Opinion
DOCKET NO. A-2549-11T1
04-09-2013
ATLANTIC CITY BOARD OF EDUCATION, Petitioner-Appellant, v. ATLANTIC CITY EDUCATION ASSOCIATION, Respondent-Respondent.
Avis Bishop-Thompson argued the cause for appellant (DeCotiis, FitzPatrick & Cole, LLP, attorneys; George G. Frino, of counsel; Ms. Bishop-Thompson and Mark A. Bunbury, Jr., on the briefs). Keith Waldman argued the cause for respondent (Selikoff & Cohen, P.A., attorneys; Mr. Waldman, of counsel and on the brief; Stacey A. Cutler, on the brief). Martin R. Pachman argued the cause for respondent New Jersey Public Employment Relations Commission (Mr. Pachman, General Counsel, New Jersey Public Employment Relations Commission, attorney; David N. Gambert, Deputy General Counsel, on the statement in lieu of brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ostrer and Kennedy.
On appeal from the Public Employment Relations Commission, Docket No. SN-2011-053.
Avis Bishop-Thompson argued the cause for appellant (DeCotiis, FitzPatrick & Cole, LLP, attorneys; George G. Frino, of counsel; Ms. Bishop-Thompson and Mark A. Bunbury, Jr., on the briefs).
Keith Waldman argued the cause for respondent (Selikoff & Cohen, P.A., attorneys; Mr. Waldman, of counsel and on the brief; Stacey A. Cutler, on the brief).
Martin R. Pachman argued the cause for respondent New Jersey Public Employment Relations Commission (Mr. Pachman, General Counsel, New Jersey Public Employment Relations Commission, attorney; David N. Gambert, Deputy General Counsel, on the statement in lieu of brief). PER CURIAM
The Atlantic City Board of Education (Board) appeals from the order of the Public Employment Relations Commission (PERC or Commission) denying its request to restrain binding arbitration of a grievance that the Atlantic City Education Association (Association) filed on behalf of two of its members. The Association maintained that the employees were asked to perform additional work without additional pay. We affirm.
I.
The Board employed Evelyn Perez as a school psychologist and Martina Villarson as a speech language therapist. Before the 2010-2011 school year, the Board also had contracted with Perez and Villarson, through their companies, to conduct bilingual evaluations of students outside school hours. Around September 2010, the Board terminated this arrangement and directed Perez and Villarson to perform the evaluations as part of their duties as public employees.
Donna Haye, Assistant Superintendent for Curriculum and Instruction for the Board, certified that both employees told her they could perform the evaluations within their current schedules, neither complained about the prospect of an increased work load, and performance of the evaluations fell within their existing job descriptions. On the other hand, Perez certified that in order to perform the evaluations, she had to come to work early or stay late, regularly skip her duty-free lunch, take home work, and miss professional development opportunities.
In November 2010, the Association filed a grievance with Haye, alleging a "[v]iolation of . . . Article 28, Section 28.9" of the collective negotiations agreement (CNA). The section reads:
Except as this Agreement shall otherwise provide, all terms and conditions of employment applicable on the signing of this Agreement have been applied to all employees covered by this Agreement as established by the rules, regulations, and/or policies of the Board in force on said date, and shall continue to be still applicable during the term of this Agreement.The grievance stated, "Ms. Perez and Ms. Villarson were recently informed they must conduct bilingual evaluations and will not receive compensation as they did in the past." The grievance requested that the employees "receive compensation for bilingual evaluations and/or any other agreement reached between both parties."
Asserting that Haye had not responded, the Association filed a grievance with the Board, repeating its previous allegations. The Board denied the grievance in January 2011, and then sought to restrain arbitration by filing its petition with PERC for a scope of negotiations determination.
The Board initially argued to PERC that the employees "are seeking compensation for services performed by these private consulting companies, and not for any work performed in their capacity as public employees." The Association responded that it was not contesting the Board's managerial prerogative to terminate the private consulting contracts, or to determine caseload and staffing issues, but rather its refusal to negotiate over additional compensation. The Board replied that the Association was recasting the nature of its grievance; it had not demanded negotiations about increased workload; and arbitration would, in any event, interfere with the Board's managerial prerogative to control staffing and reduce costs.
PERC denied the Board's petition in a decision and order issued on December 15, 2011. PERC noted its narrow jurisdiction, explaining that it would not reach the merits of the grievance or possible contractual defenses. The Commission acknowledged the Board's argument that the Association had not properly raised a claim for increased compensation for increased work, but instead had objected to termination of the private consulting contracts. PERC held the arbitrator should decide whether the Association had followed the procedure set forth in the CNA, and a court should determine whether the grievance fell outside the CNA. The arbitrator should also consider the Board's arguments that the CNA did not require extra pay for extra work, and that the employees' work load and hours had not actually increased.
PERC determined that the only issue presented by the Board's petition was whether compensation for additional work was mandatorily negotiable and thus arbitrable. Citing its own numerous decisions, and the standards set by our courts, PERC held that it was. This appeal followed. The Board presents the following issues for our consideration:
POINT I
THE RECORD ESTABLISHES THAT THE DECISION AND ORDER WAS ARBITRARY AND CAPRICIOUS, AND THEREFORE, SHOULD BE REVERSED.
A. STANDARD OF REVIEW.
POINT II
PERC FAILED TO CONSIDER THE BOARD'S INHERENT MANAGERIAL PREROGATIVE TO ASSIGN DUTIES AND STAFF.
POINT III
PERC'S DECISION IS CONTRARY TO LAW AND FAILS TO WEIGH THE EVIDENCE.
POINT IV
PERC'S DECISION SHOULD BE OVERTURNED AS A MATTER OF PUBLIC POLICY SINCE IT CREATES HARM TO THE BOARD AND THE PUBLIC WELFARE.
II.
A.
We review PERC's decision to determine whether it was arbitrary, capricious, or unreasonable; lacked evidential support; or violated legislative policy. Twp. of Franklin v. Franklin Twp. PBA Local 154, 424 N.J. Super. 369, 377 (App. Div. 2012) (Franklin Twp. PBA). We accord substantial deference to PERC's interpretation of the New Jersey Employer-Employee Relations Act (Act) and PERC's exercise of its authority to determine whether a disputed matter falls within the scope of collective negotiations. Id. at 377-78; see also N.J.S.A. 34:13A-5.4d (stating that PERC is authorized "to make a determination as to whether a matter in dispute is within the scope of collective negotiations").
PERC exercises limited jurisdiction to determine whether a dispute is mandatorily negotiable. Where the dispute concerns the arbitrability of a grievance sought to be submitted to binding arbitration pursuant to a collectively negotiated grievance/arbitration procedure, the Commission will not determine whether "the grievance is covered by the arbitration clause of an agreement; . . . the facts are as alleged by the grievant; . . . a contract provides a defense for the employer's alleged action; . . . there is a valid arbitration clause in an agreement; or . . . [a]ny other similar question." N.J.A.C. 19:13-1.1(b).
PERC's scope of negotiations determination implicates the dichotomy our Court has drawn between "'mandatorily negotiable terms and conditions of employment and non-negotiable matters of governmental policy.'" In re Local 195, IFPTE, AFL-CIO, 88 N.J. 393, 402 (1982) (Local 195) (quoting Ridgefield Park Educ. Ass'n v. Ridgefield Park Bd. of Educ, 78 N.J. 144, 162 (1978)). Public employees are constitutionally entitled to engage in collective negotiations. N.J. Const., art. I, ¶ 19; Council of N.J. State Coll. Locals v. State Bd. of Higher Educ, 91 N.J. 18, 26 (1982). Their representative organization is authorized to negotiate "terms and conditions of employment." N.J.S.A. 34:13A-5.3. However, the scope of those negotiations is limited because of the government's "special responsibilities to the public . . . in mak[ing] and implement[ing] public policy." Local 195, supra, 88 N.J. at 401-02 (citations omitted).
