Opinion
DOCKET NO. A-6013-12T3 DOCKET NO. A-6041-12T3
03-12-2015
IN THE MATTER OF NEW JERSEY STATE JUDICIARY (CAMDEN VICINAGE), Petitioner-Respondent, and PROBATION ASSOCIATION OF NEW JERSEY (PROFESSIONAL SUPERVISORS UNION), Respondent-Appellant. IN THE MATTER OF NEW JERSEY STATE JUDICIARY (MONMOUTH VICINAGE), Petitioner-Respondent, and PROBATION ASSOCIATION OF NEW JERSEY (PROFESSIONAL SUPERVISORS UNION), Respondent-Appellant.
Lynsey A. Stehling argued the cause for appellants (Law Offices of Daniel J. Zirrith, LLC, attorneys; Ms. Stehling and David I. Fox, on the brief). Don Horowitz argued the cause for New Jersey Public Employment Relations Commission (Martin R. Pachman, General Counsel, attorney; Mr. Horowitz, on the brief). Sally Ann Fields, Senior Deputy Attorney General, argued the cause for respondents (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Fields, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Hayden. On appeal from the New Jersey Public Employment Relations Commission, Docket No. SN-2012-051 and SN-2012-054. Lynsey A. Stehling argued the cause for appellants (Law Offices of Daniel J. Zirrith, LLC, attorneys; Ms. Stehling and David I. Fox, on the brief). Don Horowitz argued the cause for New Jersey Public Employment Relations Commission (Martin R. Pachman, General Counsel, attorney; Mr. Horowitz, on the brief). Sally Ann Fields, Senior Deputy Attorney General, argued the cause for respondents (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Fields, on the brief). PER CURIAM
In these consolidated appeals, we review two similar decisions of the Public Employment Relations Commission (PERC) about issues that arose between the Probation Association of New Jersey, Professional Supervisors' Union (PANJ) and the New Jersey State Judiciary (Judiciary), concerning the Camden and Monmouth vicinages. The Judiciary brought separate scope of negotiation petitions to restrain arbitration of two grievances concerning staffing assignments of certain employees in each vicinage. In separate but comparable decisions issued on the same day, PERC concluded that the subjects raised by PANJ's grievances were non-negotiable management prerogatives and restrained arbitration. We have considered the record in each case in light of the legal principles involved. We affirm.
I.
PANJ is the exclusive representative for all full time professional supervisory employees working for the Judiciary throughout the State. The Judiciary and PANJ entered a statewide collective negotiation agreement (CNA) covering the period from July 1, 2008 through June 30, 2012. The CNA also incorporated numerous side letters of agreement.
The relevant contractual provisions are as follows:
Article 1.2 Unit Composition. . . . If an existing title is proposed to be eliminated or changed, the Judiciary shall also notify the Union in writing simultaneous with their request to the NJ Department of Personnel to eliminate or change an existing title.
Article 2.1 Respect and Dignity. The parties shall each endeavor to ensure that relations between them are characterized by mutual responsibility and respect, and that all employees and representatives of the parties are treated in accordance with accepted standards of courtesy and respect for individual dignity.
Article 2.4 Rules. New rules or modifications of existing rules governing legally negotiable terms and conditions of employment shall be negotiated with PANJ supervisors before implementation.
Article 5.1(B) Employees shall have a work week designation of "NL" consistent with the rules and regulations of the Department of
Personnel and shall have a normal minimum work week of thirty-five (35) hours per week . . . . NL employees shall be considered "salaried employees" for purposes of FLSA and must receive full salary for any week in which he/she works without regard to number of days or hours actually worked.
Article 5.1(C)(2)(b) Vicinage Staff - The parties recognize that uncompensated work directed to be performed by employees in this unit who supervise other employees in the Criminal, Civil, Probation, Family and Finance Divisions and supervisors in administrative services functions as well as those employees who supervise vicinage case related staff in excess of the minimum work week of thirty-five (35) hours should be limited to incidental or occasional occurrences, and if a pattern of regular assignment of uncompensated extra work is demonstrated the union may seek review and remediation of that pattern with the Trial Court Administrator or his/her designee. If the Union is not satisfied with the review and remediation process, it may pursue the matter as a grievance.
Side Letter of Agreement 1
The [Judiciary] and PANJ hereby agree as follows:
No later than June 30, 2005, the Judiciary and PANJ will discuss appropriate ways to improve consistency among the vicinages with respect to health and safety matters, policies and procedures, absenteeism/lateness, reassignments, span of control, and equipment including safety vests, pepper spray and training (e.g. self defense).
A. Camden Vicinage Petition
In July 2008, two employees in the job title of team leader retired from the Camden vicinage. Rather than replace the team leaders, the vicinage assigned their duties to two senior probation officers. In February 2009, PANJ filed a grievance claiming that the senior probation officers were performing out of title work. In January 2011, two more team leaders retired. The following month, based on an arbitration award in favor of PANJ in another vicinage, the Judiciary and PANJ agreed to settle the February 2009 grievance and remove all team leader duties from the senior probation officers. To meet its staffing needs, the vicinage reconfigured the assignments of team leaders, including requiring some team leaders, who had previously worked for one judge, to work for two judges.
The official title for these professional supervisory employees is "Court Services Supervisor 2."
As a result, on March 18, 2011, PANJ filed the grievance at issue in this appeal on behalf of all the team leaders in the criminal division. This grievance alleged violations of a 1994 letter of agreement (which called for consistency in responsibilities and compensation within job titles), Article 1.2 (unit composition), Article 2.1 (respect and dignity), Article 2.4 (rules), Article 5.1(B) (setting the minimum work week), and Article 5.1(C)(2)(b) (stating that uncompensated work beyond the minimum work week should be minimized). As relief from these alleged contract violations, PANJ requested that the Judiciary return to the prior staffing ratios.
PANJ unsuccessfully grieved the issue through the first three steps of the four-step grievance procedure. On November 22, 2011, PANJ sent a letter requesting that the matter move to binding arbitration. Prior to the arbitration hearing, the Judiciary filed a scope of negotiations petition with PERC requesting that PERC restrain arbitration because the subject of the grievance was a non-negotiable managerial prerogative. Subsequently, the parties filed briefs and factual certifications.
On June 27, 2013, PERC granted the Judiciary's petition and restrained arbitration. PERC pointed out that PANJ did not "contest the nature of the work assignments or dispute that they are within the purview of the [team leader] job description." PERC concluded that the "Judiciary's staffing reallocation and assignment of different tasks fall within its managerial prerogative . . . and is not negotiable." PERC also noted that PANJ's proposed remedy to "[r]evert to the prior staffing ratio" was a non-negotiable managerial prerogative.
PERC also rejected PANJ's contention that the Judiciary's staffing decisions caused contract violations that were severable from the policy decisions protected by the managerial prerogative doctrine, and thus were negotiable. While acknowledging that an increase in working hours was negotiable, PERC found no evidence that the Judiciary required any employees to work additional time. Instead, according to PANJ, the employees made independent decisions to work increased hours. PERC similarly rejected PANJ's safety claim, alleged to occur due to the employees' decision to come to work early or stay late, as not involving a change in working conditions required by the Judiciary. PERC further determined that any claimed violation of the CNA based on fear of future discipline was not ripe for adjudication. Finally, PERC found that PANJ's retaliation claim was not appropriate for a scope of negotiations petition, but could be pursued as an unfair labor practice charge. PANJ filed a timely appeal.
B. Monmouth Vicinage Petition
Sometime in 2010, the Monmouth vicinage began assigning duties formerly performed by team leaders to senior probation officers as part of a reassignment of team leader tasks that PANJ termed a "pilot program." The vicinage also assigned some team leaders to work for two judges, when the previous practice had been to have one team leader work for one judge.
On December 9, 2010, PANJ filed a grievance on behalf of all team leaders in the unit. The grievance alleged that the pilot program violated various provisions of the contract by changing the duties of the team leaders and the senior probation officers. Specifically, PANJ alleged that the practice violated side letter of agreement 1; Article 1.2 (unit composition); Article 2.1 (respect and dignity); and Article 2.4 (rules). PANJ further claimed that the practice constituted retaliation for a prior successful grievance. As relief, PANJ demanded that the pilot program cease and desist until the parties negotiate over this term and condition of employment.
PANJ only brought the grievance on behalf of the team leaders since a grievance on behalf of the senior probation officers must be filed under the probation officers' CNA by their representative.
