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City of Hackensack v. Richard Winner

Decided: January 22, 1980.

CITY OF HACKENSACK, RESPONDENT,
v.
RICHARD WINNER, AND NICHOLAS SARAPUCHIELLO, WILLIAM KREJSA, APPELLANTS, AND THE PUBLIC EMPLOYMENT RELATIONS COMMISSION, APPELLANT



On certification to the Superior Court, Appellate Division, whose opinion is reported at 162 N.J. Super. 1 (1978).

For modification and affirmance -- Chief Justice Hughes and Justices Mountain, Sullivan, Pashman, Clifford and Handler. For affirmance in part and reversal in part -- Justice Schreiber. The opinion of the Court was delivered by Handler, J. Pashman, J., concurring in result. Schreiber, J., concurring and dissenting. Pashman, J., concurs in result.

Handler

[82 NJ Page 9] This appeal comes to us as a result of conflicting decisions by two State administrative agencies arising from their separate handling of a single controversy over which each had apparent jurisdiction. The case originated with a dispute between a municipality, the City of Hackensack, and several of its civil service employees, firefighters claiming that they had been improperly denied promotions to the rank of lieutenant in the fire department. The employees' complaints related to their merit and fitness for promotion and were thus governed largely by the civil service laws and the Civil Service Commission under Title 11. N.J.S.A. 11:1-1 et seq. The employees also asserted, however, that their promotions had been withheld because of

their union activity. In this respect, the claims were covered by the Public Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq., and subject to the jurisdiction of the Public Employment Relations Commission under that act. Separate actions were brought before each administrative agency by the firefighters with respect to their employment claims. The two agencies, independent of one another, proceeded to adjudicate the matters in dispute and ultimately reached different findings of fact, arrived at dissimilar legal conclusions and imposed inconsistent administrative remedies. This unstable and unsettling disposition of the controversy, which was appealed to the Appellate Division, its decision reported at 162 N.J. Super. 1 (1978), impelled our grant of certification. 78 N.J. 404 (1978).

To place the issues in proper perspective, a rather methodical trailing of the case through each administrative agency to its present posture is needed. In January 1974 the Department of Civil Service held a promotional examination for the position of fire lieutenant in the City of Hackensack ("the City" of "Hackensack"). As a result of that examination a promotion eligibility list was promulgated by the Department in April 1974. Petitioner William Krejsa ranked fourth on that list and petitioner Nicholas Sarapuchiello ranked sixth. Another petitioner, Richard Winner, who placed third on the list, did not pursue his claims and is no longer involved in the case. In December 1974, in response to a request from the City, the Department of Civil Service issued a certification of individuals eligible for appointment to the position of fire lieutenant. In accordance with civil service rules, N.J.A.C. 4:1-12.4(a)(2), eight names were certified for six openings. Numbers one, two, five, seven and eight on that list were all promoted to the position of fire lieutenant effective February 12, 1975. It was stipulated that this marked the first time that Hackensack had not made promotions in its

fire department strictly according to rank order on the eligibility list without any skipping or bypassing.

On February 13, 1975, petitioners Sarapuchiello and Krejsa challenged the denial of their promotions before the Acting Director of Local Government Services in the Department of Civil Service who, on April 20, 1975, issued a preliminary determination that Hackensack had not violated civil service laws or regulations in bypassing the charging parties. Following a reaffirmation of this determination upon a review requested by the charging parties, an appeal was taken to the Civil Service Commission on June 12, 1975. Hearings were held before a civil service hearing officer on October 29 and November 12, 1975, and January 6, 1976. The hearing officer issued a report and recommendation on February 19, 1976, in which he concluded that the charging parties had failed to show by a preponderance of the evidence that they had been denied promotions for unlawful reasons. In particular, he found that "[t]he Fire Chief [had] promoted two active union officers which indicate[d] to this Hearing Officer that [the Fire Chief had] not discriminate[d] against the Appellants because of their union activities." The hearing officer recommended on the basis of his conclusions that the appeals be dismissed. The charging parties filed exceptions to the hearing officer's report and Hackensack filed an answering brief. At its meeting on April 30, 1976, the Civil Service Commission accepted the hearing officer's findings of fact and conclusions. The Commission's decision dismissing the appeals was issued on May 20, 1976. The charging parties requested reconsideration, but the Commission denied their request on July 20, 1976, as communicated by letter dated August 13, 1976. This decision was not appealed to the Appellate Division.