Our Court has established a three-part test for determining whether a subject is negotiable:
[A] subject is negotiable between public employers and employees when (1) the item intimately and directly affects the work and welfare of public employees; (2) the subject has not been fully or partially preempted by statute or regulation; and (3) a negotiated agreement would not significantly interfere
with the determination of governmental
policy. To decide whether a negotiated agreement would significantly interfere with the determination of governmental policy, it is necessary to balance the interests of the public employees and the public employer. When the dominant concern is the government's managerial prerogative to determine policy, a subject may not be included in collective negotiations even though it may intimately affect employees' working conditions.
[Id. at 404-05.]
The test must be applied on a case-by-case basis. Troy v. Rutgers, 168 N.J. 354, 383 (2001). Our Court has recognized that rates of pay and working hours fall squarely within the first prong. Local 195, supra, 88 N.J. at 403. However, impact on work or pay does not necessarily render an issue negotiable, as "most decisions of the public employer affect the work and welfare of public employees to some extent," and negotiation may significantly interfere with governmental policy-setting. Id. at 404.
Nonetheless, there is ample precedent for requiring negotiation of the financial impacts on employees of budget-motivated re-allocations of work or staffing, while placing off-limits the managerial prerogative to make those re-allocations. For example, in Board of Education of the Woodstown-Pilesgrove Regional School District v. Woodstown-Pilesgrove Regional Education Association, 81 N.J. 582, 591 (1980) (Woodstown- Pilesgrove), the Court held that extending the working hours of teachers was mandatorily negotiable, where the employees' representative did not question the length of the school year, or length of school day. The Court found that the changes were motivated mainly by a "budgetary consideration" and not a "particularly significant educational purpose." Id. at 594. In Local 195, supra, the Court held that the decision to subcontract was a non-negotiable managerial prerogative, but lay-off procedures were negotiable because they would not significantly interfere with the policy decision. 88 N.J. at 410.
In Franklin Twp. PBA, supra, we held mandatorily negotiable a municipality's thrift-minded decision to alter the work schedules of its police officers, which resulted in more working hours per year for the same pay. 424 N.J. Super. at 382-83. We rejected the argument that the municipality's managerial decision to achieve efficiency and conserve resources justified increasing work hours without negotiation. Ibid. In Piscataway Township Education Association v. Piscataway Township Board of Education, 307 N.J. Super. 263 (App. Div.), certif. denied, 156 N.J. 385 (1998), we applied Woodstown-Pilesgrove in holding that while the school board's decision to schedule class during previously scheduled recess days was non-negotiable, the financial impact of that decision was not necessarily non-negotiable.
We also have held that a board of education was not required to negotiate its decision to create a new position of band director and music teacher, in place of a previous position of music teacher, and an optional paid position of band director. Ramapo-Indian Hills Educ. Ass'n v. Ramapo Indian Hills Bd. of Educ, 176 N.J. Super. 35, 44-46 (App. Div. 1980) (Ramapo-Indian Hills). Nor was the board required to negotiate the hours and workload associated with the position. Id. at 45-46. However, the compensation associated with the new position was mandatorily negotiable. Id. at 48.
B.
Applying these principles, we first dispatch the Board's argument that the Association, in response to the Board's petition to PERC, recast the nature of its grievance as one for compensation for extra work. Originally, the Board contends, the Association sought continuation of the previous contractual arrangement. The Board highlights the description of the injury alleged in the grievance: "Ms. Perez and Ms. Villarson were recently informed they must conduct bilingual evaluations and will not receive compensation as they did in the past."
We defer to the Commission's decision that the arbitrator shall determine whether the Association properly pleaded the issue of compensation for increased workload in its grievances. The Association concedes that the Board exercised a non-negotiable managerial prerogative to terminate the contracts with the employees' companies and require the employees to perform the services as part of their public employment. We also note that while the statement of injury may have referred to past compensation under the contracts, the relief requested was "compensation for bilingual evaluations[.]" The Commission properly determined the issue presented to it was whether the request for additional compensation for additional work, if properly asserted, was negotiable. See N.J.A.C. 19:13-1.1(a).
The Board also renews before us its argument that the Board did not require the employees to perform additional work, and the duties were within their existing job descriptions. That issue as well falls outside PERC's determination under N.J.S.A. 34:13A-5.4d, which authorizes the Commission to determine whether a matter in dispute is within the scope of collective negotiations, and under N.J.A.C. 19:13-1.1(b), which specifically excludes determinations "[w]hether the facts are as alleged by the grievant[.]"
We discern no support for the Board's argument that the Commission found as fact that the employees "are being given 'additional work.'" Rather, the Commission declined to reach the factual issue, and decided only the abstract issue that compensation for additional work, if imposed, was negotiable.
Turning to the principal issue of negotiability, the Board argues that the Commission failed to expressly consider and balance the Board's managerial prerogative to terminate the outside contract and bring those services in-house. We disagree. First, we do not fault PERC for not expressly considering the Board's governmental policy goals in terminating the contract and reassigning those services. The Board presented few facts to PERC regarding its managerial decision.
In its initial submission to the Commission, the Board provided the CNA, copies of the grievances, and the Board's decision. The Board relied on its view that the Association was challenging the termination of the outside services contracts, which were not governed by the CNA. After the Association responded that it did not challenge the decision to terminate the contract, but sought compensation for the employees' extra work in their public employment, the Board challenged what it claimed was a recasting of the Association's grievance. It submitted Haye's certification, which contested the claim of additional work, asserted "the goal was not to increase . . . workload," and provided the job descriptions of school psychologist and speech therapist.
We "generally will not consider the legal significance of facts that are not before us and were not before the trial court." City of Long Branch v. Liu, 203 N.J. 464, 485 n.15 (2010) (citations omitted); see also Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (stating we will "decline to consider questions or issues not properly presented" below). The same principle applies to review of an agency decision. The Board did not present to the Commission evidence regarding the basis for its policy decision, its importance, and how negotiation over compensation conceivably would interfere with the policy goals of its decision. Consequently, the Commission did not err in failing to address such evidence.
The Board asserted in its brief below, without evidential support in the record, that the cost of the contracting out was $50,000. That suggests that the decision was solely a financial one. The Board did not assert to PERC, or to us, that bringing the services in-house would further the educational mission by, for example, enhancing coordination with existing staff serving bilingual students.
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Second, on the record before us, we discern no basis to disturb the Commission's decision that the claim of compensation for additional work is negotiable. The decision to terminate contracting out is no less a managerial prerogative than the decision to contract out in the first place, which the Court in Local 195, supra, found was non-negotiable. Applying the three factors, we conclude that the Board's decision to bring in-house the previously contracted-out work, and add it to a public employees' existing work assignment, "intimately and directly affect[ed] the [employees'] work and welfare." 88 N.J. at 404. The Board does not argue that the subject "has been fully or partially preempted by statute or regulation." Id. at 404. Moreover, we are unpersuaded on this record that negotiation would "significantly interfere with the determination of governmental policy." Ibid.
We are guided by the decision in Woodstown-Pilesgrove, supra, that the issue of extra pay for extended work hours was negotiable, although the decision to extend the hours was not. As in Woodstown-Pilesgrove, supra, the Board's budgetary goals are insufficient to render the issue non-negotiable. Moreover, there is no evidence in the record here, as there was none in Woodstown-Pilesgrove, supra, that negotiation would substantially interfere with a dominant educational goal. The Board here must negotiate the issue of additional pay for additional work, as did the municipality in Franklin Twp. PBA, supra, and the school board in Ramapo-Indian Hills, supra. It matters not that the claimed additional work may be covered by the employee's existing job description. Although there may be no change in the kind of duties assigned, at issue is whether there has been a change in the volume of duties without a commensurate increase in pay. That is what PERC determined is negotiable.
To the extent not otherwise addressed, the Board's remaining arguments do not merit discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION