Robbinsville Township Board of Education v. Washington Township Education Ass'n ( 2016 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
In the Matter of Robbinsville Township Board of Education v. Washington Township Education Association
(A-32-15) (076497)
Argued September 27, 2016 -- Decided November 29, 2016
LaVecchia, J., writing for a unanimous Court.
In this appeal, the Court considers whether its determination in Borough of Keyport v. International Union
of Operating Engineers, 222 N.J. 314 (2015), supports a general proposition that, in times of economic crisis, a
school board may unilaterally impose furlough days on teaching staff members in contravention of the parties’
collective negotiation agreement governing terms and conditions of employment.
The collective negotiation agreement (Agreement) between the Robbinsville Township Board of Education
(Board) and the Washington Township Education Association (Association), the major union representative for the
employees of the Board, provides that teachers’ salaries would be based on the number of school-year work days, or
188 days for new teachers and 185 days for all other teachers.
On March 17, 2010, the State of New Jersey notified the Board that State education funding to the district
would be reduced by fifty-eight percent for the upcoming school year. Two days later, the Board asked the
Association to re-open contract negotiations for the upcoming year; the Association denied that request on April 9,
2010. Four days later, the Board again asked to re-open negotiations; the Association did not respond. In May
2010, Robbinsville Township notified the Board that its local government financing also would be reduced for the
upcoming school year. On May 12, 2010, the Board again asked the Association to re-open negotiations; the
Association declined the invitation. The next day, the Board met to discuss the budget and decided to impose three
days of involuntary, uncompensated furlough on the remaining teachers, which would reduce the work year from
185 to 182 days.
The Association promptly filed an unfair practice charge with the Public Employment Relations
Commission (PERC), alleging violations of both the Agreement and the New Jersey Employer-Employee Relations
Act (EERA), N.J.S.A. 34:13A-1 to -43. PERC issued a complaint and notice of hearing to the parties, each of which
filed cross-motions for summary judgment.
PERC granted summary judgment in favor of the Board, holding that the imposition of temporary
furloughs was a non-negotiable managerial prerogative. The Association appealed, and the Appellate Division
affirmed PERC’s judgment. The appellate panel relied on the Court’s holding in Keyport that “the decision to
institute temporary layoffs implicates the same managerial prerogatives as permanent layoffs or subcontracting,”
particularly “when economy is a factor.”
The Court granted the Association’s petition for certification. 223 N.J. 557 (2015).
HELD: The Court rejects the Appellate Division’s mistaken reading of Keyport to authorize the Board’s unilateral
alteration of a collectively negotiated agreement. Keyport does not stand for the proposition that anytime a municipal
public employer can claim an economic crisis, managerial prerogative allows the public employer to throw a
collectively negotiated agreement out the window. To the contrary, Keyport painstakingly emphasized the significance
of an agency of State government enacting a temporary emergency regulation to provide local governmental managers
with enhanced prerogatives. The regulation’s existence made all the difference in Keyport, and there is a lack here of
an authorizing temporary emergency regulation that permitted temporary furloughs. Keyport does not support the
award of summary judgment to the Board.
1. The scope of public employment negotiation is divided into two categories of subject matter: mandatorily
negotiable subjects and non-negotiable matters of governmental policy. When an issue falls within a middle-ground
area, a court must determine whether the issue should be resolved through the political process or through collective
negotiations. The Court has adopted a three-part test to make that determination, holding that an issue involving
public employment is properly negotiable 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.” In re Local
195, IFPTE v. State, 88 N.J. 393, 404 (1982). (pp. 8-9)
2. Rates of pay and working hours are quintessential terms and conditions of employment and are mandatorily
negotiable terms. Conversely, public employers have a non-negotiable managerial prerogative to reduce the
workforce by permanently laying off employees. Those two areas—hours/wages and the right to reduce the
workforce—came into conflict in the appeals from three separate PERC cases consolidated in Keyport. In two of
those cases, municipalities had imposed mandatory but temporary layoffs by reducing the number of work days over
a specific time period without prior negotiations; the third municipality had replaced three full-time positions with
part-time positions. (pp. 9-11)
3. In Keyport, the Court noted that an emergency regulation had been promulgated in response to the 2008
economic crisis. That regulation authorized certain municipalities to temporarily lay off employees when faced with
exigent financial circumstances. When the Court applied the three-prong Local 195 test, it found the first prong
plainly met because the temporary layoffs impacted work hours and compensation. It also found the second prong
met, inasmuch as permission to effect temporary layoffs did not rise to the level of preemption. When balancing the
interests of the employers and employees pursuant to the third prong, however, the Court found that the emergency
regulation buttressed the municipalities’ right to implement the temporary layoffs. (pp. 11-13)
4. The Court notes that the Appellate Division erred in deriving from Keyport the general principle that financial
considerations “are indisputably a legitimate basis for a layoff of any type.” Keyport, supra, 222 N.J. at 343-44.
The appellate decision undervalued the lack here of an authorizing temporary emergency regulation that permitted
temporary furloughs—a factor that had the significant impact of tilting the public policy calculus in Keyport’s
analysis under the third prong of Local 195. Had the temporary regulation not provided that extra managerial
authority, the fact patterns in the Keyport cases would have foundered on the third-prong analysis. (pp. 13-15)
5. Allowing a claimed need for management prerogative to prevail in tight budgetary times in order for municipal
government policy to be properly determined would eviscerate the durability of collective negotiating agreements.
The Legislature and the Court have, time and again, emphasized the value of collective negotiated agreements in
society. By reading Keyport to authorize the Board’s unilateral alteration of a collective negotiated agreement, the
Appellate Division erroneously expanded Keyport, rendering it unrecognizable. The Court rejects that mistaken
reading and unwarranted extension of Keyport. (pp. 15-17)
6. The Court declines to consider the Board’s argument that its actions were authorized under a section of the
Agreement. First, PERC and the appellate panel rested their respective holdings on Keyport, not on the Agreement.
Second, the Board did not file a cross-petition for certification to pursue this argument. Finally, it would not be
appropriate for the Court to interpret the Agreement in light of the posture of the case; instead, the parties have their
negotiated dispute resolution mechanism to resolve interpretive matters. (pp. 17-19)
The judgment of the Appellate Division is REVERSED. The matter is REMANDED for any further
proceedings consistent with this opinion.
JUSTICES ALBIN, PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in
JUSTICE LaVECCHIA’s opinion. CHIEF JUSTICE RABNER did not participate.
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SUPREME COURT OF NEW JERSEY
A-32 September Term 2015
076497
IN THE MATTER OF
ROBBINSVILLE TOWNSHIP BOARD
OF EDUCATION,
Defendant-Respondent,
v.
WASHINGTON TOWNSHIP EDUCATION
ASSOCIATION,
Plaintiff-Appellant.
Argued September 27, 2016 – Decided November 29, 2016
On certification to the Superior Court,
Appellate Division.
Keith Waldman argued the cause for appellant
(Selikoff & Cohen, attorneys; Mr. Waldman
and Kathleen L. Kirvan, on the briefs).
Matthew J. Giacobbe argued the cause for
respondent Robbinsville Township Board of
Education (Cleary, Giacobbe, Alfieri,
Jacobs, attorneys; Robin T. McMahon, on the
letter brief).
Don Horowitz, Acting General Counsel, argued
the cause for respondent New Jersey Public
Employment Relations Commission.
JUSTICE LaVECCHIA delivered the opinion of the Court.
In this appeal we consider the argument that our earlier
determination in Borough of Keyport v. International Union of
Operating Engineers, 222 N.J. 314 (2015), supports a general
1
proposition that, in times of economic crisis, a school board
may unilaterally impose furlough days on teaching staff members
in contravention of the parties’ collective negotiation
agreement governing terms and conditions of employment.
Acting in response to significant funding reductions and
citing managerial prerogative, the Robbinsville Township Board
of Education (Board) announced a decision to impose involuntary
furlough days on teachers knowing that the furloughed days would
negatively impact the affected employees’ wages. An unfair
labor practice charge was filed with the Public Employment
Relations Commission (PERC), challenging the Board’s action as
violating the parties’ collective negotiation agreement and the
New Jersey Employer-Employee Relations Act (EERA), N.J.S.A.
34:13A-1 to -43.
In granting summary judgment to the Board, PERC relied on
the Appellate Division’s decision in Keyport. The Washington
Township Education Association (Association) appealed, and the
Appellate Division affirmed PERC’s determination. The panel’s
reasoning assumed that this Court’s modified affirmance in
Keyport supported the Board’s ability to act unilaterally to
impose the furloughed days.
Because the Appellate Division decision is based on an
overly broad and mistaken reading of our determination in
2
Keyport, we reverse to correct the judgment and to prevent
improper expansion of our circumscribed holding in Keyport.
I.
The Association is the major union representative for
employees of the Board. Relevant to the events in this matter,
the Board and the Association were bound by a collective
negotiation agreement (Agreement) during the period of July 1,
2008 through June 30, 2011. According to Article 5.3 of the
Agreement, the teachers’ salaries were based on the number of
school-year work days, which contract negotiations established
to be 188 days for new teachers and 185 days for all other
teachers.
On March 17, 2010, during a time of declared “fiscal
emergency,” the State of New Jersey notified the Board that
State education funding to the district would be reduced by
fifty-eight percent for the upcoming 2010-2011 school year.
Reeling from that significant funding reduction, the Board took
action: it revised its budget for the next school year by
cutting educational programs, freezing salaries, and laying off
approximately thirteen teaching and staff positions. Because
those attempts were insufficient to balance the school
district’s budget, on March 19, 2010, the Board asked the
Association to re-open contract negotiations for the 2010-2011
school year. On April 9, 2010, the Association, citing its
3
members’ best interests, declined to re-open discussions mid-
contract. The Association also did not respond to the Board’s
subsequent request on April 13 to reconsider re-opening
negotiations.
In May 2010, Robbinsville Township notified the Board that
local government financial support to the school district also
would be reduced for the upcoming school year. On May 12, 2010,
the Board again asked the Association to re-open contract
discussion for purposes of the 2010-2011 school year and again
the Association declined the invitation. The next day, the
Board met to approve methods by which it could reduce the budget
shortfall, which included, among other things, imposing three
days of involuntary, uncompensated furlough on the remaining
teachers. The furlough days were scheduled to take place on
non-educational, professional development days, reducing the
overall work year from 185 days to 182 days. The Board informed
the faculty of its decision via e-mail later that day.
The Association promptly filed an unfair practice charge
with PERC, asserting that the Board violated the EERA, as well
as the Agreement, by unilaterally and without negotiation
reducing the teachers’ workdays, negatively impacting their
salaries.1 PERC issued a complaint and a notice of hearing to
1 Before PERC and the Appellate Division, the Association also
challenged the Board’s e-mail communication as contravening the
4
the parties, each of which filed cross-motions for summary
judgment. While PERC’s decision was pending, the Appellate
Division issued an unpublished opinion in the consolidated
appeals in Borough of Keyport v. International Union of
Operating Engineers, which addressed the negotiability of
temporary furloughs imposed in the affected civil service
jurisdictions. Thereafter, on November 21, 2013, PERC rendered
its decision in the instant matter, granting the Board’s motion
for summary judgment and denying the Association’s motion,
holding that the decision to impose temporary furloughs in the
current economic climate was a non-negotiable managerial
prerogative.
The Association appealed PERC’s decision to the Appellate
Division, and the panel affirmed, stating that it relied on this
Court’s holding in Keyport that “the decision to institute
temporary layoffs implicates the same managerial prerogatives as
permanent layoffs or subcontracting,” particularly “when economy
is a factor.”
The Association’s petition for certification to this Court
was granted on December 8, 2015. 223 N.J. 557 (2015).
II.
EERA; however, that issue is not included in the appeal to this
Court.
5
The Association argues that PERC and the Appellate Division
erroneously applied Keyport in this case. The Association
contends that Keyport’s judgment, upholding decisions to
temporarily lay off public employees as a non-negotiable
managerial prerogative, was based not only on the existence of
harsh economic circumstances but also on regulatory authority to
impose temporary furloughs that was applicable only to civil
service jurisdictions. The Association notes that the actions
of the Keyport employers were authorized by a then-existing
Civil Service Commission emergency regulation permitting
temporary layoffs due to the economic climate, and it emphasizes
this Court’s reliance on that emergency regulation in upholding
the Keyport employers’ right to unilaterally impose the
furloughs. See Keyport, supra, 222 N.J. at 343 (referencing
“[the] clear expression of legitimate public policy authorizing”
managerial prerogative to impose contested furloughs). The
Association notes that, conversely, no such expression of public
policy exists here. The Association maintains that it asks too
much of this Court’s reasoning in Keyport to extend that limited
holding to public employers throughout the state.
The Association additionally relies on the fact that the
Keyport municipalities’ layoff plans had been subjected to
independent review and approval by the Civil Service Commission,
and no similar independent third party exercised oversight over
6
the Board’s actions. And, for the first time in this appeal,
the Association adds that, at the very least, the Board should
have been required to negotiate the impact of its unilateral
decision because the furloughs would adversely impact employee
compensation and negotiating would not have substantially
interfered with the Board’s managerial prerogative.
The Board argues that this case aligns with Keyport, which,
it contends, did not turn on the Civil Service Act or the
temporary emergency regulation but rather on “the
municipalities’ ‘right to lay off employees under prior case
law.’” (Quoting Keyport, supra, 222 N.J. at 344-45). Moreover,
the Board asserts that requiring negotiation before imposing
temporary furloughs would require the Board to “leav[e]
significant matters of government policy to collective
negotiations . . . rather than governmental bodies.” Last, the
Board argues that this Court should not consider the
Association’s argument regarding negotiating the furloughs’
impact because that argument was not raised before PERC or the
Appellate Division and because the Association waived the
opportunity to negotiate impact by thrice declining to meet with
the Board when asked to re-open negotiations.
Participating pursuant to Rule 2:6-4, the quasi-judicial
decision-maker, PERC, contended in briefs filed with this Court
and the Appellate Division that it properly decided this case
7
because it is required to “follow and apply pertinent judicial
precedent,” like the Appellate Division’s decision in Keyport.
PERC further argued that civil service regulations and the
emergency regulation identified in this Court’s decision in
Keyport do not provide a “basis to distinguish between civil
service municipalities and other public employers.”
III.
This Court reaffirmed and applied in Keyport certain
bedrock principles governing the scope of collective
negotiations in the public sector.
Fundamentally, the scope of public employment negotiation
is divided, for purposes of analysis, into two categories of
subject matter comprised of mandatorily negotiable subjects and
non-negotiable matters of governmental policy. Keyport, supra,
222 N.J. at 333 (citations omitted). Often those categories are
readily distinguished. However, in recognition that courts must
wade in when conflicts arise over the competing interests of
public employers and public employees in middle-ground areas,
this Court decades ago dictated the approach to be employed when
a court must determine “whether an issue is appropriately
decided by the political process or by collective negotiations.”
Id. at 333–34.
The now time-honored test for such situations was announced
in the 1982 decision of In re Local 195, IFPTE v. State, 88 N.J.
8
393 (1982). The Court stated that a subject involving public
employment is properly negotiable when it satisfies a three-part
test: “(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.” Local 195, supra, 88
N.J. at 404. As to the third prong of that test, a reviewing
court must “balance the interests of the public employees and
the public employer,” id. at 404-05, and will hold that
negotiation is permitted “on a subject that intimately and
directly affects the work and welfare of public employees unless
such negotiated agreement would significantly interfere with the
determination of governmental policy,” id. at 404.
The “prime examples” of mandatorily negotiable terms and
conditions of employment under New Jersey case law “are rates of
pay and working hours.” Id. at 403. In recognition of the
preeminence of pay and working hours as quintessential terms and
conditions of employment, New Jersey decisions hold that
“[a]lthough the establishment of a school calendar is a
managerial prerogative, a decision that directly impacts the
days worked and compensation for those days implicates a term
and condition of employment,” rendering the decision one that
involves “a mandatorily-negotiable term of employment.” Troy v.
9
Rutgers, 168 N.J. 354, 384 (2001); see also Bd. of Educ. v.
Woodstown-Pilesgrove Reg’l Educ. Ass’n, 81 N.J. 582, 594 (1980)
(finding no encroachment on management prerogative by requiring
school board to negotiate lengthening school-day hours despite
school district’s “budgetary consideration being the dominant
element” in that decision); Piscataway Twp. Bd. of Educ. v.
Piscataway Twp. Principals Ass’n, 164 N.J. Super. 98, 100 (App.
Div. 1978) (“We have no doubt that the matter of length of the
work year and its inseparable concomitant -- compensation -- are
terms and conditions of employment, . . . and consequently the
subject of mandatory negotiation before being put into effect by
the public employer.”).
Conversely, there is no dispute, either in law or in the
positions taken by the parties in this action, that public
employers have a non-negotiable managerial prerogative to reduce
the workforce by permanently laying off employees. See N.J.S.A.
18A:28-9 (providing right of “board of education to reduce the
number of teaching staff members . . . whenever, in the judgment
of the board, it is advisable to abolish any such positions for
reasons of economy”); State v. State Supervisory Emps. Ass’n, 78
N.J. 54, 88 (1978) (noting that “a decision to cut the work
force to a certain number unquestionably is a predominantly
managerial function”).
10
Those two areas –- hours/wages and the right to reduce the
workforce -- came into conflict in the appeals involved in
Keyport. In Keyport, supra, we recognized, again, that work
days and compensation are terms and conditions of employment,
mandating negotiations. 222 N.J. at 340. We concluded,
however, in that unique matter, that a public employer could
unilaterally alter employees’ rates of pay and work days “in
accordance with a duly authorized temporary layoff plan” during
a time of acute economic crisis. Id. at 343.
Keyport arose from three separate PERC cases, all of which
addressed the actions of civil service municipalities. Id. at
319. Two municipalities involved in that appeal imposed
“mandatory, but temporary, layoffs, in the form of a reduced
number of work days over a specified period of time” without
prior negotiations, and the third replaced “three full-time
clerical positions . . . with part-time positions,” eliminating
the affected employees’ health benefits. Ibid. Importantly,
“all three layoff plans had been submitted and approved by the
Civil Service Commission . . . as compliant with all civil
service requirements for a layoff action.” Ibid. In addressing
the three cases, this Court noted that, due to the 2008 economic
crisis, an emergency regulation was promulgated that temporarily
authorized “[m]unicipalities governed by the civil service
11
system . . . to [temporarily] lay off employees when facing
exigent financial circumstances.” Id. at 320.
Our analytic approach to the three matters in Keyport
resorted to the well-established, three-prong analysis from
Local 195 to determine the negotiability of the temporary
furloughs. We found the first factor plainly satisfied because
the temporary layoffs impacted the employees’ work hours and
compensation, “intimately and directly affect[ing] the work and
welfare” of the employees. Id. at 334, 336 (quoting Local 195,
supra, 88 N.J. at 404). Next, we determined that the regulation
at issue did not preempt the EERA’s mandate to negotiate rates
of pay and hours of work: the regulation merely permitted
temporary layoffs, whereas preemption requires a statute or
regulation that leaves “no room for debate on the matter of
discretion” and “fixes a term and condition of employment
expressly, specifically and comprehensively.” Id. at 337
(quotation marks and citation omitted). In that respect, our
decision reversed a contrary determination by the Appellate
Division in Keyport that had found preemption applicable. Id.
at 340-41.
Instead, in our analysis, the critical question turned on
the third prong, which required a balancing of the public
employer’s interest in “the determination of governmental
policy” and the employees’ interest in “the[ir] work and
12
welfare.” Id. at 341 (quoting Local 195, supra, 88 N.J. at
404). We recognized the “emergency regulation authorizing
temporary layoffs [due to] the extant financially distressing
conditions” to be a “clear expression of legitimate public
policy authorizing such actions to be taken.” Id. at 343.
Although the municipalities did not specifically rely on the
regulation, for this Court it was important that the
municipalities acted while the emergency regulation was in
effect and the municipalities did face financial crisis. Those
circumstances specifically and directly prompted Keyport’s
holding: “These civil service municipalities, when faced with
fiscal exigency, had the right to lay off employees under prior
case law and as buttressed by the emergency regulation then in
effect authorizing temporary layoff actions.” Id. at 344-45
(emphasis added).
IV.
In the matter under review, the Appellate Division also
employed the Local 195 three-prong test and concluded that,
despite the fact that the terms and conditions at issue were
prime examples of negotiable employment terms, negotiation was
not necessary because it would “impinge on the determination of
public policy.” (Citing Keyport, supra, 222 N.J. at 341).
Although the Appellate Division correctly determined that
the first and second prongs of Local 195 are not at issue in
13
this case -- because the action here, in impacting work hours
and pay, directly affects the employees’ work and welfare and
because there is no statute or regulation preempting the EERA --
the panel misapplied our holding in Keyport when analyzing the
third prong of the test. Concerning that third prong, the
Appellate Division concluded that the economic crisis present in
the Robbinsville school district permitted the Board to forego
negotiations on the furloughs. The panel stated that it reached
that determination because the Board was attempting to “achieve
a balance between the interests of public employees and the need
to maintain and provide reasonable services,” and because,
pursuant to Keyport, “economic considerations ‘are indisputably
a legitimate basis for a layoff of any type.’” (Quoting
Keyport, supra, 222 N.J. at 343-44).
The appellate decision undervalued the lack here of an
authorizing temporary emergency regulation that permitted
temporary furloughs -– a factor that had the significant impact
of tilting the public policy calculus in Keyport’s analysis
under the third prong of Local 195. Keyport does not stand for
the proposition that anytime a municipal public employer can
claim an economic crisis, managerial prerogative allows the
public employer to throw a collectively negotiated agreement out
the window. To the contrary, Keyport painstakingly emphasized
the significance of an agency of State government enacting a
14
temporary emergency regulation to provide local governmental
managers with enhanced prerogatives in handling the
extraordinary fiscal times faced in the late 2000s. The
regulation’s existence made all the difference in Keyport. It
was mentioned by the Court repeatedly throughout the opinion.
See Keyport, supra, 222 N.J. at 343, 344, 345.
This Court determined that the emergency regulation
promulgated by the governmental agency overseeing layoff
activity in civil service jurisdictions purposefully added to
the managerial discretion reposed in the municipalities and,
further, that it added weight to the Court’s conclusion that
forcing the civil service municipalities involved in Keyport to
abide by their respective “negotiated agreement[s] would
significantly interfere with the determination of governmental
policy.” Id. at 341 (emphasis added) (quoting Local 195, supra,
88 N.J. at 404). That was underscored by the Court’s
recognition of the regulation’s importance to the prong-three
analysis under Local 195 regardless of whether the regulation
was the express impetus for the municipalities’ decisions.
Keyport, supra, 222 N.J. at 345.
Had the temporary regulation not provided that extra
managerial authority, the fact patterns in the three
consolidated cases in Keyport would have foundered on the third-
prong analysis. Allowing a claimed need for management
15
prerogative to prevail in tight budgetary times in order for
municipal governmental policy to be properly determined would
eviscerate the durability of collective negotiated agreements.
Collective negotiated agreements -- promises on wages, rates of
pay, and hours, and other traditional terms and conditions of
employment -- would mean nothing in the wake of any financial
setback faced by a local governmental entity. That drastic
public-policy course alteration was not explicit or implicit in
the opinion setting forth the reasoning to support our holding
in Keyport. We do not endorse it now for to do so would
undermine Local 195 and decades of public sector labor law on
collective negotiations.
To that end, the Legislature and this Court have, time and
again, emphasized the value of collective negotiated agreements
in our society. The Legislature enacted the EERA to serve the
interests of New Jersey citizens by preventing labor disputes
through such agreements. N.J.S.A. 34:13A-2; see also N.J.S.A.
34:13A-5.3 (requiring representatives of employers and employees
to “meet at reasonable times and negotiate in good faith with
respect to . . . terms and conditions of employment,” and
requiring that such agreements be written and signed). This
Court also has recognized the “wisdom of pursuing discussion
between public employers and employees,” which “promote[s] labor
peace and harmony.” Local 195, supra, 88 N.J. at 409; see also
16
Teaneck Bd. of Educ. v. Teaneck Teachers Ass’n, 94 N.J. 9, 18-19
(1983). And, the Court has encouraged negotiations, stating
that “[s]tate officials would be derelict in their public
responsibilities” if they failed to negotiate. Local 195,
supra, 88 N.J. at 409.2 Thus, by reading Keyport to authorize
the Board’s unilateral alteration of a collective negotiated
agreement, the Appellate Division erroneously expanded Keyport,
rendering it unrecognizable. We reject that mistaken reading
and unwarranted extension of Keyport. Keyport does not support
the award of summary judgment to the Board.
V.
For completeness, we note that in oral argument before this
Court the Board contended, as an alternative ground for
affirmance, that although the Board does not have the benefit of
a temporary regulation or other governmental authorization for
its unilateral imposition of temporary furloughs on school
district faculty and staff, the Board’s action was authorized by
Article 4.1 of the Agreement.3 Among other things, that article
provides the Board with the power “to determine the methods,
2 We likewise recognize that public employees disregard their
duties if they do not engage in negotiations fairly and in good
faith. Here, the Association thrice declined to engage in
negotiations, despite awareness of the Board’s dire financial
circumstances and limited options.
3 We note that the Board did not reference the article in its
answer to the unfair labor practice charge.
17
means and personnel by which whatever actions might be necessary
to carry out the mission of the school district in situations of
emergency.” Accordingly, the Board argues that the Agreement
enables this case to fall within the exception to mandatory
negotiability carved out by Keyport.
We do not consider that alternative argument for a number
of reasons.
First, the decisions of PERC and, on appeal, the Appellate
Division do not support the argument that the Agreement’s
language had an impact on their respective holdings. Each
holding rested on its interpretation of Keyport.
Second, the Board did not file a cross-petition for
certification in which it could, potentially, have raised an
alternative basis for affirming the judgment of the Appellate
Division.
Finally, we do not consider in this appeal whether Article
4.1 provides the clarity of authority equivalent to the previous
civil service emergency regulation that plainly authorized
temporary furloughs as a legitimate layoff action. See Keyport,
supra, 222 N.J. at 338. The Board’s assertion implicates a
question of contract interpretation affecting the determination
of contract rights. The parties have their negotiated dispute
resolution mechanism available to invoke in order to resolve
such interpretative matters. In the posture in which this
18
argument has arisen, it would not be appropriate for this Court
to become involved in contract interpretation.
Thus, for the reasons previously explained, our decision in
Keyport was misapplied in this matter. Keyport does not provide
the Board with the authority to have unilaterally imposed unpaid
furlough days on teaching staff members in the 2010-2011 school
year.
VI.
The judgment of the Appellate Division is reversed and the
matter is remanded for any further proceedings consistent with
this opinion.
JUSTICES ALBIN, PATTERSON, FERNANDEZ-VINA, SOLOMON, and
TIMPONE join in JUSTICE LaVECCHIA’s opinion. CHIEF JUSTICE RABNER
did not participate.
19