City of Hackensack v. Winner

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

Argued March January 1979—Decided 1980.

(1) argued David Solomon the cause for appellants Sarapu- Krejsa (Schneider, chiello and Solomon, Cohen and attorneys). Lehmann, Sidney H. Counsel, General argued the cause for appellant Public Employment Relations (Don Commission Horowitz, Deputy Counsel, General briefs). on the General,

Erminie Conley, Attorney argued L. Assistant the cause on behalf of amicus curiae Civil Service Commission (John J. Degnan, Attorney General of New Jersey, attorney; Stephen Skillman, Assistant General, Attorney counsel).

James P. argued Granello respondent cause for (Murray, Granello and Kenney, attorneys; John Dizzia, Paul on the brief).

The opinion of the Court was delivered HANDLER, J. conflicting decisions appeal

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

10 respect, the claims were covered by In this activity. union their Act, Employer-Employee Public Relations N.J.S.A. 34:13A-1 the Employment seq., subject et to the of the Public Separate that actions Relations Commission under act. were firefighters brought agency before each administrative the respect employment agencies, their to claims. two another, independent proceeded adjudicate of one the matters fact, dispute ultimately findings in reached different of legal imposed at arrived dissimilar conclusions and inconsistent disposi unsettling administrative remedies. This unstable and controversy, Appellate was appealed tion which the Division, N.J.Super. (1978), its at reported decision im grant pelled our of certification. N.J. 404 a rather methodical perspective, in place proper the issues To its through each administrative trailing of the case of Department posture January is needed. In present position for examination promotional held a Civil Service (“the City” of Hackensack “Hack- City lieutenant in the fire promotion eligibili- ensack”). examination As a result of that April in 1974. Department list was ty promulgated peti- Krejsa on list and ranked fourth that Petitioner William petitioner, Another Sarapuchiello ranked sixth. Nicholas tioner list, Winner, pursue not his placed who third on the did Richard In case. December longer involved claims and is no Department of Civil City, response request to a from eligible appoint- for of individuals a certification issued Service with civil In accordance of fire lieutenant. position ment to certified rules, 4:l-12.4(a)(2), eight names were service N.J.A.C. five, one, two, eight on seven and Numbers openings. for six position to the fire lieutenant promoted list all were 12,1975. stipulated It was that this marked February effective promotions in had made Hackensack not the first time that according eligibili- order on strictly fire to rank the department ty any skipping bypassing. list without or 13, 1975, February

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

The proceedings before the Public Employment Relations (PERC) began Commission prac- submission of unfair tice charges by 18, 1975, employees the same three February on five days filing request after the initial their for review the Department of charges Civil Service. Amended were filed 16, complaint 1975, issued a and notice of May

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

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

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

I one, In a case like where public employee this seeks pursue rights his before the Civil Service Commission under the laws, of an alleges also the existence unfair civil service but Employer-Em- practice cognizable under the Public employment and looks for redress before Public ployee Relations Act Commission, of dual question admin- Relations Employment of agency raised a determination jurisdiction is istrative resolving the approach be avoided. The for priority cannot these circum- imbroglio created jurisdictional procedural with in commence our recent decision may appropriately stances Ed., N.J. 514 Reg. Bd. of Hinfey v. Matawan dispute Hinfey jurisdictional in faced a between The Court Rights on the Division Civil and the Commissioner Education in regarding claims of sex discrimination educational curricula public schools. 77 N.J. at 521. The Court concluded various that, proper it was for the presented, under circumstances controversy Commissioner of Education decide the and that aspect Rights the Division of Civil transfer should adjudication. path case for followed Commissioner resolving jurisdictional engendered the Court dilemma agencies first statutory authority an examination of the of both respect disputed to the matters a determination Second, agencies had over the claims. whether both agencies jurisdic- upon that each the two had a determination tion, jurisdiction ascertain whether that was sought the Court to agencies two in the paramount primary or in one of the sense statutorily to agencies required that of the would be enter- one prior hearing by agency. tain case the other This the to a agency for either inquiry called a determination whether statutory juris- virtue of required compelled by would be or regardless matter before it of the proceed diction to in the agency the jurisdictional sibling claim of its or the status of If it found one agency. same case before that other were that e., that agencies discretionary jurisdiction, or both had i. there agency proceed was for to statutory no mandate one first adjudicate pendency the at in view controversy, least of the dispute agency, same before other the final task for the explore Court was to the standards for the exercise of that Court, administrative discretion. The in addressing how agen- cies guided were to be in the situations where each was found to parallel have jurisdiction but discretionary over the same contro- versy, emphasized that the exercise of discretion should governed by “[principles of comity.” administrative 77 N.J. at 532. A approach similar is called for in this case. The inquiry here therefore should start with an examination of the jurisdiction nature of the of the agencies. two administrative The bedrock difficulty analyzing of each of agencies two in this case inheres in the fact that underlying dispute present single-issue does not single-rem- or edy noted, controversy. As dispute includes claims that public employment promotions were wrongfully withheld under the civil service relating criteria to merit and fitness. These charge claims also wrongful this prompted action was improper motives and bad faith based upon prejudice, anti-union allegedly an unfair practice contrary provisions to the Public Employer-Employee Relations Act. In addition to this issues, admixture of legal factual and agency jurisdiction is complicated by prospect overlapping conflicting ad- ministrative remedies. Each of the agencies administrative here involved is empowered grant similar broad remedial relief to rectify the asserted employment injuries. Compare, g., e. Mas- Cty. Comm’n, trobattista v. Essex (1965) Park (Civil N.J. 138 Service authority Commission has pay order back and restora- tion to duty civil service wrongful cases of suspension and dismissal), with Galloway Tp. Bd. of Galloway Tp. Ed. v. Ass’n Sec., (1978) (PERC of Ed. 78 N.J. 1 has authority to order hours, restoration of working pay, award back and direct the public employer to cease and desist in its interference with the employees’ rights). Tener, generally “The Public Employ- ment Decade,” Relations Commission: The First 9 Rut.-Cam.L. (1978) Tener, Rev. 609 referred to as “The First [hereinafter jurisdictional Thus the readily dilemma is not resolv- Decade”]. 16 of distinct form administrative by emergence of one

able competing of one of the uniquely province is relief which agencies. have confronted with the growing frequency been

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

17 Jacobs, to “Adminis- development.”) referred as J. [hereinafter Agencies, trative Their Status Powers”].

These developments have greatly probability enhanced the that disputes calling for adjudication administrative impli- will cate more than one agency. result, As a both courts and agencies administrative have been called upon repeatedly make the hard and sensitive required decisions to identify mixed jurisdictional controversies for purposes. g., Tp. E. Bernards Bd. Tp. Ass’n, 311, of Ed. v. Bernards Ed. (1979); 79 N.J. 315-317 Ridgefield Park Ed. Ridgefield Ed., Ass’n v. Park Bd. of 78 N.J. 144, (1978); 153-155 State v. Supervisory State Employees Ass’n, 54, 83-84, (1978); 78 N.J. 86 Tp. Galloway Bd. of Ed. v. Ass’n, Galloway Tp. 25, 38-39, Ed. 78 (1978); N.J. 47 Dunellen Ass’n, Bd. of 17, Ed. v. 28-29, 31-32 Dunellen Ed. 64 (1973); N.J. Burlington Cty. Trustees, 10, 16 Col. Fac. Ass’n v. Bd. 64 N.J. (1973); Englewood v. Englewood Ass’n, Bd. Ed. Teachers 64 1, (1973). Note, N.J. 6-9 “Public Sector Labor Relations: The New Jersey Supreme Interprets Court the 1974 Amend Act,” ments to the Employer-Employee Rutgers Relations 32 (1979) Note, L.Rev. 62 cited as “Public Sector Labor [hereinafter Relations”]; Tener, Decade,” “The supra, First 9 Rut.-Cam.L. 615, Rev. at 637. exemplified These decisional difficulties are particular complexity presented very in this case. Courts agencies, albeit in settings, somewhat different have dealt here, with mixed disputes as involving upon claims based con rights ventional civil upon service as well rights given as those public employees respect self-organization, representa tion g., and conditions of employment. Super E. State State Ass’n, visory Employees supra, 63, 78 N.J. at 86-87. See also Elizabeth, Patrolmen’s Benevolent Ass’n v. N.J.Super. (App.Div.1976); 262-263 Cty. Essex & Pros. Det. Inves. Ass’n v. Cty. Freeholders, Hudson Bd. of N.J.Super. 45-47 (App. Div.1974), certif. analyzing den. N.J. 330 In present controversy, Appellate ruled, Division correctly view, legitimate jurisdictional agency had claim our that each entertain the case. dispute be no real as to the Civil appears

There here to to resolve the claims that were right Service Commission’s parties deny it. do not Civil Service before allegations to consider im Commission has when these are asserted proper employment activities to proceeding primarily a service directed com context of civil granting with pliance requirements with service and of civil N.J.Super. 162 at 21. The Civil Service civil service relief. powers to determine fitness in Commission has broad merit and promotions. v. appointments connection and Malone Fend Ass’n, er, Troopers Inc. (1979); 80 N.J. 129 State Fraternal v. State, (Ch.Div.1971), per aff’d curiam 119 N.J.Super. 115 503 curiam 62 N.J. N.J.Super. (App.Div.1972), per 375 aff’d 302 (1973). authority inquire It full to into the basis for has in the promotions civil service of State appointments Fender, jurisdictions. supra. v. The and of local Malone merit principle necessarily engenders responsibility fitness a to authority improperly acted or appointing ascertain whether the arbitrarily. See Mason v. Civil Service exercised discretion 115, Comm’n, also v. 51 125-128 Walsh Civil N.J. 39, Dep’t, N.J.Super. (App.Div.1954), 43-44 certif. Service 32 granted (1955) dismissed). This (subsequently 17 N.J. 182 broad inquire good faith authority right into of includes governmental affecting employees. directly conduct civil service 13, See, Dep’t, N.J. g., Cunningham e. v. Service 69 18 Civil employee); Burlington (1975) (alleged plan malicious demote 579, Hosp. Cooper, Evergreen 56 N.J. Cty. Park Mental (asserted (1970) practices unfair labor in dismissal of 583-584 union); public employees for work for employee organizational 553, (dis (1951) 6 Dep’t, v. Civil N.J. 558-559 Weaver Service political opinions and affilia employee’s missal because of Comm’n, 571, tions); Newark v. Civil Service 112 N.J.L. 574-575 (E. 1935) (a 114 185 A. (Sup.Ct.1934), per aff’d curiam N.J.L. &

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

There is also little jurisdiction that PERC has in a case such as this where public employees allege individual they have wrongfully promotions been denied because of organizational their public activities within the work force. employees Government have right a constitutional to secure organizational representation in employment. (1947), N.J.Const. I, par. Art. Regional 19. See Red Bank Ed. Ass’n v. Red Bank Regional High Ed., 122, School Bd. of 78 (1978); N.J. 136-137 Tp. West Windsor Employment Comm’n, v. Public Relations 78 20 98, Ass’n v. (1978); Cty. 109 Probation Officers’

N.J. Passaic 247, (1977); Bd. of Cty., N.J. 251 Union Beach Ed. Passaic 73 Ass’n, 29, (1968). generally Jersey Ed. 53 N.J. 44-45 New Coleman, in Perspective Employee “A on Public Unionism New (1973). 34:13A-5.3 vindi- Jersey,” 4 Rut.-Cam.L.J. 289 N.J.S.A. guarantees employees and also right cates this constitutional a(l) protection in 34:13A-4.5 and 34:13A- its exercise. N.J.S.A. a(3) prohibit punish practices public employ- unfair 5.4 with, “[interfering re- practices unfair include ment. Such straining coercing rights or the exercise of employees “[discriminating in guaranteed regard to act” and them this any or term or condition of employment to hire or tenure of encourage employees in the exer- discourage or employment to rights guaranteed to them this act.” Id. PERC’s cise of practices sufficiently is to accom- over unfair broad wrongful relating organiza- treatment to modate claims of as rights employees working as well to their conditions. tional Ass’n, Tp. Galloway Tp. Galloway supra; Bd. Ed. v. Ed. Cf. Auth., Jersey Turnpike 77 342-343 Kaczmarek v. New N.J. powers redress statutory And PERC’s remedial eco- injury prevent fully of this kind are wrongs nomic jurisdictional grant. Galloway Tp. commensurate with broad Sec., It Galloway Tp. supra. Ed. v. Ass’n of Ed. would Bd. of practice public employees, if hav certainly constitute unfair activities, were ing engaged organizational in lawful protected partici penalized promotions or because of that denied pation. For we content ourselves on present purposes, would by the point analogy this furnished National Labor Act, Lullo seq., 151 et see v. Internation Relations U.S.C.A. § Fighters, (1970), al N.J. 422-425 Ass’n Fire note withholding simply promotion that the denial or threatened of a recognized because of union has been as a violation of activities Transmotive, E. F.2d g., that act. N.L.R.B. v. Marmon N.L.R.B., (6 1977); Door 401 F.2d 676 Sash Co. Cir. Steves & Decade,” 1968). (5 Tener, supra, “The First 9 Rut.- Cir. 613; Note, Relations,” “Public Sector Cam.L.Rev. at Labor supra, Rutgers L.Rev. at 81-91.

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

II The question jurisdiction of or parallel whether concurrent residing agency in each handle controversy this mixed was discretionary be mandatory treating or must next addressed. In question, inquiry this is directed first to the of nature jurisdiction degree PERC’s in terms of flexibility which agency possesses dealing that with cases it. before We focus since, matter, upon practical as PERC a there has been no challenge power to the of the Civil Service Commission to decide case, appeal no finding, from the Civil Service Commission’s no contention that the Civil Service Commission should have stayed proceedings exercise any as an of sound discretion. In event, vigorously jurisdiction now PERC contends its own practice compulsory over the unfair was thus issue had to to the regard pendency exercised without or the outcome proceedings. Civil Service Commission In Hinfey v. Reg. Ed., Matawan supra, Bd. of this Court dealt question, with a similar there in terms of whether “occlusive statutory bar” existed which prevent would exercise agency in staying proceeding discretion transferring the matter to another cognate jurisdiction. 77 N.J. at 531. We there held that Rights Division on Civil had discretionary handling abstain from a dispute involving sex discrimination in academic curricula and could 22 adjudica- of Education for the Commission that issue to

transfer while not PERC, petitioners, joined by the individual tion. bar,” statutory in of an “occlusive couching its contentions terms practice charge jurisdiction over the unfair that its here asserts jurisdic- c and this that is under N.J.S.A. 34:13A-5.4 “exclusive” mandatory. tion is jurisdic compulsory, preemptive PERC for argument by

This 1974 to the primarily upon one of the amendments tion is based passage Act. Prior to the Employer-Employee Relations Public L.1974, amendments, Court held that of e. this had those jurisdiction to public employ had hear Civil Commission Service organization dismissal for upon wrongful ee complaints based Hosp. Cty. Evergreen Pk. Mental v. Burlington al activities. in The Court also held that Cooper, supra, 56 N.J. at 583-584. jurisdiction to statutory hear case that PERC had no similar holding practices. This was such as unfair labor latter charges L.1974, of legislatively by the enactment subsequently overruled 123; 1; Tp. Bd. of Ed. Galloway c. 34:13A-5.4. N.J.S.A. § 33; Ass’n, N.J. Tp. supra, v. 78 at Patrolman’s Galloway Ed. Montclair, Note, 130, 136 (1976); 70 Benev. Ass’n v. N.J. “Public Relations,” supra, Rutgers at Sector Labor L.Rev. 82-83. granted power” PERC “exclusive hear That amendment c, and, charges, according N.J.S.A. 34:13A-5.4 practice unfair PERC, legislative to divest manifested a intent the Civil Service parallel jurisdiction to hear such claims. Commission Public duly Employer-Employee PERC has noted that the [tjherein provides “[njothing Act shall con Relations his Civil deny employee rights strued to individual under any or regulations.” Seliger Service laws 34:13A-5.3. See N.J.S.A. Crangle, Safety Employees,” & “A New Direction for Public potential 686-687 This conflict with Rut.-Cam.L.J. statute, grant purported the same occasioned jurisdiction preservation exclusive to PERC and the continued Commission, generates an in the Civil Service legislative history invites recourse to ambiguity that legislative true intent. See unraveling provision as an aid 136-139, for a similar Fender, N.J. at supra, Malone (a provision). service 11:22-32 civil treatment of N.J.S.A. legislative history strongly supportive The relevant is not jurisdiction position any practice of PERC’s that its over unfair Assembly In 1972 Bill totally preemptive. is 520 was intro duced, according sponsor, purpose of its for the statement receive, “[gjranting power upon of PERC the hear and act charges practices of unfair labor and to enforce its decisions.” 1(c) empowered prevent anyone of that bill Section PERC engaging any practices; from enumerated unfair it also provided power that shall be exclusive and not be shall “[t]his passed by The bill was by any affected other statute.” Legislature, objections but returned it with his Governor Cahill reconsideration, among and recommendations for which was the exclusivity provision regarding deletion of the of PERC’s power. subsequently The bill was not reenacted. In 1974 Although through Bill was introduced. it went Senate a L.1974, changes ultimately being number of before enacted as c. provision regarding jurisdiction, provi PERC’s as that c, conjunc appears sion now 34:13A-5.4 deleted the N.J.S.A. qualification power by any tive that “shall not be affected statement, sponsors, simply other statute.” The in their said give practice jurisdic that the bill would PERC “unfair labor objection, appear would that tion.” Given Governor Cahill’s it was intended as a less subsequently-enacted version expression obtrusive of the nature of PERC’s and as recognition might have some that statutes in other areas also sphere public employment. generally proper role in the See Note, Relations,” supra. “Public Labor Sector Legislature hoped that the thus to harmonize

It seems evident rights public employees, or meld the to discour- overlapping age struggles agencies, concerned and to internecine between agencies. or random conflicts between haphazard well avoid as spirit is consistent with the overriding multipartite purpose That constitution, structuring which, animated the our modern under brought about a government and the executive branch of major upon the number of of and limitation centralization IV; V, (1947), Art. J. N.J.Const. departments. § executive Powers,” Jacobs, Agencies, Their Status “Administrative case, upon agencies in this these supra. brought As to bear Legislature fully to conclude that impel considerations us the Public coexistence between intended to foster a constructive Act and the civil service laws Employer-Employee Relations and, further, statutory' schemes should be the relevant distinct, yet these applied so as to reconcile construed and interrelated, concern. governmental areas of complementary Ass’n, supra, 78 N.J. Supervisory Employees See State State at 73-83. mentioned, Legislature by its 1974 previously