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PANJ proceeded without success through the first three steps of the four-step grievance procedure. In response, on December 1, 2011, PANJ requested that the matter move to arbitration. Prior to the arbitration, the Judiciary filed a scope of negotiations petition with PERC and requested that PERC restrain arbitration of the grievance. Subsequently, the parties filed briefs and factual certifications.
On June 27, 2013, PERC issued its decision granting the Judiciary's request to restrain arbitration of the grievance. Similar to the Camden vicinage decision, PERC found that as the new staffing allocations and work assignments were within the employees' job descriptions, the Judiciary had the non-negotiable managerial prerogative to make these staffing reassignments. PERC similarly rejected PANJ's claim over increases in working hours, since the Judiciary did not require the employees to work longer hours. As the safety violation claim was linked to the claim regarding longer hours, PERC decided there was no severable claim. Finally, PERC also rejected the claim about future discipline as prematurely raised because no employee had been subjected to discipline. PANJ filed a timely appeal.
II.
We begin with a review of the well-established applicable legal principles. "PERC is charged with administering the New Jersey Employer-Employee Relations Act (Act), N.J.S.A. 34:13A-1 to -29, and its interpretation of the Act is entitled to substantial deference." CWA, Local 1034 v. N.J. State PBA, Local 203, 412 N.J. Super. 286, 291 (App. Div. 2010) (citing N.J. Tpk. Auth. v. AFSCME, Council 73, 150 N.J. 331, 352 (1997)). PERC is authorized to "make policy and establish rules and regulations concerning employer-employee relations in public employment relating to dispute settlement, grievance procedures and administration . . . to implement fully all the provisions of this act." N.J.S.A. 34:13A-5.2. "Generally we will not upset a State agency's determination in the absence of a showing that it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence, or that it violated a legislative policy expressed or implicit in the governing statute." In re Camden Cnty. Prosecutor, 394 N.J. Super. 15, 22-23 (App. Div. 2007) (internal quotations omitted) (quoting Cnty. of Gloucester v. Pub. Emp't Relations Comm'n, 107 N.J. Super. 150, 156 (App. Div. 1969) aff'd, 55 N.J. 333 (1970)).
Public employees are constitutionally entitled to engage in collective negotiations. N.J. Const., art. I, para 19; Council of N.J. State Coll. Locals v. State Bd. of Higher Educ., 91 N.J. 18, 25 (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" to "make and implement public policy." In re Local 195, IFPTE, AFL-CIO, 88 N.J. 393, 401-02 (1982) (citations omitted).
The Legislature has given PERC the authority to determine, upon the submission of a public employer or a majority representative, whether a particular dispute is within the scope of negotiations. N.J.S.A. 34:13A-5.4(d). 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 government policy." Local 195, supra, 88 N.J. at 402 (1982) (quoting Ridgefield Park Educ. Ass'n v. Ridgefield Park Bd. of Educ., 78 N.J. 144, 162 (1978)). In making its determination, PERC addresses "the abstract issue: is the subject matter in dispute within the scope of collective negotiations." Ridgefield Park Educ. Ass'n, supra, 78 N.J. at 154 (internal quotations omitted).
In order to facilitate the decision whether a subject is negotiable with an employee's representative or is a non-negotiable managerial prerogative, the Supreme Court has provided a three-prong test for negotiability:
[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.
[City of Jersey City v. Jersey City Police Officers Benevolent Ass'n, 154 N.J. 555, 568 (1998) (quoting Local 195, supra, 88 N.J. at 404-05.]
It is well-settled that a decision to set staffing levels and to assign tasks to employees is a decision within managerial prerogative. See Local 195, supra, 88 N.J. at 408; Paterson Police PBA, Local 1 v. Paterson, 87 N.J. 78, 97 (1981); Twp. of Franklin v. Franklin Twp. PBA Local 154, 424 N.J. Super. 369, 380 (App. Div. 2012). Accordingly, negotiations on this management prerogative would interfere with the determination of government policy, which makes the issue non-negotiable. Local 195, supra, 88 N.J. at 408. Indeed, PANJ does not seriously dispute on appeal that the staffing reallocation and new assignments within the team leader's job duties are not negotiable.
Rather, PANJ strongly argues that PERC's decisions were arbitrary, capricious, and unreasonable because the record demonstrated the existence of contract violations that were severable from the Judiciary's non-negotiable managerial prerogative to set staffing levels and assign tasks. Specifically, PANJ argues that Article 1.2 (unit composition) was violated because the Judiciary was eliminating the team leader position without consulting with it. It argued that Article 2.1 (respect and dignity) was violated because the staffing changes were due to the Judiciary's retaliation against PANJ for the meritorious grievance for out of title work, and the inability of the team leaders to complete their work due to a doubling of work assignments. PANJ stresses, as it had before the agency, that unit members were forced to work longer hours despite the fact that the Judiciary did not require additional hours. It also argued that Article 2.4 (rules) was violated because new rules affecting team leaders were created without negotiations. Additionally, PANJ alleged a violation of the side letter of agreement because the Judiciary's practice violated the concept of unity and equality between the vicinages because team leaders in these specific vicinages are required to work longer hours. We are not persuaded.
The record shows that both grievances in the instant appeals only addressed issues and requested relief that significantly affected the Judiciary's managerial prerogatives. The Camden grievance requested a return to the prior ratio of team leaders and judges, while the Monmouth grievance requested that the Judiciary cease and desist the pilot program which changed the work assignments until the terms and conditions could be bargained. These requests for relief clearly trample on the Judiciary's non-negotiable managerial prerogatives to set staffing levels and assign tasks within normal duties of the job. See Paterson Police PBA, supra, 87 N.J. at 97.
As PERC recognized, a subject can be non-negotiable due to being a management prerogative yet give rise to changes in the working conditions that are mandatorily negotiable if they are severable from management's policy decision. City of Elizabeth v. Elizabeth Fire Officer's Ass'n Local 2040, IAFF, 198 N.J. Super. 382, 387 (App. Div. 1985); see also Franklin Twp., supra, 424 N.J. Super. at 380-81. PERC scrutinized the record in light of its case law and precedent and determined that the record contained no severable negotiable issue. Our review of the record causes us to reach the same conclusion.
Although additional hours, safety concerns, and disciplinary procedures are all negotiable subjects, the record is clear that the Judiciary did not increase the number of hours team leaders were required to work. In both grievances, PANJ seeks to negotiate about the staffing and task changes, not the incidental negotiable effects of those changes.
We discern no severable issues concerning additional hours, safety issues or pending disciplines brought about because of required extra work time. In addition, the speculation that sometime in the future one or more team leaders may be disciplined because they cannot get their work completed does not give rise to a right to mandatorily negotiate the change in staffing ratio now. That said, it is axiomatic that if the hours or other terms and conditions of employment are changed in the future, and if the subject is severable from managerial prerogative, PANJ will be able to bring a grievance on behalf of the affected employee. Twp. of Franklin, supra, 424 N.J. Super. at 378-79.
Additionally, PANJ alleged that in violation of the CNA, the reallocation of the team leader's assignments created new rules and that the team leader's position was eliminated without negotiations. The record does not support the claim that the position of team leader was eliminated; rather the Judiciary chose not to fill several vacant ones for monetary reasons. A public employer's decision not to fill a vacant position is not negotiable. State, Dep't of Law & Pub. Safety v. State Troopers NCO Ass'n, 179 N.J. Super. 80, 92 (App. Div. 1981). Additionally, the Judiciary did not notify the Civil Service Commission that it intended to eliminate the team leader position, which is the trigger for the Judiciary's contractual duty to notify PANJ.
PANJ's claim that the new assignments and staffing amounted to a change in rules without negotiation addresses the managerial prerogative of staff and task assignment; there is no severable subject for negotiation. The CNA only requires bargaining over rules that concern negotiable terms and conditions of employment. As explained above, the assignment of tasks within normal job functions and working hours and setting staffing levels are non-negotiable. Paterson Police PBA, supra, 87 N.J. at 97.
In sum, PANJ has not shown that PERC's decision was arbitrary and capricious, lacking in support in the evidence or violated legislative policy. See In re Camden Cnty. Prosecutor, 394 N.J. Super. at 22. Consequently, we perceive no basis for disturbing PERC's final decisions restraining the arbitrations in these cases.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION