Leonard, Seidman and Bischoff. The opinion of the court was delivered by Bischoff, J.A.D.
[131 NJSuper Page 507] Plaintiff Patrolman's Benevolent Association of Montclair, New Jersey, Local No. 53 (PBA) filed a complaint alleging that defendants Town of Montclair (Montclair) and Theodore Maclachlan, Director of the Department of Public Safety, had violated N.J.S.A. 34:13A-5.3 by refusing to "negotiate in good faith the terms and conditions of employment of the police officers" and sought a judgment directing defendants to negotiate pursuant
to the statute. In the complaint the PBA claimed to be "the designated and selected representative of all police officers employed by * * * Montclair for the purpose of collective negotiations with * * * Montclair." An order to show cause was obtained by plaintiff. Defendants filed an answer in which they asserted that a "serious question" had been raised regarding plaintiff's legal standing to maintain the action because of its failure to comply with the rules and regulations promulgated by the Public Employees Relations Commission (PERC) pursuant to the authority delegated to it by N.J.S.A. 34:13A-11. In their answer defendants relied on the alleged failure of plaintiff to follow the proceedings prescribed by N.J.A.C. 19:11-1.1 and N.J.A.C. 19:11-1.14, which, it is contended, establish the procedure which must be followed in determining the majority representative of police officers.
The trial judge, in an opinion reported at 128 N.J. Super. 59, dismissed the complaint for the reason that plaintiff had not exhausted available administrative remedies.
The judge stated the threshold issue for determination was "whether plaintiff's disputed status as negotiating representative may be resolved by the court without a prior exhaustion of administrative remedies," id. at 60, and further stated that "the relief sought is recognition of plaintiff's representative status" through the procedure provided under PERC's regulations, id. at 65, and since plaintiff's status was questioned, the dispute could only be resolved by following the appropriate administrative procedure provided by N.J.A.C. 19:11-1.1 and 1.2.
We disagree. It is not necessary that PERC intervene in the determination of the exclusive representative in all cases. On the contrary, N.J.S.A. 34:13A-5.3 provides in part that "the commission [PERC] shall not intervene in matters of recognition and unit definition except in the event of a dispute." State v. Prof. Ass'n of New Jersey Dept. of Ed., 64 N.J. 231, 243 (1974); Bowman v. Hackensack Hospital Ass'n, 116 N.J. Super. 260, 288-290
(Ch. Div. 1971). Another provision of the same statute provides:
Furthermore, the procedure established by N.J.A.C. 19:11-1.14 provides that whenever a public employer has been requested to recognize an employee organization as the exclusive representative of a majority of the employees, the public employer and the employee organization may resolve such matters without the intervention of the commission. That same regulation establishes a procedure by which the question of the identity of the representative may be resolved.
The statute establishes two methods by which the standing as "representative" of a group of employees may be obtained: either (a) by being designated or selected, or (b) by winning an election supervised by PERC.
While the procedure outlined in regulations adopted by PERC was not followed, it by no means follows that the parties did not, by their conduct, accept plaintiff as the exclusive designated or selected representative of the majority of the employees.
The conclusion of the trial judge was based in part upon the assumption that there existed a bona fide dispute concerning the status of plaintiff as the "designated and selected representative." We conclude such an assumption is not justified on the record before us.
On September 17, 1973 plaintiff addressed a letter to Montclair indicating a desire to negotiate a collective bargaining agreement for 1974 and to include in the agreement a pay raise and ...