Patrolmen's Benevolent Ass'n of Montclair, New Jersey, Local No. 53 v. Town of Montclair
| Decision Date | 20 December 1974 |
| Parties | , 88 L.R.R.M. (BNA) 2410, 76 Lab.Cas. P 53,569 PATROLMAN'S BENEVOLENT ASSOCIATION OF MONTCLAIR, NEW JERSEY, 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 Superior Court — Appellate Division |
James R. Zazzali, Newark, for plaintiff-appellant (Zazzali & Zazzali, Newark, attorneys; Lawrence A. Whipple, Jr., Newark, on the brief).
Frank X. McDermott, Springfield, for defendants-respondents (Apruzzese & McDermott, Springfield, attorneys; Richard C. Mariani, Springfield, on the brief).
Before Judges LEONARD, SEIDMAN and BISCHOFF.
The opinion of the court was delivered by
BISCHOFF, J.A.D.
Plaintiff Patrolman's Benevolent Association of Montclair, New Jersey, Local No. 53 (PBA) filed a complaint alleging that defendants Town of Montclair (Montclair) and Theodore Maclachlan, Director of the Department of Public Safety, had violated N.J.S.A. 34:13A--5.3 by refusing to 'negotiate in good faith the terms and conditions of employment of the police officers' and sought a judgment directing defendants to negotiate pursuant to the statute. In the complaint the PBA claimed to be 'the designated and selected representative of all police officers employed by * * * Montclair for the purpose of collective negotiations with * * * Montclair.' In order to show cause was obtained by plaintiff. Defendants filed an answer in which they asserted that a 'serious question' had been raised regarding plaintiff's legal standing to maintain the action because of its failure to comply with the rules and regulations promulgated by the Public Employees Relations Commission (PERC) pursuant to the authority delegated to it by N.J.S.A. 34:13A--11. In their answer defendants relied on the alleged failure of plaintiff to follow the proceedings prescribed by N.J.A.C. 19:11--1.1 and N.J.A.C. 19:11--1.14, which, it is contended, establish the procedure which must be followed in determining the majority representative of police officers.
The trial judge, in an opinion reported at 128 N.J.Super. 59, 319 A.2d 77, dismissed the complaint for the reason that plaintiff had not exhausted available administrative remedies.
The judge stated the threshold issue for determination was 'whether plaintiff's disputed status as negotiating representative may be resolved by the court without a prior exhaustion of administrative remedies,' Id. at 60, 319 A.2d at 77, and further stated that 'the relief sought is recognition of plaintiff's representative status' through the procedure provided under PERC's regulations, Id. at 65, 319 A.2d at 80, and since plaintiff's status was questioned, the dispute could only be resolved by following the appropriate administrative procedure provided by N.J.A.C. 19:11--1.1 and 1.2.
We disagree. It is not necessary that PERC intervene in the determination of the exclusive representative in all cases. On the contrary, N.J.S.A. 34:13A--5.3 provides in part that 'the commission (PERC) shall not intervene in matters of recognition and unit definition except in the event of a dispute.' State v. Prof. Ass'n of New Jersey Dept. of Ed., 64 N.J. 231, 243, 315 A.2d 1 (1974); Bowman v. Hackensack Hospital Ass'n, 116 N.J.Super. 260, 288--290, 282 A.2d 48 (Ch.Div.1971). Another provision of the same statute provides:
* * * Representatives Designated or selected by public employees for the purposes of collective negotiation by the majority of the employees in a unit appropriate for such purposes Or by the majority of the employees voting in an election conducted by (PERC) * * * shall be the exclusive representatives for collective negotiation concerning the terms and conditions of employment of the employees in such suit. (Emphasis supplied)
Furthermore, the procedure established by N.J.A.C. 19:11--1.14 provides that whenever a public employer has been requested to recognize an employee organization as the exclusive representative of a majority of the employees, the public employer and the employee organization may resolve such matters without the intervention of the commission. That same regulation establishes a procedure by which the question of the identity of the representative may be resolved.
The statute establishes two methods by which the standing as 'representative' of a group of employees may be obtained: either (a) by being designated or selected, or (b) by winning an election supervised by PERC.
While the procedure outlined in regulations adopted by PERC was not followed, it by no means follows that the parties did not, by their conduct, accept plaintiff as the exclusive designated or selected representative of the majority of the employees.
The conclusion of the trial judge was based in part upon the assumption that there existed a Bona fide dispute concerning the status of plaintiff as the 'designated and selected representative.' We conclude such an assumption is not justified on the record before us.
On September 17, 1973 plaintiff addressed a letter to Montclair indicating a desire to negotiate a collective bargaining agreement for 1974 and to include in the agreement a pay raise and fringe benefits. It requested some indication from Montclair of alternate dates when said meeting could be held. Defendant responded by letter of September 24, 1973, suggesting the meeting be held after elections. Again, in November 1973 plaintiff requested a meeting for the purpose of collective negotiations. On December 11 plaintiff met with the mayor of Montclair and a commissioner. The parties at that time agreed to meet for the purpose of negotiations as soon as possible. Plaintiff delivered to defendant a copy of its proposal at this meeting. This was followed by negotiating sessions occurring on January 10, January 22 and January 30. On February 13, 1974 plaintiff requested another meeting as soon as possible but received no response to this request. No further meetings or negotiations were held and, on February 19, 1974, defendant Montclair--without consulting the PBA--passed an ordinance establishing the salaries of police officers.
Defendants for the first time questioned the status of plaintiff to conduct the negotiations for police officers in the answer which they filed to plaintiff's complaint. While the date of filing this answer has not been furnished to us, the affidavit verifying it was dated March 13, 1974. In support of its contention that there exists a serious question concerning plaintiff's status, defendants cite no facts, by means of affidavit or otherwise, and simply refer to the failure of plaintiff to follow the provisions of N.J.A.C. 19:11--1.1 and 1.2 and N.J.A.C. 19:11--1.14.
Notwithstanding these provisions of the administrative codes it is clear that defendant Montclair, by its actions...
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