GALLOWAY TOWNSHIP BOARD OF EDUCATION, RESPONDENT-RESPONDENT, v. GALLOWAY TOWNSHIP EDUCATION ASSOCIATION, CHARGING PARTY-APPELLANT.
Supreme Court of New Jersey
Argued March 7, 1978—Decided August 1, 1978
78 N.J. 25
Mr. Sidney H. Lehmann, General Counsel, argued the cause for appellant Public Employment Relations Commission (Mr. Lehmann and Mr. Don Horowitz, Deputy General Counsel, on the brief).
Mr. James P. Granello argued the cause for respondent (Messrs. Murray, Meagher and Granello, attorneys; Mr. Robert J. Hrebek, on the brief).
Messrs. Pellettieri and Rabstein submitted a brief on behalf of amicus curiae New Jersey State AFL-CIO (Mr. Ira C. Miller, on the brief).
The opinion of the court was delivered by
PASHMAN, J. Two significant questions concerning proceedings before the Public Employment Relations Commission (PERC) involving unfair practices as defined in the New Jersey Employer-Employee Relations Act (the Act), L. 1968, c. 303, as amended by L. 1974, c. 123,
The Galloway Township Education Association (the Association), the majority representative of the teachers employed by the Galloway Township Board of Education (the Board), filed an unfair practice charge against the Board with PERC in September 1975. See
On November 10, 1975, PERC issued a formal unfair practice Complaint and Notice of Hearing. See
On April 13, 1976 counsel for the Board submitted a letter to PERC advising it that the parties had reached a tentative settlement on a new collective agreement for the 1975-1976 school year which would provide for the retroactive payment of salary increments based on a new salary guide. The Board therefore requested PERC to dismiss the unfair practice proceeding as moot.
PERC did not accede to this request and on April 28, 1976 issued its decision and order determining that the
(a) Interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed to them by the Act;
(b) Refusing to negotiate collectively in good faith with the Association concerning the terms and conditions of employment of the teachers;
(c) Unilaterally altering, or threatening to unilaterally alter, terms and conditions of employment of its teachers during the course of collective negotiations with the Association.
PERC directed the Board to take the following affirmative action, which it determined to be necessary to effectuate the policies of the Act:
(a) Upon request, negotiate collectively in good faith with the Association concerning the terms and conditions of employment of its teachers;
(b) During the course of collective negotiations with the Association, pay its teachers [the withheld] increments pursuant to the 1974-1975 salary schedule;
(c) Pay its teachers the monetary difference between the amounts they would have received had their increments not been unilaterally withheld, and the amounts they were in fact paid since the commencement of the 1975-1976 school year;
(d) Post at its central office building copies of a notice to employees prescribed by PERC for 60 days;
(e) Notify PERC of its steps taken to comply with the PERC order.
The Board filed a notice of appeal from PERC‘s decision and order to the Appellate Division. PERC thereafter filed
In its decision, the Appellate Division never reached the merits of the unfair practice issue. 149 N. J. Super. 352 (App. Div. 1977). In its brief unanimous opinion the appeals court held that the successful negotiation of a new collective agreement between the parties rendered the entire matter moot. It consequently ruled that PERC had exceeded its statutory authority by making an adjudication in the unfair practice proceeding after the agreement had been consummated. The court noted its agreement with the Board‘s contention that PERC should have declined to make a ruling in the case and dismissed the unfair practice complaint based on a refusal to negotiate “by reason of a voluntary negotiated agreement between the parties.” 149 N. J. Super. at 354. The court reversed PERC‘s decision and directed PERC to vacate its order.
Both PERC and the Association unsuccessfully sought a rehearing before the Appellate Division. Petitions for certification filed by those parties were granted by this Court. 75 N. J. 29 (1977). We permitted the New Jersey State
PERC requests this Court to enforce those aspects of its remedial order which it continued to press in its cross-application before the Appellate Division. PERC withdrew the portions of the order which mandated payment of the withheld increment and collective negotiation with the Association. Thus, enforcement is sought only of the cease and desist orders and the order to post notices which were not abandoned below.
I
A preliminary matter to be considered is the propriety of PERC‘s participation as an advocate in appellate proceedings considering the enforcement of one of its orders. We view the Appellate Division‘s concern with this issue to be unfounded in light of the statutory structuring of PERC‘s role in unfair practice proceedings.
PERC is an administrative agency with regulatory powers.
The 1974 amendments to the Act, L. 1974, c. 123, entrusted PERC with exclusive jurisdiction over unfair practice proceedings as therein defined.
However, this role changes as the unfair practice proceeding progresses.
In the event of noncompliance with its orders issued in unfair practice cases,3 PERC resumes a prosecutorial role. PERC has been empowered to seek the aid of the courts in compelling compliance by applying to the Appellate Division
* * * [PERC‘s] findings of fact, if based upon substantial evidence on the record as a whole, shall not, in such [enforcement] action, be set aside or modified; any order for remedial or affirmative action, if reasonably designed to effectuate the purposes of the act, shall be affirmed and enforced in such proceeding.
[
N. J. S. A. 34:13A-5.4(f) ]
The decision whether to initiate an enforcement action in a given case is entrusted to PERC‘s sound discretion. The statute authorizes, but does not require PERC to seek judicial assistance to enforce its orders. See also
PERC is represented in this appeal, and in all judicial proceedings, by its General Counsel, appointed pursuant to
Whatever judicial views might be as to the appropriateness of PERC‘s adversarial participation in an appellate proceeding in which its decision and order are under review, the Legislature has determined that PERC is the party at whose initiative enforcement proceedings are commenced. In light of
Moreover, PERC need not await judicial affirmance of its decision and order before initiating an action for enforcement of its order under
II
We must next consider whether an unfair practice proceeding premised upon an alleged refusal to negotiate in good faith in violation of
There are two aspects to the mootness issue as presented in this case: whether the successful negotiation of a contract precludes PERC‘s adjudication of an unfair practice and, if not, whether it precludes the enforcement of PERC‘s cease and desist orders and its order to post a notice to employees.6 The Appellate Division answered the first question in the affirmative and accordingly did not reach the second.
To reiterate the relevant chronology, the alleged unfair practice, the withholding of a scheduled salary increment, and the filing of the unfair practice charge occurred in September 1975. PERC‘s unfair practice complaint issued in November. The new collective agreement, providing for the retroactive payment of the withheld increments, was reached in early April 1976. PERC was so advised a few days later but nevertheless went ahead and issued its decision and order. The Appellate Division held that by reason of the negotiation of the contract, there was no unfair practice pending before PERC as of the date of its decision and order, thus rendering the issuance thereof in excess of its statutory authority.
In reaching this result, the Appellate Division failed to consider our ruling on the question of mootness in a substantially similar factual context in Patrolmen‘s Benevolent Ass‘n v. Montclair, 70 N. J. 130 (1976). In that case the defendant municipality sought dismissal of an appeal brought by the plaintiff employee organization seeking an order compelling the municipality to negotiate with it and prohibiting the municipality from making any further unilateral changes in working conditions. The basis of the
* * * there remain[ed] unresolved the propriety of the actions taken by the town * * * * and available remedies if the municipality‘s actions were improper.
We accordingly directed that the case be transferred to PERC for “appropriate proceedings” under the newly enacted unfair practice provisions of the Act. Id., at 136.
The Appellate Division also failed to give appropriate consideration to the express language of
By the use of the words “has engaged” in
Moreover, the termination of unlawful conduct by a party charged with unfair practice is similarly immaterial to the issue of the enforceability of PERC‘s order in an action initiated pursuant to
The seminal decision on the question of whether subsequent events moot an order issued by the NLRB in an unfair labor practice case was NLRB v. Pennsylvania Greyhound Lines, Inc., 303 U. S. 261, 58 S. Ct. 571, 82 L. Ed. 831 (1938), where the Supreme Court held that such an order
* * * lawful when made, does not become moot because it is obeyed or because changing circumstances indicate that the need for it may be less than when made.
[Id., at 271, 58 S. Ct. at 576]
Several years later, the Court explained the basis for this rule:
We think it plain from the cases that the employer‘s compliance with an order of the [NLRB] does not render the cause moot, depriving the [NLRB] of its opportunity to secure enforcement from an appropriate court, * * * A [n] [NLRB] order imposes a continuing obligation; and the [NLRB] is entitled to have the resumption of the unfair practice barred by an enforcement decree. As the Court of Appeals for the Second Circuit remarked, “no more is involved than whether what the law has already condemned, the court shall forbid; and the fact that its judgment adds to existing sanctions that of punishment for contempt is not a circumstance to which a court will ordinarily lend a friendly ear.” [NLRB v. General Motors Corp., 179 F. 2d 221, 222 (2 Cir. 1950)] The Act does not require
the [NLRB] to play hide and seek with those guilty of unfair labor practices. [NLRB v. Mexia Textile Mills, Inc., 339 U. S. 563, 567-68, 70 S. Ct. 826, 828-29, 94 L. Ed. 1067 (1950) (emphasis added)]
The Court more recently has reaffirmed its adherence to the holdings of its earlier cases. In response to the contention that an employer‘s compliance with an NLRB order to refrain from interfering in a representation election proceeding and the union‘s subsequent election loss mooted judicial enforcement of the original NLRB order, the Court, citing Mexia Textile as controlling, observed:
The Act, however, is not designed merely to protect a particular election or organizational campaign. It is designed to protect employees in the exercise of their organizational rights, and that protection cannot be affected merely because a particular labor organization has chosen an immediate election rerun rather than to await enforcement of the Board order.
[NLRB v. Raytheon Co., 398 U. S. 25, 27, 90 S. Ct. 1547, 1549, 26 L. Ed. 2d 21 (1970)]
The Court went on to hold:
Undoubtedly * * * there are situations where an enforcement proceeding will become moot because a party can establish that “there is no reasonable expectation that the wrong will be repeated.” [U. S. v. W. T. Grant Co., 345 U. S. 629, 633, 73 S. Ct. 894, 97 L. Ed. 1303 (1953)] But this is not such a case. Nothing in the record here shows that the specific acts complained of have not been repeated or gives any assurance that they will not be repeated in the future.
The [NLRB], established by Congress with primary responsibility for the protection of the public interest in this area * * * has determined that the company has engaged in illegal activities and that a remedial order is called for. Under these circumstances, the employees cannot be denied the protection of the order (with the possible sanction of contempt proceedings for violations) in the absence of a decision on the merits. “If the [NLRB‘s] order is justified, it is entitled to have it enforced as a means of insuring that in future elections the conduct may not be repeated.”
[Id., at 27-28, 90 S. Ct. at 1549 (emphasis added and citations omitted)]
* * * Voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i. e., does not make the case moot. * * * A controversy may remain to be settled in such circumstances * * *, e. g., a dispute over the legality of the challenged practices. * * * The defendant is free to return to his old ways. This, together with a public interest in having the legality of the practices settled, militates against a mootness conclusion. * * * For to say that the case has become moot means that the defendant is entitled to a dismissal as a matter of right. * * * The courts have rightly refused to grant defendants such a powerful weapon against law enforcement.
The case may nevertheless be moot if the defendant can demonstrate that “there is no reasonable expectation that the wrong will be repeated.” The burden is a heavy one.
[Id., at 632-33, 73 S. Ct. at 897 (citations omitted)]
With respect to the issue of potential recurrence of the unfair labor practice, the existence of a continuing relationship between the parties enhances the appropriateness of the NLRB‘s decision to seek enforcement of its cease and desist orders. Such a relationship provides the opportunity and thus increases the possibility that the unlawful conduct will be repeated. See NLRB v. Inter. Union of Operating Engineers, 532 F. 2d 902, 905 (3 Cir. 1976); C-B Buick, Inc. v. NLRB, 506 F. 2d 1086, 1093 (3 Cir. 1974).
As to the precise issue here presented, that of mootness allegedly resulting from the successful negotiation of a contract, the Supreme Court has held that the question of whether such a contractual settlement will be accepted as “definitive” is for the NLRB to decide. NLRB v. Pool Mfg. Co., 339 U. S. 577, 580-81, 70 S. Ct. 830, 94 L. Ed. 1077 (1950) citing NLRB v. General Motors Corp., 179 F. 2d 221, 222 (2 Cir. 1950). The NLRB generally will accord dispositive effect to such private settlements and dispense with a remedial order where it, in its discretion, is satisfied that the agreement is consistent with the policies of the LMRA and fully cures the
* * * it is well-settled that an employer‘s execution of a contract with a union with which it had previously refused to bargain in violation of the Act does not render the issue of such violation moot. This principle is premised on the theory that the [NLRB] does not oversee the settlement of private disputes but, rather, is entrusted with the responsibility of protecting public rights under the Act. These rights are not protected, and the effects of the unfair labor practices found are not expunged, merely because of a private settlement of the dispute by the parties, which may or may not serve to remedy the adverse effect on the Section 7 [
29 U. S. C. § 157 ] rights of the employees.[Massillon Publishing Co., 215 NLRB No. 74, 88 LRRM 1040 (1974) (footnoted citation omitted)]
Similarly, the NLRB has stated that the execution of a contract provides
* * * no assurance that the interests of the public, as distinguished from those of the charging party, will be sufficiently protected by what is essentially a private settlement agreement. In these circumstances, we do not believe it would effectuate the purposes of the Act for the [NLRB] to waive its jurisdiction in this case and
thereby deprive the public of the right of enforcement and the protection of future rights [enforcement] affords. [Schuylkill Metals Corp., 218 NLRB No. 49, 89 LRRM 1972 (1975) (citations omitted)]
The Supreme Court has approved the NLRB‘s approach to such cases. On the strength of Mexia Textile, supra, and Pool Mfg., supra, the Court has rejected the contention that the negotiation of a contract prior to the NLRB‘s decision rendered an unfair labor practice case based upon an unlawful refusal to bargain moot. NLRB v. American National Insurance Co., 343 U. S. 395, 399 n. 4, 72 S. Ct. 824, 96 L. Ed. 1027 (1952). In another case, where a contract was reached after the filing of the unfair labor practice charge against a union for unlawful picketing but before the NLRB‘s issuance of an unfair labor practice complaint, the Court held that the controversy was not rendered moot, since it could not
* * * say that there was no danger of recurrent violation * * * and that the [NLRB] was not justified in concluding that, under all the circumstances, it was desirable to add the sanction of its order to whatever agreement the parties had reached.
[Carpenters Local 1976 v. NLRB, 357 U. S. 93, 97 n. 2, 78 S. Ct. 1011, 1015, 2 L. Ed. 2d 1186 (1958)]
See C-B Buick Inc. v. NLRB, 506 F. 2d 1086, 1092-93 (3 Cir. 1974); NLRB v. Modine Mfg. Co., 500 F. 2d 914, 916 n. 2 (8 Cir. 1974); NLRB v. Southern Household Products Co., 449 F. 2d 749, 750 (5 Cir. 1971); NLRB v. C. & C. Plywood Corp., 413 F. 2d 112, 116 (9 Cir. 1969); NLRB v. Seltzer, 296 F. 2d 125 (2 Cir. 1961).
The rationale for this approach to the mootness question is the rule that an unfair practice respondent‘s compliance with an NLRB order is not a matter cognizable at the appellate enforcement stage of the proceeding. It is relevant only at the subsequent compliance stage before the NLRB or, in the event the NLRB seeks a contempt citation,
Only after a decree of enforcement has been entered may the issue of compliance properly be considered, either in a future proceeding before the [NLRB] or in a contempt proceeding before this court.
[NLRB v. Ohmite Mfg. Co., 557 F. 2d 577, 579 n. 5 (7 Cir. 1977)]
The precise extent to which the order can be enforced is a matter properly left for determination by the [NLRB] at the compliance proceedings which will follow this appeal.
[NLRB v. Laborers Local 282, 567 F. 2d 833, 836 (8 Cir. 1977)]
Accord NLRB v. Marland One-Way Clutch Co., Inc., 520 F. 2d 856, 861 (7 Cir. 1975); NLRB v. Newberry Equip. Co., 401 F. 2d 604, 608 (8 Cir. 1969); Solo Cup Co. v. NLRB, 332 F. 2d 447, 449 (4 Cir. 1964); see also NLRB v. Autotronics, Inc., 432 F. 2d 651, 652 (8 Cir. 1970) (potential impossibility of compliance is to be considered after enforcement).
The purpose of the authorization for the NLRB to obtain judicial enforcement of its order in an unfair labor practice case in
Even if the [respondent] has substantially complied with the [NLRB‘s] order without a judicial mandate to do so, enforcement
of the order provides an incentive for continued compliance through the possible sanction of contempt proceedings for violations. [NLRB v. Southern Household Products Co., supra, 449 F. 2d at 750]
We construe
We believe that the approach taken by the federal cases with respect to the effect of subsequent events on the issuance and enforceability of NLRB orders in unfair labor practice cases is a sound one. In view of the substantial identity between the statutory scheme of PERC‘s unfair practice jurisdiction and that of the NLRB under
In the instant case, PERC determined that the Board‘s voluntary participation in negotiations which culminated in a collective agreement and its payment of the withheld salary increments had adequately discharged its obligations under the Act. PERC accordingly did not seek enforcement of the portions of its order requiring the Board to negotiate in good faith and to make its employees whole through payment of the increment. However, PERC evidently believed that there was a sufficient potential for recurrence
III
As a result of its disposition of the case on mootness grounds, the Appellate Division did not consider the merits of PERC‘s determination that the Board had engaged in unfair practices in contravention of
Our Legislature has also recognized that the unilateral imposition of working conditions is the antithesis of its goal that the terms and conditions of public employment be established through bilateral negotiation and, to the extent possible, agreement between the public employer and the majority representative of its employees. It has incorporated a rule similar to that of Katz in the following provision of
Proposed new rules or modifications of existing rules governing working conditions shall be negotiated with the majority representative before they are established.9
We must accordingly determine whether payment of the salary increment withheld by the Board constituted an element of the status quo whose continuance could not be disrupted by unilateral action. The answer to this question turns, to some extent, on whether the annual step increments in the teachers’ salaries were “automatic,” in which case their expected receipt would be considered as part of the status quo, or “discretionary,” in which case the grant or denial of the salary increases would be a matter to be resolved in negotiations.
Analytically helpful in this inquiry is stating the issue in an alternative manner—could the Board have been found to have violated the Act if it had granted, rather than withheld, the salary increments. Under the rationale of Katz, supra, the answer to the question is in the affirmative if the increments were discretionary and in the negative if they were automatic. See 369 U. S. at 746-47, 82 S. Ct. 1107. In Katz, the Supreme Court
* * * distinguished between automatic and discretionary wage increases and held that discretionary increases during contract negotiations violated the employer‘s duty to bargain in good faith. Automatic increases are sanctioned because they do not represent actual changes in conditions of employment but continue the status quo in the sense that they perpetuate existing terms and conditions of employment. Because the employees expect these benefits and readily recognize them as established practice, the increases do not tend to subvert employee‘s support for their bargaining agent or disrupt the bargaining relationship.
The Board, however, argues that the payment of the annual increment was not part of the status quo and that by not paying the increments it was maintaining the status quo exactly as it had been under the 1974-75 agreement until the negotiations resulted in a new agreement. PERC rejected this argument by noting that the 1974-75 agreement contained a salary schedule specifying annual increments for each additional year of service. PERC found that the payment of salaries according to this schedule was one of the existing terms and conditions of employment under the 1974-75 agreement. Holding that those working conditions continued in effect after the expiration of that agreement until modified in negotiations, PERC ruled that upon the start of a new school year, which was the only condition precedent to a “step-up” in the salary schedule, the teachers were entitled to payment of a salary at the next step specified in the schedule.
We need not consider the general issue of whether the terms and conditions of employment which prevailed under a previous collective agreement constitute the status quo after its expiration because in this case a specific statute applies to command that conclusion with respect to the payment of increments according to the salary schedule. By entering into the 1974-75 collective agreement with the Association, the Board adopted the salary schedule contained therein.
Such policy and schedules shall be binding upon the adopting board and upon all future boards in the same district for a period of two years from the effective date of such policy but shall not prohibit the payment of salaries higher than those required by such policy or schedules nor the subsequent adoption of policies or schedules providing for higher salaries, increments or adjustments.
Pursuant to this statute, the salary schedule adopted by the Board in 1974 for the 1974-75 school year was binding upon it for the 1975-76 school year or until the schedule was modified as provided in the statute.11 Since no new schedule
Since the payment of the salary increments herein should have been automatic upon the start of the new school year in September 1975, PERC correctly determined the Board‘s unilateral withholding of the increments contravened
The judgment of the Appellate Division is reversed. Those portions of PERC‘s order as to which enforcement was sought are hereby enforced.
CONFORD, P. J. A. D. (temporarily assigned), concurring. I agree with the judgment and all of the opinion of the
What the Board did here was to alter compensation, not “working conditions.” Common parlance in labor relations law and practice distinguishes between compensation and working conditions. However they are together comprehended by the term “terms and conditions of employment.” PERC here held that the Board‘s altering existing terms and conditions of employment, (using that term in its collective sense) during negotiations for a new contract constituted a failure to negotiate and consequently an unfair labor practice, contrary to
CONFORD, P. J. A. D., concurring in the result.
For reversal—Chief Justice HUGHES, Justices SULLIVAN, PASHMAN, CLIFFORD, SCHREIBER and HANDLER and Judge CONFORD—7.
For affirmance—None.