Patrolmen's Benev. Ass'n., Elizabeth Local No. 4 v. City of Elizabeth

• Decision Date: 29 December 1976
• Citation: 369 A.2d 931,146 N.J.Super. 257
• Parties: , 94 L.R.R.M. (BNA) 2811, 80 Lab.Cas. P 54,048 PATROLMEN'S BENEVOLENT ASSOC., ELIZABETH LOCAL NO. 4 et al., Plaintiffs-Appellants, v. The CITY OF ELIZABETH et al., Defendants-Respondents. ELIZABETH POLICE SUPERIOR OFFICERS ASSOCIATION et al., Plaintiffs,-appellants, v. The CITY OF ELIZABETH et al., Defendants-Respondents. ELIZABETH FIRE OFFICERS ASSOCIATION, LOCAL NO. 4 et al., Plaintiffs-Appellants, v. The CITY OF ELIZABETH et al., Defendants-Respondents. FIREMEN'S MUTUAL BENEVOLENT ASSOCIATION, BRANCH NO. 9 et al., Plaintiffs-Appellants, v. The CITY OF ELIZABETH et al., Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 257

146 N.J.Super. 257

369 A.2d 931, 94 L.R.R.M. (BNA) 2811,

80 Lab.Cas. P 54,048

PATROLMEN'S BENEVOLENT ASSOC., ELIZABETH LOCAL NO. 4 et al., Plaintiffs-Appellants, v. The CITY OF ELIZABETH et al., Defendants-Respondents.

ELIZABETH POLICE SUPERIOR OFFICERS ASSOCIATION et al., Plaintiffs,-appellants, v. The CITY OF ELIZABETH et al., Defendants-Respondents.

ELIZABETH FIRE OFFICERS ASSOCIATION, LOCAL NO. 4 et al., Plaintiffs-Appellants, v. The CITY OF ELIZABETH et al., Defendants-Respondents.

FIREMEN'S MUTUAL BENEVOLENT ASSOCIATION, BRANCH NO. 9 et

al., Plaintiffs-Appellants, v. The CITY OF ELIZABETH et al., Defendants-Respondents.

Superior Court of New Jersey,

Appellate Division.

Argued Nov. 15, 1976.

Decided Dec. 29, 1976.

William A. Cambria, Elizabeth, for appellants Patrolmen's Benev. Ass'n, Elizabeth Local No. 4 et al. (Sauer, Boyle, Dwyer & Canellis, somerville, attorneys; George W. Canellis, Somerville, on the brief).

Jerome M. Lynes, Newark, for appellants Elizabeth Police Superior Officers Ass'n et al. (Nolan, Lynes, Bell & Moore, Newark, attorneys; Jerome M. Lynes on the brief).

Scott E. Tanne, Jersey City, for appellants Elizabeh Fire Officers Ass'n, Local No. 4 et al. (Schneider, Cohen & Solomon, Jersey City, attorneys; Scott E. Tanne on the brief).

Howard A. Goldberger, Irvington, for appellants Firemen's Mut. Benev. Ass'n, Branch No. 9 et al. (Goldberger, Siegel & Finn, Irvington, attorneys filed a statement in lieu of brief).

John R. Weigel, Princeton, for respondents City of Elizabeth et al. (Frank P. Trocino, City Atty., Elizabeth, attorney; John R. Weigel, of counsel and on the brief).

Before Judges CARTON, KOLE and LARNER.

The opinion of the court was delivered by

KOLE, J.A.D.

The trial judge entered a judgment providing that (1) the temporary restraints be dissolved; (2) Ordinances 855, 856 and 857 'are not subject matters of referendum,' and (3) as a matter of law, the City of Elizabeth, through its governing body, is entitled to lay off and demote members and officers of the fire and police departments for reasons of economy without that action being subject to referendum or subject to any other law. The judgment also dismissed the complaint and order to show cause with prejudice. We affirm the judgment essentially for the reasons set forth in the trial judge's opinion, except as hereafter set forth.

The judge properly refused to exercise jurisdiction to determine the factual issue of whether economy was the reason for the ordinances and the resulting reorganization of the police and fire departments, demotions and layoffs. It correctly held that that issue required exhaustion of administrative remedies involving the expertise of the appropriate administrative body. See Patrolman's Benevolent Ass'n v. Montclair, 70 N.J. 130, 358 A.2d 180 (1976).

We agree with the trial judge that the 1974 amendments to the Public Employment Relations Act (PERA), N.J.S.A. 34:13A--1 Et seq., are inapplicable to the present case.

The city is a civil service municipality. Whether the layoffs and the decrease in the number of members and officers of the fire and police departments or their grades and ranks were actually 'necessary for reasons of economy' (N.J.S.A. 40A:14--25; 40A:14--143) is an issue that should be decided by the Civil Service Commission. It involves a plain statutory managerial and nonnegotiable authority of the municipality, not subject to the jurisdiction of the Public Employment Relations Commission (PERC), even under the 1974 amendments to PERA. See Union Cty. Regional High School Bd. of Ed. v. Union Cty. Regional High School Teachers Ass'n, Inc., 145 N.J.Super. 435, 368 A.2d 364 (App.Div.1976); North Bergen Tp. Bd. of Ed. v. North Bergen Fed. Teachers, 141 N.J.Super. 97, 357 A.2d 302 (App.Div.1976) ; Clifton Teachers v. Clifton Bd. of Ed., 136 N.J.Super. 336, 346 A.2d 107 (App.Div.1975).

The determination of this issue--whether the municipality has in fact exercised its managerial authority in good faith for reasons of economy--involves an established function of the Civil Service Commission. That agency's determinations and orders with respect thereto are enforceable against the municipality. See Prosecutor's Detectives, etc., Ass'n v. Hudson Cty. Bd. of Freeholders, 130 N.J.Super. 30, 42--43, 48, 324 A.2d 897 (App.Div.1974), certif. den. 66 N.J. 330, 331 A.2d 30 (1974); N.J.S.A. 11:1--1; 11:19--2; 11:19--3; 11:22--10.1. Compare N.J.S.A. 40A:14--19 to 22; 40A:14--147 to 150. See also Cunningham v. Civil Service Dep't, 69 N.J. 13, 18, 350 A.2d 58 (1976); Civil Service Dep't v. Newark, 131 N.J.Super. 275, 277--278, 329 A.2d 572 (App.Div.1974).

If the action of the municipality were in fact necessary for reasons of economy, such a nonnegotiable issue is not one within the cognizance of PERC merely because it is claimed that it may constitute an unfair practice under N.J.S.A. 34:13A--5.4(a) or that PERC may have jurisdiction to determine the scope of collective negotiations under N.J.S.A. 34:13A--5.4(d). Nor, in view of our determination, may any contention be made that the matter is one for which a grievance procedure has been 'established by agreement between the public employer and the representative organization' for the resolution of any dispute covered by the agreement, under N.J.S.A. 34:13A--5.3. In any event, no one disputes the conclusion of the trial judge that 'certain contracts of employment now in existence between plaintiffs and defendant * * * provide a clause entitled 'Management Responsibility' which specifically reserve to the City * * * the right to hire, fire and demote.' Additionally, we do not consider the ambiguous amendment to N.J.S.A. 34:13A--8.1, eliminating the prior statutory language that no provision of the act shall 'annul or modify any pension statute or statutes of this State,' as a basis for divesting the Civil Service Commission of its traditional ...