687 A.2d 1091 | N.J. Super. Ct. App. Div. | 1997
The opinion of the court was delivered by
The principal issue on appeal is whether a resident and taxpayer of a municipality has standing to bring an action to enforce a collective negotiation agreement between a public employer and a public employee union.
Plaintiff Larry S. Loigman, a resident and taxpayer of the Township of Middletown, instituted suit to enforce a collective negotiation agreement between the Township of Middletown (Township) and the Middletown Township Superior Officers Association (SOA)
The Law Division Judge rejected the Township’s argument that Loigman had no standing to bring this suit and granted his motion for summary judgment without requiring a showing of “specific harm.” In granting the motion, the judge refused to consider the validity of the “Me Too” clause, noting that the Public Employment Relations Commission (PERC) had primary jurisdiction. However, his decision had the effect of implementing that clause without ruling on its validity.
On appeal the Township challenges the judge’s determination that Loigman had standing to sue. It also argues that the judge improperly determined that the collective negotiation agreement
We agree with the Law Division Judge that the agreement was still in effect because no steps were ever taken to cancel it, although we express concern about the very limited window of opportunity for termination. The judge also correctly determined that the validity of the “Me Too” provision of the agreement is an issue in the first instance for PERC. However, we conclude for the reasons hereinafter stated, that a taxpayer lacks standing to enforce a public sector labor agreement, as opposed to challenging any potential illegality of that agreement.
The Township adopted Ordinance 92-2314 in December 1992, approving salaries, increments and fringe benefits for the SOA, and incorporating the collective negotiation agreement for 1991 and 1992 between it and the Township. Article XXIII of this agreement, “Salary” provided: “Effective January 1, 1991, every SOA member will receive a base salary equal to the highest base salary paid to his immediate subordinate rank plus a differential of twelve-and-one-half (12$) percent.”
The agreement provided in Article XXIX, “Duration”:
A. The term of this agreement shall be from January 1, 1991 through December 31,1992.
B. In the absence of written notice given not more that [sic] one hundred eighty (180) nor less than one hundred fifty (150) days prior to the expiration date by either party, this agreement shall automatically be renewed for a period of another year, and from year to year thereafter, until such time as appropriate notice is given prior to the annual expiration in accordance with the terms of this article.
C. If, following receipt of such notice, negotiations have not been completed prior to termination date, this agreement may be extended for an additional thirty (30) days from its termination date, upon fifteen (15) days notice in writing by either party to the other.
D. In such event, however, and if an extension is accepted, any changes made shall be effective as of the expiration date. If the parties fail to reach an*293 agreement either before the termination of the date the extended period terminates, this agreement shall terminate.
Loigman’s complaint in lieu of prerogative writs named the Township and the SOA as party defendants. According to his complaint, no written notice of termination of the agreement was ever given, and Ordinance 95-2402, adopted in April 1995, set salaries, increments and fringe benefits for police officers represented by the local Patrolmen’s Benevolent Association (PBA)
The president of the SOA asserted in a certification filed in support of the summary judgment motion, that the Township refused to negotiate with the SOA until negotiations were completed with the PBA. The unsuccessful negotiations between the Township and the PBA resulted in interest arbitration and an award in favor of the PBA. The PBA sought court confirmation of the award and its members did not receive their 1993, 1994 and 1995 raises until after the Chancery Division confirmed the award.
Although the Township admitted that it passed the ordinances and assented to the collective negotiation agreement, it accused Loigman and the SOA of seeking to obtain from the court what it asserts they could not obtain from PERC — enforcement of the “Me Too” clause. Apparently, after Loigman filed suit the Township’s counsel for the first time researched the issue and came to
In connection with the Township’s application for a stay of the judgment and of the SOA’s enforcement order, the judge refrained from ruling on the merits of the pay differential clause because he considered the issue not within his jurisdiction, but rather that of PERC. He found, however, that the employment contract had neither lapsed nor been rescinded and ordered that the superior officers’ retroactive raises be paid by September 8. Although another part of this court denied the Township’s emergent application for a stay, on September 20 the Supreme Court granted a partial stay, pending determination of the appeal, of so much of the trial court’s order that required payment of the salary increases retroactive to July 10,1995.
Meanwhile, on or about September 6, the Township filed an unfair labor practice petition with PERC, asserting that the SOA committed an unfair practice “[b]y ignoring its contractual obligation to seek PERC’s review of its position,” and by using “the ruse of the Loigman ‘citizens’ lawsuit” to obtain a judicial ruling. The Township requested that PERC declare the “Me Too” clause illegal, and impose interim emergent relief preserving the status quo. On September 8, PERC declined to hear the matter because “the Superior Court has asserted jurisdiction over this matter and therefore the Public Employment Relations Commission is without jurisdiction.”
