The opinion of the court was delivered by HANDLER, J.
The Public Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq., requires that an unfair practice charge be filed with the Public Employment Relations Commission (PERC), within six months after the alleged unfair practice occurred unless the charging party "* * * was prevented from filing such charge." N.J.S.A. 34:13A-5.4(c). The appellant filed unfair practices charges beyond the statutory period of limitations. The issue presented is whether under the circumstances of this case the appellant is entitled to be relieved of the statutory bar to allow the adjudication of his claims.
On October 23, 1973, a very serious multi-vehicle accident occurred on the New Jersey Turnpike. The appellant, Walter A. Kaczmarek, Jr., was assigned by his employer, the New Jersey Turnpike Authority, to assist in the cleanup operations. A year and one-half later, the appellant was questioned by the New Jersey State Police concerning a certain truckload of whiskey that had been involved in the accident. The appellant testified that several of his fellow employees had carried off cases of whiskey from the dumping site to the division headquarters. The State Police, however, found no evidence to corroborate appellant's testimony.
Thereafter, on July 15, 1975, the Turnpike Authority notified the appellant that:
As a result of your malicious and unfounded accusations against fellow employees, your employment with the New Jersey Turnpike Authority is hereby terminated * * *.
The discharge was unsuccessfully processed through the grievance apparatus available under the collective agreement by plaintiff's exclusive representative, New Jersey Turnpike Employees' Union, Local 194, IFPTE, AFL-CIO (Union). The Union Executive Board, however, refused to take the matter to arbitration. In its notification letter, dated September 10, 1975, the Union's business manager explained that:
* * * in essence, the [Executive] board agreed [with the Turnpike Authority] that your accusations against fellow employees, having been unfounded, were disruptive of the work force. In addition, your attorney's letter suggested that your defense pursue improper acts alleged against [sic] the investigation, which, if proven, would reopen the question of your fellow-workers' guilt.
As a result of the Union's action, the discharge was deemed "final and binding" under the bargaining agreement.
Immediately thereafter, appellant, through his attorney, attempted to ascertain the appropriate forum through which to pursue his legal remedies against his employer for wrongfully discharging him and the Union for breaching its duty of fair representation by arbitrarily, discriminatorily, and in bad faith refusing to submit the matter to arbitration. Appellant maintains that certain employees of PERC informed his attorney that the Commission did not have jurisdiction over an unfair union representation charge. Accordingly, on December 1, 1975, appellant commenced suit in the Superior Court, Middlesex County, Law Division, seeking redress from the wrongs allegedly committed by both his employer and the Union. Presumably on the ground that PERC by statute, N.J.S.A. 34:13A-5.4(c), had exclusive jurisdiction of the unfair practice charges, defendants included lack of jurisdiction as an affirmative defense in their answers to the complaint.
The Turnpike Authority then filed a summary judgment motion with PERC based on the six-month limitation period in N.J.S.A. 34:13A-5.4(c), which provides that no unfair practice complaint shall be issued, "* * * based upon any unfair practice occurring more than six months prior to the filing of the charge unless the person aggrieved thereby was prevented from filing such charge." On September 22,
On November 4, 1976 appellant filed a notice of appeal from the PERC decision with the Appellate Division. His position on appeal was that the equitable doctrine of tolling the statute of limitations should be applied to avoid hardship and injustice. He argued alternatively that PERC has no jurisdiction over unfair representation claims, or if it does, its jurisdiction is concurrent.
On April 7, 1977 the Appellate Division, in an unpublished opinion, found that "PERC properly dismissed appellant's complaint on the ground that it was filed out of time." The court thus found it "unnecessary" to decide the jurisdictional question, additionally implying that that issue, in any event, had been foreclosed by appellant's failure to prosecute the earlier appeal from the Law Division action.
The appellant filed a petition for certification, relying solely on the question as to whether the six-months limitation period should be tolled. Certification was granted. 75 N.J. 16 (1977).
The "New Jersey Employer-Employee Relations Act", N.J.S.A. 34:13A-1 et seq. (hereinafter "the Act"), is a comprehensive legislative scheme promulgated to serve the best interests of the people of the State by the prevention or prompt settlement of labor disputes. N.J.S.A. 34:13A-2. The Act provides, inter alia, for a "Public Employment Relations
This statutory authority to entertain and adjudicate unfair practices was conferred upon PERC as a result of the earlier conclusion in Burlington Cty. Evergreen Pk. Mental Hosp. v. Cooper, 56 N.J. 579 (1970) that the law, as first enacted, did not empower PERC to process unfair practices complaints. See Galloway Twp. Bd. of Ed. v. Galloway Twp. Assoc. of Ed. Sec'ys, 78 N.J. 1, 8 n. 2 (1978). The statute which conferred upon PERC the authority to process unfair practices claims also imposed the six-months period within which such claims must be brought. It is the invocation of this statutory limitations to bar appellant's claim by PERC which has generated the issue on appeal.
The reasons for a statutory limitation on actions must be examined in confronting the issue whether in this case the statutory period should be relaxed to permit the late filing of the unfair practices claim. It is acknowledged generally that the primary purpose behind statutes of limitation is to compel the exercise of a right of action within a reasonable time so that the opposing party has a fair opportunity to defend, Union City Housing Auth. v. Commonwealth Trust Co., 25 N.J. 330, 335 (1957); another is to stimulate litigants to pursue their causes of action diligently and to prevent the litigation of stale claims. Farrell v. Votator, Div. of Chemetron Corp., 62 N.J. 111, 115 (1973). See generally Burnett v. N.Y. Cent. R.R., 380 U.S. 424, 428 & n. 4, 85 S.Ct. 1050, 1053 & n. 4, 13 L.Ed. 2d 941, 915 & n. 4 (1965). The prompt filing and expeditious
By the same reasoning, it would be derelict for the Court to apply strictly and uncritically a statutory period of limitations without considering conscientiously the circumstances of the individual case and assessing the Legislature's objective in prescribing the time limitation as related to the particular claim. Burnett v. N.Y. Cent. R.R., supra, 380 U.S. at 426, 85 S.Ct. at 1053, 13 L.Ed.2d at 944; White v. Violent Crimes Comp. Bd., 76 N.J. 368, 379 (1978).
In probing the legislative design, some significance is attributed to the circumstance that the six-months period of limitation was enacted with the jurisdictional grant over unfair practices. However, the juxtaposition of the right to process unfair practices with the six-months period of limitation in the same statutory provision creating the right is not alone dispositive of whether the Legislature thereby intended that the limitation qualify or condition the right itself.
In White v. Violent Crimes Comp. Bd., supra, this Court discussed extensively the distinction between a statute of limitations which is "remedial" and one which imposes a "substantive" or "jurisdictional" prerequisite, 76 N.J. 368, at 374-379: the former affects only the right to enforce the remedy and not the substantive right itself whereas the latter inheres in the right and is said to "extinguish the underlying right as well as to bar the remedy." Id. at 374. A limitation contained in a statute creating a new right was generally considered a condition precedent to the existence of the right itself, i.e., if not met by the charging party, that party's complaint would fail. United States v. Studivant, 529 F.2d 673 (3 Cir.1976); Marshall v. George M. Brewster & Son, Inc., 37 N.J. 176, 181 (1962). Nevertheless, federal cases which have interpreted the similar provision of the National Labor Relations Act, 29 U.S.C. § 160(b) (now within the National Labor Management Relations Act, 29 U.S.C. § 141 et seq.) have found the six-months period to be a simple statute of limitations and not a jurisdictional prerequisite. See, e.g., N.L.R.B. v. Local 264, Laborers' Int'l Union of North America, 529 F.2d 778 (8 Cir.1976); Shumate v. N.L.R.B., 452 F.2d 717 (4 Cir.1971); A.H. Belo Corp. v. N.L.R.B., 411 F.2d 959 (5 Cir.1969), cert. den. 396 U.S. 1007, 90 S.Ct. 561, 24 L.Ed.2d 498 (1970); N.L.R.B. v. Silver Bakery, Inc., 351 F.2d 37 (1 Cir.1965). See also Lullo v. Int'l Assoc. of Fire Fighters, Local 1066, 55 N.J. 409 (1970) (the N.L.R.A., where pertinent, is instructive as to the interpretations of our own statute). In any event, in White we eschewed such "mechanistic" approaches for a more flexible legislative-purpose test. White v. Violent Crimes Comp. Bd., supra, 76 N.J. at 378-379.
In the instant case, the Legislature, by its very choice of expression, evinced a purpose to permit equitable considerations to be brought to bear. It did not couch the period of limitations in terms of a flat and absolute bar but instead
An employee, to be "prevented" from filing within the terms of the statute (N.J.S.A. 34:13A-5.4(c)), need not have been fettered only by factors that are totally beyond his control. Indeed in a distinctly analogous case, Burnett v. N.Y. Cent. R.R., supra, the Supreme Court of the United States observed that "[s]tatutes of limitations are primarily designed to assure fairness to defendants," and that "[t]his policy of repose" with respect to the right to recovery under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq., would be "outweighed" where "a plaintiff has not slept on his rights but, rather, has been prevented from asserting them." 380 U.S. at 428-429, 85 S.Ct. at 1054-1055, 13 L.Ed.2d at 945-946. The Court found such prevention where the petitioner
* * * did not sleep on his rights but brought an action within the statutory period in a state court of competent jurisdiction. Service of process was made upon the respondent notifying him that petitioner was asserting his cause of action. * * * Petitioner, then, failed to file an FELA action in the federal courts, not because he was disinterested, but solely because he felt that his state action was sufficient.
[330 U.S. at 429, 85 S.Ct. at 1055, 13 L.Ed.2d at 946].
Here also, appellant at no time "slept on his rights." He filed his Superior Court suit within three months of the Union's refusal to arbitrate, the date which PERC determined to be the point of time when the action accrued. As noted by the United States Supreme Court in Goldlawr, Inc. v. Heiman, 369 U.S. 463, 467, 82 S.Ct. 913, 916, 8 L.Ed.2d 39, 42 (1962), "[t]he filing [of a lawsuit] itself shows the proper diligence on the part of the plaintiff which statutes of limitation were intended to insure." In addition, the record reveals no suggestion of bad faith or purposeful delay or harassment on his part in instituting suit in the Superior Court instead of PERC. Indeed, that very decision may have been prompted by a misunderstanding between appellant's attorney and PERC staff members as to whether or not PERC would assert jurisdiction over the charges. Once he discovered that his Law Division suit might be dismissed appellant again acted promptly by immediately filing the PERC action. Moreover, he sought to clarify his rights by appealing the dismissal of the Law Division action and then staying the appeal pending a determination by PERC. Ante at 335 n. 2.
Furthermore, respondents Turnpike Authority and Union have not shown that they were in any way prejudiced by appellant's late filing for they had timely notice of the substance of appellant's charges against them as a result of the Superior Court action, see, e.g., R.L. Mulliken v. City of Englewood, 59 N.J. 1, 4 (1971), and indeed readily perceived the jurisdictional flaw in that suit by securing its dismissal.
While we do not consider the failure to file a timely complaint with the appropriate state agency a mere "technical" omission, we nonetheless consider equitable relief to be appropriate in view of the total absence, to our knowledge, of any judicial decision construing section 633(b) [of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq.] during the period involved here and in view of the remedial purpose of the 1967 Act.
[Id. at 16-17].
With regard to appellant's unfair representation claim against the Union, there were then no judicial decisions dealing with PERC's jurisdiction over such claims. The statute, at the filing of the complaint, was relatively new and unexplored. Previously unfair representation suits under the federal scheme had been recognized as within the competence of the courts, see, e.g., Donnelly v. United Fruit Co., 40 N.J. 61 (1963); P.T.L. Const. Co. v. Teamsters Local 469, 131 N.J.Super. 104 (Law Div. 1974), aff'd 66 N.J. 97 (1974), and indeed a contemporaneous Appellate Division decision under the new statute failed to raise any question as to the courts' right to exercise jurisdiction over unfair practices claims. Belen v. Woodbridge Twp. Bd. of Ed., 142 N.J.Super. 486 (App. Div.), certif. den. 72 N.J. 458 (1976). It was not until Patrolman's Benev. Assoc., Local 53 v. Montclair, 70 N.J. 130 (1976), that there was a firm indication by our court that unfair practices charges initially brought in the State court system could even be transferred to PERC. Moreover, N.J.S.A. 34:13A-5.4, which confers jurisdiction over unfair practices to PERC, does not expressly list unfair representation as an unfair practice. Under these circumstances
Ordinarily, the commencement of an action in a court which lacks jurisdiction of the subject matter will not toll the statute of limitations. 54 C.J.S. Limitations of Actions § 247 at 270. A federal court exception to the general rule was stated in Ellis v. Lynch, 106 F.Supp. 100 (D.N.J. 1952):
The commencement of an action in a court which lacks jurisdiction of the subject matter will toll the statute of limitations if the court has the authority under the law to transfer the action to a court of competent jurisdiction. Herb v. Pitcairn, 324 U.S. 117, 65 S.Ct. 459, 89 L.Ed. 789 and 325 U.S. 77, 65 S.Ct. 954, 89 L.Ed. 1483.
[Id. at 102].
Compare Covington v. United States, Dep't of Air Force, 303 F.Supp. 1145, 1148 (N.D. Miss. 1969) (filing of an action in a court which had neither jurisdiction of the action, nor the power to transfer the action to the proper court, did not operate to toll the statute of limitations).
Under our rules and the judicial interpretations thereof, the Law Division had the power to transfer the case to an administrative agency. R. 1:13-4 states in pertinent part that:
* * * if any court is without jurisdiction of the subject matter of an action * * *, it shall, on motion or its own initiative, order the action * * * transferred to the proper court, if any, in the State. The action shall then be proceeded upon as if it had been originally commenced in that court.
Here the appellant originally filed his case in the Law Division. Once the trial judge ascertained that he did not have subject matter jurisdiction, he should have transferred the case to PERC. Under the circumstances of this case, had he done so the charge would have been timely brought before the proper tribunal. The Law Division's failure to transfer the case to PERC and thus preserve appellant's timely filing constitutes another mitigating circumstances to be weighed in sustaining appellant's claim.
Thus, under the particular circumstances of this case, the statute of limitations contained in N.J.S.A. 34:13A-5.4(c) does not constitute a bar to the charges herein. Compare Patrolman's Benev. Assoc., Local 53 v. Montclair, supra. Those charges should remain lodged with PERC and be allowed to proceed in normal course. Respondents, of course, are free to assert any additional defenses which are available to them.
The judgment of the Appellate Division is reversed and the case is remanded to PERC for proceedings not inconsistent with this opinion.
PASHMAN, J., concurring.
An exclusive majority representative of a unit of public employees is, by virtue of that
* * * cannot lawfully refuse to perform or neglect to perform fully and in complete good faith the duty, which is inseparable from the power of exclusive representation, to represent the entire membership of the employees in the unit.
[55 N.J. at 429]
See also Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); Donnelly v. United Fruit Co., 40 N.J. 61 (1963); Belen v. Woodbridge Tp. Bd. of Ed., 142 N.J.Super. 486, 490-491 (App. Div.), certif. den. 72 N.J. 458 (1976); see generally Summers, The Individual Employee's Rights Under the Collective Agreement: What Constitutes Fair Representation? 126 U. Pa. L. Rev. 251 (1977).
In response to this Court's decision in Burlington Cty. Evergreen Park Ment. Hosp. v. Cooper, 56 N.J. 579 (1970), the Legislature enacted L. 1974, c. 123, § 1 granting the Public Employment Relations Commission exclusive jurisdiction to adjudicate and remedy unfair practices as therein defined. N.J.S.A. 34:13A-5.4. As the Court notes, N.J.S.A. 34:13A-5.4(b) does not expressly list a breach of the duty of fair representation as an unfair practice on the part of an employee organization, although it is arguably subsumed in N.J.S.A. 34:13A-5.4(b) (1). The private-sector counterpart of that provision of the Act, § 8(b) (1) (A) of the National Labor Relations Act, 29 U.S.C. § 158(b) (1) (A), has been held to encompass violations of the duty of fair representation. Miranda Fuel Co., 140 NLRB 181 (1962), enforcement denied, 326 F.2d 172 (2 Cir.1963).
* * * oust the Courts of their traditional jurisdiction to curb arbitrary conduct by the individual employee's statutory representative.
[Id., at 183, 87 S.Ct. at 913]
We have intimated no view with respect to the question of the exclusivity vel non of PERC's jurisdiction over unfair representation claims, as resolution of that issue is unnecessary to the disposition of this appeal. Hence, we need not consider whether the Supreme Court's rationale in Vaca would be the proper approach to the exclusivity question in public employment labor relations in New Jersey. The fact that the existence of the duty of fair representation antedated PERC's jurisdiction over unfair practices combined with the fact that the Legislature did not explicitly enumerate an unfair practice in N.J.S.A. 34:13A-5.4(b) for unfair representation might suggest that the Legislature did not intend PERC's role in remedying a majority representative's breach of the duty of fair representation to be exclusive. However, resolution of this important question must await an appropriate future case.
Our disposition of this appeal should not in any way be construed as an implicit approval of the ruling of the Law Division, see ante at 335, that PERC's jurisdiction of unfair representation claims is preemptive.
PASHMAN, J., concurring in the result.
For affirmance — None.