On appeal from the Public Employment Relations Commission.
Lynch, Kole and Petrella. The opinion of the court was delivered by Petrella, J.s.c. (temporarily assigned).
[162 NJSuper Page 6] This is an appeal from an unfair labor practice decision of the Public Employment Relations Commission (PERC) that the City of Hackensack violated N.J.S.A. 34:13A-5.4a(1) and (3) (essentially for anti-union animus) in failing to promote two fire fighters, respondents Nicholas Sarapuchiello and William Krejsa (hereinafter sometimes referred to as the charging parties), to the position of fire lieutenant in Hackensack. PERC ordered Hackensack to offer those two employees promotions to the rank of fire lieutenant with back pay, notwithstanding that the Civil Service hearing officer and the Civil Service Commission (Civil Service) had previously determined that there had been no violation of law or bad faith, including anti-union animus, involved. Certain other individuals (not parties to this appeal) were
thereafter promoted to the only fire lieutenant positions then open. PERC also ordered Hackensack to (1) cease and desist from such unfair practices, (2) post a notice to employees prepared by PERC, and (3) preserve payroll records and follow its guidelines for computations of earnings due the charging parties. Hackensack appealed pursuant to R. 2:2-3(a) (2).
On this appeal Hackensack takes the position that the determination by Civil Service that there was no violation of law and no anti-union animus is binding on the parties and precludes PERC from entertaining the matter. It also raises certain other challenges to PERC's jurisdiction, including an attack on the impartiality of PERC due to the makeup of the Commission.
PERC ruled adversely to fire fighter Winner who is not referred to as a charging party herein because he did not appeal. PERC "cross-appealed",*fn1 seeking an order enforcing its determination.
In response to the "cross-appeal" Hackensack denies PERC's power to order promotions, award back pay, and to enter an order not limited to the charging parties.
This case involves the interaction and interpretation of Civil Service and PERC statutes and the effect of diametrically opposed factual determinations by two state agencies following hearings in which the same parties and attorneys participated and there was a similarity of witnesses and testimony.
In view of the significance of the case, and possible implications in future cases involving other state departments and
agencies, we called for reargument. We also invited the Attorney General to file a brief as amicus curiae on behalf of Civil Service, and called for supplemental briefs on the effect, if any, on and of Title 11, "Civil Service," in view of the constitutional mandate relating to appointments and promotions in the civil service of the State and its subdivisions (N.J. Const. (1947), Art. VII, § I, par. 2); whether the concept of "good faith" under Civil Service laws included anti-union animus; the effect and meaning of the reservation in N.J.S.A. 34:13A-5.3 of Civil Service rights; the legislative history bearing on the "exclusive power" provision regarding unfair labor practices in the public sector, and the authority of PERC in reference to remedies if PERC has exclusive jurisdiction.
The record of the hearings before the Civil Service hearing officer and the PERC hearing examiner have been submitted to us in connection with this appeal. Hackensack argues that the issue of anti-union animus was heard and decided by Civil Service as well as PERC. The charging parties assert that only Civil Service matters were heard in that forum and the issues were kept separate and apart, and even if heard in both forums, PERC had the "exclusive power" (N.J.S.A. 34:13A-5.4c) to hear that issue, notwithstanding the finding by the Civil Service hearing officer that the failure to promote the charging parties was not due to discrimination because of union activities. Although not technically a party, PERC has advocated the position of the charging parties on this appeal.
We are called upon to determine whether Civil Service actually heard and decided the issue, and, if so, whether PERC has exclusive jurisdiction as to unfair labor practice matters such as would preclude Civil Service from considering the issue even if presented by the public employees in the classified service. A subsidiary issue is the effect, if any, of the first decision by one state agency on the subsequent decision of the other agency, and whether res judicata , collateral estoppel, or perhaps the single controversy doctrine,
or even an election of remedies could or should be conclusive on the parties and the second agency, as to the facts as they existed at the time of the hearing in the circumstances of this case.
The record discloses that the charging parties were on an April 10, 1974 promotional list for fire lieutenant in Hackensack. Following competitive examinations Krejsa was certified as number four and Sarapuchiello number six on the list.*fn2 On or about February 12, 1975 individuals ranked one, two, five, seven and eight on the certification list were promoted when Hackensack invoked the "one out of three"*fn3 rule (see N.J.A.C. 4:1-12.15(a)(3)) in making the appointments.
On or about February 13, 1975 the two charging parties requested Civil Service review of the decision bypassing them in promotions. On or about February 18, 1975 unfair practice complaints were filed with PERC by fire fighter Winner and the charging parties. The three complaints were consolidated by PERC.
On April 30, 1975 Civil Service preliminarily determined in an administrative review that Hackensack had not violated Civil Service laws and rules in bypassing the two charging parties in selecting from among the names certified. Further appeal was taken to the Civil Service Commission.
About the time that Civil Service was requested to hear those appeals, a complaint and notice of hearing was issued by PERC in June 1975. Hackensack moved to dismiss on the ground that the matter was before Civil Service. The PERC hearing examiner denied the motion, and Hackensack requested special permission to appeal the ruling before PERC. Permission was denied without ruling on the merits.
The Civil Service and PERC hearings were conducted almost in tandem and, as noted, with the same attorneys and virtually identical witnesses testifying as to events and occurrences in somewhat varying detail.*fn4 On February 19, 1976 the Civil Service hearing officer issued his report and recommendation to the Commission. He found that the charging parties had failed to prove that they were not promoted because of any prejudice or because of any union activity of those individuals.*fn5 Exceptions were filed on behalf
of the charging parties who then, and for the first time, took the express position that the question of unfair labor practices had not been litigated before the Civil Service hearing officer and that PERC had exclusive jurisdiction.
The Civil Service Commission accepted and adopted the findings of fact and conclusions contained in the hearing officer's report and recommendations in its April 20, 1976 decision (issued May 20, 1976). None of the exceptions of the charging parties were adopted and they did not appeal from that final Civil Service decision and order. There being no further appeals, the individuals appointed by Hackensack were certified by Civil Service in the positions of fire lieutenant.*fn6 No stay was sought of that action.
On July 12, 1976 the PERC hearing examiner issued his recommended report and decision finding that Hackensack's failure to promote the two charging parties was due to violations of N.J.S.A. 34:13A-5.4(a)(1) and (3). The skipping of Richard Winner was sustained and he did not appeal that determination. Hackensack submitted exceptions to the PERC hearing examiner's report, and again urged that the matter had been resolved by Civil Service. On March 17, 1977 PERC issued its final decision and order adopting and accepting the report and decision of its hearing examiner in all respects pertinent to the matter before us.
In view of the contentions of the parties as to what transpired in the two proceedings we deem it appropriate to review and compare the record of the hearings even though no appeal was taken by the charging parties from the Civil Service determination. Cf. Knutsen v. Brown , 96 N.J. Super. 229, 234-237 (App. Div. 1967).
In the Civil Service hearing there was no statement or hint at any time before or during the hearing that it was even the intention of the charging parties to keep any issue of discrimination because of union activities exclusively before PERC. Indeed, the opening statement of their attorney was quite general and referred not only to the active membership of the charging parties in the union, but asserted that the motivation for skipping the charging parties was that they "took advantage of various rights under statutes or under Civil Service, pressing many complaints against the Appointing Authority" in their positions as
union officers. However, except for various inquiries to Civil Service as to the status of promotions after the eligibility list for fire lieutenant was promulgated on April 10, 1974 and complaints of delay in making the promotions, the record before the Civil Service hearing officer is virtually barren of complaints to Civil Service.
The testimony in both hearings clearly was to the effect that the charging parties were active members of the union representing the fire fighters and participated vigorously and to varying extents in the contract negotiations which preceded the contested promotions.
Except as noted the following review includes testimony common to both hearings. It was stipulated and undisputed that from the time of adoption by Hackensack in 1947 of the civil service system, the first use in the fire department of the "one out of three" rule was in connection with the February 1975 promotions. Both hearings were replete with testimony concerning the performance of the charging parties of their duties, their conduct and attitude, the institution of a fire patrol in Hackensack and opposition thereto by the union and the charging parties, lack of so-called initiated action by the charging parties on fire patrol, as well as certain instances of disciplinary charges against them. Sarapuchiello had objected strongly to the fire patrols in which on-duty firemen were to ride in automobiles around areas of the city and note and report violation of fire laws.
It was testified in both hearings that no formal written evaluation of fire fighters was made prior to the promotions. Other than the fire safety patrol, the charging parties had generally been considered to have performed their duties satisfactorily (on what was later referred to as a scale of poor to excellent) and had served as acting lieutenants. The fire chief testified to their unsuitability to assume permanent command positions at this time. The fire chief admitted (as others had also testified in both hearings) that during the contract negotiations in 1974 he had issued an order to the effect that union officers would not be permitted to
serve as acting lieutenants henceforth. He felt it was a "conflict of interest." (Compare N.J.S.A. 34:13A-3(c), (d) and (f) and N.J.S.A. 34:13A-5.3).
Fire Lieutenant Kearney*fn7 testified on behalf of the charging parties in both hearings that the city manager was upset because of discipline and problems with union negotiations. He testified that at a December 1973 meeting the city manager indicated the list would not be observed and that he would skip on the promotion list. He also testified that the deputy chief had told him after the promotions that the chief said that there should be a check of the personnel file to see if the deputy chief could find reasons not to promote the charging parties. (This was denied by Hackensack's witnesses).
The attorney for the charging parties called the fire chief as their witness in each hearing. On direct examination in the Civil Service hearing he asked the chief if he knew Krejsa was a union officer, and if he knew complaints were made to Civil Service by Sarapuchiello while he was union president. The chief knew the charging parties held office in the union, but stated he was not really sure they were responsible for registering complaints. There was also testimony that two active union men were among those promoted to lieutenant when the charging parties were skipped.
On the city's case before Civil Service the chief testified that the fact that Krejsa and Sarapuchiello were active in the union did not affect his decision that Krejsa should not be promoted at this time. On cross-examination the attorney for the charging parties asked if the city ...