I.
New Jersey has a broad definition of standing when it comes to challenging governmental actions, and our courts are not confined by the “case or controversy” requirement under Article
Generally, taxpayer intervention is appropriate where there are claims of fraud or corruption, see Driscoll v. Burlington-Bristol Bridge Co., 8 N.J. 433, 474—476, 86 A.2d 201, cert. denied, 344 U.S. 838, 73 S.Ct. 25, 97 L.Ed. 652 (1952), or other instances of illegalities and ultra vires acts. National Waste Recycling, Inc. v. Middlesex Cty. Imp. Auth., 291 N.J.Super. 283, 289, 677 A.2d 268 (App.Div.), certif. granted, 146 N.J. 565, 683 A.2d 1161 (1996); Matlack v. Burlington Cty. Freeholders Bd., supra, 191 N.J.Su
In addition, taxpayers have standing to challenge wrongful expenditures by their governing body. See Nolan v. Fitzpatrick, 9 N.J. 477, 484, 89 A.2d 13 (1952). In this setting, a taxpayer had standing to challenge salary increases of public employees by challenging the legitimacy of the referendum which authorized the increases. Theurer v. Borrone, 81 N.J.Super. 188, 193, 195 A.2d 215 (Law Div.1963). For obvious reasons such is not the case where a taxpayer suit seeks to compel expenditures of public funds. While permissible taxpayer suits generally seek to prevent municipalities from disbursing funds, Loigman who is not a party to the labor contract, seeks to enforce a contractual provision and require governmental expenditures. If individual taxpayers with multiple competing interests were able to bring suit in such situations, they could cripple the government’s ability to function properly. In addition, responsibility for labor relations matters is better left in the first instance to PERC and not arrogated to the medium of taxpayer suits.
In some public sector labor cases involving exercises of “legislative or quasi-legislative power,” union intervention on behalf of teachers has been allowed to challenge a board of education policy limiting employment of supplemental teachers to two consecutive years; Ridgewood Education Ass’n v. Ridgewood Board of Education, 284 N.J.Super. 427, 665 A.2d 776 (App.Div.1995). Similarly, a challenge by a trade organization was allowed where individu
The concept of standing takes on a different light when government entities and public employees are involved in labor negotiations and disputes. There is little doubt that the SOA could challenge the Township’s interpretation of the agreement, and that PERC would be the appropriate initial forum. See City of Hackensack v. Winner, 82 N.J. 1, 410 A.2d 1146 (1980). Indeed, L. 1968, c. 303, and its progeny, provide a discrete mechanism for public entity labor negotiation situations. See N.J.S.A 34:13A-5.1 et seq., as amended.
There is scant discussion in our case law of taxpayer standing with regard to public sector labor agreements. Judge Richard Cohen in Woodbridge State School Parents Ass’n v. American Federation of State, County and Municipal Employees, 180 N.J.Super. 501, 435 A.2d 855 (Ch.Div.1981), concluded in an incisive decision, with which we agree, that a parents’ association did not have standing to intervene in a labor dispute between employees at the Woodbridge State School and the governmental entity responsible for the school’s operation. The association sought damages for two work stoppages, which were essentially illegal because the employees were governmental employees who are not permitted to strike. Id. at 503, 435 A.2d 855. Cf. Bd. of Ed. of Voc. School of Sussex v. Sussex Voc-Tec. Teachers Education Ass’n, 170 N.J.Super. 426, 406 A.2d 989 (Ch.Div.1979).
In denying standing to the plaintiffs in Woodbridge, Judge Cohen in part relied on Allen v. Maurer, 6 Ill.App.3d 633, 286 N.E.2d 135 (1972). There, as in Woodbridge State School Parents Ass’n, the court held that taxpayer-parents lacked standing to enjoin strikes by teachers in order to secure performance of the State’s duty to maintain a public school system. The Illinois Appeals Court recognized that the situation before it was not a
If standing were conferred upon parents of school children in a case such as this, one could conjure up a multitude of situations in which the desires of a few individual parents could conflict with the action of the School Board. While we recognize that parents have an abiding and a legitimate concern in the outcome of a dispute such as the one presented by this appeal, we do not feel that the interest is the equivalent of, or bestows legal standing to sue.
[Id. at 140, 286 N.E.2d 135].
