concurring and dissenting.
The majority opinion is founded on an unwarranted statutory interpretation that the court may dictate when an administrative agency must not hear a matter. Except for constitutional and statutory1 requirements, courts do not have the authority to *47prohibit an administrative agency from exercising its jurisdiction. The majority has not referred to any such constitutional or statutory provisions and we can find none.2
When a statute entrusts an administrative agency with the enforcement of an act and is silent on when that agency may or may not proceed, the likelihood of an abuse of discretion is substantially less when the agency chooses to process the claim than when it exercises its discretion not to hear the matter. That is because facially at least the agency is charged with performing the functions entrusted to it by the Legislature. Although that administrative agency may under some circumstances properly decide not to hear a matter, such a decision rests with the agency. That is what occurred in Hinfey v. Matawan Reg. Bd. of Ed., 77 N.J. 514 (1978). However, that is far different from a court preventing an agency from carrying out its delegated authority to hear a case.
In the absence of a constitutional or statutory base, this Court has no inherent power to promulgate rules of procedure for administrative agencies. The Constitution vests in the Supreme Court rulemaking power only for the courts of the State, N.J. Const. (1947), Art. VI, § 2, par. 3, not for executive and legislative agencies. Necessarily implicated in this problem is the doctrine of separation of powers. See N.J.Const. (1947), Art. Ill, par. 1; W. Mountain, “The Role of Judicial Activism: Neither Sword Nor Purse,” 10 Seton Hall L.Rev. 6 (1979).
In the case before the Court, the statutes are silent on when or whether either the Public Employment Relations Commission (PERC) or the Civil Service Commission (Civil Service) may defer action in connection with an “unfair practice” or improper *48promotion charges. Nor are we called upon to decide whether, under their respective statutes, either agency has the authority to refuse to process such claims when presented to them. See Hinfey v. Matawan Reg. Bd. of Ed., 77 N.J. at 536 (Schreiber, J., concurring). Neither agency here has deferred action and both have processed the claims. Under these circumstances, those issues need not be addressed.
Petitioners Krejsa and Sarapuchiello asserted two different claims, both of which arose out of the refusal of the Hackensack Fire Department to promote them to the rank of lieutenant. Civil Service and PERC had jurisdiction over different aspects of this episode. Recognition of the existence of this dichotomy is essential to an understanding and resolution of the issues in this case.
Civil Service is the statutorily designated agent responsible for enforcing the constitutional obligation that promotions of employees having civil service status “be made according to merit and fitness to be ascertained, as far as practicable, by examination, which, as far as practicable, shall be competitive . . . .” N.J.Const. (1947), Art. VII, § 1, par. 2. See also N.J.S.A. 11:21-1 et seq. In the first instance, it is the public employer who should promote “only according to merit and fitness.” N.J.S.A. 40A:14-9.4; N.J.S.A. 11:21-3. In fulfilling that duty the public employer must weigh the relative qualifications of applicants, disclosed in part by results of written, oral and performance tests and by evaluation of their education, training, experience and any other appropriate measure of fitness. N.J.S.A. 11:21-3; N.J.A.C. 4:l-8.9. To be factored in are the employee’s records, including annual employee evaluations. N.J.A.C. 4:l-8.4; N.J.A.C. 4:1-20.2. In this weighing process no consideration may be given to political or religious affiliations or opinions, or to race, color or national origin. N.J.S.A. 11:17-1; N.J.A.C. 4:1-8.10. An employee disappointed with the public employer’s choice may appeal to Civil Service for its review to *49assure that the promotion has been predicated on merit and fitness.
On the other hand, the Legislature has vested PERC with jurisdiction to determine whether a public employer has been guilty of discrimination against an employee “in regard to hire or tenure of employment or any term or condition of employment [so as] to encourage or discourage employees in the exercise of the rights guaranteed to them [by the PERC statute].” N.J.S.A. 34:13A-5.4(a)(3). One such guaranteed right is the employee’s right to join and assist a labor organization. N.J.S.A. 34:13A-5.3; N.J.Const. (1947), Art. I, par. 19. Violation of that right constitutes an “unfair practice.” N.J.S.A. 34:13A-5.-4(c). The statute also provides that PERC “shall have exclusive power ... to prevent anyone from engaging in any unfair practice” and that PERC may, upon a finding of an “unfair practice,” order the public employer to cease and desist from that practice “and to take such reasonable affirmative action as will effectuate the policies” of the New Jersey Employer-Employee Relations Act. N.J.S.A. 34:13A-5.4(c).
