J.S.A. 18A:3-13, which provides:
It shall be the duty of the board of higher education to advance long range planning for the system of higher education as a whole
in the state; establish general policy for the governance of the separate institutions; coordinate the activities of the individual institutions which, taken together, make up the system of higher education in New Jersey; and maintain general financial oversight of the state system of higher education. The board shall not administer the individual institutions of higher education, its own administration being specifically reserved unto each of such institutions.
Within the limitations imposed by general legislation applicable to all agencies of the state and the provisions of this chapter, the board is hereby granted exclusive jurisdiction over higher education in this state and its constituent parts and the requisite power to do all things necessary and proper to accomplish the aims and carry out the duties provided by law.
Additional powers and duties are granted to the Board of Higher Education in N.J.S.A. 18A:3-14(h) which commands the Board to
Set policy on salary and fringe benefits, and establish personnel policies for the public institutions of higher education; * * *.
In N.J.S.A. 18A:3-16 the Board of Higher Education is granted all powers, in addition to those specifically provided by law, requisite to the performance of its duties.
As stated, defendants contend that the Board of Higher Education is not a public employer within the meaning of the 1947 Constitution and the New Jersey Employer-Employee Relations Act (N.J.S.A. 34:13A-3(c)), but that the Governor of the State is the public employer.
The Legislature, in L. 1968, c. 303, did not define the "representative of the public employer" in the State Government obligated to negotiate the terms and conditions of employment. N.J.S.A. 34:13A-3(c), N.J.S.A. 34:13A-5.3. In the absence of any express or clearly implied legislative authorization to the Board of Higher Education in this respect, resort must be had to applicable principles of constitutional law, with due deference to the power of the Governor to superintend the internal administration of the Executive Branch of the State Government. Art. V, Sec. I, par. 1, of the 1947 Constitution provides in pertinent part:
The executive power shall be vested in a Governor.
Art. V, Sec. IV, par. 2 provides in pertinent part:
Each principal department shall be under the supervision of the Governor.
To sustain the authority of the Board of Higher Education in the conduct of collective negotiations with state employees in the absence of a clear allocation of such function by the Legislature in effect tends to interfere with the execution of the duty of internal supervision of the principal departments of government imposed on the Chief Executive by the 1947 Constitution and to direct the manner of its performance in the administration of collective negotiations with all state employees.
The question is: Who is the employer in relation to plaintiff? Is it the Board of Higher Education within the meaning of the act, or is the Governor, as the Chief Executive of the State? In reading the definition of "employer" set out in N.J.S.A. 34:13A-3, supra , it is clear that the term shall include "public employer" and shall mean the State of New Jersey.
The Board of Higher Education is a principal department within the Executive Branch of the government. This court takes judicial notice that the custom and practice in industry and other business organizations is that a department or department head within an organization is not an employer. The organization itself is the employer. It is true that under the provisions of N.J.S.A. 34:13A-3(c) a school district is designated as a public employer. It is also true that under this statute the Board of Higher Education is not designated as a public employer. Apparently the intention of the Legislature in designating a school district as such is due to the fact that a school district is a legal entity separate and apart from the county or municipality where it is located. The Board of Higher Education is not a legal entity, but rather one of the principal departments of the Executive Branch of
State Government. Furthermore, as stated in Art. V, Sec. I, par. 1, of the 1947 Constitution, supra , each principal department shall be under the supervision of the Governor, so it is evident that the Governor is the public employer of all public employees in any of the principal departments of the Executive Branch of State Government that are under his supervision.
During the 1930's and 1940's the number of departments, bureaus, commissions, boards and agencies within the State Government grew to a point where they totaled almost one hundred. Jacobs "Administrative Agencies, Their Status and Powers", 2 Proceedings of the 1947 Constitutional Convention , at 1431-1434. The autonomous or semi-autonomous nature of many of these bodies led then Governor Driscoll to comment in an address before the Newark Kiwanis Club on May 15, 1947, which address was incorporated in the minutes of the proceedings of the Constitutional Convention:
Being of the executive branch, I reminded my listeners of the fact that the Governor in this State, a rumor to the contrary notwithstanding, is not the sole Chief Executive of the State. He is just one of the chief executives of the State, because there are many heads of departments, appointed by boards, councils and former Governors, who exercised authority during the Governor's term, and frequently exercised it entirely apart from the authority exercised by the Governor. I say this not in criticism of the men with whom I am presently associated -- merely in criticism of an antiquated system that, instead of providing for a centralized and responsible authority, provides for divided responsibility and divided authority. [ Milmed, "State Administrative Organization and Reorganization ," 2 Proceedings of the 1947 Constitutional Convention , at 1448; emphasis added]
The minutes of the Constitutional Convention reveal the avowed purpose of the framers to coordinate overall executive control of the principal departments of State Government in the Governor, subject to the power of the Legislature to allocate functions and duties among these departments. Professor George Graham of ...