This reasoning is particularly apposite in the context of a public sector labor dispute. So too is Judge Cohen’s reasoning in Woodbridge State School Parents Ass’n v. AFSCME, supra, that “the most impatient beneficiaries could take over management responsibilities,” if standing were granted. Id. at 505, 435 A.2d 855. Indeed, the present case, involving as it does sensitive labor negotiations between the public employer and its employees, concerns management prerogatives of the executive “arm” of local government. There is no overriding reason to allow a taxpayer to usurp management responsibilities for the adoption and implementation of a labor agreement between a public employer , and its employees or to supplant PERC or this State’s public sector labor laws.
Support for our conclusion that a taxpayer lacks standing for what on the state or county government level would be the equivalent of an executive branch responsibility and prerogative to contract with public employees is found in Matlack v. Burlington County Freeholders Board, supra, 191 N.J.Super. at 248-249, 466 A.2d 83. In Matlock, certain taxpayers and residents of the county were held not to have standing to challenge the purchase price of Pinelands Development Credits as violative of due process and just compensation rights. The taxpayers asserted no special
Our research has not disclosed, and the parties have not cited, precedent allowing intervention by a taxpayer who is not a participant nor directly affected by the labor negotiations.
Finally, Loigman’s filing of a complaint in lieu of prerogative writs is a misapplication of the common law writ of mandamus. Mandamus is a proper remedy: (1) to compel specific action when the duty is ministerial and wholly free from doubt, and (2) to compel the exercise of discretion, but not in a specific manner. Switz v. Middletown Tp., 23 N.J. 580, 130 A.2d 15 (1957); Colon v. Tedesco, 125 N.J.Super. 446, 311 A.2d 393 (Law Div.1973); Borough of Eatontown v. Danskin, 121 N.J.Super. 68, 296 A.2d 81 (Law Div.1972); Edelstein v. Ferrell, 120 N.J.Super. 583, 295 A.2d 390 (Law Div.1972).
Hence, a prerogative writ action in lieu of mandamus, seeking an order compelling governmental action, would usually not be appropriate unless there was a clear and undisputed ministerial duty or general exercise of discretion involved. Loigman’s suit to compel the Township to exercise its discretion in a specific manner with respect to a disputed provision of a labor agreement does not
II.
Although our disposition of the standing issue is in a sense determinative, because of the nature and course of the proceedings below some additional comment is warranted. The Township contends that its agreement with the SOA was no longer in effect. The Township acknowledges that it never formally rescinded the agreement in accordance with Article XXIX, which requires written notice of termination between 180 and 150 days prior to its December 31 annual expiration date.
Despite these assertions, it is clear that the agreement remained in effect because the Township failed to give any written notice under the contract which recites that absent such notice the “agreement shall automatically be renewed.” Since no written notice was given, the agreement was automatically renewed.
The Township also contends that if the agreement remained in effect, the Law Division Judge erred in failing to enforce Article XXII, which requires binding arbitration for the settlement of grievances. However, Loigman was not a party to the agreement, and the Article XXII arbitration provision was not applicable to him. This reinforces our determination that he lacks standing to interfere in this labor dispute.
III.
The Article XXIX termination provision requiring written notice between 180 and 150 days prior to the agreement’s annual expiration date of December 31 deserves comment. This provision essentially means that termination notice can only be given in the preceding month of July before the contract’s end or the opportunity to prevent the contract from renewing automatically is lost for the remainder of that year and until July of the next “contract” year. Thus, the contract continues for at least a year and five months after July 31, if no written notice is given.
In the context of an attorney’s retainer agreement, the Supreme Court addressed a similar one-month termination provision and found it severely restricted a client’s right to terminate a lawyer-client relationship. Under this type of arrangement, the lawyer could claim entitlement for an additional year’s retainer fee even if he performed no work. See Cohen v. Radio-Electr. Officers
In the public sector, and considering public policy and management prerogatives, restricting the termination opportunity to one month out of the year, or perhaps even one day, is problematic. It is one thing to say that a public entity has to give notice of termination,
IV.
The Township contends that the pay parity or “Me Too” clause in the collective negotiation agreement is illegal and void, and that the judge erred in taking jurisdiction to enforce the agreement. The judge instructed the Township to ask PERC to determine the validity of the parity clause, but inappropriately retained primary jurisdiction by deciding the summary judgment motion. Cf. City of Hackensack v. Winner, supra, 82 N.J. at 34-38, 410 A.2d 1146. Thereafter, PERC declined jurisdiction over the Township’s unfair practice petition because the Superior Court had assumed jurisdiction to rule on the matter, even though the Township, the SOA and the judge agreed that PERC had primary jurisdiction to determine the validity of the parity clause.
Despite PERC’s primary jurisdiction, the judge was perhaps hampered in transferring the matter to PERC because Loigman was a party in the case. Apparently, severance was not considered. In In re Tp. of Middletown, 19 NJPER par. 24206 (1993), PERC determined that plaintiff did not have standing to file an unfair practice charge because he was not a “public employer, public employee, public employee organization, or their representative,” as required by N.J.AC. 19:14-1.1. N.J.SA 34:13A-5.4(d) similarly allows only public employers and majority representatives to request scope-of-negotiation decisions. PERC is not authorized to hear citizens’ complaints. Clearly, this is because a citizen has no standing in a public employer-public employee dispute in a labor matter over which PERC has jurisdiction.
The SOA argues that the Township waived its right to contest the validity of the pay parity clause and contends that the Township is estopped from raising this issue, since it received the benefit of the objectionable clause for two and one-half years, during which it did not pay any salary increments, and refused to negotiate. The Township did not question the validity of the pay parity clause until Loigman’s suit was filed; failed to seek PERC’s review of the objectionable clause, despite the judge’s admonitions to do so until after the appeal was filed; and did not appeal PERC’s decision. Despite this, we reject the estoppel argument. Estoppel should be sparingly applied against public entities.
In view of our disposition of this appeal, there is no basis for PERC to decline jurisdiction over a scope-of-negotiations petition to determine the validity of the disputed pay parity clause. N.J.S.A 34:13A-5.4(d); Ridgefield Park, supra (78 N.J. at 153-154, 393 A.2d 278). We decline at this point to consider the validity of the “Me Too” clause pending PERC’s consideration of that issue.
Reversed and remanded to PERC for appropriate proceedings.
See N.J. Const. art. I, ¶ 19, and NJ.S.A. 34:13A-5.3; see also N.J. Turnpike Emp. Union v. N.J. Turnpike Auth., 64 N.J. 579, 581, 319 A.2d 224 (1974) (distinguishing collective negotiation rights reserved to public employees as opposed to "collective bargaining” in the private arena).
This union represented police officers of the rank of sergeant and above.
In rejecting the Township’s arguments the judge said:
[I]t is this Court’s finding that questions regarding legality of the differential clause must be first brought to the PERC for resolution. Until such issue is brought before PERC and a determination made upon the legality of the differential clause, this Court must assume it to be legal.
Based upon the foregoing, this Court finds that members of the SOA are entitled to the 12 and a half percent differential as bargained for in their contract. Such contract is not expired as no notice has been properly given by any party. And even if such contract had expired, until a new contract has been negotiated, the current terms control.
The Township refers to this provision as the "Me Too" clause. We use that term merely as a matter of convenience.
The Police Benevolent Association local chapter is the union for the patrolmen in Middletown.
We affirmed the Chancery Division’s confirmation of the interest arbitration award with respect to the PBA contract. Police Benevolent Ass'n Local 124 v. Township of Middletown, No. A-2688-94 (App. Div. April 25, 1996). As to interest arbitration, see also Hillsdale PBA Local 207 v. Borough of Hillsdale, 137 N.J. 71, 644 A.2d 564 (1994) and Washington Tp. v. New Jersey PBA, Local 206, 137 N.J. 88, 644 A.2d 573 (1994).
Other writs include habeas corpus, reserved for criminal matters; procedendo, remanding to inferior court; and prohibition, removing jurisdiction from an inferior court.
Judge Cohen commented in Woodbridge School Parents Ass’n v. AFSCME, supra, 180 N.J.Super. at 506, 435 A.2d 855, that a taxpayer might be able to seek mandamus in situations involving work stoppages by public employees.
Indeed, even union members do not necessarily have standing where represented by a collective negotiation unit. N.J. Turnpike Emp. Union v. N.J. Turnpike Auth., 123 N.J.Super. 461, 467, 303 A.2d 599 (App.Div.1973), aff'd, 64 N.J. 579, 319 A.2d 224 (1974).
This provision purports to permit termination only by notice in the month of July of the current contract year, effective at the end of the contract term, unless briefly extended per Article XXIX of the agreement.
The SOA inappropriately relies on N.J.S.A. 34:13A-21. Since no proceedings were sought before an arbitrator here, this provision does not apply.
It might be asked why notice of termination is needed at all if the labor agreement is for a fixed term. Under Galloway, supra, in the absence of a negotiated contract for a new term, the old contract terms would essentially continue until superseded.
N.J.S.A. 34:13A-5.4(d) provides: "The commission shall at all times have the power and duty, upon the request of any public employer or majority representative, to make a determination as to whether a matter in dispute is within the scope of collective negotiations."