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

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

It is not to square these legislative dialectical objectives. In case, terms of the issues raised this the most reasonable conclusion as to the application intended of the appears statute to be that the Civil Service Commission still retains over involving claims allegations factual improper employment activity allegations when these are inte gral aspects complaints, of valid civil service though, even if alone, standing the factual might circumstances constitute an Indeed, unfair practice. PERC has conceded that where an sole, unfair practice major is not the or dominant issue in an employer-employee controversy, it would not improper for the Civil Service Commission to consider that issue if it were otherwise relevant proceeding in a civil service addressing the employer-employee hand, controversy. On the other PERC would have power involving exclusive over claims prac unfair allegations tice allegations when these do constitute the sole or major complaint aggrieved employees. Similarly, wrong ful equated practice, conduct with unfair though pri not the issue, mary may particular in the context of a controversy so dominate determination, or color the entire case that as a practical matter, might substantially influence or render moot the resolution of other issues. In that situation it would be appropriate jurisdiction to consider PERC’s to be “exclusive.” issues charge may raise practice that an unfair possible It is also extend- affecting important interests significance public of wide case, it parties; in such a of the immediate ing beyond those though jurisdiction even to invoke PERC’s may appropriate be cognizable before another administrative otherwise the matter is in which the unfair Additionally, may there be cases agency. issues and from other obviously itself severable practice issue is findings non-duplicative factual as permit separate, would thus relief, Reg. g., Hinfey v. Matawan Bd. e. special well as remedial relating to educa- Ed., charges (the sex discrimination supra of charges from the discrimination curricula were severed tional of Education was employment; the Commission respect with Division on former issue and the authorized to determine the the exclusive exercise latter); in such instances Rights, Civil practice the severed unfair jurisdiction by PERC limited to of moreover, would be fitting. jurisdiction, PERC’s issue would practices by employees as enu- respect to unfair exclusive public employers do not in 34:13A-5.4 b since merated N.J.S.A. the Civil Commission as right appeal have the same Service Further, also PERC would retain exclu- public employees. do practices, such as a employer unfair jurisdiction sive over those faith, do not in fact involve negotiate good which refusal agency-protected civil service or other employee’s an individual Pros., a(5). Cty. Essex rights. Compare 34:13A-5.4 N.J.S.A. Freeholders, (union’s supra Ass’n v. Hudson Bd. Det. & Inves. heard change working hours should be complaint regarding Commission), with Patrol- by by and not Civil PERC Service Elizabeth, supra and demotions as (layoffs Benev. Ass’n v. men’s should be heard Civil Service Commis- part reorganization PERC). Supervisory Employ- sion and not Cf. State State Ass’n, supra. ees the circumstances of this case

We conclude that under claims particular of PERC over the the concurrent under the preemptive “exclusive” or firefighters was not therefore Act and was not Relations Employer-Employee Public mandatory the sense that proceed PERC had no choice but to in the though matter even it properly pending was before the Civil Service Commission. The claims multiple raised mixed and issues; legal factual and they directly projected civil service grievances and were not allegations limited to of employer misconduct solely, primarily or predominantly involving unfair practices under the Employer-Employee Public Relations Act. Nor was it suggested practice that the unfair allegations in the any case were in sense from severable the issues before the Civil Service complaints Commission or that only called for a form fundamentally of relief different from that generally contemplated by Further, the Civil Service Commission. there adequate was no indication complaints that the projected issues importance fundamental which clearly transcended the inter- PERC, ests of the participants. therefore, immediate under the presented, circumstances statutory power had the to abstain initially proceeding from provisional- the matter and to defer ly jurisdiction to the exercise of over controversy by the Civil Service Commission. For reasons which we now explain, that discretion should have been exercised in favor of deference to the Civil Service Commission.

Ill abstain, appeal PERC did not in fact the crux of this has Since PERC, presented in terms of whether virtue of the been instant contro- discretionary existence of its over the versy, should have considered itself bound the final decision itself though Commission even PERC also Civil Service And, so, such hearing conducted a full of the case. if whether complete determination of the apply deference would to the is, Commission, findings only not factual Civil Service administrative relief ac- legal conclusions but also issue is the Implicated in the resolution of this ultimate corded. PERC, having the subsidiary question of whether preliminary or statutory power or from proceeding discretion abstain vel non matter, initially stayed delayed in the should have or own assertion until Civil Commission had Service questions concluded its resolution of the case. The two are necessarily interrelated. view that PERC’s was of the Appellate

The Division as whether to to the Civil Service in this case defer discretion guided by the ought to have been determination Commission’s It similar situations. govern judicial courts in precepts which single-con and illustratively estoppel collateral mentioned empha N.J.Super. at It is to be troversy 162 25. doctrines. sized, however, agencies equated cannot be that administrative simply is not judicial courts. An administrative controversy solely function is to decide neutral whose forum agencies belong to a different it. Administrative presented to exer separately created and They are government. branch of administering authority selec legislative power cise executive Davis, 1 Administrative by them statute. K. delegated to tively 1978); Sewall, supra, Ind.L. (2d at ed. 6 Law Treatise 1:2 9 § 449-450; Jacobs, Agencies, Their at J. “Administrative Rev. Powers,” say that there supra 1433. This is not and at Status judicial administrative and strong are not between similarities agencies, administrative power exercised tribunals. judicial having as well as characteris legislative executive form of tics, when it takes the has termed “quasi-judicial” been See, Morgan g., e. v. United adjudication in cases. contested 773, 778, 1, 22, L.Ed. 58 82 II), S.Ct. (Morgan 304 U.S. States 498, Cavicchia, (1954); 524 1129, 15 N.J. (1937); Mazza v. 1134 578, R. Hubbs, (1951); Pennsylvania R. 6 585 Jamesburg v. N.J. Comm’n, 64, (1949); 2 N.J. 68-70 Jersey Aviation Co. v. New 212, Comm’rs, 1 N.J. 215-216 McFeely of Pension v. Board 543, N.J.Super. Nut 18 Stop Corp., (1948); Adolph v. Elastic 84, Clark, N.J.Super. 546-547 Morton (App.Div.1952); Treatise, Davis, Law (Law Div.1968); Administrative 92-93 2 K. Davis, 1 K. (2d 1979); ed. see also supra, at 322-323 10:5 § Treatise, supra, 70-72, Administrative Law 2:4 at 2:5 at § § (2d 1978). However, adjudicative 72-75 ed. functions of agencies aspect administrative are actually regula- of their and, essence, powers tory do not embrace or constitute the judicial Rather, exercise of authority. adjudica- administrative judicial tion constitutes a form of mimicry, hence its character- -judicial quasi judicial. ization as rather than Courts, contrast, are constitutionally-founded, inde pendent impartial adjudicative tribunals constituted to hold judicial power exercise the which directly emanates from 1; U.S.Const., Ill, (1947), the Constitution. Art. N.J.Const. § VI, See, States, 346, Art. 1. g., e. Muskrat v. § United U.S. 354-356, 250, 253-255, (1911); S.Ct. 55 L.Ed. 249-250 States, 697, 699-704, Gordon v. United 117 U.S. 76 L.Ed. (1865) J.). (per Taney, 1349-1353 C. also on Committee the Judiciary’s Report 26, 1947), (August to the Convention II Pro 1947, 1180, 1181, ceedings (1951); of Const. Conv. of 1190 W.B. Graves, “What a Constitution (monograph), Should Contain?” II 1328, Proceedings 1947, of Const. Conv. of 1332 Conse procedures quently, techniques and developed to handle the operation and may transported business of the courts not be in imported toto or agencies. wholesale into administrative Never theless, practice, in since pronounced there are similarities in the judicial exercise quasi-judicial powers, and it has recog been nized that court-fashioned handling litiga doctrines for the tion genuine do in fact have some utility and relevance in But, proceedings. applying administrative in such court-based precepts to agencies, potential achieving administrative their for tempered sound results must be appreciation a full of an foundations, administrative agency’s statutory its executive na ture, special jurisdictional regulatory concerns. Gor Cty. Broadcasting C., 334, 337, don U.S.App.D.C. Co. v. F. 144 C. 1335, (D.C.Cir.1971) (res 446 F.2d judicata); v. Grose Co hen, 823, (4 1969) (res judicata). 406 F.2d 824-825 Cir. procedural tools in administra- of court-made

The utilization analysis upon in final the depend must the proceedings tive responsibilities toward the agency’s regulatory nature particu- as controversy as well toward matter of the subject Moreover, administra- before it. because appearing parties lar part in to effectuate constitutional agencies serve tive faithfully laws that are obligation of the executive branch see V, I, 11, executed, par. public (1947), Art. § N.J.Const. proceed- in administrative every dimension interest is added implicated adjudica- necessarily is ing. That interest and, sense, omnipresent in all tions, public party is an See, g., 34:13A-2. Cf. Gallo- actions. e. N.J.S.A. administrative Sec., Tp. supra, of Ed. Tp. Galloway Bd. v. Ass’n way of Ed. at 33-37. N.J. support general principle that

Such considerations and, (as stressed entitled to indeed agencies administrative are separate opinions, in their by Justices Pashman Schreiber 1170-1171), required in fact post may at 1166-1167 and statutory powers properly over controversies be exercise their judicial or of whether other administrative regardless fore them complainants. may to the This open for relief are also avenues parties thereby regardless aggrieved be so of the fact or proverbially strings two bow two bites gain examples in the field of federal apple. pertinent are There 36, law, Co., ver 415 U.S. g., e. Alexander v. Gardner-Den labor 1011, 1018-1020, (1974); 47-50, 39 L.Ed.2d 158-159 94 S.Ct. 270-272, Corp., Westinghouse Electric 375 U.S. Carey 320, (1964), as 401, 408-409, well 11 327-328 as L.Ed.2d S.Ct. Albany e. v. g., public employment, field of and local state 374, 375-376, Bd., 395 Rel. 57 A.D.2d N.Y.S. Employment Public 954, 404 502, 43 N.Y.2d 504 aff’d mem. o. b. (App.Div.1977), 2d v. 343, Dedham Labor (Ct.App.1978); 375 N.E.2d 409 N.Y.S.2d 392, 400-406, 548, Comm’n, 365 Mass. 312 N.E.2d Relations Wilson, (Sup.Jud.Ct.1974). F.Supp. 475 Cf. Rucker v. 555-557 juris- 1164, (E.D.Mich.1979). independent The exercise of 1166

31 by agency approved imputed diction has been as a matter of legislative when agency possesses intent that its own distinctive functional characteristics. Corp. United States v. Radio America, 334, 457, (1959); 358 U.S. 79 S.Ct. 3 L.Ed.2d 354 F. T. Institute, 683, 793, v.C. Cement 333 68 92 U.S. S.Ct. L.Ed. 1010 Texaco, Inc., (1948); 323, 332-333, F. T. v. U.S.App.D.C. C. 170 137, (D.C.Cir.1975), 974, 517 F.2d 146-147 cert. den. 431 U.S. 97 2939, 2940, (1977) (F.T.C. S.Ct. 53 L.Ed.2d 1072 and Federal Commission); Co., Power Brewing S. E. C. v. Jos. Schlitz 452 824, F.Supp. (E.D.Wis.1978) (S.E.C. Alcohol, 828 and Bureau of Firearms); C., Tobacco and Warner-Lambert Co. v. F. T. 361 948, F.Supp. (D.D.C.1973) (F.T.C. F.D.A.). 952-953 Some independent courts have stressed that should be unique special found in an where or remedies are availa See, Co., ble. g., Burlington e. So. v. Vermont Electric Power 438, 443, 19, (Sup.Ct.1974); 133 Vt. 344 A.2d 21-22 Umberfield 11, v. Archuleta La Cty. & Plata School District No. 185 Colo. 165, 171-172, 730, 522 (Sup.Ct.1974); Oregon P.2d 734 City Ass’n, Oregon 27, 36-37, Teachers Fed’n v. City Or.App. Ed. 36 584 (Ct.App.1978); P.2d 309 see v. Cty. also Seitz Duval Bd., (Fla.Dist.Ct.App.1977), School So.2d cert. den. (Fla.1978) Comment, (Florida PERC); 354 So.2d 985 “Applica Jurisdiction,” Agencies tion of Res Judicata to with Parallel Umberfield, (1975) Den.L.J. 595 (analyzing supra). As for our state, principle Attorney own this is here claimed General Hearing be illustrated such cases as In re Tenure Grossman, N.J.Super. 13 (App.Div.), certif. den. 65 N.J. 292

This court recognized has nevertheless there are important goals to be prudent achieved from the and selective application proceedings administrative of such doctrines as res judicata, estoppel, collateral single and the controversy rule. Hinfey Ed., Reg. Matawan Bd. of supra, 77 N.J. at 532. See Lubliner Bd., v. Paterson Beverage Alcoholic Control 33 N.J. 32 Russell v. estoppel); collateral

428, (1960) (res judicata and (1959) (res judica N.J. 65-66 Tenafly Adjustment, Bd. of 99, 109 Industries, N.J.Super. Sagner, v. Inc. ); Trap Rock ta (res (1976) 69 N.J. 599 a divided court aff’d (App.Div.1975), doctrines). also estoppel and kindred collateral judicata, Hinfey In v. Nolan, 198-199 68 N.J. Skulski Ed., achieving these spoke of supra, we Reg. Bd. of Matawan comity,” viz: of “administrative goals terms sibling agencies are and deference to [The] principles comity part charged overseeing fundamental of administrative tribunals responsibility and activities that are also the concern manifold complex appropriate statutory governmental of other bodies. This is a [Citations omitted.] corollary applica- that where a court has concurrent, tion the broader discretionary principle jurisdiction agency, with another court or an administrative the decision to exercise vel non should be to the fully responsive competence, and status of the other tribunal. and expertise [Citations omitted.] Comity cognate designed deference to tribunals are to assure that a or its controversy, most critical will be resolved the forum or on a facets, which, body compara- virtue of its administrative status, tive is in the best scale, statutory position by regulatory adjudicate the matter. N.J. at [77 competence expertise 531-532.] previously We alluded to underlying principles of our modern constitutional government structure of that have result- strong ed in a and centralized executive. As a matter of generality, legislative enactments in the administrative area presumably reflect organic theory this of our government. state Hence it is consistent with this constitutional philosophy to apply to agencies, appropriate situations, administrative judi- cial rules intergovernmental conducive to compatibil- the ends of ity and harmony, judicata, estoppel, such as res collateral single-controversy doctrine the like. Decisions have policy stressed that the support judi- considerations which these cial namely, finality repose; prevention of need- doctrines — litigation; less duplication; avoidance of reduction of unneces- sary conflicts, burdens of expenses; time and elimination of uncertainty; confusion and and basic impor fairness —have an place See, tant in the administrative g., Hinfey field. e. v. Ed., Reg. Matawan Bd. of id. at 532. also United States v. Co., 394, 422, Mining Utah Construction & 384 U.S. 86 S.Ct. 421 — 1545, 1559-1560, 642, (1966); 16 L.Ed.2d 660-661 Pettus v. Airlines, Inc., 627, American (4 1978); 587 F.2d 628-629 Cir. States, 1311, (7 Bowen v. United 570 1978); F.2d 1322-1323 Cir. Transport Chauffeurs, Paramount Sys. Helpers, v. Teamsters & 150, 1064, Local (9 1971); 436 F.2d 1065-1066 Cir. Safir Gib son, 137, 432 (2 1970), 850, F.2d 143-144 Cir. cert. den. 400 U.S. 57, (1970); 38, 91 27 S.Ct. L.Ed.2d 88 Painters Dist. Coun. No. Edgewood Co., 1081, (5 Etc. v. Contracting 416 F.2d 1084 Cir. 1969); Equalization, 689, Gale v. Board of Cal.App.2d State 264 Cal.Rptr. 469, (Ct.App.1968); Davis, K. Administra tive Law (1976 Note, Treatise 18.02 at 427 Supp.); § “Adminis trative Estoppel: Subpoenas,” Collateral The Case of 87 Yale Comment, L.J. (1978); 1250-1253 “Application of Res Judicata Agencies Jurisdiction,” with Parallel 52 Den.L.J. 595 (1975) Umberfield, (analyzing supra). Sewall, supra, Cf. (discussing Ind.L.Rev. at 472—474 the permissibility overlap Note, ping agency jurisdiction); Effect,” “Preclusive supra, 64 Iowa L.Rev. 339. It principles, seems evident that such while judicial basically origin, especial have relevance for adminis adjudications. trative hand,

Focusing upon appeal principles at these should have been invoked in stages this case at the earliest of the dispute, as well as in phases; they its terminal should have been applied only not to resolve the controversy parties between the but also to avoid the collision between the two tribunals. PERC, in exercising its discretion proceed whether to or not in matter, governed should have been by these considerations. Its first concern should have been whether or not the common agencies, issue before both here practice, the unfair was either major dispute dominating the sole or issue in or a issue in the sense that its determination would have served either to moot dispute have substan- remaining or to affected questions PERC factor which important Another tially their resolution. in- allegations clearly have was whether the weighed should beyond which extended important volved issues interests was A for PERC further consideration parties. the immediate bal- clearly issue was severable from the whether common non-du- permitted have controversy would thus ance inquiry A legal related plicative factual and determinations. vindicated, claims, if ultimately have whether should been particularized re- required specialized or obviously would have agency. relief in the other generally medial not available key a further considera- single-controversy doctrine constituted fairly, tion, e., could i. the common issue have been whether together with and competently fully adjudicated tried and and in the one part a of all other issues case before as constituent fragmented repetitious so actions would that and avoided, and the contro- all relevant concerns addressed entire Tevis, 79 single proceeding. Cf. Tevis v. versy concluded in a (1979). N.J. standards, that, applying

We these broad are satisfied stages should the of the stayed PERC have hand at threshold presented multiple presented controversy case as to it. The here agen involving statutory and mixed the concerns of both issues Nevertheless, basic involved civil dispute primarily cies. the firefighters service law. The here claimed be entitled fitness, service of promotion by under civil virtue merit and by their on part performance promotional demonstrated in the Pringle examinations under service. Cf. v. N.J. conducted civil bias Dep’t, 45 N.J. 329 The anti-union Civil Service sole, was charge major, dominating not the or issue. issue, moreover, relating factual were the circumstances to this proceedings same as in the and the those raised civil service charges pertaining inseparable. facts to these were Additional suggested was not outset case that ly, it shown or at the of the any important interests other than those the immediate Nor, in terms of broad remedial parties implicated. were the Commission, appear it that powers Civil Service did sought by inadequate. as the claimants would have been redress Finally, a the there was substantial likelihood that entire contro- versy fairly by been and fully could have heard the Civil Service single expertise proceeding Commission a sufficient competence genuine including to account for all concerns those practice charge. short, In by occasioned the unfair labor we politic conclude that the proper it would have been course at proceedings outset of for stayed the these PERC to have its own hearings the had until after Civil Service Commission reached determination in the matter. PERC, however, by

Such did not in fact abstention hearing upon a full complaints occur. There was before PERC, argues parties which now that neither it nor should have been determina bound Civil Service Commission’s hearing tion. PERC contends that the Civil Service Commission squarely prejudice not did address issue anti-union as and, further, practice fully unfair that did not parties litigate reject argument this We this for the issue. same Appellate Division, expressed by reasons as which deter mined, proceedings on the record of the before the Civil Service Commission, prejudice good “the issue of or lack faith fully litigated due to union fairly activities was formal, parties in a at proceeding.” N.J.Super. adversarial court, 30, 187, 29-30. That id. at A.2d 392 found these reasons estoppel apply parties sufficient to collateral to bind to the by the factual determinations reached Civil Services Commis sion, Texaco, citing supporting authority Operative as Inc. v. 685,AFL-CIO, Union, Plasterers and Masons Int’l Local Cement 1091, 721, 1973), (5 472 F.2d 594 cert. den. 414 94 Cir. U.S. S.Ct. (1973); 38, 38 L.Ed.2d 548 International Wire v. Local Int’l Workers, (6 1973), Brotherhood of Elec. 475 F.2d 1078 Cir. cert. 63, 867, (1973); den. 414 94 L.Ed.2d U.S. S.Ct. 38 86 Paramount Chauffeurs, Transport Systems Helpers, Teamsters & Local 36 Inc.,

150, 1971); Texaco, 170 (9 F.T.C. v. 436 F.2d 1064 Cir. and 137, 147 323, 333, (D.C.Cir.1975), F.2d cert. den. U.S.App.D.C. 517 2939, (1977). 974, 2940, 53 L.Ed.2d 1072 431 97 U.S. S.Ct. contentions that the may In a similar vein noted PERC’s was both factu- wrong decision of the Service Commission Civil PERC asserts that anti-union bias constituted ally legally. promotions to factor in the denial of the a sufficient causative practice justify constitute unfair corrective adminis- not, however, upon appeal called in this trative relief. We are degree of anti-union bias as an to ascertain in what causation govern- practice unfair would serve vitiate otherwise valid Mt. involving public employees. Healthy mental Cf. Bd. actions 274, 568, 575-576, Ed. v. 50 L.Ed. Doyle, of U.S. S.Ct. acknowledge 2d We that PERC makes practice the unfair was argument adjudication that its issue qualitatively to that Service superior of the Civil Commission. Nevertheless, Appellate we with the Division that concur every respect. service supportable civil determination was 29-30, moreover, N.J.Super. There was at 392 A.2d 187. no from appeal the final determination of the Civil Com Service mission; legal adequacy of its factual and is thus the conclusions directly challenged. not here genuinely or appeal, dealing comparative with this of the On facet significance adjudication, it is of quality of agency’s each 1978, 67; may seq., c. 52:14F-1 et legislation, L. N.J.S.A. recent consideration in far to this concern as a substantial go remove The act creates an sorting conflicting jurisdictional out claims. provides Law for independent of Administrative Office officers, “ad- denominated independent hearing assignment of make recommended deter- to hear and judges” ministrative law administrative cases. N.J.S.A. minations in contested 52:14F-5, “is to -6, salutary purpose statute -8. justice respect administrative improve quality for ...[,] to eliminate conflict interests hearings process, expedite just conclu- officers, due hearing promote sion of cases and generally improve quality contested justice.” Purpose, administrative Statement of L. c. 67. judges law independent The administrative will be of the admin- agency judge istrative whose is involved. as- signed expertise, to case have the presumably a contested will training and knowledge, background him or her to qualify to preside When, particular over the case. 52:14F-6. as N.J.S.A. case, multiple in there present implicat- are involved issues ing domains, different administrative disciplines or the statute designation contemplates the of an individual administrative law judge, “who may appointed,” or another with specially special qualifications commensurate the demands of m, anticipated case itself. N.J.S.A. 52:14F-5 -6.1 It is that the findings dispositions recommended administrative judges carry weight law the final will substantial in determina- See, tion by agencies. g., to be made administrative e. N.J.A.C. 19:65-16.5 at 11 N.J.R. 487 While (proposed) PERC is coverage not for agencies expressly one of the included under Act, the new it is Office of Administrative Law obvious that jurisdictional concerns careful given ap- PERC’s would be propriate judge any attention an administrative law con- tested another proceeding before administrative when raised; and, indeed, such concerns PERC itself has the are express assignment power request under the statute to judge any administrative law to hear and resolve of its cases. N.J.S.A. 52:14F-8. every

There is thus reason expect imagined the real or that qualitative gaps process decisional between different apparently recognized cross-disciplinary involving 1it is controversies overlapping jurisdiction may administrative have be dealt with from time proceeding presided single time on a basis in consolidated one over judge. seq. (proposed) administrative law et N.J.A.C. 19:65-1.1 at 11 52:14F-5, (1979); N.J.R. 479-488 N.J.S.A. -6. in the immediate future become agencies will

administrative will become more cross-agency controversies narrower and that by handling single agency proceeding judges to amenable in a adjudica- expertise, range experience, of with a breadth of the with all of ramifications of tory deftness sufficient to deal any of genuine the interests the matter and to accommodate governmental jurisdictional bodies whose nerves are touched. all

IV The instant under circumstances outcome the case all binding effect to determina require would PERC accord the bias the that anti-union was tion of Civil Service Commission appointing factor in author not a substantial the decision deny promotions petitioners. Appellate Divi ity to to the subsequent sion saw fit set aside PERC’s determination on was the earlier ground agency the that bound follow principles under by determination the Civil Service Commission preclusion,” or as well as under the estoppel, of collateral “issue N.J.Super, at single controversy Accordingly, doctrine. 162 31. subsequent the court reversed and set aside the PERC order. result, modify judgment of agree We with that but would the future, that, respect. the court in The court stated in the one appeal as a matter of controversies such that involved in this as initially before PERC rather than before proceed course should have, N.J.Super. We the Civil Service Commission. 162 at 32. however, opinion pointed out this that such controversies the of each discretionary invoke administrative exercise of that appropriate involved and that the discre important tion should with the relevant and accordance expounded. respect ruling In of considerations here this the the is Appellate approved. Division not forth, judgment the reasons set Accordingly, for modified, and, as is affirmed. No costs. court below is modified PASHMAN, J., concurring in result. result, I

While concur in I write exception to take to some majority’s on observations accommodating the overlap- ping jurisdictions two agencies.

With Court, the other members of the I would hold that both the Civil (CSC) Service Commission Employment the Public Relations (PERC) possessed jurisdiction Commission to pass upon charges firefighters. filed agree, I cannot however, that in only some cases one of these bodies should be permitted to jurisdiction exercise that to the exclusion the Rather, other. light of the differing policies underlying the New Jersey Employer-Employee Act, Relations NJ.S.A. seq. (EERA), 34:13A-1 et Laws, and the Civil Service NJ.S.A. seq., aggrieved et 11:1-1 employees always should be entitled to obtain redress from either agency. They may proceed therefore bodies, before although they both may relitigate not factual issues that have by been resolved agency. one case,

In present the CSC as found a fact that the failure to promote Sarapuchiello Krejsa by was not motivated anti-un- ion sentiment. This determination was identical to the factual question presented by pending the complaint. PERC The fire- fighters were estopped therefore from relitigating this issue before adjudication PERC. PERC’s Since of an employer unfair practice and the remedy granted it firefighters predi- were upon finding cated bias, of anti-union both must be vacated.

I upon the pass to jurisdiction possessed Both PERC and CSC Sarapuchiello challenged. here municipal actions validity of solely because promotions they were denied Krejsa claim union activities. See participate right to their they exercised true, 19; If 34:13A-5.3. N.J.S.A. I, (1947), par. N.J.Const. Art. practices. employer unfair clearly constitute would the denials to the amendment Through an (3). 34:13A-5.4(a)(l), N.J.S.A. 1, Legislature vested PERC 123, EERA, L.1974. c. § practices.1 unfair remedy such prevent to power” “exclusive of Educ. v. Gallo- Galloway Tp. Bd. 34:13A-5.4(c); see N.J.S.A. Benev. 25, Ass’n, (1978); Patrolmen’s N.J. way Tp. Educ. pos- PERC (1976). Thus Montclair, 70 N.J. Ass’n firefight- charges by filed to resolve jurisdiction sessed ers. challenge to the firefighters’ power

The to entertain delegated to Discrimina- municipal conduct has also been CSC. in union activities is upon participation tion an individual’s based and therefore an illegal employer,” conduct “arbitrary and municipality’s ac- aggrieved employee may seek review of Evergreen Pk. Burlington Cty. Mental tions before CSC. See Legislature’s Cooper, 56 N.J. 583-585 Hosp. v. practices to PERC did not grant over unfair pass upon complaints. such power divest CSC of its N.J.S.A. explicitly provides: 34:13A-5.3 rights Nothing individual his herein shall be construed deny any employee regulations. under Civil Service laws or allegedly arbitrary that of review of rights Those include CSC authority. a local 11:25— employment decisions See N.J.S.A. 1; 4:1-5.1 to -5.16. N.J.A.C.

