City of Hackensack v. Winner

Decision Date22 January 1980
Citation82 N.J. 1,410 A.2d 1146
Parties, 104 L.R.R.M. (BNA) 2259 CITY OF HACKENSACK, Respondent, v. Richard WINNER, and Nicholas Sarapuchiello, William Krejsa, Appellants, and The public employment relations commission, Appellant.
CourtNew Jersey Supreme Court

David Solomon, Jersey City, for appellants Sarapuchiello and Krejsa (Schneider, Cohen and Solomon, Jersey City, attorneys).

Sidney H. Lehmann, Gen. Counsel, Trenton, for appellant Public Employment Relations Commission (Don Horowitz, Deputy Gen. Counsel, Trenton, on the briefs).

Erminie L. Conley, Asst. Atty. Gen., on behalf of amicus curiae Civil Service Commission (John J. Degnan, Atty. Gen., attorney; Stephen Skillman, Asst. Atty. Gen., of counsel).

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

The opinion of the Court was delivered by


This appeal comes to us as a result of conflicting decisions by two State administrative agencies arising from their separate handling of a single controversy over which each had apparent jurisdiction. The case originated with a dispute between a municipality, the City of Hackensack, and several of its civil service employees, firefighters claiming that they had been improperly denied promotions to the rank of lieutenant in the fire department. The employees' complaints related to their merit and fitness for promotion and were thus governed largely by the civil service laws and the Civil Service Commission under Title 11. N.J.S.A. 11:1-1 Et seq. The employees also asserted, however, that their promotions had been withheld because of their union activity. In this respect, the claims were covered by the Public Employer-Employee Relations Act, N.J.S.A. 34:13A-1 Et seq., and subject to the jurisdiction of the Public Employment Relations Commission under that act. Separate actions were brought before each administrative agency by the firefighters with respect to their employment claims. The two agencies, independent of one another, proceeded to adjudicate the matters in dispute and ultimately reached different findings of fact, arrived at dissimilar legal conclusions and imposed inconsistent administrative remedies. This unstable and unsettling disposition of the controversy, which was appealed to the Appellate Division, its decision reported at 162 N.J.Super. 1, 392 A.2d 187 (1978), impelled our grant of certification. 78 N.J. 404, 396 A.2d 591 (1978).

To place the issues in proper perspective, a rather methodical trailing of the case through each administrative agency to its present posture is needed. In January 1974 the Department of Civil Service held a promotional examination for the position of fire lieutenant in the City of Hackensack ("the City" of "Hackensack"). As a result of that examination a promotion eligibility list was promulgated by the Department in April 1974. Petitioner William Krejsa ranked fourth on that list and petitioner Nicholas Sarapuchiello ranked sixth. Another petitioner, Richard Winner, who placed third on the list, did not pursue his claims and is no longer involved in the case. In December 1974, in response to a request from the City, the Department of Civil Service issued a certification of individuals eligible for appointment to the position of fire lieutenant. In accordance with civil service rules, N.J.A.C. 4:1-12.4(a)(2), eight names were certified for six openings. Numbers one, two, five, seven and eight on that list were all promoted to the position of fire lieutenant effective February 12, 1975. It was stipulated that this marked the first time that Hackensack had not made promotions in its fire department strictly according to rank order on the eligibility list without any skipping or bypassing.

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

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

Hackensack filed its notice of appeal on March 18, 1977. On April 14, 1977, PERC filed a notice of cross-appeal in which it sought an order for enforcement of its decision of March 16 pursuant to N.J.S.A. 34:13A-5.4 f. The Appellate Division, in its decision of July 31, 1978, ruled that the issue of anti-union animus had in fact been raised in both the civil service and the PERC proceedings. 162 N.J.Super. at 16-18, 392 A.2d 187. It then held that, in the context of a civil service proceeding, the Civil Service Commission had jurisdiction to hear claims of anti-union discrimination or bias. Id. at 21, 392 A.2d 187. The court determined that both agencies in fact had concurrent jurisdiction to consider the charges of anti-union discrimination. Id. at 23-24, 392 A.2d 187. In terms of the current dispute, the court was of the opinion that Civil Service had properly exercised its jurisdiction, Id. at 24, 392 A.2d 187, and that, the issue of prejudice or lack of good faith due to union activities having been fully and fairly litigated before Civil Service, the parties were precluded from seeking in another forum further relief based on those same claims, Id. at 29, 392 A.2d 187. The court also determined that even though a portion of PERC's remedy, the "ancillary" cease and desist order, was not inconsistent with the Civil Service order, that mode of relief was "inappropriate"; thus the entire PERC order was reversed and set aside. PERC's cross-application for enforcement was accordingly denied. Id. at 33, 392 A.2d 187.

Both PERC and the charging parties filed petitions for certification. In granting certification, 78 N.J. 404, 396 A.2d 591 (1978), the Court constricted the focus of the appeal "solely to the issue of which agency should exercise jurisdiction over the subject matter of the within appeal, assuming that the unfair labor practice charge has been considered by both agencies" (Certification Order)....

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