On appeal from The Public Employment Relations Commission.
Fritz, Joelson and Petrella. The opinion of the court was delivered by Joelson, J.A.D.
[188 NJSuper Page 412] A school-bus driver's contract not having been renewed, Jefferson Township Education Association (Association) filed a
grievance with Jefferson Township Board of Education (Board). The grievance letter follows in pertinent part:
Mrs. Watson [the driver] has been an active Association Representative during this past year. This may have led to some situations where there was antagonism between her and her Supervisor and the Administration. We feel that she is being disciplined to the extreme by her firing and that this is without just cause.
Board denied the grievance, whereupon Association filed a demand for arbitration of the grievance. Board then filed a scope-of-negotiations petition with the Public Employment Relations Commission (PERC) and sought to restrain arbitration of the grievance on the ground that it dealt with a disciplinary determination. PERC issued a decision finding that the "dominant issue" was the allegation of discrimination against the driver for union activity, and denying the restraint of arbitration. The PERC decision acknowledged State v. Local 195, IFPTE, 179 N.J. Super. 146 (App.Div.1981), certif. den. 89 N.J. 433 (1982), as holding that "the matter of the discipline of public employees is plainly a subject of essential managerial prerogative" and that the State "lacks the power and authority to negotiate binding arbitration procedures for disputes concerning disciplinary determinations." Id. 179 N.J. Super. at 152-153. However, the decision also referred to Association's argument that the holding in Local 195 is inconsistent with the holding in West Windsor Tp. v. PERC, 78 N.J. 98 (1978). It then declined "to choose between two apparently conflicting lines of cases, as we agree with the Association that discrimination motivated by anti-union animus cannot be an inherent management prerogative pertaining to the development of governmental policy. . . ." This is an appeal from PERC's refusal to restrain arbitration.*fn1 We reverse and remand.
PERC's conclusion that these two cases are apparently in conflict is open to question. However, we need not resolve this question in view of the fact that PERC has determined that the dominant issue here is Association's charge of unfair practice on the part of Board in retaliation for union activity.*fn2 The question then arises as to whether, having found that the dominant issue of the grievance was the allegation of Board's discrimination against the bus driver for participation in Association activities, PERC had the authority to submit the matter to binding arbitration. We are of the opinion that because of N.J.S.A. 34:13A-5.4 c, it did not.
N.J.S.A. 34:13A-5.4 c expressly confers upon PERC "exclusive power" to prevent public employers and public employee organizations from engaging in any unfair practice as defined in N.J.S.A. 34:13A-5.4 a and b. There is no doubt that the unfair practice charged here falls squarely under subsection a, which prohibits public employers from engaging in specified unfair practices. Furthermore, N.J.S.A. 34:13A-5.4 c establishes precise procedures for a hearing before "the commission [PERC] or any designated agent thereof. . . ." We do not construe the words "designated agent" as conferring on PERC legislative permission to surrender its authority to an arbitrator. We regard the use of the term "designated agent" as permission for PERC to refer the matter to a duly authorized officer to conduct a hearing and collect evidence, and even perhaps to make a recommendation, subject to the ultimate responsibility of PERC itself to make the final binding decision.
It should not be disregarded that under N.J.S.A. 34:13A-5.4 c, the provisions of the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq., are specifically made applicable to hearings on unfair practice charges. Sections of that act, N.J.S.A. 52:14B-9
and N.J.S.A. 52:14B-10, establish machinery for hearings in contested cases. Clearly, a hearing by an arbitrator is not contemplated.
The conclusion of sole authority and responsibility in PERC to make a final and binding determination of an unfair practice charge is supported by Hackensack v. Winner, 82 N.J. 1 (1980). Although that case did not involve the question of whether PERC's exclusive power over unfair practice complaints precludes arbitration, it contains ...