On certification to the Superior Court, Appellate Division.
For reversal and remandment -- Chief Justice Hughes, Justices Sullivan, Pashman, Clifford, Schreiber and Handler and Judge Conford. For affirmance -- None. The opinion of the court was delivered by Handler, J. Pashman, J., concurring. Pashman, J., concurring in the result.
The Public Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq., requires that an unfair practice charge be filed with the Public Employment Relations Commission (PERC), within six months after the alleged unfair practice occurred unless the charging party "* * * was prevented from filing such charge." N.J.S.A. 34:13A-5.4(c). The appellant filed unfair practices charges beyond the statutory period of limitations. The issue presented is whether under the circumstances of this case the appellant is entitled to be relieved of the statutory bar to allow the adjudication of his claims.
On October 23, 1973, a very serious multi-vehicle accident occurred on the New Jersey Turnpike. The appellant, Walter A. Kaczmarek, Jr., was assigned by his employer, the New Jersey Turnpike Authority, to assist in the cleanup operations. A year and one-half later, the appellant was questioned by the New Jersey State Police concerning a certain truckload of whiskey that had been involved in the accident. The appellant testified that several of his fellow employees had carried off cases of whiskey from the dumping site to the division headquarters. The State Police, however, found no evidence to corroborate appellant's testimony.
Thereafter, on July 15, 1975, the Turnpike Authority notified the appellant that:
As a result of your malicious and unfounded accusations against fellow employees, your employment with the New Jersey Turnpike Authority is hereby terminated * * *.
Your statements to the New Jersey State Police concerning fellow employees have been thoroughly reviewed and found to be baseless. As a result of your actions there has been disruption to the Department and unnecessary anguish to your co-workers.
The discharge was unsuccessfully processed through the grievance apparatus available under the collective agreement by plaintiff's exclusive representative, New Jersey Turnpike Employees' Union, Local 194, IFPTE, AFL-CIO (Union). The Union Executive Board, however, refused to take the matter to arbitration. In its notification letter, dated September 10, 1975, the Union's business manager explained that:
As a result of the Union's action, the discharge was deemed "final and binding" under the bargaining agreement.
Immediately thereafter, appellant, through his attorney, attempted to ascertain the appropriate forum through which to pursue his legal remedies against his employer for wrongfully discharging him and the Union for breaching its duty of fair representation by arbitrarily, discriminatorily, and in bad faith refusing to submit the matter to arbitration. Appellant maintains that certain employees of PERC informed his attorney that the Commission did not have jurisdiction over an unfair union representation charge. Accordingly, on December 1, 1975, appellant commenced suit in the Superior Court, Middlesex County, Law Division, seeking redress from the wrongs allegedly committed by both his employer and the Union. Presumably on the ground that PERC by statute, N.J.S.A. 34:13A-5.4(c), had exclusive jurisdiction of the unfair practice charges, defendants included lack of jurisdiction as an affirmative defense in their answers to the complaint.
On April 9, 1976 defendants moved to dismiss the complaint on jurisdictional grounds. Appellant, realizing that his Law Division complaint was vulnerable to dismissal, promptly filed, on April 13, 1976, an unfair practice charge with PERC. This, however, was nearly nine months after the alleged wrongful discharge by his employer and seven months and three days after the alleged unfair representation claim arose (i.e., when the union refused to submit the matter to arbitration on September 10, 1975).*fn1 On April 27, 1976 the court granted defendant's motion and dismissed the complaint for lack of jurisdiction. On June 9, 1976 appellant filed a notice of appeal to the Appellate Division notwithstanding the unfair practice charge then pending before PERC. Thereafter, before any resolution of the PERC proceedings, the Appellate Division dismissed the appeal, ostensibly for "lack of prosecution."*fn2
The Turnpike Authority then filed a summary judgment motion with PERC based on the six-month limitation period in N.J.S.A. 34:13A-5.4(c), which provides that no unfair practice complaint shall be issued, "* * * based upon any unfair practice occurring more than six months prior to the filing of the charge unless the person aggrieved thereby was prevented from filing such charge." On September 22,
1976 PERC granted respondent's motion and dismissed the complaint. PERC concluded that the appellant was not "prevented" within the meaning of the statute from filing a timely charge before the Commission. It reasoned that even assuming the appellant was misinformed by PERC staff members, nevertheless, he was forwarded the appropriate forms by PERC's executive director and a copy of PERC's rules. PERC further held that, as a matter of law, the filing of the complaint in the Law Division did not toll the statutory six-months limitation.
On November 4, 1976 appellant filed a notice of appeal from the PERC decision with the Appellate Division. His position on appeal was that the equitable doctrine of tolling the statute of limitations should be applied to avoid hardship and injustice. He argued alternatively that PERC has no jurisdiction over unfair representation claims, or if it does, its jurisdiction is concurrent.
On April 7, 1977 the Appellate Division, in an unpublished opinion, found that "PERC properly dismissed appellant's complaint on the ground that it was filed out of time." The court thus found it "unnecessary" to decide the jurisdictional question, additionally implying that that issue, in any event, had been foreclosed ...