Passaic County Probation Officers' Ass'n v. County of Passaic

Conford, P. J. A. D.,

Temporarily Assigned, dissenting. It is fairly implicit in the Court’s opinion that it declines to hold the plaintiff entitled to the relief provided public employees under the New Jersey Employer-Employee Relations Act, N. J. S. A. 34:13A-1 et seq.; 34:13A-5.3 (hereafter “labor relations act”), for unilateral change in working hours imposed by the employer without prior negotiation with the representative of the employees, on the ground that the act unconstitutionally impairs the administrative rule-making power of the Supreme Court. Thus the Court’s judgment studiously avoids use of the statutory term, “negotiations”, N. J. S. A. 34:13A—5.3, 5.4 a(5), in directing good faith *258 “discussions” between plaintiff and the county court judges, acting as the Supreme Court’s representatives, on the plaintiff’s grievance, (p. 257). The Court further makes its nullification of the labor relations act as to Court employees plain when it holds that hours of work arc not mandatorily negotiable, as the act expressly says they are, but that the Judiciary employees merely have the right, under N. J. Const. 1947, Art. 1, par. 19, to “urge” upon the court representatives that “hours of work become negotiable * * (emphasis by the Court) (p. 256).

I dissent because I regard the labor relations act as completely free of any impairment of the Court’s authority and right under N. J. Const. 1947, Art. 6, Sec. 2, par. 3 to make rules of administration for all the courts of this State. With all deference, I believe it highly regrettable that the Court does not attempt to harmonize the legislative policy as to the rights of public employees 1 with the Court’s rule-making authority rather than go out of its way to find an insuperable conflict between those subjects. The effect of the Court’s decision is to create an invidious wall between the employees of the other branches of government and those of the Judici *259 ary, barring the latter from the full panoply of negotiating rights and remedies accorded the former under the labor relations act. I find this result to constitute both unacceptable constitutional law and unfortunate public policy.

To begin with, the Court is in the sensitive and difficult position in this case of an agency which has the parochial interest in the outcome of an employer and administrator, and, at the same time, the solemn and non-delegable responsibility of an impartial judicial exponent of the meaning of the Constitution and the laws in relation to the rights of state employees in the Judicial branch. Under such circumstances,it seems to me incumbent upon the Court to render a painstaking demonstration of precisely how and why the labor relations act, attended as it is by the presumption of validity of all legislation, cannot stand as a valid enactment as to Judiciary employees alongside the Judicial Article of the Constitution. I believe the Court’s opinion fails to do that.

The Court recognizes that the guaranty of the 1947 Constitution for collective labor relations rights of public employees applies to employees of the Judiciary as well as of the other branches of State government, (pp. 256, 257)- We have previously held that the labor relations act of 1968 was enacted in the continuing power of the Legislature “to both substantively and proeedurally flesh out the constitutional [labor relations] guarantees”. Lullo v. Intern. Assoc. of Fire Fighters, 55 N. J. 409, 416 (1970). The specific complaint of the plaintiff in this case is that the representatives of the Judiciary unilaterally changed existing hours of employment in violation of the statutory requirement that changes in rules-governing working conditions should be negotiated with representatives of the employees before- being established. N. J. S. A. 34:13A-5.3. That claim appears to be prima facie justified and warrants a remedial judgment by tiro Court in accordance with the statute.

I discern no basis whatever for the Court’s conclusion, gratuitous on the narrow issue here presented, -that adoption of the labor relations act has impermissibly diluted or modi *260 fled the Court’s constitutional authority to administer the judicial system. The Court notes that when the Constitution was adopted in 1947 there was then in existence a substantial body of legislation governing the rights, privileges and obligations of public employees. It cannot be thought that in giving this Court plenary power to administer the judicial system the drafters of the 1947 Constitution were intending to cast a cloud over existing pension and civil service legislation affecting Judiciary employees or over the right of the Legislature to continue to enact statutes protective of all public employees whether in the judicial or the other branches. Legislation affording public employees reasonable protection in respect of collective negotiations concerning compensation and working conditions obviously belongs in that genre, particularly when it is in appropriate implementation, as we expressly recognized in Lullo, supra, of the constitutional guaranty of negotiating rights vouchsafed public employees for the first time in our history at the 1947 Convention. In these respects it is, to me, simply unthinkable that the constitutional delegates contemplated Judiciary employees to be entitled to lesser rights than those of employees in the other branches.

In construing any provision of the Constitution of 1947, we are called upon, “as in the construction of statutes, to consider the whole of the instrument, with a view of arriving at the true intention of each part * * Gangemi v. Berry, 25 N. J. 1, 10 (1957). And in interpreting the interaction of the constitutional grant of plenary rule-making power to the Supreme Court with the constitutional-statutory grant of collective negotiating rights to public employees, it is fundamental that if at all possible the grants should be read to harmonize rather than conflict with each other. Cf. Richman v. Ligham, 22 N. J. 40, 44 (1956); Behnke v. New Jersey Highway Authority, 13 N. J. 14, 24 (1953). Applying these principles, we should not be astute to find invidious invasion of the Court’s administrative authority in reasonable and salutary legislative implementation of the constitutional *261 rights of public employees to effective collective negotiations concerning their pay and working conditions. 2 We should, rather, be predisposed to find a mutual and constitutional accommodation between them. In such a spirit, it seems to me self-evident that the application of the labor relations act to Judiciary employees should not be deemed impermissibly to dilute or modify this Court’s effective authority to administer the judicial organization — any more than, for example, the civil service statutes and regulations could be argued to do so.

If it is the Court’s implicit position that any legislation which even incidentally renders more inconvenient any aspect of judicial administration is for that reason an invalid interference with the Court’s constitutional powers, then much of the civil service legislation would be vulnerable. For example, the obligation of Judiciary supervisory officers to comply with civil service statutes and regulations concerning personnel hiring, firing, examinations, seniority, promotions, etc., undoubtedly renders administration at times less convenient and efficient. Yet one cannot imagine the Court ever holding that any of the civil service statutes unconstitutionally “dilute” or “modify” the Court’s rule-making authority. Nor can one conceive the Court effecting the same result by an administrative directive purportedly addressed to administration of the courts but actually nullifying one of the specific civil service protections of employees. I cannot see why these observations are not equally true as to the labor relations act.

*262 The Court’s reliance on the language and purpose of the constitutional rule-making authority of the Supreme Court does not persuasively advance the thesis that it precludes legislation regulating labor relations with Judiciary employees. Concededly, the Constitution gives the Court power to make rules governing administration of all courts, and conspicuously fails to make such power “subject to law”, as contrasted with the power given in the same paragraph to make mies governing practice and procedure, which power is expressly declared to be “subject to law”. As accurately explained by Justice Case, concurring in Winberry v. Salisbury, 5 N. J. 240, 260, cert. den. 340 U. S. 877 , 71 S. Ct. 123 , 95 L. Ed. 638 (1950), the intent of the Committee on the Judiciary at the Constitutional Convention of 1947, in submitting the provision here under discussion, as expressly set forth in its report to the Convention, II Proceedings Constitutional Convention of 1917, 1180, 1183, was that responsibility for administration was vested in the Supreme Court without limitation whereas in respect of practice and procedure the power was subject to legislative revision, repeal or initiation of new provisions. 3 To me, however, this simply means that the Legislature may not abrogate or change a rule of administration of the courts. If, for example, the Supreme Court by rule or directive orders the trial courts to function from 9:00 a.m. to 4:30 p.m., the Legislature may not enact a statute declaring that court hours shall be from 9 :00 a.m. to 3 :00 p.m.

*263 But for the Court to enlarge the intent of the Constitution makers, from the text of the Judicial Article quoted above, to one of preclusion of any legislation to reflect the progressive views of the public at large with respect to sound labor-management relations between the state government as employer and state employees, whether in the Judiciary or the other branches, would be for the Judiciary to invade the legitimate sphere of legislative hegemonjr over general public policy in a wholly inadmissible fashion. This would be so, I believe, even if there were no express treatment of the rights of public employees in the Constitution. But the point is accentuated by the fact that there is an express constitutional guaranty on the matter — a guaranty which this Court in Lullo, supra, has held to be appropriately implemented by the labor relations act which it now nullifies in respect of Judiciary employees.

The position the Court takes here is in notable contrast with that it took in dealing with the same subject matter — a labor contract negotiated between county court judges and probation officers — in In re Salaries Prob. Off. Bergen County, 58 N. J. 422 (1958). We there frankly avowed the existence of labor negotiations and agreements between Judiciary representatives and probation officers effected under and pursuant to the labor relations act, 58 N. J. at 424-425, and we held the arrangements valid as against various attacks by the Bergen County Board of Freeholders. It was clearly implicit that the process we were there upholding was not in violation of this Court’s exclusive control over rules of administration. See also Pros., Del., Essex Cty. v. Hudson Bd. Freeholders, supra, 130 N. J. Super. at 45.

I am convinced (1) that the Judiciary as a state employer must tolerate such incidental inconvenience in administration as attends affording Judiciary employees their rights under the labor relations act, nothing in the Judicial Article of the Constitution being to the contrary either expressly or by fair intendment; and (2) that acceptance *264 of proposition (1) does not pose any substantial threat to the proper and efficient administration of the judicial organization by this Court and the Chief Justice. No effort to demonstrate the contrary is attempted in the Court’s ojúnion.

The cases cited by the Court expatiating on the powers of the Supreme Court over administration of the courts do not in any way support the thesis of invalidity of the labor relations act in relation to Judiciary employees. Lichter v. County of Monmouth, 114 N. J. Super. 343 (App. Div. 1971), rejected a complaint by court reporters concerning the validity of a court rule requiring installation of sound recording devices in all municipal courts. State v. De Stasio, 49 N. J. 247, cert. den. 389 U. S. 830 , 88 S. Ct. 96 , 19 L. Ed. 2d 89 (1967), upheld the Court’s directive for sentencing of all gambling offenders by a single judge in the county. In re Mattera, 34 N. J. 259 (1961), was concerned with methods of enforcing court rules in case of disobedience by an officer. Only in Winberry v. Salisbury, supra, was the Court speaking of constitutional intent concerning immunity of court rules from overriding legislation. The subject matter there was rules regulating practice and procedure. But even there, as noted above, the Court was conceding the supremacy of substantive law. 5 N. J. at 247. Labor relations legislation is obviously substantive law. Certainly this Court could not abrogate- or alter the labor relations statute by exercise of its rule-making power as to practice and procedure. A fortiori it has no such power in purported exercise of its administrative rule-making jurisdiction.

It is a corollary of this dissent that “acceptance” by this Court of legislation affecting the welfare and rights of public employees must be as a matter of recognition and exposition by the Court of the law, not merely “as a matter of comity and respect for other branches of the government”; see p. 255. We should as a matter of law accept and apply this legislation if it does not abrogate or *265 alter a rule of administration of the courts adopted by this Court; we should strike it down if it does. In my judgment, the New Jersey Employer-Employee Relations Act, insofar as anything argued before us or contained in the Court’s opinion is concerned, does not abrogate or alter a rule of judicial administration, directly or indirectly, nor impermissibly interfere with such administration. I would therefore accord it full recognition in this case and order appropriate relief thereunder on behalf of the plaintiff.

For affirmance as modified — Chief Justice Hughes and Justices Mountain, Sullivan, Pashman, Cliefoed and Scheeibee — 6.

For reversal — Judge Coneobd — 1.

It is well to be reminded of the text of the public policy underlying the labor relations act as stated in N. J. S. A. 34:13A-2:

It is hereby declared as the public policy of this State that the best interests of the people of the State are served by the prevention or prompt settlement of labor disputes, both in the private and public sectors; that strikes, lockouts, work stoppages and other forms of employer and employee strife, regardless where the merits of the controversy lie, are forces productive ultimately of economic and public waste; that the interests and rights of the consumers and the people of the State, while not direct parties thereto, should always be considered, respected and protected; and that the voluntary mediation of such xmblic and private employer-employee disputes under the guidmice and supervision of a governmental agency will tend to promote permanent, public and private employer-employee peace and the health, welfai-e, comfort and safety of the people of the State. To carry out such policy, the necessity for the enactment of the provisions of this act is hereby declared as a matter of legislative determination.

(emphasis added).

The labor relations act has been said to “reflect a state policy to promote voluntary resolutions of public employer-employee disputes over terms and conditions of employment”. Pros., Det., Essex Cty. v. Hudson Bd. Freeholders, 130 N. J. Super. 30, 45 (App. Div.), certif. den. 66 N. J. 330 (1974).

In promoting employee morale, the labor relations act undoubtedly contributes substantially to the efficient operation of any governmental agency, including the Judiciary.

Thefact that a majority of the Court in Winberry by dictum construed the words “subject to law” to mean merely subject to substantive law, 5 N. J. at 247, a construction later confirmed by holding in George Siegler Co. v. Horton, 8 N. J. 374, 38 —382 (1952), does not affect the point made in the text — that the purpose of the constitutional distinction between administration and practice and procedure was to render the Court’s power exclusive in respect of administrative rule-making, but not to permit the Court to veto social legislation having only a remote and incidental relation to court administration.