II Having pos that both and PERC correctly concluded CSC jurisdiction firefighters’ complaints, hear the the ma sessed to Educ., jority upon Hinfey Reg. relies v. Matawan Bd. of 77 N.J. (1978), agencies 514 to determine which of the two should have holding in response this Court’s made in grant was 1The of (1970), Cooper, Hosp. N.J. 579 56 Cty. Evergreen v. Burlington Mental Pk. L.1968, act, original 303. See c. power the under lacked such that PERC 25, Ass’n, 33 Galloway Tp. 78 N.J. Educ. Galloway Tp. Educ. v. Bd. of

41 jurisdiction. exercising abstained from any reliance is Such misplaced. By assuming only agency one have should ruled upon firefighters’ charges, majority the the has overlooked the Legisla- solution that is most in with the keeping intent of possess ture: that PERC and CSC concurrent and non-exclusive jurisdiction. pass upon municipali- Both can the legality of the ty’s pertinent actions. one find a violation law Should of to its expertise remedy, complainants order a would be remedy regardless entitled to that of the reached by result other agency.

"A goals Although underlying EERA and Civil Ser- vice Laws complementary, they respects are are not in all EERA, practice provisions identical. The unfair see 34:13A-5.4(a)(l)-(7), N.J.S.A. intended to public are insure that restrain, employers do not or employees coerce interfere with in rights join exercise of their and statutory constitutional (1947), negotiate I, unions and collectively. N.J.Const. Art. 19; par. 34:13A-5.3, goals -5.4. To reach these N.J.S.A. Legislature PERC, possesses public expertise vested which relations, employment power” to with “exclusive determine practice whether remedy any an unfair has occurred and to such illegal 34:13A-5.4(c); at supra conduct. See 39-40. N.J.S.A. designed Laws protect Civil are not the associ Service rights public ational employees. legislation specifical This is ly public intended to secure efficient service in state and local government. See, g., Cty. e. Mastrobattista v. Essex Pk. Comm’n, 138, (1965); Campbell Dep’t 46 N.J. 145 Civil Service, 556, (1963); 39 N.J. Prosecutor’s Detectives and Investigators Freeholders, Cty. Ass’n v. Hudson Bd. of Chosen den., 41-42 N.J.Super. (App.Div.1974), certif. N.J. 330 (1974); Service, v. Dep’t N.J.Super. Newark Civil 424-425 (App.Div.1961). objective, perma To achieve this all service, nent appointments including promo- the classified 42

tions, by competitive based merit as determined must be on N.J.Const., VII, Art. practicable. examinations wherever 2; 11:4-2, 1, permanently :21:3 & par. N.J.S.A. :22-30. Once § “just employee except cannot be removed for appointed, an charges and a cause” written notice of determined after Belleville, authority. See Handlon v. 4 hearing before the local 99, (1950); Investigators Detectives and N.J. 106 Prosecutor’s 11:22-38; Ass’n, 42; N.J.A.C. 4:1-16.- N.J.Super. 130 at N.J.S.A. appoint is thus to insure that 8(a). main task of the CSC “merit fit grounded upon the promotions ments and are VII, 1, 2, (1947), par Art. rather principle, ness” see N.J.Const. § See, Mastrobattista, g., e. N.J. than considerations. 46 arbitrary 583; 145; 39 at Prosecutor’s Detectives and Campbell, at N.J. 41-42; Ass’n, at N.J.Super. Dep’t 130 Newark v. Investigators Service, N.J.Super. at 424. of Civil 68 public employment decisions for and CSC review

Since PERC pass upon must allowed to both bodies be purposes, different respective statutory allegedly which contravene their actions necessary insure that the local hearing A is schemes. CSC A principle. not “merit and fitness” authority did violate the local hearing necessary is to determine whether PERC See, g., e. employer practice. unfair authority committed an Comm’n, 392, 365 Mass. 312 Relations Town of Dedham Labor City Albany Employ v. Public (Sup.Jud.Ct.1974); N.E.2d 548 374, Bd., (App.Div.1977), ment 57 A.D.2d Rel. N.Y.S.2d b., 954, 343, aff’d 404 N.Y.S.2d 375 N.E.2d 409 o. 43 N.Y.2d Co., cf. v. Gardner-Denver 415 U.S. (Ct.App.1978); Alexander 39 L.Ed.2d S.Ct. arguably a of conduct majority’s approach, victim Under might Laws and the Civil violating both the EERA Service stronger and proceed his claims is to decide which of forced would be foreclosed from agency. relevant He thus before the adjudicate particular aspects employer body having each contrast, In expertise. fall its field conduct which within holding agencies that both may jurisdiction exercise would re aggrieved employees difficult, lieve from this unnecessary and premature ruling decision. a permit Such would also each agency unique legislative to fulfill its mandate. It is therefore not surprising that courts analogous faced with this and situa tions have generally opted for jurisdiction. concurrent Co.; Alexander v. Gardner-Denver Carey Westinghouse Elec Corp., tric 375 U.S. (1964); S.Ct. L.Ed.2d 320 Tipler Co., Inc., v. E. I. duPont (6th deNemours and 443 F.2d 125 1971); Cir. Town Comm’n, of Dedham v. Labor supra; Relations City Albany Bd., v. Public Employment Rel. supra. whole, language

Taken as a the of the EERA dictates this Legislature The has power” result. accorded PERC “exclusive practices. 34:13A-5.4(c). to deal with unfair employer N.J.S.A. nothing It has also that contained in the EERA shall ordained deny any employee rights be construed to his under the Civil majority’s reasoning Laws. 34:13A-5.3. Service N.J.S.A. negates provisions. According majority, both to the PERC must in some power” practices surrender its “exclusive over unfair others, employee compelled will to forfeit instances. In be right municipal his review of actions. to CSC jurisdiction Concurrent is not to be merely eschewed because an employee may granted remedy in one forum and denied relief in Contrary assertions, the other. majority’s the such results necessarily would not adjudica- constitute “inconsistent” tions. A by dismissal PERC of employee’s charges, for instance, would only demonstrate that employer did not violate the It EERA. would not establish employer’s that keeping conduct was in with the Civil Laws. If Service munici- pal statute, conduct violates either the employee is entitled to some form of redress. If relief is deemed warranted both agencies, later granting relief could structure its order to avoid employee windfalls. practical would avoid

Finally, concurrent attempt agencies to follow when other that will ensue problems body is majority opinion. When a in the precepts announced statutes arguably which violates conduct upon called examine it first majority states agencies, administered other defer- regarding “comity and findings preliminary must make words, own ence,” majority’s In the Hinfey, 77 N.J. at 531. include these determinations agencies, not both whether or the common issue before here the unfair practice, major dominating in or sense was either the sole or issue a issue in the dispute remaining that its determination would have served either to moot the questions in or to affected their resolution. A further consider- have substantially dispute from the ation whether the common issue was severable [would be] clearly balance of the and would thus have controversy permitted non-duplicative legal related factual and determinations. A whether inquiry [would be] if would have or claims, vindicated, specialized ultimately obviously required * * generally agency. in remedial relief not available the other particularized whether the common issue have further consideration could [A] key [would be] adjudicated together tried and and as a been fully fairly, competently agency so that constituent of all issues in the case before one other part

fragmented be concerns avoided, actions would all relevant repetitious single proceeding. entire concluded in a at addressed controversy [Ante (citations omitted)] may situations highly subjective, are Because these assessments retain or, agency will yet worse arise in which both — —neither matter, adjudicates body one jurisdiction. Even if time-consum- intricate and threatens to be more majority’s test agency renders Even after an hearing on merits. ing a than it decision, may later determine that a preliminary this court ultimate resolution.2 delaying the erroneously, further acted recognizes, created Office majority at the recently see ante 2As the not does seq., 52:14F-1 et L.1978, c. N.J.S.A. Law, see Administrative judge assign single hear law evidence a administrative have the power N.J.S.A. and PERC. regarding both CSC which involves controversy majority’s attempt to apply the theoretical framework established in is Hinfey unconvincing. That case decided which agencies of two should complaints entertain charging violations subject of the same matter —sex in public discrimination school present case, curricula. Unlike the challenged the conduct Hinfey would have been scrutinized with legal identical stan- dards Rights either the Division on Civil or the Commissioner Compare Education. Hinfey, (standard N.J. at 523-524 under Law Against Discrimination) with 77 N.J. at 525-526 (standard laws). under education fitting It was therefore parties in Hinfey required were to appear only before the Commissioner who possessed greater expertise combatting public discrimination in schools. id. at 532-533.

Ill I agree majority with the that it would wasteful of time and agency if employees relitigate resources were allowed to before one body factual issues that had been decided another II, agency. however, For the in reasons stated Part it would be by prohibiting unwise to solve this problem employee an from Rather, appearing agency. than before more one an employee should be precluded simply relitigating from factual issues passed which were a upon previous hearing. at Since determi nations of questions by these factual agency adequate either are purposes other, for the there is no need to consider application of the subtle “principles comity of and deference to agencies.” sibling Hinfey, 77 N.J. at 531.

To determine which of two equally competent tribunals should proceed first, a rule of convenience and efficiency pre- should 52:14F-8(a). possibility joint hearings While the exists for with PERC’s consent, id, equally Legislature see it is that the has failed to insure clear against unnecessary hearings. redundant and proceed in the order simply involved should agencies The vail.3 agency would complaints were filed. The second which in in the stay proceedings its until the jurisdiction but hand retain this Simple application, its agency first have terminated. which claim aggrieved employee to choose permit an rule would “race to any inter-agency and present to first avoid he wishes whether a violation agency would determine judgment.” Each on found the first its law had occurred based facts own make hear evidence and agency second could also agency. The that were not to matters supplemental findings as factual proceeding. actually the earlier decided case, as a the failure to present In the CSC found fact was not motivated anti-un- promote Sarapuchiello Krejsa was finding supported by ion This substantial credible animus. firefighters estopped from Consequently, evidence. were relitigating the anti-union issue before PERC. completely bias was promotion pay predicated PERC’s award of and full back upon finding sparked its had that anti-union sentiment finding underlay adjudica- This also its municipality’s actions. practice. judgment employer tion an unfair PERC’s must entirety. therefore be vacated in its SCHREIBER, J., concurring dissenting. statutory on an unwarranted opinion is founded majority an when administra- may court dictate

interpretation that Except for constitutional must not hear matter. agency tive authority to requirements, statutory1 courts do not have opinion, realize, separate his that the I does Schreiber in as Justice Judiciary dictating separation powers from an doctrine of the forbids legislatively agency its dele- when it must decline exercise administrative However, J.) jurisdiction. (Schreiber, gated post that same at 46-48 circumventing prevents application our of collateral from doctrine estoppel adjudicatory I “rule of convenience determinations. offer the application. response efficiency” suggested salutary to such as a agency proc in order an would be when administrative 1Judicial review legisla statutory authority obviously in conflict with essed a matter arbitrary capricious. clearly be action would tive intent. Such prohibit an agency exercising jurisdic- administrative from any majority tion. The has not referred such constitutional statutory or can none.2 provisions and we find

When a statute entrusts an agency administrative with the enforcement of an act and is agency may silent on when that or may proceed, not an likelihood of abuse of discretion is substantially agency process less when the chooses the claim than when it exercises its discretion not to hear the matter. That is because at facially agency charged least the is performing the functions Legislature. entrusted to it Although agency that administrative may under some circum- properly matter, stances decide not to hear a such decision rests agency. with the is Hinfey That what occurred in Ed., (1978). Matawan Reg. However, Bd. 77 N.J. 514 that is far different from preventing a court an agency carrying from its delegated authority out to hear a case. base,

In the absence of a statutory constitutional or this Court no power promulgate procedure has inherent rules of for agencies. The Supreme administrative Constitution vests State, rulemaking power only Court for the courts of the N.J. VI, (1947), par. Const. legisla- Art. not for executive and § implicated tive agencies. Necessarily problem in this is the separation powers. (1947), doctrine of See N.J.Const. Art. 1; Ill, par. Mountain, W. “The Role of Judicial Activism: Purse,” Neither Sword Nor Hall Seton L.Rev. Court, In the case on before statutes are silent when or whether either the Public Employment Relations Commission (PERC) (Civil Service) or may the Civil Service Commission defer action in practice” improper connection with “unfair or majority that, 2The is unsound when it contends when an does not jurisdiction, have deciding exclusive it must exercise discretion whether to depend upon exclusivity hear a case. Its discretion does not subject over the matter. whether, to upon Nor we called decide promotion charges. are statutes, authority either has the respective their under them. process presented such when to to to claims refuse J., Ed., (Schreiber, Reg. N.J. at 536 Bd. of Hinfey v. Matawan and agency here has deferred action both concurring). Neither circumstances, those the claims. Under these processed have issues need not be addressed. different Krejsa Sarapuchiello and asserted two

Petitioners claims, refusal Hackensack both of which arose out promote them the rank of lieutenant. Department to to Fire aspects jurisdiction over different PERC had Civil and Service Recognition dichotomy of the existence this episode. of this understanding to and resolution of the issues is essential this case. agent responsible statutorily designated is the

Civil Service that enforcing obligation promotions for the constitutional according made to civil service status “be employees having ascertained, by as practicable, be as far and fitness to merit examination, which, competitive shall practicable, as as be far VII, par. (1947), Art. 2. See also . . .” § . N.J.Const. instance, public it is the seq. In the first 11:21-1 et N.J.S.A. according merit promote to “only who employer should 40A:14-9.4; fulfilling 11:21-3. In N.J.S.A. fitness.” N.J.S.A. qualifica- weigh must the relative duty public employer written, part results of oral applicants, tions of disclosed in education, of their tests and evaluation performance of fit- experience appropriate other measure training, any 11:21-3; To be factored are 4:l-8.9. ness. N.J.S.A. N.J.A.C. records, employee including annual evaluations. employee’s 4:l-8.4; weighing process no In this N.J.A.C. N.J.A.C. 4:1-20.2. religious given political or affiliations or may consideration 11:17-1; race, origin. opinions, color national N.J.S.A. or or public employee disappointed An N.J.A.C. 4:1-8.10. Civil for its review to may appeal choice Service employer’s promotion predicated assure that has been on merit and fitness. hand, Legislature

On the other has vested PERC with jurisdiction to public determine whether a employer has been of guilty against regard discrimination an employee “in to hire or tenure of employment any or or employ term condition of encourage discourage ment to or employees in the exer [so as] rights cise of the guaranteed to them the [by PERC statute].” N.J.S.A. 34:13A-5.4(a)(3). guaranteed right One such is the right join N.J. employee’s organization. to a assist labor 34:13A-5.3; S.A. N.J.Const. I, (1947), par. Art. 19. Violation of right that an N.J.S.A. 34:13A-5.- practice.” constitutes “unfair 4(c). provides The statute also “shall PERC have exclusive power prevent ... to anyone engaging from any in practice” unfair and that may, upon finding PERC a of practice,” “unfair public employer order to cease and desist practice from that such “and to take reasonable affirmative action as policies” will effectuate Jersey the New Em Relations Act. N.J.S.A. ployer-Employee 34:13A-5.4(c). These repose jurisdiction statutes Civil Service and PERC over different legal issues. Civil concern Service’s is whether an promoted individual has been on the basis merit and fitness. PERC, hand, on on prac- the other focuses whether an “unfair has tice” occurred.

When Civil determines promotion Service whether a was weighs it proper, factors which may not be identical with those inquires that PERC into practice” inquiry. “unfair Civil course, may, Service deciding examine anti-union animus in employee’s promotion whether an was denied on the basis of However, some reason other than merit and fitness. considera- tion of the existence of an anti-union animus does not mean that has authority Civil Service to determine whether or not an practice” “unfair N.J.S.A. 34:13A-5.4 has as defined in been public employer. committed for problem That is PERC. To hold otherwise would entrust to Civil Service the formulation clearly result which would practice” of “unfair of standards —a vesting with the legislative purpose of PERC contravene practices of unfair labor authority fix standards and criteria or classified public employees, whether not applicable all Comm'n, v. Labor Relations under Civil Service. See Dedham (Sup.Jud.Ct.1974). The uniform Mass. 312 N.E.2d 548 having law and the benefit of statutory of the PERC application interpret apply it is to specialized agency whose function Comment, “Application of Res that statute would lost. See Jurisdiction,” 52 L.J. Agencies Denver Judicata to with Parallel to Civil applies A rationale also Service’s similar Legislature has employees. of civil service promotions over duty determine to Civil Service expressly delegated proper based on promotion was ultimately whether process of applied is to be in the expertise Its merit and fitness. respective determine the balancing factors which the several Although promotion. PERC for qualifications of the candidates prevent public a power to exclusive delegated has been practice,” N.J.S.A. any “unfair engaging from employer for PERC to determine 34:13A-5.4, power authority is not that promotion a because employee a civil service merited whether superior and fitness. merit mandates, statutory Civil Service exercising

In their different determining In conflicting conclusions. reach may and PERC promotion the basis has been denied a on whether an individual conclude, here, fitness, as it did may Civil Service of merit hand, in a the other was not factor. On that anti-union animus occurred, has PERC» practice” determining whether “unfair conclude, here, passed were over petitioners did that may as it activity. of their union Given promotions for because framework, con- procedural such legislative scheme and present undesirable, flicts, although will occur. administering agencies findings

When factual of different conflict, upheld respective those have statutes courts different In legal not identical. issues are findings, recognizing that

51 Tipler Co., 125, 128-129 (6 v. E. I. duPont deNemours 443 & F.2d 1971), Equal Employment Opportunity Cir. Commission had found employee there was reasonable cause believe an had been discharged employee because of race and the instituted a against upon suit his employer predicated violation of Title VII 1964, Rights 42 seq. Civil Act of U.S.C. 2000e et §§ maintainable, held notwithstanding Court the suit was the fact rejected previously that the employee’s NLRB had claim the same racial discrimination constituted an unfair labor practice. The court ground bottomed decision on the that the statutes, Rights Title VII of the Civil Act and the National Act, Labor purposes Relations had different and demanded separate inquiries.

See also Co., NLRB v. Pacific Express Intermountain 228 F.2d (8 1955), 170 952, Cir. cert. den. 351 U.S. S.Ct. L.Ed. (1956), holding NLRB entitled to practice rule on unfair despite holding by the Industrial Commission of Missouri that cause; plaintiff discharged had been for Lane v. Railroad Bd., (6 Retirement 1950), 185 F.2d 819 Cir. where the decision the Railroad Retirement plaintiff Board that did not have an employee status with a railroad under the Railroad Retirement 29, 1935, Act August on upheld despite was prior determina tion by the National Adjustment Railroad plaintiff Board that had an employee status with the same railroad on that date Act; under the Railway Labor Thompson Flemming, F.Supp. (D.Or.1960), 125-126 wherein a finding by the Veterans Administration disability plaintiff’s preventing en gaging “substantially gainful employment” binding held not Security on Social Administration which plaintiff found able to engage in gainful activity”; “substantial Albany v. Em Public Bd., ployment 374, Relations 57 A.D.2d 395 (App. N.Y.S.2d 502 Div.1977), 954, 404 343, 375 aff’d o. b. 43 N.Y.2d N.Y.S.2d N.E.2d 409 (Ct.App.1978), holding that Employment Public Rela tions Board had over practice charge an unfair labor 52 although Commis- employee’s discharge

of Civil Service public pending under a involving the same event were proceedings sion Law; of the New York Civil Service Dedham different section 392, Comm’n, v. 365 Mass. 312 N.E.2d 548 Labor Relations holding the Massachusetts (Sup.Jud.Ct.1974), that decision of Commission, confirming suspension a for insubordi- Civil Service the Civil Act employee nation a classified under Service cause,” binding “just was was not on Massa- because there proceedings Board in before it chusetts Labor Relations episode the same constituted unfair labor decide whether Contra, Airlines, Inc., 587 627 practice. Pettus v. American F.2d (4 1978), docketed, 883, 172, appeal Cir. 444 100 62 U.S. S.Ct. v. (1979); Springs 112 Colorado Coach Co. Colorado Civil L.Ed.2d Comm’n, 378, (Ct.App.1975), 536 837 Colo.App. 35 P.2d Rights 1420, den. 424 47 L.Ed.2d cert. U.S. S.Ct. of collat- apply principles not need agency An administrative is estoppel collateral judicial proceedings, estoppel. eral Even pro- when the first particularly applicable, automatically not Restatement, Judgments trial. full ceeding not involved a has Allen, N.J.Super. (1975); Reardon Tentative Draft 2d § judicial and adminis- Div.1965). Distinctions between (Law treating the reasons for not proceedings accentuate trative which first determines administrative opinion capaci- quasi-judicial act in Agencies at best as conclusive. facts findings, evidence their ties; apply rules of they need not evi- competent necessarily rest on may not challenged, unless party subpoena dence; including right of a discovery, available, so that material, been may not have witnesses and present all relevant ability had the not have party may matter. material

Additionally, application estoppel by of collateral the Court letter, spirit, this case if not the contravenes N.J.S.A. 34:13A-5.4(c), providing pow- that PERC “shall have exclusive prevent practice. anyone engaging er” to from in an unfair

53 (emphasis supplied). That is exclusivity effectively read out of the statute binding PERC with Civil fact finding. Service’s The majority seems to contend the language that in N.J.S.A. 34:13A-5.3, “[njothing herein shall be deny construed to to any employee right individual his under Civil regula- Service laws or tions,” eviscerates grant to PERC “exclusive” authority. 5.3, however, in language § a addresses much narrower and different concern. Its was purpose to insure the designa- that tion of a majority representative by group of civil service employees interpreted would not a way in which would strip employee individual of his civil right promo- service have to hiring tions and based on merit Adoption and fitness. subse- quently of 34:13A-5.4(c) response N.J.S.A. judicial to a deter- mination that PERC lacked the power enjoin to and remedy practices unfair labor indicates the legislative intent that these provisions were to serve different purposes. Burlington Evergreen Pk. Cty. Hosp. Mental Cooper, 56 at N.J. 579 would, course, It have been desirable for Service Civil consider on findings opinion the PERC the issue anti-un- any, promotion animus if in the relationship, ion and its causal subsequent process. Though the PERC action occurred to the order, to consider the opportunity Civil Service PERC deci- if, petitioners’ request upon been or on sion would have available motion, reopened and own Civil had reconsidered the Service matter. Cf. In re Intercontinental Radio Inc., ^[1975] 34 very procedure n. Rad.Reg.2d (P-H) 2. This was the Burlington Cty. Ever- which this had recommended Court (1970). There Hosp., Pk. Mental N.J. green no provisional employee had stand- Service, holding a Civil claim, rejected as- discharge, had her ing question her union because of activi- serting discharged that she had been sought We held thereupon ties and she relief from PERC. that wrong (N.J.S.A. remedy PERC had no enacted), not been Service had 34:13A-5.4 had but Civil proceedings the and consider whether power reopen to inherent I, (1947), Art. rights, N.J.Const. employee’s the constitutional 34:13A-5.3, organize statutory rights, par. N.J.S.A. been join unions had violated. findings of PERC and Civil Ser- Though factual inconsistent not, coexist, least to the respective may their orders at may vice petitioners ordered that they extent that conflict. PERC has pay and Civil has promoted with a back differential Service others, petitioners, promo- were entitled to the found that not tions. the promotion

The is whether the was made on broader issue public employer of merit and fitness —not whether basis Service, practice.” Civil of necessi- committed an “unfair Since and fitness of all candi- ty, had to consider the relative merit dates, question than of decisionmaking involved more promotions of anti- petitioners whether did not receive because circumstances, part PERC’s these union animus. Under promotion pay yield back should remedy ordering the expertise respect promotions. overall Civil Service’s finding practice” of an is This is not to that PERC’s “unfair say imposed other do not unfounded or that it which sanctions promotion previously should remain intact. As affect not noted, an PERC has to hear and decide whether occurred, practice” “unfair not Civil Service. occurred in comparable

A situation Seitz Duval somewhat Board, Cty. (Fla.Dist.Ct.App.1977), cert. School So.2d 644 (Fla.Sup.Ct.1978), den. 354 So.2d 985 where school board’s upheld, though dismissal of school was a tenured teacher unfair practice charge had under the teacher filed labor The held it was Employees Florida Public Relations Act. court “foreclospng] not PERC’s claim that the consideration Seitz’ PERA, Board, by right by her a secured denying substantive practice committed an unfair labor which should be remedied at by (emphasis otherwise than reinstatement.” 346 So.2d supplied). subsequently found an unfair The Florida PERC order, practice. labor It issued a cease and desist but did not order Cty. [1978], reinstatement. Seitz v. Duval Bd. School 40,538 (CCH) (Fla. PERC). ¶ Pub.Emp.Barg. prevail

Which administrative should signifi- involves a cant policy judgment which should be Legis- determined In express language implica- lature. the absence of in or clear statute, tions from legislative courts should defer to action. complete remedy Legislature. rests with the It has made step in one this direction. Contested cases before most adminis- agencies trative being are now held administrative law judges in the proposed Office Administrative Law. Under regulations office, of that arising contested cases from different agencies engaged executing administrative different statutes involving but common questions factual will be consolidated for purposes hearings of and findings. N.J.Reg. (1979) (to be 19:65-14.1). codified in N.J.A.C. proceedings Such should re- duce, eliminate, if not among conflicts between and administra- agencies charged tive with enforcing laws which have overlap- ping subject matter. Although subject PERC is not to the hearing requirements Law, of the Office of Administrative it may voluntarily jurisdiction. submit to its N.J.S.A. 52:14F-8. use procedure encouraged PERC’s of this should be in all situa- jurisdiction tions phases episode where over of the same are lodged in agencies. other administrative

I have three other substantial difficulties majority with the First, opinion. the majority agency would have one hear the case to the depending major exclusion of the other on the or dispute. dominant issue in This generally test cannot as a practical applied produced matter be until the evidence has been allegations evaluated. Reliance on the of in parties the pleadings agency whatever may require will more often than Further, not dominating obscure the may issue. there be more major than one in dispute, issue one appropriately more within jurisdiction PERC’s and the other within Civil Service’s. The dominant issue in relation operative may to the event not be fully developed proceedings the evidence is known until agencies. before both charge practice suggests that if an unfair majority also public significance,” of “wide PERC’s

involves issues 1158). Here agency. (At of that another supersede should put to may being which arise are problems of again types all employee the adequate consideration. Should rest without of rights his or her before another because deprived of the of decision PERC? What are precedential the effect significance”? guidelines public of “wide City’s that Lastly, in the instant case PERC determined promote discipline refusal motivated a desire to were activities, City’s labor that petitioners because their pretextual, and that for the were stated reasons refusals unfair primary or cause. The anti-union animus was the sole major complaint, under practice being the sole or PERC labor jurisdic- majority have exclusive espoused by one test would majority’s (at 1158), it is foreclosed because of yet tion which PERC had application estoppel principle of collateral —a rejected. expressly conclusion, denial of enforcement

In I would affirm the directing promotion petitioners award- PERC’s order ing pay. them The remainder of the PERC order should be back affirmed, namely City cease and should henceforth discriminating regard desist from to terms and conditions employment activity City post on and that the the basis of union appropriate notify compliance forms PERC of notice its order.

Accordingly judgment Appellate Division should part. part affirmed in and reversed in J., PASHMAN, concurs in result.

For modification affirmance —Chief Justice HUGHES MOUNTAIN, SULLIVAN, PASHMAN, and Justices CLIF- FORD and HANDLER —6. part part

For and reversal affirmance —Justice SCHREIBER —1.

Case Details

Case Name: City of Hackensack v. Winner

Court Name: Supreme Court of New Jersey

Date Published: Jan 22, 1980

Citation: 410 A.2d 1146

Court Abbreviation: N.J.