Opinion
DOCKET NO. A-1511-13T4
03-09-2015
IN THE MATTER OF THE BURLINGTON COUNTY PROSECUTOR'S OFFICE AND COUNTY OF BURLINGTON AND BURLINGTON COUNTY PROSECUTOR'S DETECTIVES, PBA LOCAL 320.
Carmen Saginario, Jr., argued the cause for appellants Burlington County Prosecutors Office and County of Burlington (Capehart Scatchard, P.A., attorneys; Mr. Saginario, of counsel and on the briefs). David J. DeFillippo, argued the cause for respondent Burlington County Prosecutor's Detectives, PBA Local 320 (Detzky, Hunter & DeFillippo, LLC, attorneys; Mr. DeFillippo, of counsel and on the brief). Martin R. Pachman, General Counsel, attorney for respondent Public Employment Relations Commission (Don Horowitz, Senior Deputy General Counsel, on the statement in lieu of a brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Hoffman. On appeal from New Jersey Public Employment Relations Commission, Docket No. IA-2012-016. Carmen Saginario, Jr., argued the cause for appellants Burlington County Prosecutors Office and County of Burlington (Capehart Scatchard, P.A., attorneys; Mr. Saginario, of counsel and on the briefs). David J. DeFillippo, argued the cause for respondent Burlington County Prosecutor's Detectives, PBA Local 320 (Detzky, Hunter & DeFillippo, LLC, attorneys; Mr. DeFillippo, of counsel and on the brief). Martin R. Pachman, General Counsel, attorney for respondent Public Employment Relations Commission (Don Horowitz, Senior Deputy General Counsel, on the statement in lieu of a brief). PER CURIAM
The Burlington County Prosecutor's Office and County of Burlington (collectively "Burlington County") appeal from the October 17, 2013 final agency decision of the Public Employment Relations Commission ("PERC"), affirming an interest arbitration award permitting a salary increase for the members of the Burlington County Prosecutor's Detectives PBA Local 320 ("Union"). We affirm.
I.
The Union is the exclusive bargaining agent for all detectives and investigators employed by the Burlington County Prosecutor's Office. On December 31, 2010, the Union's existing collective bargaining agreement expired. On February 14, 2013, the Union filed a petition to initiate compulsory interest arbitration. PERC appointed Arbitrator Joseph A. Harris, Ph.D. ("Arbitrator"), who conducted hearings on April 2, 2012, and April 5, 2012.
On April 21, 2012, the Arbitrator issued his written decision ("Initial Award"), and awarded a salary increase for certain employees amounting to 0.5% on January 1, 2011, 1.25% on January 1, 2012, and 2% on January 1, 2013.
Burlington County appealed to PERC. On May 30, 2012, PERC issued its decision, affirming the interest arbitration award and remanding for clarification as to seniority language not at issue here. On July 31, 2012, the Arbitrator issued a clarification of his previous decision.
Burlington County appealed to this court. Both PERC and this court denied a stay of relief pending appeal. On June 10, 2013, we reversed, finding that the Arbitrator failed to adequately address all of the factors set forth in N.J.S.A. 34:13A-16g, and therefore remanded "to develop the record regarding the [A]rbitrator's subsection 16g analysis . . . ." In re Burlington County Prosecutor's Office, No. A-40-12 (App. Div. June 10, 2013) (slip op. at 13). Burlington County filed a petition for certification, and our Supreme Court denied certification on February 21, 2014. In re Burlington County Prosecutor's Office, 217 N.J. 287 (2014).
On remand, the Arbitrator advised the parties that he would accept supplemental briefing, to be submitted by July 26, 2013, but indicated he would not accept any documentation outside of the pre-existing record. Nevertheless, on August 15, 2013, Burlington County submitted several new documents. Noting that these documents were not in the existing record, and that the submission was untimely, the Arbitrator refused to consider them.
On September 9, 2013, the Arbitrator issued a new written decision ("Remand Award"), which affirmed his prior salary increase. On September 18, 2013, Burlington County again appealed to PERC. PERC issued its final decision on October 17, 2013, affirming the Remand Award. PERC concluded that the Remand Award "provided a reasonable explanation[,]" and that the Arbitrator "based his award on substantial credible evidence in the record[.]"
This appeal followed. On appeal, Burlington County argues that: (1) the Arbitrator failed to properly apply factors one, two, six, seven, and eight of the N.J.S.A. 34:13A-16g analysis; (2) the Arbitrator erred by refusing to "consider properly submitted and relevant evidence and argument"; (3) the salary increases are otherwise unreasonable; and (4) under N.J.S.A. 2A:24-8, the Arbitrator's errors call for the Remand Award to be vacated.
II.