These statutes repose in Civil Service and PERC jurisdiction over different legal issues. Civil Service’s concern is whether an individual has been promoted on the basis of merit and fitness. PERC, on the other hand, focuses on whether an “unfair practice” has occurred.
When Civil Service determines whether a promotion was proper, it weighs factors which may not be identical with those that PERC inquires into in its “unfair practice” inquiry. Civil Service may, of course, examine anti-union animus in deciding whether an employee’s promotion was denied on the basis of some reason other than merit and fitness. However, consideration of the existence of an anti-union animus does not mean that Civil Service has the authority to determine whether or not an “unfair practice” as defined in N.J.S.A. 34:13A-5.4 has been committed by the public employer. That problem is for PERC. To hold otherwise would entrust to Civil Service the formulation *50of standards of “unfair practice” — a result which would clearly contravene the legislative purpose of vesting PERC with the authority to fix standards and criteria of unfair labor practices applicable to all public employees, whether or not classified under Civil Service. See Dedham v. Labor Relations Comm'n, 365 Mass. 392, 312 N.E.2d 548 (Sup.Jud.Ct.1974). The uniform statutory application of the PERC law and the benefit of having a specialized agency whose function it is to interpret and apply that statute would be lost. See Comment, “Application of Res Judicata to Agencies with Parallel Jurisdiction,” 52 Denver L.J. 595 (1975).
A similar rationale also applies to Civil Service’s jurisdiction over promotions of civil service employees. The Legislature has expressly delegated to Civil Service the duty to determine ultimately whether the promotion was proper and based on merit and fitness. Its expertise is to be applied in the process of balancing the several factors which determine the respective qualifications of the candidates for promotion. Although PERC has been delegated the exclusive power to prevent a public employer from engaging in any “unfair practice,” N.J.S.A. 34:13A-5.4, that power is not authority for PERC to determine whether a civil service employee merited a promotion because of superior merit and fitness.
In exercising their different statutory mandates, Civil Service and PERC may reach conflicting conclusions. In determining whether an individual has been denied a promotion on the basis of merit and fitness, Civil Service may conclude, as it did here, that anti-union animus was not a factor. On the other hand, in determining whether an “unfair practice” has occurred, PERC» may conclude, as it did here, that petitioners were passed over for promotions because of their union activity. Given the present legislative scheme and procedural framework, such conflicts, although undesirable, will occur.
When factual findings of different agencies administering different statutes conflict, courts have upheld those respective findings, recognizing that the legal issues are not identical. In *51Tipler v. E. I. duPont deNemours & Co., 443 F.2d 125, 128-129 (6 Cir. 1971), the Equal Employment Opportunity Commission had found there was reasonable cause to believe an employee had been discharged because of race and the employee instituted a suit against his employer predicated upon violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. The Court held the suit was maintainable, notwithstanding the fact that the NLRB had previously rejected the employee’s claim that the same racial discrimination constituted an unfair labor practice. The court bottomed its decision on the ground that the statutes, Title VII of the Civil Rights Act and the National Labor Relations Act, had different purposes and demanded separate inquiries.
See also NLRB v. Pacific Intermountain Express Co., 228 F.2d 170 (8 Cir. 1955), cert. den. 351 U.S. 952, 76 S.Ct. 850, 100 L.Ed. 1476 (1956), holding NLRB entitled to rule on unfair practice despite holding by the Industrial Commission of Missouri that plaintiff had been discharged for cause; Lane v. Railroad Retirement Bd., 185 F.2d 819 (6 Cir. 1950), where the decision by the Railroad Retirement Board that plaintiff did not have an employee status with a railroad under the Railroad Retirement Act on August 29, 1935, was upheld despite a prior determination by the National Railroad Adjustment Board that plaintiff had an employee status with the same railroad on that date under the Railway Labor Act; Thompson v. Flemming, 188 F.Supp. 123, 125-126 (D.Or.1960), wherein a finding by the Veterans Administration of disability preventing plaintiff’s engaging in “substantially gainful employment” held not binding on Social Security Administration which found plaintiff able to engage in “substantial gainful activity”; Albany v. Public Employment Relations 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), holding that the Public Employment Relations Board had jurisdiction over an unfair labor practice charge *52of public employee’s discharge although Civil Service Commission proceedings involving the same event were pending under a different section of the New York Civil Service Law; Dedham v. Labor Relations Comm’n, 365 Mass. 392, 312 N.E.2d 548 (Sup.Jud.Ct.1974), holding that decision of the Massachusetts Civil Service Commission, confirming a suspension for insubordination of a classified employee under the Civil Service Act because there was “just cause,” was not binding on the Massachusetts Labor Relations Board in proceedings before it to decide whether the same episode constituted an unfair labor practice. Contra, Pettus v. American Airlines, Inc., 587 F.2d 627 (4 Cir. 1978), appeal docketed, 444 U.S. 883, 100 S.Ct. 172, 62 L.Ed.2d 112 (1979); Colorado Springs Coach Co. v. Colorado Civil Rights Comm’n, 35 Colo.App. 378, 536 P.2d 837 (Ct.App.1975), cert. den. 424 U.S. 948, 96 S.Ct. 1420, 47 L.Ed.2d 355 (1976).
An administrative agency need not apply principles of collateral estoppel. Even in judicial proceedings, collateral estoppel is not automatically applicable, particularly when the first proceeding has not involved a full trial. Restatement, Judgments 2d § 88, Tentative Draft (1975); Reardon v. Allen, 88 N.J.Super. 560 (Law Div.1965). Distinctions between judicial and administrative proceedings accentuate the reasons for not treating the opinion of the administrative agency which first determines the facts as conclusive. Agencies at best act in quasi-judicial capacities; they need not apply rules of evidence and their findings, unless challenged, may not necessarily rest on competent evidence; and discovery, including the right of a party to subpoena witnesses and material, may not have been available, so that a party may not have had the ability to present all relevant material matter.
Additionally, application of collateral estoppel by the Court in this case contravenes the spirit, if not the letter, of N.J.S.A. 34:13A-5.4(c), providing that PERC “shall have exclusive power” to prevent anyone from engaging in an unfair practice. *53(emphasis supplied). That exclusivity is effectively read out of the statute by binding PERC with Civil Service’s fact finding. The majority seems to contend that the language in N.J.S.A. 34:13A-5.3, “[njothing herein shall be construed to deny to any individual employee his right under Civil Service laws or regulations,” eviscerates the grant to PERC of “exclusive” authority. The language in § 5.3, however, addresses a much narrower and different concern. Its purpose was to insure that the designation of a majority representative by a group of civil service employees would not be interpreted in a way which would strip an individual employee of his civil service right to have promotions and hiring based on merit and fitness. Adoption subsequently of N.J.S.A. 34:13A-5.4(c) in response to a judicial determination that PERC lacked the power to enjoin and remedy unfair labor practices indicates the legislative intent that these provisions were to serve different purposes. See Burlington Cty. Evergreen Pk. Mental Hosp. v. Cooper, 56 N.J. at 579 (1970).
It would, of course, have been desirable for Civil Service to consider the PERC findings and opinion on the issue of anti-union animus and its causal relationship, if any, in the promotion process. Though the PERC action occurred subsequent to the Civil Service order, the opportunity to consider the PERC decision would have been available if, upon petitioners’ request or on its own motion, Civil Service had reopened and reconsidered the matter. Cf. In re Intercontinental Radio Inc., [1975] 34 Rad.Reg.2d (P-H) 325, 327 n. 2. This was the very procedure which this Court had recommended in Burlington Cty. Evergreen Pk. Mental Hosp., 56 N.J. 579, 600 (1970). There Civil Service, holding a provisional employee had no standing to question her discharge, had rejected her claim, asserting that she had been discharged because of union activities and she thereupon sought relief from PERC. We held that PERC had no jurisdiction to remedy the wrong (N.J.S.A. 34:13A-5.4 had not been enacted), but that Civil Service had *54inherent power to reopen the proceedings and consider whether the employee’s constitutional rights, N.J.Const. (1947), Art. I, par. 19, and statutory rights, N.J.S.A. 34:13A-5.3, to organize and join unions had been violated.
Though inconsistent factual findings of PERC and Civil Service may coexist, their respective orders may not, at least to the extent that they conflict. PERC has ordered that petitioners be promoted with a back pay differential and Civil Service has found that others, not petitioners, were entitled to the promotions.
The broader issue is whether the promotion was made on the basis of merit and fitness — not whether the public employer committed an “unfair practice.” Since Civil Service, of necessity, had to consider the relative merit and fitness of all candidates, its decisionmaking involved more than the question of whether petitioners did not receive promotions because of anti-union animus. Under these circumstances, that part of PERC’s remedy ordering the promotion and back pay should yield to Civil Service’s overall expertise with respect to promotions. This is not to say that PERC’s finding of an “unfair practice” is unfounded or that the other sanctions it imposed which do not affect the promotion should not remain intact. As previously noted, PERC has jurisdiction to hear and decide whether an “unfair practice” occurred, not Civil Service.
