On certification to the Superior Court, Appellate Division, whose opinion is reported at 149 N.J. Super. 346 (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.
Two significant issues of public employment labor relations are presented by this appeal. The first concerns the propriety of an award of back pay by the Public Employment Relations Commission (PERC) as a remedy in an unfair practice proceeding under 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. The second concerns the effect of an allegation of mootness on the enforceability of PERC orders in unfair practice cases.
By reason of its victory in a representation election conducted by PERC, the Galloway Township Association of Educational Secretaries (the Association) was certified as the exclusive majority representative of all secretarial and clerical employees employed by the Galloway Township Board of Education (the Board) for the purpose of collective negotiations pursuant to the Act. See N.J.S.A. 34:13A-5.3; N.J.A.C. 19:10-1.1(a) (4). The entire negotiating unit represented by the Association consisted of seven secretaries.
Prior to and during the course of negotiations between the Association and the Board directed at reaching the initial collective agreement to govern the terms and conditions of employment for the unit employees, the Board announced certain alterations in the work schedules of six of the seven secretaries in the unit. The work day of four of the secretaries was reduced from seven hours per day to four and the reporting and departure times for two other secretaries were changed. None of these changes in the secretaries' working conditions was the subject of the negotiation between the Board and the Association. The announced alterations were unilaterally implemented by the Board at the start of a new school year in September 1975. No collective agreement had been achieved by the parties as of that date and no such agreement has ever been reached.
The Association had filed an unfair practice charge on August 29, 1975 against the Board with PERC. It alleged that the unilateral alteration of the secretaries' working hours constituted unlawful interference with the employees' exercise of their statutory rights and an unlawful refusal to negotiate in good faith. PERC subsequently issued an unfair practice complaint and notice of hearing, to which the Board filed an answer. See N.J.A.C. 19:14-2.1, 3.1. The Board and the Association stipulated to "all the essential facts" and waived an evidentiary hearing; the matter was accordingly submitted to PERC for decision on the basis of the stipulated record and briefs submitted by the parties. See N.J.A.C. 19:14-6.7.
In a determination not challenged before us, PERC ruled that the Board's announcement and implementation of changes in the secretaries' working hours constituted unfair practices in violation of both N.J.S.A. 34:13A-5.4(a) (1) and (5).*fn1 PERC No. 76-31, 2 NJPER 182 (1976). The
Board's unilateral action was found to have breached its statutory duty to negotiate the subject of modifications in working conditions with the majority representative before any alterations are made. N.J.S.A. 34:13A-5.3. By way of relief, PERC ordered the Board 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 as the majority representative of secretarial employees concerning the terms and conditions of employment of those employees;
(c) Unilaterally altering, or threatening to unilaterally alter, terms and conditions of employment of its secretarial employees during the course of collective negotiations with the Association.
PERC also directed the Board to take the following affirmative action, which PERC found 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 secretarial employees;
(b) During the course of collective negotiations with the Association, restore the hours of employment of its secretarial employees as they existed prior to the Board's unilateral implementation of the change in working hours;
(c) Pay its secretarial employees whose hours of employment were unilaterally reduced the monetary difference between the amounts they would have received had their hours not been unilaterally reduced and the amounts they were in fact paid since that reduction took effect;
(d) Post notices supplied by PERC advising its employees of its willingness to abide by PERC's determination and to comply with the Act;
(e) Advise PERC of the steps taken to comply with the order.
The Board filed a notice of appeal from PERC's decision and order to the Appellate Division. PERC thereupon filed a cross-application for enforcement of its order pursuant to
N.J.S.A. 34:13A-5.4(f). The Appellate Division affirmed PERC's decision and its order that the secretaries' unlawfully changed working hours be restored. The court indicated that PERC's cease and desist orders and its order to negotiate were moot and vacated its award of back pay as ultra vires its remedial powers under N.J.S.A. 34:13A-5.4(c). 149 N.J. Super. 346 (App. Div. 1977). Both the Association and PERC filed unsuccessful petitions for rehearing with the Appellate Division. Their petitions for certification were granted by this Court. 75 N.J. 29 (1977). We permitted the New Jersey Education Association and the New Jersey State AFL-CIO to file briefs as amici curiae.
As noted, the Board did not seek review of the Appellate Division's affirmance of PERC's determination that it had committed unfair practices in violation of the Act and of PERC's order that the secretaries' working hours be restored. Consequently, the validity of those rulings is not contested before this Court. We nevertheless note our agreement with the resolution of the issues below. See Galloway Tp. Bd. of Education v. Galloway Tp. Education Assn., 78 N.J. 25 (1978). Our only concern herein is with the propriety of the portions of PERC's order invalidated by the Appellate Division.
The Propriety of PERC's Award of Back Pay
Upon an adjudication that a party has committed an unfair practice in violation of N.J.S.A. 34:13A-5.4(a) or (b), PERC is empowered to issue
[ N.J.S.A. 34:13A-5.4(c)]*fn2
We have concluded that the power to order that an employee be made whole through an award of back pay is necessarily subsumed within the broad remedial authority the Legislature has entrusted to PERC.
In Lullo v. Intern. Assn. of Fire Fighters, 55 N.J. 409 (1970), we observed that the original Act's provision for exclusive representation in collective negotiations, N.J.S.A. 34:13A-5.3, was modeled upon its private sector counterpart, § 9(a) of the federal Labor Management Relations Act (LMRA), 29 U.S.C. § 159(a). We accordingly held that the "experience and adjudications" under the federal act may appropriately guide the interpretation of the provisions of the New Jersey statutory scheme. Although Lullo was concerned with the Act prior to its amendment in 1974, its admonition to look to the Act's federal analogue is particularly appropriate with respect to the interpretation of the unfair practice provisions of N.J.S.A. 34:13A-5.4, as these parallel the unfair labor practice provisions of the LMRA in many respects. Compare N.J.S.A. 34:13A-5.4(a), (b), (c), and (f) with 29 U.S.C. §§ 158 and 160.
The provision of the federal act corresponding to the above-quoted portion of N.J.S.A. 34:13A-5.4(c) authorizes the National Labor Relations Board (NLRB) to order a party adjudged ...