IN THE MATTER OF BOROUGH OF CARTERET (PUBLIC EMPLOYMENT RELATIONS COMMISSION) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1845-19
IN THE MATTER OF BOROUGH
OF CARTERET,
Petitioner-Appellant,
and
FMBA LOCAL 67,
Respondent-Respondent.
Argued February 22, 2021 – Decided April 22, 2021
Before Judges Sabatino, Currier and DeAlmeida.
On appeal from the New Jersey Public Employment
Relations Commission, PERC No. 2020-23.
Gregory J. Hazley argued the cause for appellant
Borough of Carteret (Decotiis, Fitzpatrick, Cole &
Giblin, LLP, attorneys; Gregory J. Hazley and Susan E.
Volkert, of counsel and on the briefs; Ashanti M. Bess,
on the briefs).
Raymond G. Heineman argued the cause for respondent
FMBA Local 67 (Kroll Heineman Carton, LLC,
attorneys; Raymond G. Heineman, of counsel and on
the brief).
John A. Boppert, Deputy General Counsel, argued the
cause for respondent New Jersey Public Employment
Relations Commission (Christine Lucarelli, General
Counsel, attorney; John A. Boppert, on the statement in
lieu of brief).
PER CURIAM
In this matter arising out of a labor relations dispute, the Fireman's Mutual
Benevolent Association, Local 67 (FMBA) sought arbitration of a grievance
contesting the failure of the Borough of Carteret Fire Department (Borough) to
reschedule two probationary firefighters from a daytime, weekly work schedule
to twenty-four hour shifts following the completion of their fire fighter training.
The Borough filed a scope of negotiations petition with the Public Employment
Relations Commission (PERC), seeking an order restraining arbitration. After
reviewing briefs, exhibits, and certifications from FMBA's president and the
Borough fire chief, PERC concluded the grievance was mandatorily negotiable
and denied the Borough's petition. We affirm.
I.
The Borough is a public employer under the New Jersey Public Employer-
Employee Relations Act, N.J.S.A. 34:13A-1 to -49. FMBA is the "exclusive
representative and bargaining agent" for "all fire personnel . . . excluding the
Fire Chief." The Borough and FMBA are parties to a collective negotiation
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agreement (CNA).1 Under the CNA, FMBA has the "right to negotiate as to
rates of pay, hours of work, fringe benefits, working conditions, safety of
equipment, procedures for adjustments of disputes and grievances and all other
related matters."
The CNA states "[t]he work week for all employees of the Fire
Department who perform firefighting duties shall be what is commonly known
as the '24-72 system.'" (emphasis added). Under this schedule, firefighters work
twenty-four consecutive hours, followed by seventy-two consecutive hours off-
duty. Employees can also be assigned to a relief shift, and these employees
"shall not work more than [forty-eight] hours or less than [twenty-four] hours in
any week." The CNA also provides that department employees can be assigned
to the Bureau of Fire Safety (Bureau) and work "four days a week, nine hours a
day, on a Monday through Friday basis."
The CNA mandates that rookie firefighters complete a twelve-month term
of probationary service. No firefighting position is deemed final or permanent
until a firefighter completes the probationary term. The Borough may terminate
1
During oral argument, counsel advised the CNA at issue has since expired and
the parties were in current negotiations regarding a new agreement.
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the employment of a probationary firefighter if the Borough deems the employee
unfit for permanent employment.
After graduating from the Fire Academy, the two probationary firefighters
were assigned to the Bureau shift by the Fire Chief. FMBA grieved the
assignment, contending the probationary firefighters should be assigned to the
24-72 schedule followed by all the other firefighters. FMBA sought binding
arbitration of the issue.
In seeking a restraint of arbitration, the Borough argued that the
"assignment of probationary firefighters to the daytime, weekly work schedule
is not mandatorily negotiable . . . ." The Fire Chief contended it was his
managerial prerogative, not a negotiable term, to determine a probationary
firefighter's shift, as public safety was the most important factor in his decision-
making process.
As stated, the parties provided certifications supporting their positions and
presenting reasons for the assignments. The Fire Chief asserted the assignment
to the Bureau shift allowed the probationary firefighters to complete their
training at the Fire Academy and "work during daytime hours where they receive
additional training, both in-house and other outside day-time schooling, and,
importantly, are available for observation and evaluation by management . . .
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[,]" including himself. He stated: "I will not re-assign probationary firefighters
from the [Bureau] until I am certain they are not a danger to themselves or
others."
FMBA's President, in response, argued that traditionally, probationary
firefighters would complete their fire academy training and then receive six
weeks of in-house training, where they would learn how to drive the department
vehicles, use equipment on fire apparatus, and set up at an emergency scene.
After six weeks, the Training Captain would evaluate the probationary
firefighters over two twenty-four-hour shifts and give a recommendation as to
the probationary firefighter's readiness to work on the 24-72 schedule.
However, here, since graduating the academy, the two probationary
firefighters worked only on the Bureau schedule and were assigned as additional
staffing on the fire apparatus, complementing firefighters working twenty -four-
hour shifts. They had not been evaluated for or assigned to the 24-72 shift.
PERC issued its decision on November 26, 2020, finding "the grievance
is mandatorily negotiable and legally arbitrable. The FMBA's claim relates to
the determination of work schedules, which is a mandatorily negotiable issue
absent evidence that such negotiations would substantively interfere with
governmental policy making."
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In support of its decision, PERC reasoned that "[e]ach of the firefighters
at issue successfully completed basic firefighter training at the Fire Academy.
The Chief certified that this qualified them to perform the duties of a firefighter.
The phrase 'firefighting duties' appears only in Section 1 of Article III of the
CNA, which establishes the 24[-]72 schedule." It concluded that "the Borough
has not shown that negotiation over their work schedules would substantially
interfere with government policy." PERC advised the Borough to raise its
concerns about the probationary firefighters' readiness for the 24-72 schedule to
the arbitrator.
II.
The Borough raises the following issues on appeal:
POINT I: PERC'S DECISION VIOLATES
EXPRESS AND IMPLIED LEGISLATIVE POLICIES
AND OTHERWISE FAILS TO FOLLOW THE LAW
A. PERC Failed to Follow the Law as its Decision
Violates Express and Implied Legislative Policies
POINT II: PERC'S DETERMINATION TO DENY
THE BOROUGH'S SCOPE OF NEGOTIATIONS
PETITION WAS ARBITRARY, CAPRICIOUS,
UNREASONABLE, AND UNSUPPORTED BY
SUBSTANTIAL CREDIBLE EVIDENCE IN THE
RECORD
A. Policy and Managerial Prerogative Precludes
Negotiation
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B. The Record Shows Negotiation Would
Substantially Interfere with the Borough's Policy and
Managerial Prerogative
C. PERC's Findings are Not Supported by
Substantial Evidence and the Facts Were Misapplied
and Misstated
The scope of our review is limited. "PERC has primary jurisdiction to
determine in the first instance whether a matter in dispute is within the scope of
collective negotiations." In re New Brunswick Mun. Emps. Ass'n, 453 N.J.
Super. 408, 413 (App. Div. 2018) (citing N.J.S.A. 34:13A-5.4(d)). The review
of an administrative action is restricted to three inquiries:
(1) whether the agency's action violates express or
implied legislative policies, that is, did the agency
follow the law; (2) whether the record contains
substantial evidence to support the findings on which
the agency bases its action; and (3) whether, in applying
the legislative policies to the facts, the agency erred in
reaching a conclusion that could not reasonably have
been made on a showing of the relevant factors.
[Twp. of Franklin v. Franklin Twp. PBA Local 154, 424
N.J. Super. 369, 377 (App. Div. 2012) (citation
omitted).]
Thus, "[i]n 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
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Officers Benev. Ass'n., 154 N.J. 555, 567 (1998). PERC's decision "will stand
unless it is clearly demonstrated to be arbitrary or capricious." In re Belleville
Educ. Ass'n., 455 N.J. Super. 387, 400 (App. Div. 2018) (quoting Jersey City
Police Officers Benev. Ass'n., 154 N.J. at 568). The party challenging the
administrative action has the burden of demonstrating that it was arbitrary,
capricious, and unreasonable. Bueno v. Bd. of Trs., Tchrs.' Pension & Annuity
Fund, Div. of Pensions & Benefits, 404 N.J. Super. 119, 125 (App. Div. 2008).
On appeal, the Borough contends the Civil Service Act (CSA), N.J.S.A.
11A:1-1 to -12-6, as well as the CNA "reflect a period under which the Borough
has the sole discretion to evaluate the readiness and competence of prospective
firefighters." The Borough further asserts that PERC's decision "usurps
management's evaluation of probationary firefighters[,]"disregards the "[CSA],
is well beyond the scope of the [CNA][,] and [directly conflicts] with managerial
prerogative." It argues that PERC's decision "interferes with (1) the managerial
policy decision of qualification; (2) the particularized need to keep probationary
firefighters on their assigned schedule until they are capable of performing their
jobs with limited oversight; and (3) public safety. . . ." Thus, it contends PERC's
decision failed to follow the law and violates express and implied legislative
policies.
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In response, FMBA argues that PERC did not usurp the Borough's power
under the CNA, because arbitration "would not require the [a]rbitrator's
assessment of the actual readiness of probationary firefighters or . . . whether
they can satisfactorily perform the duties of a title."
Probationary public employees are subject to a "working test period"
which allows an appointing authority "to determine whether an employee
satisfactorily performs the duties of a title." N.J.S.A. 11A:4-15. Entry level
firefighters are subject to a twelve-month working test period. N.J.S.A. 11A:4-
15(a).
The Borough argues that the CNA and the working test period give it
discretion when scheduling probationary firefighters. We disagree.
Although the working test period gives the Borough the discretion and
ability to evaluate a firefighter and terminate the firefighter if he or she is unfit
for appointment, it neither specifies on which shifts probationary firefighters
must be scheduled, nor prohibits probationary firefighters from working on the
24-72 shift. It is clear the working test period does not give the Fire Chief
discretion in scheduling probationary firefighters.
In addition, the Borough has not explained how arbitration of the
scheduling dispute would frustrate the purpose of the working test period.
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Although PERC's decision to arbitrate the dispute would give the arbitrator the
power to determine the issue regarding probationary firefighter scheduling, it
would not usurp the power of the Borough to terminate the probationary
firefighter during the first twelve months of their employment. The Borough
would continue to retain all of the power accorded it under the CNA.
Although the Borough argues the probationary firefighters must receive
further training and instruction before they are assigned to the 24 -72 shift, the
probationary firefighters have completed the statutorily required training. When
a firefighter completes the required training program and receives Firefighter I
and Firefighter II certifications, that firefighter "may perform interior structural
firefighting under direct supervision." N.J.A.C. 5:73-4.2(a)(1). In addition,
"[f]ire departments shall be authorized to permit the firefighter . . . to respond
to fire alarms, and under direct supervision, assist in all exterior firefighting
operations." N.J.A.C. 5:73-4.2(c)(2)(ii).
Therefore, if the arbitrator were to schedule the probationary firefighters
on the 24-72 shift, the firefighters would be legally qualified to perform the
functions of the job, as they have completed the necessary training. See
N.J.A.C. 5:73-4.2. In addition, the Borough would still retain the power to
terminate the probationary firefighters. Therefore, the arbitration of
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probationary firefighters' individual work schedules neither undermines the Fire
Chief's power to evaluate probationary firefighters, nor violates express or
implied legislative policy.
The Borough further asserts that PERC erred in denying its scope of
negotiations petition as negotiation would substantially interfere with its
managerial prerogative. It also argues that PERC's decision was arbitrary and
capricious.
We will reverse the decision of an administrative agency "only upon a
finding that the decision is 'arbitrary, capricious or unreasonable,' or is
unsupported by 'substantial credible evidence in the record as a whole.'"
Blanchard v. N.J. Dep't of Corr., 461 N.J. Super. 231, 238 (App. Div. 2019)
(quoting Henry v. Rahway State Prison, 81 N.J. 579-80 (1980)). "Substantial
evidence has been defined . . . as 'such evidence as a reasonable mind might
accept as adequate to support a conclusion,' and 'evidence furnishing a
reasonable basis for the agency's action.'" Ibid. (quoting Figueroa v. N.J. Dep't
of Corr., 414 N.J. Super. 186, 192 (App. Div. 2010)).
"[P]ublic employees have a legitimate interest in engaging in collective
negotiations about issues that affect 'terms and conditions of employment.'"
Local 195, IFPTE, AFL-CIO v. State, 88 N.J. 393, 401 (1982) (citing N.J.S.A.
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34:13A-5.3). "The central issue in a scope of negotiations determination is
whether or not a particular subject matter is negotiable." Ibid.Subjects of public employment negotiation are separated into two distinct
categories: those that are "'mandatorily negotiable terms and conditions of
employment'" and those that are "'non-negotiable matters of governmental
policy.'" Borough of Keyport v. Int'l Union of Operating Eng'rs, 222 N.J. 314,
333 (2015) (citing Ridgefield Park Educ. Ass'n v. Ridgefield Park Bd. of Educ.,
78 N.J. 144, 162 (1978)). Disputes "concerning whether subjects are
mandatorily negotiable should be made on a case-by-case basis." Troy v.
Rutgers, 168 N.J. 354, 383 (2001).
In negotiations between public employers and employees, a subject is
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." Robbinsville Twp. Bd. of Educ. v. Washington Twp.
Educ. Ass'n, 227 N.J. 192, 199 (2016) (quoting Local 195, 88 N.J. at 403-04).
"PERC has primary jurisdiction to make a determination on the merits of
. . . whether the subject matter of a particular dispute is within the scope of
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collective negotiations." Ridgefield Park Ed. Ass'n, 78 N.J. at 154. "If PERC
concludes that the dispute is within the legal scope of negotiability and
agreement between the employer and employees, the matter may proceed to
arbitration." Ibid."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." Local 195, 88 N.J.
at 405. "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." Ibid.Work schedules and hours of work are "prime examples" of subjects that
"intimately and directly affect the work and welfare of public employees." Id.
at 403-04 (citations omitted); see Twp. of Teaneck v. Teaneck Fireman's Mut.
Benev. Ass'n Local No. 42, 353 N.J. Super. 289, 305 (App. Div. 2002) (stating
that "work hours are a negotiable term and condition of employment for . . .
firefighters"). A public employer must place facts on the record "in support of
its need, from a policy making point of view," to "counterbalance the direct and
intimate effect" work schedules have on employees. Twp. of Mt. Laurel v. Mt.
Laurel Police Officers Ass'n., 215 N.J. Super. 108, 115 (App. Div. 1987).
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A review of the record reflects the Borough has failed to explain how
scheduling the probationary firefighters to the 24-72 shift would interfere with
governmental policy, since they are being trained and "mentored" by firefighters
working the 24-72 shift.
In addition, the CNA states "[t]he work week for all employees of the Fire
Department who perform firefighting duties shall be what is commonly known
as the '24-72 system.'" The probationary firefighters are classified as firefighters
and therefore their proper work schedule is the 24-72 shift.
Having considered the Borough's arguments under our deferential
standard of review, we affirm PERC's decision denying the Borough's petition.
See Twp. of Franklin, 424 N.J. Super. at 377. The decision is supported by
sufficient credible evidence on the record, and is neither arbitrary nor capricious.
See Jersey City Police Officers Benev. Ass'n, 154 N.J. at 568.
Affirmed.
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