Patrolman's Benev. Ass'n of Montclair, Local No. 53 v. Town of Montclair

• Decision Date: 11 May 1976
• Citation: 70 N.J. 130,358 A.2d 180
• Parties: , 92 L.R.R.M. (BNA) 2779, 80 Lab.Cas. P 53,918 PATROLMAN'S BENEVOLENT ASSOCIATION OF MONTCLAIR, LOCAL NO. 53, Plaintiff-Appellant, v. TOWN OF MONTCLAIR, a municipal corporation and Theodore MacLachlan, Director of Department of Public Safety, Defendants-Respondents.
• Court: New Jersey Supreme Court

Page 130

70 N.J. 130

358 A.2d 180, 92 L.R.R.M. (BNA) 2779,

80 Lab.Cas. P 53,918

PATROLMAN'S BENEVOLENT ASSOCIATION OF MONTCLAIR, LOCAL NO.

53, Plaintiff-Appellant,

v.

TOWN OF MONTCLAIR, a municipal corporation and Theodore

MacLachlan, Director of Department of Public

Safety, Defendants-Respondents.

Supreme Court of New Jersey.

Argued Feb. 24, 1976.

Decided May 11, 1976.

James R. Zazzali, Newark, for plaintiff-appellant (Zazzali & Zazzali, Newark, attorneys).

Frank X. McDermott, Springfield, for defendants-respondents (McDermott, of counsel; Maurice J. Nelligan, Jr., Trenton, on the brief; Apruzzese & McDermott, Springfield, attorneys).

Theodore M. Simon and Gerald M. Goldberg, Landing, filed a brief for amicus curiae N.J. Ee. Ass'n (Goldberg & Simon, Landing, Special Counsel, attorneys).

PER CURIAM.

The propriety of the court's jurisdiction over a dispute between public employees and the municipal employer and the retroactive effect of an amendment to the New Jersey Employer-Employee Relations Act, L.1974, c. 123, are the issues projected by this appeal.

The plaintiff, Patrolman's Benevolent Association of Montclair, New Jersey, Local No. 53 (PBA), asserted in its complaint that it was 'the designated and selected representative of all police officers employed by the Town of Montclair for purposes of collective negotiation with the Town of Montclair concerning terms and conditions of employment for all such police officers.' It charged that in November, 1973, the plaintiff requested negotiations with the defendant Town of Montclair concerning terms and conditions of employment for the year 1974; that negotiations were conducted on January 10 and 22, 1974; that another meeting occurred on January 30 at which no negotiations transpired; that on February 19, 1974, the Town introduced an ordinance increasing salaries of police officers and unilaterally eliminated compensatory time off for overtime worked by police detectives, both acts being in violation of N.J.S.A. 34:13A--5.3; that plaintiff had received various complaints from its members and defendant's actions have 'seriously undermined the ability of the plaintiff to collectively negotiate on behalf of its members.' The plaintiff sought an order directing the defendant Town to negotiate with it, that the defendant be restrained from enacting any ordinance establishing salaries 'for those employees represented by the plaintiff' and that the Town be restrained from modifying any rules or regulations governing 'employees represented by the plaintiff' which existed immediately prior to November of 1973.

The complaint was supported by an affidavit of Carmen Pizzano, President of the PBA, which asserted the information therein was 'true to the best of my knowledge and information and belief' and otherwise contained some hearsay statements and general conclusions of law and fact. The trial court issued an order to show cause without any restraints. ¹

The defendant filed an answer to the order to show cause asserting that the plaintiff had not been certified as employee representative by the Public Employment Relations Commission (PERC) in accordance with N.J.A.C. 19:11--1.1 Et seq. or by the defendant without the Commission's intervention pursuant to the procedures in N.J.A.C. 19:11--1.14. An affidavit of Theodore MacLachlan, Montclair's Commissioner of Public Safety, filed with the answer, stated that the Town had not recognized the plaintiff as the exclusive bargaining representative of its policemen, although the Town had voluntarily met and discussed with the plaintiff various terms and conditions of employment.

At the hearing on the return day, no testimony was taken and no additional affidavits were submitted. The trial court's opinion, 128 N.J.Super. 59, 319 A.2d 77 (Ch.Div.1974), pointed out that PERC was empowered to resolve representational disputes, through elections or any other appropriate method 'so long as it is designed to ascertain the free choice of the employees'; that jurisdiction over the subject matter was vested in PERC; and that since the plaintiff had not exhausted its administrative remedies, the complaint should be dismissed.

Upon appeal the Appellate Division rejected the trial court's rationale because: (1) a majority representative had been selected; and (2) defendant never questioned plaintiff's status until its answer was filed and it had lulled plaintiff over a period of months into a false sense of security. 131 N.J.Super. 505, 330 A.2d 612 (App.Div.1974). The Appellate Division affirmed the judgment, however, because it found that an 'impasse' in the negotiations had been reached; that N.J.S.A 34:13A--6(b) provided that when that occurred PERC 'shall, upon the request of either party, take such steps as it may deem expedient to effect a voluntary...