City of Hackensack v. Winner

*39PASHMAN, J.,

concurring in result.

While I concur in the result, I write to take exception to some of the majority’s observations on accommodating the overlapping jurisdictions of the two agencies.

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

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

I

Both PERC and CSC possessed jurisdiction to pass upon the validity of the municipal actions here challenged. Sarapuchiello and Krejsa claim they were denied promotions solely because they exercised their right to participate in union activities. See N.J.Const. (1947), Art. I, par. 19; N.J.S.A. 34:13A-5.3. If true, the denials would clearly constitute unfair employer practices. N.J.S.A. 34:13A-5.4(a)(l), (3). Through an amendment to the *40EERA, L.1974. c. 123, § 1, the Legislature vested PERC with “exclusive power” to prevent and remedy such unfair practices.1 N.J.S.A. 34:13A-5.4(c); see Galloway Tp. Bd. of Educ. v. Galloway Tp. Educ. Ass’n, 78 N.J. 25, 33 (1978); Patrolmen’s Benev. Ass’n v. Montclair, 70 N.J. 130, 136 (1976). Thus PERC possessed jurisdiction to resolve the charges filed by the firefighters.

The power to entertain the firefighters’ challenge to the municipal conduct has also been delegated to CSC. Discrimination based upon an individual’s participation in union activities is “arbitrary and illegal conduct by an employer,” and therefore an aggrieved employee may seek review of the municipality’s actions before CSC. See Burlington Cty. Evergreen Pk. Mental Hosp. v. Cooper, 56 N.J. 579, 583-585 (1970). The Legislature’s grant of jurisdiction over unfair practices to PERC did not divest CSC of its power to pass upon such complaints. N.J.S.A. 34:13A-5.3 explicitly provides:

Nothing herein shall be construed to deny to any individual employee his rights under Civil Service laws or regulations.

Those rights include that of CSC review of allegedly arbitrary employment decisions by a local authority. See N.J.S.A. 11:25— 1; N.J.A.C. 4:1-5.1 to -5.16.

II

Having correctly concluded that both CSC and PERC possessed jurisdiction to hear the firefighters’ complaints, the majority relies upon Hinfey v. Matawan Reg. Bd. of Educ., 77 N.J. 514 (1978), to determine which of the two agencies should have *41abstained from exercising any jurisdiction. Such reliance is misplaced. By assuming that only one agency should have ruled upon the firefighters’ charges, the majority has overlooked the solution that is most in keeping with the intent of the Legislature: that PERC and CSC possess concurrent and non-exclusive jurisdiction. Both can pass upon the legality of the municipality’s actions. Should one agency find a violation of law pertinent to its expertise and order a remedy, complainants would be entitled to that remedy regardless of the result reached by the other agency.

"A

Although the goals underlying the EERA and the Civil Service Laws are complementary, they are not in all respects identical. The unfair practice provisions of the EERA, see N.J.S.A. 34:13A-5.4(a)(l)-(7), are intended to insure that public employers do not restrain, coerce or interfere with employees in the exercise of their constitutional and statutory rights to join unions and negotiate collectively. See N.J.Const. (1947), Art. I, par. 19; N.J.S.A. 34:13A-5.3, -5.4. To reach these goals the Legislature vested PERC, which possesses expertise in public employment relations, with “exclusive power” to determine whether an unfair practice has occurred and to remedy any such illegal conduct. See N.J.S.A. 34:13A-5.4(c); supra at 39-40.