Our review of "PERC decisions reviewing arbitration is sensitive, circumspect[,] and circumscribed." Twp. of Teaneck v. Teaneck Firemen's Mut. Benevolent Ass'n Local No. 42, 353 N.J. Super. 289, 300 (App. Div. 2002), aff'd o.b., 177 N.J. 560 (2003). These decisions are upheld "unless clearly arbitrary or capricious." Ibid. However, courts provide heightened scrutiny of statutorily mandated public interest arbitration where public funds are at stake. Hillsdale PBA Local 207 v. Borough of Hillsdale, 137 N.J. 71, 82 (1994).
PERC, in turn, determines whether the arbitrator properly applied the factors articulated in N.J.S.A. 34:13A-16g and issued a reasonable determination. Teaneck, supra, 353 N.J. Super. at 306. PERC's fact-finding is upheld if supported by "substantial credible evidence in the record as a whole." Hillsdale, supra, 137 N.J. at 82. We defer to PERC's interpretation of the Employer-Employee Relations Act, N.J.S.A. 34:13A-1 to -21, and will only reverse if that interpretation is "plainly unreasonable, contrary of the language of the [statute], or subversive to the Legislature's intent." In re Camden County Prosecutor, 394 N.J. Super. 15, 23 (App. Div. 2007) (citations and internal quotation marks omitted).
N.J.S.A. 34:13A-16f(5) requires that the arbitrator issue a "written report explaining how each of the statutory criteria played into the arbitrator's determination of the final award." N.J.S.A. 34:13A-16g provides:
The arbitrator shall decide the dispute based on a reasonable determination of the issues, giving due weight to those factors listed below that are judged relevant for the resolution of the specific dispute. In the award, the arbitrator or panel of arbitrators shall indicate which of the factors are deemed relevant, satisfactorily explain why the others are not relevant, and provide an analysis of the evidence on each relevant factor[.]N.J.S.A. 34:13A-16g then enumerates nine factors, including, in pertinent part: public interests and welfare (factor one); comparable wages in private and public analogs (factor two); financial impact on the governing body (factor six); cost of living (factor seven), and employment continuity and stability (factor eight).
"The arbitrator need not rely on all [N. J.S.A. 34:13A-16g] factors, but must identify and weigh the relevant factors and explain why the remaining factors are irrelevant." In re City of Camden, 429 N.J. Super. 309, 326 (App. Div.), certif. denied, 215 N.J. 485 (2013); accord N.J.A.C. 19:16-5.9b. No single factor is dispositive, but, instead, collectively "reflect the significance of fiscal considerations." City of Camden, supra, 429 N.J. Super. at 326-27.
Here, the Arbitrator summarized the relevant evidence, analyzed each factor articulated in N.J.S.A. 34:13A-16g, and explained the weight given to each. His analysis of the existing record was sufficient for the purposes of N.J.S.A. 34:13A-16f(5) and N.J.S.A. 34:13A-16g. Accordingly, we discern no abuse of discretion in PERC's decision to uphold the Remand Award.
As to the new documents submitted on remand, while N.J.A.C. 19:16-5.7(e) provides that an arbitrator may compel the production of evidence, "the arbitrator need not require the production of evidence on each factor." Hillsdale, supra, 137 N.J. at 84. "Such a requirement might unduly prolong a process that the Legislature designed to expedite collective negotiations . . . ." Ibid.
Here, we previously remanded "to develop the record regarding the [A]rbitrator's subsection 16g analysis . . . ." Burlington, supra, slip op. at 13. This called for the Arbitrator's application of the N.J.S.A. 34:13A-16g factors to the existing record. Our decision did not call for the Arbitrator to accept new evidence or expand the record previously submitted by the parties. Moreover, as previously noted, the Arbitrator's application of the N.J.S.A. 34:13A-16g factors to the existing record satisfied the requirements of N.J.S.A. 34:13A-16f(5) and N.J.S.A. 34:13A-16g.
PERC did not explicitly address the Arbitrator's alleged duty on remand to accept new evidence into the record. However, we are satisfied that the Arbitrator's decision conformed with our prior opinion. Accordingly, PERC's decision to uphold the Arbitrator's Remand Decision based on the existing record was not arbitrary, capricious or unreasonable.
Finally, we also conclude that the Remand Award is not otherwise unreasonable. As PERC noted in its opinion, there is sufficient credible evidence in the record to support the Arbitrator's determination that Burlington County can afford the proposed salaries without exceeding its spending caps or imposing an excessive financial burden on its taxpayers. As we perceive no error, we discern no grounds to vacate the Remand Award under N.J.S.A. 2A:24-8. Therefore, we affirm PERC's October 17, 2013 decision upholding the September 9, 2013 Remand Award.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION