Opinion
DOCKET NO. A-2689-13T1
08-28-2015
IN THE MATTER OF STATE OF NEW JERSEY, Petitioner-Respondent, and NEW JERSEY DIVISION OF CRIMINAL JUSTICE NON-COMMISSIONED OFFICERS ASSOCIATION; NEW JERSEY DIVISION OF CRIMINAL JUSTICE SUPERIOR OFFICERS ASSOCIATION; and FRATERNAL ORDER OF POLICE, LODGE 91, Respondents-Appellants.
Frank M. Crivelli argued the cause for appellants (Crivelli & Barbati, attorneys; Mr. Crivelli and Donald C. Barbati, on the brief). Jeffrey J. Corradino argued the cause for respondent State of New Jersey (Jackson Lewis, P.C., attorneys; Mr. Corradino and James J. Gillespie, on the brief). Don Horowitz, Acting General Counsel, attorney for respondent New Jersey Public Employment Relations Commission (Mary E. Hennessy-Shotter, Deputy General Counsel, on the statement in lieu of brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and St. John. On appeal from the New Jersey Public Employment Relations Commission, Agency Docket Nos. SN-2013-041; SN-2013-042; SN-2013-043. Frank M. Crivelli argued the cause for appellants (Crivelli & Barbati, attorneys; Mr. Crivelli and Donald C. Barbati, on the brief). Jeffrey J. Corradino argued the cause for respondent State of New Jersey (Jackson Lewis, P.C., attorneys; Mr. Corradino and James J. Gillespie, on the brief). Don Horowitz, Acting General Counsel, attorney for respondent New Jersey Public Employment Relations Commission (Mary E. Hennessy-Shotter, Deputy General Counsel, on the statement in lieu of brief). PER CURIAM
The Fraternal Order of Police Lodge 91, the New Jersey Division of Criminal Justice Non-Commissioned Officers Association, and the New Jersey Division of Criminal Justice Superior Officers Association (collectively referred to as appellants), appeal from a New Jersey Public Employment Relations Commission (PERC) determination that certain portions of eight contract articles proposed by appellants were not mandatorily negotiable and, thus, outside the scope of collective negotiation. Appellants argue that PERC erred in its determination because the contract articles in dispute are not expressly preempted by State statute and do not impermissibly infringe upon the State's managerial prerogative. Our examination of the record satisfies us that PERC's final decisions were properly premised on facts in the record and are consonant with the applicable statutory provisions. Accordingly, we affirm.
In January 2010, the Legislature amended N.J.S.A. 52:17B-100 to remove the "confidential" status for State Investigators appointed pursuant to its terms. The amendment granted State Investigators the right to unionize and collectively bargain for certain terms and conditions of employment.
The amendment reads:
All employees of the [Division of Criminal Justice], except for secretarial and clerical personnel, shall be in the unclassified service of the civil service of the State. All unclassified employees of the [D]ivision, except for State Investigators appointed pursuant to section 1 of P.L.1977, c.275 (C.52:17B-100.1), shall be deemed confidential employees for the purposes of the "New Jersey Employer-Employee Relations Act," P.L.1941, c.100 (C.34:13A-1 et seq.).
[N. J.S.A. 52:17B-100(b).]
In December 2010, PERC certified appellants as the negotiations representatives for State Investigators. During subsequent negotiations, the three appellants proposed provisions establishing just-cause discipline standards and requiring the parties to submit to a binding third-party arbitration on disciplinary matters, including the Attorney General's removal of investigators with or without cause. The State maintained that appellants' proposals were preempted pursuant to N.J.S.A. 52:17B-100.1 and, thus, outside the scope of negotiations. The State refused to negotiate over proposals that it contended would have the Attorney General delegate his or her authority to a third-party arbiter. The State also refused to negotiate on appellants' proposals that it viewed impermissibly infringed on the State's managerial prerogatives.
On January 15, 2013, the State filed three separate petitions to initiate scope-of-negotiation determinations with PERC, seeking to have appellants' disputed proposals determined to be outside the scope of negotiations. Thereafter, appellants filed petitions to initiate compulsory interest arbitration with PERC.
On January 30, 2014, PERC issued a comprehensive written decision on the scope petitions, denying in part, and granting in part, respondent's petitions. PERC determined that certain proposals were mandatorily negotiable. The State does not appeal from these determinations.
However, PERC determined eight of appellants' proposals, or disputed portions thereof, were not to be mandatorily negotiable and, thus, outside the scope of negotiations.
The following two proposals were deemed non-negotiable as preempted by N.J.S.A. 52:17B-100.1:
24. DISCIPLINE
A. Discipline of any employee shall be imposed only for just cause.
25. TERMINATION. . . .
No detective shall be terminated without full due process, just cause and after progressive discipline has been enlisted . . . .
PERC further determined the following six proposals to be non-negotiable as they impermissibly infringed on the State's managerial prerogative:
15. LAYOFF AND RECALL
. . . Detectives collecting a public and/or quasi-public pension that was earned from previous employment will be the first to be laid off. Then Division seniority, as defined in Article ___, shall be the determining factor in identifying those to be affected by the layoff. Thereafter, layoffs shall be implemented in inverse order of hiring (those hired last being laid off first). . . . Laid off employees' names shall be placed on a special reemployment list, and persons on such list will be given preferential consideration over all other applicants considered for appointment, or employment and rehired in reverse order layoff without examination or interview.
. . . .
21. PROMOTIONS
A.1. The mechanics of the promotional process shall exclusively utilize the efforts of the Chief, Deputy Chief(s) of Detectives in determining and ranking suitable Detectives for promotion.
. . . .
B. Promotion to Sergeant shall require a minimum of seven (7) consecutive years' experience as a Detective with DCJ, and promotion to Lieutenant shall require a minimum of ten (10) consecutive years' experience as a Detective and/or Sergeant with DCJ. No substitution for education, prior work experience or unspecified criteria shall count towards the above consecutive years of work.
D. To create a career path for Lieutenant not collecting a public or quasi-public pension, the Division shall offer preferential treatment to those Detectives not so designated. Detectives not so designated shall be promoted over those designated.
. . . .
24. DISCIPLINE
. . . .
L. General Provisions
. . . .
5. Before a permanent career services employee is suspended without pay pending dismissal, he shall promptly be given an opportunity for an informal hearing at which the employee will be informed of the charges made and a synopsis of the evidence on which the State intends to rely.
. . . .
26. TRANSFERS[]
. . . .
D. Once a year, beginning in July 2011, Sergeants shall be permitted to request a transfer by submitting a request to the Chief or his designee. The [C]hief shall compile a listing of openings and shall select from the list those suitable Detectives who will be transferred. Transfers shall be implemented using Division seniority as the primary factor.
. . . .
F. No Detective shall be involuntarily transferred to the Internal Affairs Bureau/Professional Standards Bureau.
Only the underlined language is disputed. --------
This appeal ensued. Appellants raise the following arguments on appeal:
POINT I
PERC ERRED IN DETERMINING SEVERAL PROPOSALS SUBMITTED BY THE APPELLANTS ARE NOT MANDATORILY NEGOTIABLE AND, THUS, OUTSIDE THE SCOPE OF NEGOTIATIONS. AS SUCH, THIS PORTION OF PERC'S DECISION MUST BE REVERSED.
POINT II
IN GRANTING STATE INVESTIGATORS THE RIGHT TO COLLECTIVELY BARGAIN, THE LEGISLATURE REMOVED THEIR "AT-WILL" EMPLOYMENT STATUS. THEREFORE, THE APPELLANTS' PROPOSALS PERTAINING TO THE TERMINATION AND DISCIPLINARY PROCEDURE ARE NOT PREEMPTED. CONSEQUENTLY, PERC ERRED IN DETERMINING THE SAME.
POINT III
EVEN ASSUMING STATE INVESTIGATORS ARE "AT-WILL" EMPLOYEES, THE APPELLANTS' PROPOSALS PERTAINING TO THE DISCIPLINARY PROCEDURE AND
TERMINATION ARE NEGOTIABLE IN ACCORDANCE WITH AVAILABLE CASE LAW.
POINT IV
PERC MISCHARACTERIZED THE APPELLANTS' PROPOSAL CONCERNING BINDING ARBITRATION FOR MAJOR DISCIPLINARY INFRACTIONS.
POINT V
PERC ERRED IN DETERMINING THE APPELLANTS' PROPOSALS PERTAINING TO LAYOFF AND RECALL, PROMOTIONS, AND TRANSFERS IMPERMISSIBLY INFRINGE ON THE STATE'S MANAGERIAL PREROGATIVE.
In light of the record and applicable law, we affirm substantially for the reasons stated in PERC's comprehensive and cogent written decision. We add these remarks.
The scope of our review of PERC's decision is limited. "In the absence of constitutional concerns or countervailing expressions of legislative intent, we apply a deferential standard of review to determinations made by PERC." City of Jersey City v. Jersey City Police Officers Benevolent Ass'n, 154 N.J. 555, 567 (1998) (citations omitted). That is particularly so in this case, where the Legislature has explicitly authorized PERC to determine whether a "matter in dispute is within the scope of collective negotiations." N.J.S.A. 34:13A-5.4(d). When a party appeals a scope-of-negotiations determination, we review PERC's final decision under a "'thoroughly settled'" standard. Jersey City Police Officers Benevolent Ass'n, supra, 154 N.J. at 568 (quoting In re Hunterdon Cnty. Bd. of Chosen Freeholders, 116 N.J. 322, 329 (1989)). PERC's determination must be upheld unless the party appealing it clearly shows that it is arbitrary and capricious. Ibid. "[T]he test is not whether an appellate court would come to the same conclusion if the original determination was its to make, but rather whether the factfinder could reasonably so conclude upon the proofs." Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985). Accordingly, we will not upset an agency determination unless it was arbitrary, capricious or unreasonable, its findings lacked support in the evidence, or it violated the legislative grant of authority governing the agency. In re Herrmann, 192 N.J. 19, 27-28 (2007).
Appellants allege PERC failed to recognize that the State Investigators' "at-will" employment designation was eliminated when they received the right to collectively bargain. In public-sector collective negotiations, employment issues fall into one of two categories: "'mandatorily negotiable' terms and conditions of employment' and 'nonnegotiable matters of governmental policy.'" Teaneck Bd. of Educ. v. Teaneck Teachers Ass'n, 94 N.J. 9, 14 (1983) (quoting In re IFPTE Local 195 v. State, 88 N.J. 393, 402 (1982)). A three-part test applies in determining whether an issue 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.
[In re IFPTE, supra, 88 N.J. at 404-05.]
In reaching its conclusion concerning appellants' termination proposal and a portion of the discipline proposal, PERC relied heavily on condition two, that the subject matter was preempted by statute. N.J.S.A. 52:17B-100.1 explicitly preempts negotiations over several of appellant's proposals, stating, the "Attorney General may appoint . . . State Investigators, to serve at his pleasure and subject to removal by him . . . ." This unambiguous language clearly establishes State Investigators as at-will employees. See Golden v. Cnty. of Union, 163 N.J. 420, 427 (2000) (finding that the "at the pleasure of" language, "[o]n its face create[d] an at-will employment relationship"); see also Jordan v. Solomon, 362 N.J. Super. 633, 636 (App. Div.), certif. denied, 178 N.J. 250 (2003).
When a proposal is directly at odds with clear statutory language, the State cannot be compelled to negotiate over the proposal. See Ridgefield Park Educ. Ass'n v. Ridgefield Park Bd. of Educ., 78 N.J. 144, 160 (1978). Because the Legislature did not amend N.J.S.A. 52:17B-100.1, it stands to preempt certain proposals and supports the conclusion that State Investigators remained "at-will" employees.
Moreover, appellants' contention that their being permitted to collectively bargain somehow modifies their at-will status runs counter to the Supreme Court's three-part test making certain conditions mandatorily negotiable unless preempted by statute. See In re IFPTE, supra, 88 N.J. at 404-05. The express language of N.J.S.A. 52:17B-100.1 is not inconsistent with the State Investigators' right to collectively bargain, as it merely preempts their ability to bargain on certain issues. See N.J. Carpenters Apprentice Training & Educ. Fund v. Borough of Kenilworth, 147 N.J. 171, 179-80 (1996) ("[S]tatutory construction that will render any part of a statute inoperative, superfluous, or meaningless, is to be avoided." (citation and internal quotation marks omitted)), cert. denied, 520 U.S. 1241, 117 S. Ct. 1845, 137 L. Ed. 2d 1048 (1997).
PERC found the additional six proposals were not mandatorily-negotiable because they impermissibly infringed upon the State's managerial prerogative. See In re IFPTE, supra, 88 N.J. at 404-05. Regarding discipline, PERC found that the provision entitling permanent career service employees subject to suspension without pay pending dismissal to an informal hearing — wherein the State would provide a summary of the charges and synopsis of the evidence upon which it intends to rely — impermissibly infringes on the State's ability to impose discipline as a public employer has the prerogative to impose an immediate suspension of a law enforcement officer. See N.J.S.A. 11A:2-13.
Next, PERC concluded that appellants' proposal requiring that layoffs and recalls be instituted on the basis of seniority be non-negotiable because it impermissibly infringed on the State's ability to select and retain personnel with specific skills. Appellants contend such a proposal is not substantive, but procedural and, therefore, negotiable. However, the Court in In re IFPTE, supra, 88 N.J. at 418, found that consideration of seniority to be "related to the substantive criteria for reassignment" and, therefore, non-negotiable.
PERC concluded the proposal concerning promotions to be non-negotiable because it "infringe[d] on the Attorney General's prerogative to match the best qualified employees to particular jobs." The qualifications and criteria for promotions may be unilaterally set by the employer. Bd. of Educ. of N. Bergen Twp. v. N. Bergen Fed'n of Teachers, 141 N.J Super. 97, 104 (1976). PERC referenced Department of Law & Safety, Division of State Police v. State Troopers NCO Assocciation of N.J., 179 N.J. Super. 80 (App. Div. 1981), which found that proposals related to the criteria for promotion are non-negotiable because they concern matters of managerial prerogative. Id. at 93-94. A plain reading of appellants' proposal regarding promotions shows that they seek to dictate substantive criteria for making promotional decisions, not merely procedure.
Finally, PERC similarly found that proposals involving involuntary transfers are non-negotiable because "as part of its prerogative to match the best suited employees with particular assignments, an employer's decision to make involuntary transfers, and the basis it uses for doing so, are managerial prerogatives." We agree.
We conclude PERC's decision is supported by sufficient credible evidence on the record as a whole, is not arbitrary, capricious or unreasonable, and falls well within PERC's area of expertise, to which we defer.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION