Matthews, Seidman and Horn. The opinion of the court was delivered by Matthews, P.J.A.D.
On September 4, 1975 the Hoboken teachers went on strike and remained out of school until September 23, 1975. The board of education then petitioned the Chancery Division for an order declaring the strike illegal and enjoining the Hoboken Teachers' Association from engaging in any further strike activity. On the same date the Chancery Division judge issued an order enjoining the strike and directing both parties to continue to negotiate during the period of the order.
On September 9, 1975 the members of the Association continued the strike, in violation of the September 4 order. On September 15, 1975 the Chancery Division judge issued an order directing the Association to show cause, on September 23, 1975, before Judge O'Brien, why it should not be held in contempt. Additionally, inasmuch as it was established that the board did not begin to negotiate with the Association until September 13, 1975, the judge also issued an order returnable on the same date for the board to show cause why the complaint should not be dismissed and the board held in contempt for failing to negotiate in accordance with the terms of the September 4 order.
On the return date, after a hearing, Judge O'Brien dismissed the contempt citation against the board. He also found the Association guilty of contempt for failing to cease its illegal strike in violation of the September 4 order. It is the former ruling from which the Association appeals, (Docket A-673-75), and the latter decision that forms the basis for its separate appeal (Docket A-334-75).
Judge O'Brien indicated that both parties' actions in this case might fall within the same category, "refusing to negotiate in good faith", N.J.S.A. 34:13A-5.4a(5) which
would thus place the subject matter within the "exclusive" jurisdiction of the Public Employees Relations Commission. However, it was emphasized that there was "a distinction between the acts of these two defendants" that necessitated a different result. In this regard he pointed out that:
it is doubtful in my mind and I have not concluded that PERC has exclusive jurisdiction concerning strikes by public employees, notwithstanding that there may be a determination of that as an unfair labor practice, in that I conceive as an additional reason a need for prompt action in the event of strikes by public employees which affect the public good, may affect the health and safety of the public. Therefore, it would seem to me that the Chancery Court in its traditional role should be available to fill that public need.
Accordingly, it would appear that although the court recognized that even if PERC has "exclusive" jurisdiction over the board's failure to negotiate, and might have such jurisdiction over the Association's activities, public policy requires that the courts be available to enjoin illegal strikes by public employees that threaten the public welfare.
He construed the "exclusive power" language contained in N.J.S.A. 34:13A-5.4c to mean "to the exclusion of all other agencies." The judge reasoned that since findings by PERC are reviewable by the Appellate Division pursuant to N.J.S.A. 34:13A-5.4(d) and (f), the Legislature could not have intended to remove all such questions from judicial review. Accordingly, he concluded that "the court is not divested of any jurisdiction, it is simply the Chancery Division that is divested."
Thus, finding the Association guilty of contempt, Judge O'Brien fined it $100,000, of which $95,000 was suspended. The Association was then placed on probation for one year, and as a condition thereof the members were required to return to school on the following day, September 24. It was further ordered that if the Association failed to comply, it would be a violation of probation and a $5,000 fine would be imposed for each day teachers failed to return to school.
The teachers did not return to the schools, and on October 3, 1975 a hearing was held before Judge O'Brien on a charge of probation violation, specifically as to the days of September 24, 25, 26, 29, 30 and October 1, 2 and 3. Finding defendant in violation of probation, the judge directed the Association to pay $5,000 a day for each day the members were on strike, or a total of $40,000.
On October 9, 1975 defendant petitioned the court for a remission of the fine. On October 23, 1975 and November 10, 1975, after testimony and argument had been presented before the court, Judge O'Brien denied the petition. The Association is thus appealing (1) the original judgment of conviction and (2) the denial of its petition for remission of the $40,000 fine.
The Association challenges the rulings below on the following grounds: (1) if N.J.S.A. 34:13A-5.4(a)(5), (b)(3) and c, give PERC "exclusive jurisdiction" to remedy alleged failures to negotiate, to the extent that it removes such questions from judicial review, it should be declared unconstitutional; (2) if the above statute gives PERC the exclusive authority to remedy alleged failures to negotiate on the part of the board, it also has the authority to review the Association's failure to negotiate because, although strikes are not specifically listed as an unfair labor practice in N.J.S.A. 34:13A-5.4(b), such activity is implied within the meaning of "refusing to negotiate in good faith."
The argument advanced by the board, similar to that which is asserted by the State as an intervenor, is that since strikes do not constitute an independent unfair labor practice so as to require primary adjudication by PERC, N.J.S.A. 34:13A-5.4(c) does not preclude the courts from exercising their ...