Bischoff, Morgan and Furman. The opinion of the court was delivered by Furman, J.s.c., Temporarily Assigned. Morgan, J.A.D. (concurring).
Respondent Association filed unfair labor practice charges against appellant board with the Public Employment Relations Commission (PERC) on September 2, 1975. An evidentiary hearing was waived upon a stipulation of facts. The parties reached a negotiating agreement for 1975-76 on April 6, 1976. PERC was so advised on April 13, 1976. The PERC order determining unfair labor practices, which is appealed from, was issued on April 28, 1976.
PERC concedes that the affirmative relief ordered by it was in fact met by the agreement of April 6, 1976. It seeks enforcement of its order to cease and desist from interference with or coercion of employees in the exercise of the right of collective negotiating, from refusal to negotiate collectively in good faith and from unilateral alteration of the terms and conditions of employment during collective negotiations. At oral argument counsel for PERC urged that the appeal was not moot because of the precedential effect of the cease and desist order, if enforced, as tending in another proceeding to show anti-union animus.
PERC jurisdiction to issue unfair labor practice cease and desist orders is to protect the statutory right of collective negotiating. At the time of its order under appeal there was no controversy before it, no pending unfair labor practice. In its brief appellant board argues: "PERC should have declined to rule on the issues presented and should have declared the matter moot by reason of a voluntary negotiated agreement between the parties." We agree.
Pursuant to N.J.S.A. 34:13A-5.4(f) PERC filed with the Appellate Division a cross-application for enforcement of its cease and desist order. Because it adjudicates state as well as other governmental employment relations, it is represented not by the Attorney General but by special counsel appointed under N.J.S.A. 52:17A-13.
Its decision and order rendered three weeks following the agreement between the parties and its vigorous participation as an advocate on the appeal are without justification in its statutory authority. There was no reason to speculate that its order, if affirmed on appeal, would not have been complied with by appellant board.
Reversed with direction to vacate the order under appeal.
MORGAN, J.A.D. (concurring). Although agreeing with the court's opinion in its entirety, I nonetheless feel compelled to expand on its one brief reference to a matter not strictly germane to the issues in the case -- PERC's "vigorous participation as an advocate on the appeal."
The matter at issue concerned a dispute between the two parties to this appeal, the Galloway Township Board of Education and the Galloway Township Education Association. Both parties were ably represented by counsel on the appeal and both parties filed briefs directed to all pertinent issues. The unusual aspect of this appeal lies in the fact that PERC, the agency from whose decision appeal was taken, and not a party thereto, also filed a brief in support of its own decision. This was done, we are informed, pursuant to authority granted in N.J.S.A. 34:13A-5.4(f), which provides:
The commission shall have the power to apply to the Appellate Division of the Superior Court for an appropriate order enforcing any order of the commission issued under subsection c. or d. hereof, and its findings of fact, if based upon substantial evidence on the record as a whole, shall not, in such action, be set aside or modified; any order for remedial or affirmative action, if reasonably designed to effectuate the purposes of this act, shall be affirmed and enforced in such proceeding.
PERC's brief consisted of a lengthy and vigorous argument in support of its own decision which was then under consideration by this court. It was not submitted in the form of a brief amicus curiae for essentially informative purposes; rather, it is clear to us that its primary function was to persuade us as to the validity of its decision. The same is true with respect to the appearance of PERC's counsel at the oral argument; strenuous and partisan argument ...