Lynch, Milmed and Antell. The opinion of the majority was delivered by Milmed, J.A.D. Antell, J.A.D. (dissenting).
By leave granted, the Newark Board of Education (board) appeals from an interlocutory decision of the Public Employment Relations Commission (Commission) affirming a ruling made by a Commission hearing examiner denying motions to quash two subpoenas duces tecum issued in connection with an unfair practice hearing pending before the hearing examiner.
The essential facts are not in dispute. The Newark Teachers Union (union) and the board were parties to a collective negotiations agreement which expired on January 31,
1976. Negotiations up to the termination date failed to produce a new agreement and a labor dispute ensued when the old contract expired. With the assistance of two staff mediators from the Commission, negotiations between the parties continued during the period of the dispute. The negotiations were successful in ending the dispute although not in resolving all the terms of a new contract.
Thereafter, the union filed an unfair practice charge against the board, alleging that the parties had agreed on certain contractual items but that "the Board refused to reduce the * * * negotiated agreement to writing and to sign that agreement."*fn1 The alleged negotiated terms related to three economic items, i.e. , (1) a salary schedule for aides, (2) incorporation of learning disabilities teacher consultants into the salary guide for psychologists and social workers, and (3) a uniform percentage increase in the monetary amount paid for certain incidental duties not specifically negotiated on an item-by-item basis. The union claims that the first two items were agreed to on February 3, 1976 and that agreement resulted from board acceptance of union counterproposals transmitted from the Union to the board through a Commission mediator during a time when the parties were not in each other's presence. In regard to the third item, the union claims that the parties reached agreement during a face-to-face negotiating session on February 7, 1976, the session being conducted by one of the Commission mediators.
Based on the union's allegations, the Commission issued a complaint and notice of hearing. The board denied the allegations of the unfair practice charge. Before commencement of the hearing the attorney for the union applied to the Commission's hearing examiner assigned to the case for two subpoenas duces tecum , one directed to Gerald L. Dorf,
special counsel to the board, who represented the board throughout the negotiations from February 2 through February 8, 1976, and the other directed to Robert T. Pickett of Pickett & Jennings, general counsel to the board. Both subpoenas sought the production of the following documents:
1. Any Union counterproposals to the Board's money offers transmitted to the Board by the Union through the Mediators, Glassen and Mastrianni.
2. Transcript of all minutes and notes taken by the Board including those taken by Thomas Savage*fn2 at all meetings, between the parties from February 2, 1976 through February 8, 1976.
The subpoena directed to Dorf additionally sought production of the
3. Entire file and contents thereof of notes and writings made during the negotiations between the parties between February 2 and 8, 1976 now in the possession of Gerald Dorf.
Both Dorf and Pickett moved to quash the subpoenas. The hearing examiner issued a written "ruling" denying both motions. On appeal to the Commission, the denial was affirmed substantially for the reasons expressed by the hearing examiner. The decision of the Commission was issued September 22, 1976. We granted the board's motion for leave to appeal from that decision as well as its motion for a stay of the decision pending the appeal. We also granted the Commission's motion for leave to intervene, accelerated the appeal, and stayed enforcement of the subpoenas.
On this appeal the board claims, as it essentially did before the agency, that (1) the Commission lacks authority to issue subpoenas in unfair practice cases; (2) "[t]he documents and information required by the subpoena duces tecum fall within the shroud of confidentiality afforded by P.E.R.C.
Emergency R. 19:12-3.4"; and (3) an "Attorney's negotiating notes are 'privileged' and therefore not discoverable in an unfair practice case."
The board argues that the Commission's subpoena powers are, by reason of N.J.S.A. 34:13A-6(e), limited to "representation" cases and do not extend to "unfair practice" cases. From our review of the New Jersey Employer-Employee Relations Act, as amended and supplemented, N.J.S.A. 34:13A-1, et seq. , we ...