On certification to the Superior Court, Appellate Division, whose opinion is reported at 149 N.J. Super. 352 (1977).
For reversal -- Chief Justice Hughes, Justices Sullivan, Pashman, Clifford, Schreiber and Handler and Judge Conford. For affirmance -- None. The opinion of the court was delivered by Pashman, J. Conford, P.J.A.D. (temporarily assigned), concurring. Conford, P.J.A.D., concurring in the result.
Two significant questions concerning proceedings before the Public Employment Relations Commission (PERC) involving unfair practices as defined in the New Jersey Employer-Employee Relations Act (the Act), L. 1968, c. 303, as amended by L. 1974, c. 123, N.J.S.A. 34:13A-1 et seq., are presented by this appeal. One concerns the effect of the cessation of conduct alleged to be violative of the Act on PERC's ability to adjudicate an unfair practice and to have its remedial order enforced. The other involves the lawfulness of a public employer's unilateral withholding of a scheduled salary increment.
The Galloway Township Education Association (the Association), the majority representative of the teachers employed by the Galloway Township Board of Education (the Board), filed an unfair practice charge against the Board with PERC in September 1975. See N.J.S.A. 34:13A-5.4(c); N.J.A.C. 19:14-1.1 et seq. The primary basis of the charge was the Board's alleged refusal to negotiate in good faith in violation of N.J.S.A. 34:13A-5.4(a) (5) by having unilaterally determined to withhold the payment of the annual salary increment due the teachers represented by the Association. At the time of the filing of the charge, the Association and the Board were engaged in negotiations directed toward the consummation of a collective agreement to cover the 1975-1976 school year. Their previous contract had expired on June 30, 1975. The parties had submitted to the impasse resolution procedures set forth in the Act, N.J.S.A. 34:13A-6(b), and completed
the mediation phase thereof; they were scheduled to enter the fact-finding phase of those procedures. However, upon the start of the 1975-1976 school year without agreement upon a contract, the Board decided to refrain from paying the teachers the salary step increment they would normally have received at the start of a new school year to reflect an additional year of teaching experience.*fn1 Instead, the Board determined to pay the teachers the same salary they had received during the previous school year. These decisions were made unilaterally by the Board without negotiation with the Association on the issue.
On November 10, 1975, PERC issued a formal unfair practice Complaint and Notice of Hearing. See N.J.S.A. 34:13A-5.4(c); N.J.A.C. 19:14-2.1. Thereafter the Association and the Board entered into a complete stipulation of facts. They waived an evidentiary hearing and an intermediate hearing examiner's report and agreed to submit the matter directly to PERC for a decision on the pleadings, stipulated facts and briefs on the issue of whether the Board's unilateral withholding of the increments constituted a violation of the Act. See N.J.A.C. 19:14-6.7.
On April 13, 1976 counsel for the Board submitted a letter to PERC advising it that the parties had reached a tentative settlement on a new collective agreement for the 1975-1976 school year which would provide for the retroactive payment of salary increments based on a new salary guide. The Board therefore requested PERC to dismiss the unfair practice proceeding as moot.
PERC did not accede to this request and on April 28, 1976 issued its decision and order determining that the
Board had committed an unfair practice within the meaning of the Act and ordering the Board to (1) cease and desist from that unfair practice and to (2) take certain affirmative and remedial action. PERC No. 76-32, 2 NJPER 186 (1976). PERC found that the Board's conduct was violative of the statutory duty to negotiate in good faith before establishing a change in working conditions. N.J.S.A. 34:13A-5.3, 5.4(a) (5). PERC also determined that such unilateral action coerced the Board's employees in the exercise of the rights guaranteed them by the Act in violation of N.J.S.A. 34:13A-5.4(a) (1). The Board was ordered to cease and desist from:
(a) Interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed to them by the Act;
(b) Refusing to negotiate collectively in good faith with the Association concerning the terms and conditions of employment of the teachers;
(c) Unilaterally altering, or threatening to unilaterally alter, terms and conditions of employment of its teachers during the course of collective negotiations with the Association.
PERC directed the Board to take the following affirmative action, which it determined to be necessary to effectuate the policies of the Act:
(a) Upon request, negotiate collectively in good faith with the Association concerning the terms and conditions of employment of its teachers;
(b) During the course of collective negotiations with the Association, pay its teachers [the withheld] increments pursuant to the 1974-1975 salary schedule;
(c) Pay its teachers the monetary difference between the amounts they would have received had their increments not been unilaterally withheld, and the amounts they were in fact paid since the commencement of the 1975-1976 school year;
(d) Post at its central office building copies of a notice to employees prescribed by PERC for 60 days;
(e) Notify PERC of its steps taken to comply with the PERC order.
The Board filed a notice of appeal from PERC's decision and order to the Appellate Division. PERC thereafter filed
a cross-application for enforcement of its order pursuant to N.J.S.A. 34:13A-5.4(f). Subsequent to the institution of those appellate proceedings, PERC determined that the new collective agreement had been ratified by both parties and that the withheld increments had been paid to the teachers. PERC therefore advised the Appellate Division of these facts and of its administrative determination that the portion of its order calling for the payment of the withheld increments had been satisfied by the Board. PERC accordingly requested withdrawal of those aspects of the cross-application for enforcement which sought a court decree directing that the withheld increments be paid and that the Board negotiate with the Association. However PERC still sought enforcement of the cease and desist portions of its order and also that portion requiring the Board to post a notice to all employees indicating its willingness to abide by the Act and to comply with PERC's decision in the future.
In its decision, the Appellate Division never reached the merits of the unfair practice issue. 149 N.J. Super. 352 (App. Div. 1977). In its brief unanimous opinion the appeals court held that the successful negotiation of a new collective agreement between the parties rendered the entire matter moot. It consequently ruled that PERC had exceeded its statutory authority by making an adjudication in the unfair practice proceeding after the agreement had been consummated. The court noted its agreement with the Board's contention that PERC should have declined to make a ruling in the case and dismissed the unfair practice complaint based on a refusal to negotiate "'by reason of a voluntary negotiated agreement between the parties.'" 149 N.J. Super. at 354. The court reversed PERC's decision and directed PERC to vacate its order.
Both PERC and the Association unsuccessfully sought a rehearing before the Appellate Division. Petitions for certification filed by those parties were granted by this Court. 75 N.J. 29 (1977). We permitted the New Jersey State
AFL-CIO and the New Jersey Education Association to file briefs as amici curiae.
PERC requests this Court to enforce those aspects of its remedial order which it continued to press in its cross-application before the Appellate Division. PERC withdrew the portions of the order which mandated payment of the withheld increment and collective negotiation with the Association. Thus, enforcement is sought only of the cease and desist orders and the order to post notices which were not abandoned below.
A preliminary matter to be considered is the propriety of PERC's participation as an advocate in appellate proceedings considering the enforcement of one of its orders. We view the Appellate Division's concern with this issue to be unfounded in light of the statutory structuring of PERC's role in unfair practice proceedings.
PERC is an administrative agency with regulatory powers. N.J.S.A. 34:13A-5.2. It is given certain statutory powers to fulfill its delegated duty as a regulatory body in the field of public employment labor relations. These include legislation (i.e., rule making), investigation, prosecution and adjudication.
The 1974 amendments to the Act, L. 1974, c. 123, entrusted PERC with exclusive jurisdiction over unfair practice proceedings as therein defined. N.J.S.A. 34:13A-5.4(c); Patrolmen's Benevolent Ass'n v. Montclair, 70 N.J. 130, 136 (1976); see also N.J.A.C. 19:10-1.1(a) (26). This jurisdiction was conferred in response to this Court's determination in Burlington Cty. Evergreen Park Mental Hospital v. Cooper, 56 N.J. 579 (1970), that PERC lacked the power to adjudicate or remedy unfair labor practices under the original Act, L. 1968, c. 303. See 56 N.J. at 598-599. Under N.J.S.A. 34:13A-5.4(c), upon the filing of a charge that a party is engaging in unfair practices in
violation of N.J.S.A. 34:13A-5.4(a) or (b), PERC is given the authority to issue an unfair practice complaint against the party named in the charge. The determination of whether a charge is sufficiently meritorious to warrant the issuance of a complaint is made by PERC's Director of Unfair Practices. See N.J.A.C. 19:14-2.1; N.J.A.C. 19:10-1.1(a) (11). Any unfair practice complaint issued includes a notice of hearing containing the date and place of a hearing on the unfair practice complaint before PERC.*fn2 N.J.S.A. 34:13A-5.4(c). To this point, PERC's role has been of a prosecutorial nature.
However, this role changes as the unfair practice proceeding progresses. N.J.S.A. 34:13A-5.4(c) directs that all cases in which an unfair practice complaint has issued "shall be prosecuted before [PERC] * * * by the representative of the employee organization or party filing the charge or his authorized representative." Consistent with the statutory mandate, PERC's regulations state that "the charging party * * * shall prosecute the case and shall have the burden of proving the allegations of the complaint by a preponderance of the evidence." N.J.A.C. 19:14-6.8. The decision as to whether the party charged in the complaint has committed an unfair practice and, if so, the determination of the appropriate remedy therefor are to be made by PERC. N.J.S.A. 34:13A-5.4(c). PERC's role at this stage of the unfair practice proceeding is an adjudicative one.
In the event of noncompliance with its orders issued in unfair practice cases,*fn3 PERC resumes a prosecutorial role. PERC has been empowered to seek the aid of the courts in compelling compliance by applying to the Appellate Division
for an appropriate judicial decree enforcing its order. N.J.S.A. 34:13A-5.4(f). The Legislature has mandated that judicial review of PERC's decisions and orders shall be of a very limited scope:
[ N.J.S.A. 34:13A-5.4(f)]
The decision whether to initiate an enforcement action in a given case is entrusted to PERC's sound discretion. The statute authorizes, but does not require PERC to seek judicial assistance to enforce its orders. See also N.J.A.C. 19:14-10.2(b). It is noteworthy that while the party found by PERC to have committed an unfair practice may seek appellate review of PERC's decision and order pursuant to R. 2:2-3(a), the successful charging party may only request PERC to seek judicial enforcement of its order. See N.J.A.C. 19:14-10.3. The lack of any statutory authorization for the charging party to seek enforcement of PERC's orders is consistent with the legislative design that ...