For vacation and remandment -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman, Clifford and Schreiber and Judge Conford. For affirmance -- None.
The propriety of the court's jurisdiction over a dispute between public employees and the municipal employer and the retroactive effect of an amendment to the New Jersey Employer-Employee Relations Act, L. 1974, c. 123, are the issues projected by this appeal.
The plaintiff, Patrolman's Benevolent Association of Montclair, New Jersey, Local No. 53 (PBA), asserted in its complaint that it was "the designated and selected representative of all police officers employed by the Town of Montclair for purposes of collective negotiation with the Town of Montclair concerning terms and conditions of employment for all such police officers." It charged that in November, 1973, the plaintiff requested negotiations with the defendant Town of Montclair concerning terms and conditions of employment for the year 1974; that negotiations were conducted on January 10 and 22, 1974; that another meeting occurred on January 30 at which no negotiations transpired; that on February 19, 1974, the Town introduced an ordinance increasing salaries of police officers and unilaterally eliminated compensatory time off for overtime worked by police detectives, both acts being in violation of N.J.S.A. 34:13A-5.3; that plaintiff had received various complaints from its members and defendant's actions have "seriously undermined the ability of the plaintiff to collectively negotiate on behalf of its members." The plaintiff sought an order directing the defendant Town to negotiate with it, that that defendant be restrained from enacting any ordinance establishing salaries "for those employees represented by the plaintiff" and that the Town be restrained from modifying any rules or regulations governing "employees represented by the plaintiff" which existed immediately prior to November of 1973.
The complaint was supported by an affidavit of Carmen Pizzano, President of the PBA, which asserted the information therein was "true to the best of my knowledge and information and belief" and otherwise contained some hearsay statements
and general conclusions of law and fact. The trial court issued an order to show cause without any restraints.*fn1
The defendant filed an answer to the order to show cause asserting that the plaintiff had not been certified as employee representative by the Public Employment Relations Commission (PERC) in accordance with N.J.A.C. 19:11-1.1 et seq. or by the defendant without the Commission's intervention pursuant to the procedures in N.J.A.C. 19:11-1.14. An affidavit of Theodore MacLachlan, Montclair's Commissioner of Public Safety, filed with the answer, stated that the Town had not recognized the plaintiff as the exclusive bargaining representative of its policemen, although the Town had voluntarily met and discussed with the plaintiff various terms and conditions of employment.
At the hearing on the return day, no testimony was taken and no additional affidavits were submitted. The trial court's opinion, 128 N.J. Super. 59 (Ch. Div. 1974), pointed out that PERC was empowered to resolve representational disputes, through elections or any other appropriate method "so long as it is designed to ascertain the free choice of the employees"; that jurisdiction over the subject matter was vested in PERC; and that since the plaintiff had not exhausted its administrative remedies, the complaint should be dismissed.
Upon appeal the Appellate Division rejected the trial court's rationale because: (1) a majority representative had been selected; and (2) defendant never questioned plaintiff's status until its answer was filed and it had lulled plaintiff over a period of months into a false sense of security. 131 N.J. Super. 505 (App. Div. 1974). The Appellate Division affirmed the judgment, however, because it found that an "impasse" in the negotiations had been reached; that N.J.S.A.
34:13A-6(b) provided that when that occurred PERC "shall, upon the request of either party, take such steps as it may deem expedient to effect a voluntary resolution of the impasse"; that this remedy was available to plaintiff; and that the complaint had been properly dismissed for failure to exhaust the administrative remedy. We granted certification. 68 N.J. 136 (1975).
The defendant has moved to dismiss the pending appeal as moot because on December 10, 1975, Montclair and the PBA had entered into an agreement in which the PBA was recognized as the exclusive negotiating representative for the police and all the terms and conditions of employment for the year 1975 were resolved. The motion is denied for even if the PBA were the duly authorized representative of the police, there remains unresolved the propriety of the actions taken by the Town fixing salaries and wage benefits for the year 1974, and available remedies if the municipality's actions were improper.
We agree with the trial court that a threshold question was whether in 1973, when the PBA commenced discussions with the Town of Montclair, it was the duly authorized representative of the police. It is also clear that jurisdiction had been vested in the New Jersey Public Employment Relations Commission (PERC) to determine the identity of the employee representative. N.J.S.A. 34:13A-5.3; N.J.A.C. 19:11-1.1 et seq. We also concur with the trial court's holding that PERC should initially resolve the representation issue. This position is consonant with the principle of primary jurisdiction. Woodside Homes, Inc. v. Morristown, 26 N.J. 529, ...