The proceedings before the Public Employment Relations Commission (PERC) began with the submission of unfair practice charges by the same three employees on February 18, 1975, five days after the initial filing of their request for review by the Department of Civil Service. Amended charges were filed [82 NJ Page 12] on May 16, 1975, and PERC issued a complaint and notice of hearing on June 18, 1975. On June 24 Hackensack filed its answer to the unfair practice charges and a motion to dismiss the complaint. This motion was denied by the PERC hearing examiner on August 25, 1975. On August 26 Hackensack filed a request with PERC for permission to appeal, pursuant to N.J.A.C. 19:14-4.6, but this request was denied on September 11, 1975. Hearings were held before the PERC hearing examiner on October 21 and November 21, 1975, and January 8, 1976. On March 2, 1976, after the release of the civil service hearing officer's report and recommendation, Hackensack requested the PERC hearing examiner to dismiss the PERC complaint. Counsel for the charging parties submitted a letter in response on March 9, and on March 16 the PERC hearing examiner advised the parties that he would rule on the dismissal request when he issued his full report and recommended decision. On May 27, 1976, after the release of the Civil Service Commission's decision adopting the findings and recommendations of its hearing officer, Hackensack again requested the PERC hearing examiner to dismiss the complaint. Counsel for the charging parties filed a response on June 1, and on June 3 the PERC hearing examiner affirmed his intention to defer his decision on the dismissal request until his overall determination. On or about July 12, 1976, the PERC hearing examiner issued a report and recommended decision in which he found that Hackensack had committed unfair practices in contravention of N.J.S.A. 34:13A-5.4 a(1) and 34:13A-5.4 a(3) in that the City's decision not to promote the charging parties had been motivated in part by a desire to discourage employees from participating in union activities. Included in his recommended decision was a cease and desist order as well as a requirement that Hackensack promote the two charging parties with full back pay. Hackensack filed exceptions to the hearing examiner's report. PERC issued a decision, dated March 16, 1977, in which it adopted, with minor modifications not here relevant, its hearing examiner's findings and recommendations.

Hackensack filed its notice of appeal on March 18, 1977. On April 14, 1977, PERC filed a notice of cross-appeal in which it sought an order for enforcement of its decision of March 16 pursuant to N.J.S.A. 34:13A-5.4 f. The Appellate Division, in its decision of July 31, 1978, ruled that the issue of anti-union animus had in fact been raised in both the civil service and the PERC proceedings. 162 N.J. Super. at 16-18. It then held that, in the context of a civil service proceeding, the Civil Service Commission had jurisdiction to hear claims of anti-union discrimination or bias. Id. at 21. The court determined that both agencies in fact had concurrent jurisdiction to consider the charges of anti-union discrimination. Id. at 23-24. In terms of the current dispute, the court was of the opinion that Civil Service had properly exercised its jurisdiction, id. at 24, and that, the issue of prejudice or lack of good faith due to union activities having been fully and fairly litigated before Civil Service, the parties were precluded from seeking in another forum further relief based on those same claims, id. at 29. The court also determined that even though a portion of PERC's remedy, the "ancillary" cease and desist order, was not inconsistent with the Civil Service order, that mode of * MESSAGE(S) * MORE SECTIONS FOLLOW relief was "inappropriate"; thus the entire PERC order was reversed and set aside. PERC's cross-application for enforcement was accordingly denied. Id. at 33.

Both PERC and the charging parties filed petitions for certification. In granting certification, 78 N.J. 404 (1978), the Court constricted the focus of the appeal "solely to the issue of which agency should exercise jurisdiction over the subject matter of the within appeal, assuming that the unfair labor practice charge has been considered by both agencies" (Certification Order).

I

In a case like this one, where a public employee seeks to pursue his rights before the Civil Service Commission under the

civil service laws, but also alleges the existence of an unfair employment practice cognizable under the Public Employer-Employee Relations Act and looks for redress before the Public Employment Relations Commission, the question of dual administrative jurisdiction is raised and a determination of agency priority cannot be avoided. The approach for resolving the jurisdictional and procedural imbroglio created by these circumstances may appropriately commence with our recent decision in Hinfey v. Matawan Reg. Bd. of Ed., 77 N.J. 514 (1978).

The Court in Hinfey faced a jurisdictional dispute between the Division on Civil Rights and the Commissioner of Education regarding claims of sex discrimination in educational curricula in various public schools. 77 N.J. at 521. The Court concluded that, under the circumstances presented, it was proper for the Commissioner of Education to decide the controversy and that the Division of Civil Rights should transfer that aspect of the case to the Commissioner for adjudication. The path followed by the Court in resolving the jurisdictional dilemma engendered first an examination of the statutory authority of both agencies with respect to the disputed matters and a determination of whether both agencies had jurisdiction over the claims. Second, upon a determination that each of the two agencies had jurisdiction, the Court sought to ascertain whether that jurisdiction was paramount or primary in one of the two agencies in the sense that one of the agencies would be statutorily required to entertain the case prior to a hearing by the other agency. This inquiry called for a determination of whether either agency would be required or compelled by virtue of its statutory jurisdiction to proceed in the matter before it regardless of the jurisdictional claim of its sibling agency or the status of the same case before that other agency. If it were found that one or both agencies had discretionary jurisdiction, i.e., that there was no statutory mandate for one agency to proceed first to adjudicate the controversy, at least in view of the pendency of the same dispute before the other agency, the final task for the

Court was to explore the standards for the exercise of that administrative discretion. The Court, in addressing how agencies were to be guided in the situations where each was found to have parallel but discretionary jurisdiction over the same controversy, emphasized that the exercise of agency discretion should be governed by "[p]rinciples of administrative comity." 77 N.J. at 532. A similar approach is called for in this case. The inquiry here therefore should start with an examination of the nature of the jurisdiction of the two administrative agencies.

The bedrock difficulty in analyzing the jurisdiction of each of the two agencies in this case inheres in the fact that the underlying dispute does not present a single-issue or single-remedy controversy. As noted, the dispute includes claims that public employment promotions were wrongfully withheld under the civil service criteria relating to merit and fitness. These claims also charge that this wrongful action was prompted by improper motives and bad faith based upon anti-union prejudice, allegedly an unfair practice contrary to the provisions of the Public Employer-Employee Relations Act. In addition to this admixture of factual and legal issues, agency jurisdiction is complicated by the prospect of overlapping and conflicting administrative remedies. Each of the administrative agencies here involved is empowered to grant similar broad remedial relief to rectify the asserted employment injuries. Compare, e.g., Mastrobattista v. Essex Cty. Park Comm'n, 46 N.J. 138 (1965) (Civil Service Commission has authority to order back pay and restoration to civil service duty in cases of wrongful suspension and dismissal), with Galloway Tp. Bd. of Ed. v. Galloway Tp. Ass'n of Ed. Sec., 78 N.J. 1 (1978) (PERC has authority to order restoration of working hours, award back pay, and direct the public employer to cease and desist in its interference with the employees' rights). See generally Tener, "The Public Employment Relations Commission: The First Decade," 9 Rut.-Cam.L.Rev. 609 (1978) [hereinafter referred to as Tener, "The First Decade"]. Thus the jurisdictional dilemma is not readily resolvable

by the emergence of one distinct form of administrative relief which is uniquely the province of one of the competing agencies.

Courts with growing frequency have been confronted with the intricate puzzles involved in solving threshold jurisdictional questions raised by the increasing incidence of conflicts between administrative agencies. See Sewall, "Administrative Jurisdiction and Authority," 6 Ind.L.Rev. 446, 454-459 (1973); Note, "The Preclusive Effect of State Agency Findings in Federal Agency Proceedings," 64 Iowa L.Rev. 339, 340 (1979) [hereinafter cited as Note, "Preclusive Effect"]. This phenomenon of increasing agency conflicts is due, no doubt, to the continuing expansion of the administrative law field and the concomitant proliferation of administrative tribunals with common or similar regulatory responsibilities over the same subject matter. See, e.g., Hinfey v. Matawan Reg. Bd. of Ed., supra; F.T.C. v. Ruberoid Co., 343 U.S. 470, 487, 72 S. Ct. 800, 810, 96 L. Ed. 1081, 1094 (1952) (dissent by Jackson, J.) ("The rise of administrative bodies probably has been the most significant legal trend of the last century . . .. They have become a veritable fourth branch of the Government, which has deranged our three-branch legal theories much as the concept of a fourth dimension unsettles our three-dimensional thinking."). See also Vanderbilt, Foreword to Federal Administrative Procedure Act and the Administrative Agencies at iii (1947) ("The outstanding development in the law in the present century has, beyond any doubt, been the growth of innumerable administrative agencies."); J. Jacobs, "Administrative Agencies, Their Status and Powers" (Monograph), II Proceedings of Const. Conv. of 1947 1431, 1431 (1951) ("[State g]overnment operation through the 'ninety-odd' agencies has been a matter of gradual growth without any set plan or program. The absence of any relationship between the functioning of one agency and that of another has marked this

development.") [hereinafter referred to as J. Jacobs, "Administrative Agencies, Their Status and Powers"].

These developments have greatly enhanced the probability that disputes calling for administrative adjudication will implicate more than one agency. As a result, both courts and administrative agencies have been called upon repeatedly to make the hard and sensitive decisions required to identify mixed controversies for jurisdictional purposes. E.g., Bernards Tp. Bd. of Ed. v. Bernards Tp. Ed. Ass'n, 79 N.J. 311, 315-317 (1979); Ridgefield Park Ed. Ass'n v. Ridgefield Park Bd. of Ed., 78 N.J. 144, 153-155 (1978); State v. State Supervisory Employees Ass'n, 78 N.J. 54, 83-84, 86 (1978); Galloway Tp. Bd. of Ed. v. Galloway Tp. Ed. Ass'n, 78 N.J. 25, 38-39, 47 (1978); Dunellen Bd. of Ed. v. Dunellen Ed. Ass'n, 64 N.J. 17, 28-29, 31-32 (1973); Burlington Cty. Col. Fac. Ass'n v. Bd. of Trustees, 64 N.J. 10, 16 (1973); Englewood Bd. of Ed. v. Englewood Teachers Ass'n, 64 N.J. 1, 6-9 (1973). See Note, "Public Sector Labor Relations: The New Jersey Supreme Court Interprets the 1974 Amendments to the Employer-Employee Relations Act," 32 Rutgers L.Rev. 62 (1979) [hereinafter cited as Note, "Public Sector Labor Relations"]; Tener, "The First Decade," supra, 9 Rut.-Cam.L.Rev. at 615, 637. These decisional difficulties are exemplified by the particular complexity presented in this very case. Courts and agencies, albeit in somewhat different settings, have dealt with mixed disputes as here, involving claims based upon conventional civil service rights as well as upon those rights given public employees with respect to self-organization, representation and conditions of employment. E.g., State v. State Supervisory Employees Ass'n, supra, 78 N.J. at 63, 86-87. See also Patrolmen's Benevolent Ass'n v. Elizabeth, 146 N.J. Super. 257, 262-263 (App.Div.1976); Essex Cty. Pros. Det. & Inves. Ass'n v. Hudson Cty. Bd. of Freeholders, 130 N.J. Super. 30, 45-47 (App.Div.1974), certif. den. 66 N.J. 330 (1974). In analyzing the present controversy, the Appellate Division ruled, correctly in

our view, that each agency had a legitimate jurisdictional claim to entertain the case.

There appears here to be no real dispute as to the Civil Service Commission's right to resolve the claims that were before it. The parties do not deny that the Civil Service Commission has the jurisdiction to consider allegations of improper employment activities when these are asserted in the context of a civil service proceeding directed primarily to compliance with civil service requirements and with the granting of civil service relief. 162 N.J. Super. at 21. The Civil Service Commission has broad powers to determine merit and fitness in connection with appointments and promotions. Malone v. Fender, 80 N.J. 129 (1979); State Troopers Fraternal Ass'n, Inc. v. State, 115 N.J. Super. 503 (Ch.Div.1971), aff'd per curiam 119 N.J. Super. 375 (App.Div.1972), aff'd per curiam 62 N.J. 302 (1973). It has full authority to inquire into the basis for appointments and promotions in the civil service of the State and of local jurisdictions. Malone v. Fender, supra. The merit and fitness principle necessarily engenders a responsibility to ascertain whether the appointing authority acted improperly or exercised discretion arbitrarily. See Mason v. Civil Service Comm'n, 51 N.J. 115, 125-128 (1968). See also Walsh v. Civil Service Dep't, 32 N.J. Super. 39, 43-44 (App.Div.1954), certif. granted 17 N.J. 182 (1955) (subsequently dismissed). This broad authority includes the right to inquire into the good faith of governmental conduct directly affecting civil service employees. See, e.g., Cunningham v. Civil Service Dep't, 69 N.J. 13, 18 (1975) (alleged malicious plan to demote employee); Burlington Cty. Evergreen Park Mental Hosp. v. Cooper, 56 N.J. 579, 583-584 (1970) (asserted unfair labor practices in dismissal of employee for organizational work for public employees union); Weaver v. Civil Service Dep't, 6 N.J. 553, 558-559 (1951) (dismissal because of the employee's political opinions and affiliations); Newark v. Civil Service Comm'n, 112 N.J.L. 571, 574-575 (Sup.Ct.1934), aff'd per curiam 114 N.J.L. 185 (E. & A. 1935) (a

breach of good faith to circumvent statutory procedure when removing an employee); see also McGarrity v. Civil Service Dep't, 140 N.J. Super. 536, 540-541 (App.Div.1975), certif. den. 70 N.J. 152, 153 (1976) (alleged discriminatory grading of civil service examination); Essex Cty. Pros., Det. & Inves. Ass'n v. Hudson Bd. of Freeholders, supra, 130 N.J. Super. at 46-47 (alleged political discrimination, personal favoritism and arbitrary infringement of rights are proper foci for Civil Service Commission examination); Sogliuzzo v. Hoboken, 62 N.J. Super. 243, 250 (App.Div.1960) (not an abuse of discretion to select for promotion an eligible individual just because that person is related to the appointing authority); East Paterson v. Civil Service Dep't, 47 N.J. Super. 55, 68 (App.Div.1957) ("[the] consideration of bona fide action on the part of the municipality is an essential part of the Civil Service Commission's reviewing function"); Schnipper v. North Bergen Tp., 13 N.J. Super. 11, 14-15 (App.Div.1951); Note, "Public Sector Labor Relations," supra, 32 Rutgers L.Rev. at 81-83. The concepts of bad faith or arbitrariness include improper motives on the part of a government employer reflecting bias against public employee organizations. See Burlington Cty. Evergreen Park Mental Hosp. v. Cooper, supra. Hence, charges before the Civil Service Commission of failure to promote because of labor union activity would necessarily implicate merit and fitness standards and thus be cognizable by the Commission in a case properly before it.

There is also little question that PERC has jurisdiction in a case such as this where individual public employees allege that they wrongfully have been denied promotions because of their organizational activities within the public work force. Government employees have a constitutional right to secure organizational representation in employment. N.J.Const. (1947), Art. I, par. 19. See Red Bank Regional Ed. Ass'n v. Red Bank Regional High School Bd. of Ed., 78 N.J. 122, 136-137 (1978); West Windsor Tp. v. Public Employment Relations Comm'n, 78 N.J. 98, 109 [82 NJ Page 20] (1978); Passaic Cty. Probation Officers' Ass'n v. Passaic Cty., 73 N.J. 247, 251 (1977); Union Beach Bd. of Ed. v. New Jersey Ed. Ass'n, 53 N.J. 29, 44-45 (1968). See generally Coleman, "A Perspective on Public Employee Unionism in New Jersey," 4 Rut.-Cam.L.J. 289 (1973). N.J.S.A. 34:13A-5.3 vindicates this constitutional right and also guarantees employees protection in its exercise. N.J.S.A. 34:13A-4.5 a(1) and 34:13A-5.4 a(3) prohibit and punish unfair practices in public employment. Such unfair practices include "[i]nterfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act" and "[d]iscriminating in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage employees in the exercise of the rights guaranteed to them by this act." Id. PERC's jurisdiction over unfair practices is sufficiently broad to accommodate claims of wrongful treatment relating to the organizational rights of employees as well as to their working conditions. Cf. Galloway Tp. Bd. of Ed. v. Galloway Tp. Ed. Ass'n, supra; Kaczmarek v. New Jersey Turnpike Auth., 77 N.J. 329, 342-343 (1978). And PERC's statutory remedial powers to redress economic injury and to prevent wrongs of this kind are fully commensurate with its broad jurisdictional grant. Galloway Tp. Bd. of Ed. v. Galloway Tp. Ass'n of Ed. Sec., supra. It would certainly constitute an unfair practice if public employees, having engaged in lawful organizational activities, were to be penalized or denied promotions because of that protected participation. For present purposes, we would content ourselves on this point with the analogy furnished by the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., see Lullo v. International Ass'n of Fire Fighters, 55 N.J. 409, 422-425 (1970), and note simply that the denial or threatened withholding of a promotion because of union activities has been recognized as a violation of that act. E.g., N.L.R.B. v. Marmon Transmotive, 551 F.2d 732 (6 Cir. 1977); Steves Sash & Door Co. v. N.L.R.B., 401 F.2d 676 (5 Cir. 1968). See Tener, "The First Decade," supra, 9 Rut.Cam.L.Rev.

at 613: Note, "Public Sector Labor Relations," supra, 32 Rutgers L.Rev. at 81-91.

We conclude from this analysis that each agency, both the Civil Service Commission and the Public Employment Relations Commission, had a definitive statutory basis for dealing with the case before it. In terms of the dispute as here presented, each administrative body can be said to have had parallel or concurrent jurisdiction over the controversy between the parties.

II

The question of whether the concurrent or parallel jurisdiction residing in each agency to handle this mixed controversy was mandatory or discretionary must next be addressed. In treating this question, the inquiry is directed first to the nature of PERC's jurisdiction in terms of the degree of flexibility which that agency possesses in dealing with cases before it. We focus upon PERC since, as a practical matter, there has been no challenge to the power of the Civil Service Commission to decide the case, no appeal from the Civil Service Commission's finding, and no contention that the Civil Service Commission should have stayed its proceedings as an exercise of sound discretion. In any event, PERC now vigorously contends that its own jurisdiction over the unfair practice issue was compulsory and thus had to be exercised without regard to the pendency or the outcome of the Civil Service Commission proceedings.

In Hinfey v. Matawan Reg. Bd. of Ed., supra, this Court dealt with a similar question, there in terms of whether an "occlusive statutory bar" existed which would prevent the exercise of agency discretion in staying a proceeding and in transferring the matter to another agency with cognate jurisdiction. 77 N.J. at 531. We there held that the Division on Civil Rights had discretionary jurisdiction to abstain from handling a dispute involving sex discrimination in academic curricula and could

transfer that issue to the Commission of Education for adjudication. PERC, joined by the individual petitioners, while not couching its contentions in terms of an "occlusive statutory bar," here asserts that its jurisdiction over the unfair practice charge is "exclusive" under N.J.S.A. 34:13A-5.4 c and that this jurisdiction is mandatory.

This argument by PERC for compulsory, preemptive jurisdiction is based primarily upon one of the 1974 amendments to the Public Employer-Employee Relations Act. Prior to the passage of those amendments, L. 1974, c. 123, this Court had held that the Civil Service Commission had jurisdiction to hear public employee complaints based upon a wrongful dismissal for organizational activities. Burlington Cty. Evergreen Pk. Mental Hosp. v. Cooper, supra, 56 N.J. at 583-584. The Court also held in that case that PERC had no similar statutory jurisdiction to hear charges such as unfair labor practices. This latter holding was subsequently overruled legislatively by the enactment of L. 1974, c. 123; § 1; N.J.S.A. 34:13A-5.4. See Galloway Tp. Bd. of Ed. v. Galloway Tp. Ed. Ass'n, supra, 78 N.J. at 33; Patrolman's Benev. Ass'n v. Montclair, 70 N.J. 130, 136 (1976); Note, "Public Sector Labor Relations," supra, 32 Rutgers L.Rev. at 82-83. That amendment granted PERC "exclusive power" to hear unfair practice charges, N.J.S.A. 34:13A-5.4 c, and, according to PERC, manifested a legislative intent to divest the Civil Service Commission of parallel jurisdiction to hear such claims.

PERC has duly noted that the Public Employer-Employee Relations Act provides that "[n]othing [t]herein shall be construed to deny any individual employee his rights under Civil Service laws or regulations." N.J.S.A. 34:13A-5.3. See Seliger & Crangle, "A New Direction for Public Safety Employees," 9 Rut.-Cam.L.J. 685, 686-687 (1978). This potential conflict within the same statute, occasioned by the purported grant of exclusive jurisdiction to PERC and the continued preservation

of jurisdiction in the Civil Service Commission, generates an ambiguity that invites recourse to the legislative history of the provision as an aid in unraveling the true legislative intent. See Malone v. Fender, supra, 80 N.J. at 136-139, for a similar treatment of N.J.S.A. 11:22-32 (a civil service provision).

The relevant legislative history is not strongly supportive of PERC's position that its jurisdiction over any unfair practice is totally preemptive. In 1972 Assembly Bill 520 was introduced, according to the statement of its sponsor, for the purpose of "[g]ranting PERC the power to receive, hear and act upon charges of unfair labor practices and to enforce its decisions." Section 1(c) of that bill empowered PERC to prevent anyone from engaging in any enumerated unfair practices; it also provided that "[t]his power shall be exclusive and shall not be affected by any other statute." The bill was passed by the Legislature, but Governor Cahill returned it with his objections and recommendations for reconsideration, among which was the deletion of the provision regarding the exclusivity of PERC's power. The bill was not subsequently reenacted. In 1974 Senate Bill 1087 was introduced. Although it went through a number of changes before ultimately being enacted as L. 1974, c. 123, the provision regarding PERC's jurisdiction, as that provision now appears in N.J.S.A. 34:13A-5.4 c, deleted the conjunctive qualification that its power "shall not be affected by any other statute." The sponsors, in their statement, said simply that the bill would give PERC "unfair labor practice jurisdiction." Given Governor Cahill's objection, it would appear that the subsequently-enacted 1974 version was intended as a less obtrusive expression of the nature of PERC's jurisdiction and as a recognition that statutes in other areas might also have some proper role in the sphere of public employment. See generally Note, "Public Sector Labor Relations," supra.

It seems evident that the Legislature thus hoped to harmonize or meld the overlapping rights of public employees, to discourage internecine struggles between concerned agencies, and to

avoid as well haphazard or random conflicts between agencies. That overriding multipartite purpose is consistent with the spirit which, under our modern constitution, animated the structuring of the executive branch of government and brought about a centralization of and limitation upon the number of major executive departments. See N.J.Const. (1947), Art. V, § IV; J. Jacobs, "Administrative Agencies, Their Status and Powers," supra. As brought to bear upon the agencies in this case, these considerations impel us to conclude that the Legislature fully intended to foster a constructive coexistence between the Public Employer-Employee Relations Act and the civil service laws and, further, that the relevant statutory schemes should be construed and applied so as to reconcile these distinct, yet complementary and interrelated, areas of governmental concern. See State v. State Supervisory Employees Ass'n, supra, 78 N.J. at 73-83.

As previously mentioned, the Legislature by its 1974 amendment corrected a defect in administrative coverage which this Court noted in Burlington Cty. Evergreen Park Mental Hosp. v. Cooper, supra, where no statutory power to deal with unfair labor practices was found to reside in PERC. Patrolman's Benev. Ass'n v. Montclair, supra, 70 N.J. at 136. Cf. Galloway Tp. Bd. of Ed. v. Galloway Tp. Ed. Ass'n, supra. The Legislature obviously believed that the existence or occurrence of unlawful practices called for the expert handling of a specialized administrative agency such as PERC and that in these matters that agency's jurisdiction was indeed to be preferred even to that of the courts. Cf. Kaczmarek v. New Jersey Turnpike Authority, supra. The 1974 amendment vested in PERC full authority to deal remedially with all aspects of the public employment environment when tainted by unfair labor conduct and to provide broad remedial relief to compensate victimized employees for economic injury; to eliminate, correct, and prevent unfair practices; and to improve the overall working climate for public employees. Cf. Galloway Tp. Bd. of Ed. v.

Galloway Tp. Ass'n of Ed. Sec., supra. Hence, the Public Employer-Employee Relations Act, as amended, should be understood as granting to PERC the exclusive administrative power to deal fully and completely with complaints of unlawful practices relating to employee rights not directly covered by other laws. It is also clear, however, that the Legislature did not intend by this important amendment to the Public Employer-Employee Relations Act to diminish the rights of employees under the existing civil service laws. N.J.S.A. 34:13A-5.3. See State v. State Supervisory Employees Ass'n, supra, 78 N.J. at 86-87, 96; Note, "Public Sector Labor Relations," supra, 32 Rutgers L.Rev. at 73-79.

It is not easy to square these dialectical legislative objectives. In terms of the issues raised by this case, the most reasonable conclusion as to the intended application of the statute appears to be that the Civil Service Commission still retains jurisdiction over claims involving factual allegations of improper employment activity when these allegations are integral aspects of valid civil service complaints, even though, if standing alone, the factual circumstances might constitute an unfair practice. Indeed, PERC has conceded that where an unfair practice is not the sole, major or dominant issue in an employer-employee controversy, it would not be improper for the Civil Service Commission to consider that issue if it were otherwise relevant in a civil service proceeding addressing the employer-employee controversy. On the other hand, PERC would have exclusive power over claims involving unfair practice allegations when these allegations do constitute the sole or major complaint of the aggrieved employees. Similarly, wrongful conduct equated with unfair practice, though not the primary issue, may in the context of a particular controversy so dominate or color the entire case that its determination, as a practical matter, might substantially influence or render moot the resolution of other issues. In that situation it would be appropriate to consider PERC's jurisdiction to be "exclusive."

It is also possible that an unfair practice charge may raise issues of wide public significance affecting important interests extending beyond those of the immediate parties; in such a case, it may be appropriate to invoke PERC's jurisdiction even though the matter is otherwise cognizable before another administrative agency. Additionally, there may be cases in which the unfair practice issue is itself obviously severable from other issues and would thus permit separate, non-duplicative factual findings as well as special remedial relief, e.g., Hinfey v. Matawan Reg. Bd. of Ed., supra (the sex discrimination charges relating to educational curricula were severed from the discrimination charges with respect to employment; the Commission of Education was authorized to determine the former issue and the Division on Civil Rights, the latter); in such instances the exclusive exercise of jurisdiction by PERC limited to the severed unfair practice issue would be fitting. PERC's jurisdiction, moreover, would be exclusive with respect to unfair practices by employees as enumerated in N.J.S.A. 34:13A-5.4 b since public employers do not have the same right of appeal to the Civil Service Commission as do public employees. Further, PERC would also retain exclusive jurisdiction over those unfair employer practices, such as a refusal to negotiate in good faith, which do not in fact involve an individual employee's civil service or other agency-protected rights. N.J.S.A. 34:13A-5.4 a(5). Compare Essex Cty. Pros., ...


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