A somewhat comparable situation occurred in Seitz v. Duval Cty. School Board, 346 So.2d 644 (Fla.Dist.Ct.App.1977), cert. den. 354 So.2d 985 (Fla.Sup.Ct.1978), where a school board’s dismissal of a tenured school teacher was upheld, though the teacher had filed an unfair labor practice charge under the Florida Public Employees Relations Act. The court held it was not “foreclospng] PERC’s consideration of Seitz’ claim that the Board, by denying her a substantive right secured by PERA, committed an unfair labor practice which should be remedied otherwise than by reinstatement.” 346 So.2d at 647 (emphasis supplied). The Florida PERC subsequently found an unfair *55labor practice. It issued a cease and desist order, but did not order reinstatement. Seitz v. Duval Cty. School Bd. [1978], 3 Pub.Emp.Barg. (CCH) ¶ 40,538 (Fla. PERC).
Which administrative agency should prevail involves a significant policy judgment which should be determined by the Legislature. In the absence of express language in or clear implications from the statute, courts should defer to legislative action. The complete remedy rests with the Legislature. It has made one step in this direction. Contested cases before most administrative agencies are now being held by administrative law judges in the Office of Administrative Law. Under proposed regulations of that office, contested cases arising from different administrative agencies engaged in executing different statutes but involving common factual questions will be consolidated for purposes of hearings and findings. 11 N.J.Reg. 485 (1979) (to be codified in N.J.A.C. 19:65-14.1). Such proceedings should reduce, if not eliminate, conflicts between and among administrative agencies charged with enforcing laws which have overlapping subject matter. Although PERC is not subject to the hearing requirements of the Office of Administrative Law, it may voluntarily submit to its jurisdiction. N.J.S.A. 52:14F-8. PERC’s use of this procedure should be encouraged in all situations where jurisdiction over phases of the same episode are lodged in other administrative agencies.
I have three other substantial difficulties with the majority opinion. First, the majority would have one agency hear the case to the exclusion of the other depending on the major or dominant issue in dispute. This test generally cannot as a practical matter be applied until the evidence has been produced and evaluated. Reliance on the allegations of the parties in whatever pleadings an agency may require will more often than not obscure the dominating issue. Further, there may be more than one major issue in dispute, one more appropriately within PERC’s jurisdiction and the other within Civil Service’s. The dominant issue in relation to the operative event may not be *56known until the evidence is fully developed in proceedings before both agencies.
The majority also suggests that if an unfair practice charge involves issues of “wide public significance,” PERC’s jurisdiction should supersede that of another agency. (At 1158). Here again all types of problems which may arise are being put to rest without adequate consideration. Should the employee be deprived of his or her rights before another agency because of the precedential effect of a decision by PERC? What are the guidelines of “wide public significance”?
Lastly, in the instant case PERC determined that the City’s refusal to promote were motivated by a desire to discipline the petitioners because of their labor activities, that the City’s stated reasons for the refusals were pretextual, and that the anti-union animus was the sole or primary cause. The unfair labor practice being the sole or major complaint, PERC under one test espoused by the majority would have exclusive jurisdiction (at 1158), and yet it is foreclosed because of the majority’s application of collateral estoppel — a principle which PERC had expressly rejected.
In conclusion, I would affirm the denial of enforcement of PERC’s order directing promotion of the petitioners and awarding them back pay. The remainder of the PERC order should be affirmed, namely that the City should henceforth cease and desist from discriminating in regard to terms and conditions of employment on the basis of union activity and that the City post appropriate notice forms and notify PERC of compliance with its order.
Accordingly the judgment of the Appellate Division should be affirmed in part and reversed in part.
PASHMAN, J., concurs in result.
For modification and affirmance — Chief Justice HUGHES and Justices MOUNTAIN, SULLIVAN, PASHMAN, CLIFFORD and HANDLER — 6.
For affirmance in part and reversal in part — Justice SCHREIBER — 1.
Judicial review would be in order when an administrative agency processed a matter obviously in conflict with the statutory authority and legislative intent. Such action would clearly be arbitrary and capricious.
The majority is unsound when it contends that, when an agency does not have exclusive jurisdiction, it must exercise discretion in deciding whether to hear a case. Its discretion does not depend upon exclusivity of jurisdiction over the subject matter.