The Civil Service Laws are not designed to protect the associational rights of public employees. This legislation is specifically intended to secure an efficient public service in state and local government. See, e. g., Mastrobattista v. Essex Cty. Pk. Comm’n, 46 N.J. 138, 145 (1965); Campbell v. Dep’t of Civil Service, 39 N.J. 556, 583 (1963); Prosecutor’s Detectives and Investigators Ass’n v. Hudson Cty. Bd. of Chosen Freeholders, 130 N.J.Super. 30, 41-42 (App.Div.1974), certif. den., 66 N.J. 330 (1974); Newark v. Dep’t of Civil Service, 68 N.J.Super. 416, 424-425 (App.Div.1961). To achieve this objective, all permanent appointments in the classified service, including promo*42tions, must be based on merit as determined by competitive examinations wherever practicable. See N.J.Const., Art. VII, § 1, par. 2; N.J.S.A. 11:4-2, :21:3 & :22-30. Once permanently appointed, an employee cannot be removed except for “just cause” determined after written notice of the charges and a hearing before the local authority. See Handlon v. Belleville, 4 N.J. 99, 106 (1950); Prosecutor’s Detectives and Investigators Ass’n, 130 N.J.Super. at 42; N.J.S.A. 11:22-38; N.J.A.C. 4:1-16.-8(a). The main task of the CSC is thus to insure that appointments and promotions are grounded upon the “merit and fitness” principle, see N.J.Const. (1947), Art. VII, § 1, par 2, rather than arbitrary considerations. See, e. g., Mastrobattista, 46 N.J. at 145; Campbell, 39 N.J. at 583; Prosecutor’s Detectives and Investigators Ass’n, 130 N.J.Super. at 41-42; Newark v. Dep’t of Civil Service, 68 N.J.Super. at 424.

Since PERC and CSC review public employment decisions for different purposes, both bodies must be allowed to pass upon actions which allegedly contravene their respective statutory schemes. A CSC hearing is necessary to insure that the local authority did not violate the “merit and fitness” principle. A PERC hearing is necessary to determine whether the local authority committed an unfair employer practice. See, e. g., Town of Dedham v. Labor Relations Comm’n, 365 Mass. 392, 312 N.E.2d 548 (Sup.Jud.Ct.1974); City of Albany v. Public Employment Rel. Bd., 57 A.D.2d 374, 395 N.Y.S.2d 502 (App.Div.1977), aff’d o. b., 43 N.Y.2d 954, 404 N.Y.S.2d 343, 375 N.E.2d 409 (Ct.App.1978); cf. Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974).

Under the majority’s approach, a victim of conduct arguably violating both the EERA and the Civil Service Laws might be forced to decide which of his claims is stronger and proceed before the relevant agency. He would thus be foreclosed from having each body adjudicate the particular aspects of employer conduct which fall within its field of expertise. In contrast, a *43holding that both agencies may exercise jurisdiction would relieve aggrieved employees from this difficult, unnecessary and premature decision. Such a ruling would also permit each agency to fulfill its unique legislative mandate. It is therefore not surprising that courts faced with this and analogous situations have generally opted for concurrent jurisdiction. See Alexander v. Gardner-Denver Co.; Carey v. Westinghouse Electric Corp., 375 U.S. 261, 84 S.Ct. 401, 11 L.Ed.2d 320 (1964); Tipler v. E. I. duPont deNemours and Co., Inc., 443 F.2d 125 (6th Cir. 1971); Town of Dedham v. Labor Relations Comm’n, supra; City of Albany v. Public Employment Rel. Bd., supra.

Taken as a whole, the language of the EERA dictates this result. The Legislature has accorded PERC “exclusive power” to deal with unfair employer practices. N.J.S.A. 34:13A-5.4(c). It has also ordained that nothing contained in the EERA shall be construed to deny any employee his rights under the Civil Service Laws. N.J.S.A. 34:13A-5.3. The majority’s reasoning negates both provisions. According to the majority, PERC must surrender its “exclusive power” over unfair practices in some instances. In others, an employee will be compelled to forfeit his right to CSC review of municipal actions.

Concurrent jurisdiction is not to be eschewed merely because an employee may be granted a remedy in one forum and denied relief in the other. Contrary to the majority’s assertions, such results would not necessarily constitute “inconsistent” adjudications. A dismissal by PERC of the employee’s charges, for instance, would only demonstrate that the employer did not violate the EERA. It would not establish that the employer’s conduct was in keeping with the Civil Service Laws. If municipal conduct violates either statute, the employee is entitled to some form of redress. If relief is deemed warranted by both agencies, the agency later granting relief could structure its order to avoid employee windfalls.

*44Finally, concurrent jurisdiction would avoid the practical problems that will ensue when other agencies attempt to follow the precepts announced in the majority opinion. When a body is called upon to examine conduct which arguably violates statutes administered by other agencies, the majority states that it first must make preliminary findings regarding “comity and deference,” Hinfey, 77 N.J. at 531. In the majority’s own words, these determinations include

whether or not the common issue before both agencies, here the unfair practice, was either the sole or major issue in dispute or a dominating issue in the sense that its determination would have served either to moot the remaining questions in dispute or to have affected substantially their resolution. A further consideration [would be] whether the common issue was clearly severable from the balance of the controversy and would thus have permitted non-duplicative factual and legal determinations. A related inquiry [would be] whether the claims, if ultimately vindicated, would obviously have required specialized or particularized remedial relief not generally available in the other agency. * * [A] further key consideration [would be] whether the common issue could have been fairly, competently and fully tried and adjudicated together with and as a constituent part of all other issues in the case before one agency so that fragmented and repetitious actions would be avoided, all relevant concerns addressed and the entire controversy concluded in a single proceeding. [Ante at 34 (citations omitted)]

Because these assessments are highly subjective, situations may arise in which both — or, worse yet — neither agency will retain jurisdiction. Even if one body adjudicates the matter, the majority’s test threatens to be more intricate and time-consuming than a hearing on the merits. Even after an agency renders this preliminary decision, a court may later determine that it acted erroneously, further delaying the ultimate resolution.2

*45The majority’s attempt to apply the theoretical framework established in Hinfey is unconvincing. That case decided which of two agencies should entertain complaints charging violations of the same subject matter — sex discrimination in public school curricula. Unlike the present case, the conduct challenged in Hinfey would have been scrutinized with identical legal standards by either the Division on Civil Rights or the Commissioner of Education. Compare Hinfey, 77 N.J. at 523-524 (standard under Law Against Discrimination) with 77 N.J. at 525-526 (standard under education laws). It was therefore fitting that the parties in Hinfey were required to appear only before the Commissioner who possessed greater expertise in combatting discrimination in public schools. See id. at 532-533.

Ill

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

To determine which of two equally competent tribunals should proceed first, a rule of convenience and efficiency should pre*46vail.3 The agencies involved should simply proceed in the order in which the complaints were filed. The second agency would retain jurisdiction but stay its hand until the proceedings in the first agency have terminated. Simple in its application, this rule would permit an aggrieved employee to choose which claim he wishes to present first and avoid any inter-agency “race to judgment.” Each agency would determine whether a violation of its own law had occurred based on facts found by the first agency. The second agency could also hear evidence and make supplemental findings as to factual matters that were not actually decided in the earlier proceeding.

In the present case, CSC found as a fact that the failure to promote Sarapuchiello and Krejsa was not motivated by anti-union animus. This finding was supported by substantial credible evidence. Consequently, the firefighters were estopped from completely relitigating the anti-union bias issue before PERC. PERC’s award of promotion and full back pay was predicated upon its finding that anti-union sentiment had sparked the municipality’s actions. This finding also underlay its adjudication of an unfair employer practice. PERC’s judgment must therefore be vacated in its entirety.

The grant of jurisdiction was made in response to this Court’s holding in Burlington Cty. Evergreen Pk. Mental Hosp. v. Cooper, 56 N.J. 579 (1970), that PERC lacked such power under the original act, L.1968, c. 303. See Galloway Tp. Bd. of Educ. v. Galloway Tp. Educ. Ass’n, 78 N.J. 25, 33 (1978).

As the majority recognizes, see ante at 37, the recently created Office of Administrative Law, see L.1978, c. 67, N.J.S.A. 52:14F-1 et seq., does not have the power to assign a single administrative law judge to hear evidence regarding a controversy which involves both CSC and PERC. N.J.S.A. *4552:14F-8(a). While the possibility exists for joint hearings with PERC’s consent, see id, it is equally clear that the Legislature has failed to insure against redundant and unnecessary hearings.

I realize, as does Justice Schreiber in his separate opinion, that the doctrine of the separation of powers forbids the Judiciary from dictating to an administrative agency when it must decline to exercise its legislatively delegated jurisdiction. See post at 46-48 (Schreiber, J.) However, that same doctrine prevents an agency from circumventing our application of collateral estoppel to its adjudicatory determinations. I offer the “rule of convenience and efficiency” as a suggested salutary response to such application.