IN THE MATTER OF STATE OF NEW JERSEY AND FRATERNAL ORDEROF POLICE LODGE 91(PUBLIC EMPLOYMENT RELATIONS COMMISSION) , 450 N.J. Super. 586 ( 2017 )

NOT FOR PUBLICATION WITHOUT THE APPROVAL
OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0413-15T4
IN THE MATTER OF
STATE OF NEW JERSEY,
Respondent/Cross-Appellant, APPROVED FOR PUBLICATION
and June 26, 2017
APPELLATE DIVISION
FRATERNAL ORDER OF POLICE LODGE
91,
Appellant/Cross-Respondent.
_________________________________
Argued May 16, 2017 - Decided June 26, 2017
Before Judges Reisner, Koblitz and Mayer.
On appeal from the Public Employment Relations
Commission, P.E.R.C. No. 2016-11.
Frank M. Crivelli argued the cause for
appellant/cross-respondent Fratnernal Order
of Police Lodge 91 (Crivelli & Barbati,
attorneys; Mr. Crivelli, on the brief).
James J. Gillespie argued the cause for
respondent/cross-appellant State of New
Jersey (Jackson Lewis, attorneys; Jeffrey J.
Corradino, of counsel; Mr. Gillespie, on the
brief).
Frank C. Kanther, Deputy General Counsel,
argued the cause for respondent New Jersey
Public Employment Relations Commission (Robin
T. McMahon, General Counsel, attorney; Mr.
Kanther, on the brief).
The opinion of the court was delivered by
REISNER, P.J.A.D.
Fraternal Order of Police Lodge 91 (FOP) appeals, and the
State cross-appeals, from a September 3, 2015 final decision of
the Public Employment Relations Commission (PERC) adopting, in
pertinent part, a lengthy and meticulously detailed interest
arbitration award deciding the terms of an initial collective
negotiations agreement (CNA) between the Division of Criminal
Justice (DCJ) and a newly certified unit representing DCJ
investigators. The FOP contends that PERC erred as a matter of
law in its February 13, 2015 interlocutory decision directing the
arbitrator to apply the two percent statutory cap on salary
increases, set forth in N.J.S.A. 34:13A-16.7.1 The State contends
that PERC erred in confirming the award with respect to certain
non-salary issues, including an education reimbursement, paid time
off to attend certain educational classes, a $300 clothing
allowance, and arbitration of minor discipline.2
1
That decision did not become ripe for an appeal as of right until
PERC issued its final decision. FOP previously filed a motion for
leave to appeal, which we denied.
2
Before oral argument of the appeal, the State withdrew an
additional issue concerning the manner in which the arbitrator
implemented the two percent cap.
2 A-0413-15T4
On the cross-appeal, we conclude that PERC's decision as to
the non-salary issues is not arbitrary and capricious, see In re
State, 443 N.J. Super. 380, 384-86 (App. Div.), certif. denied,
225 N.J. 221 (2016), and we affirm for the reasons stated in the
agency's September 23, 2015 decision. The State's arguments are
without sufficient merit to warrant further discussion. R. 2:11-
3(e)(1)(E).
We affirm on the FOP's appeal, substantially for the reasons
stated in the agency's February 13, 2015 decision. We owe
deference to PERC's reasonable interpretation of its enabling
statute, and we find no basis to depart from that deference here.
See In re Camden Cty. Prosecutor, 394 N.J. Super. 15, 23 (App.
Div. 2007). We agree with PERC that the two percent cap applies
where, as here, a newly certified bargaining unit is negotiating
its first CNA with the public employer. We reject the FOP's
argument, because read as a whole and construed in light of its
purposes, the Police and Fire Public Interest Arbitration Reform
Act, N.J.S.A. 34:13A-14 to -16.9, both entitles a newly certified
unit to demand interest arbitration and subjects that arbitration
process to the two percent cap.3
3
Unless further extended by the Legislature, the two percent cap
will expire at the end of 2017 as set forth in N.J.S.A. 34:13A-
16.9. See L. 2014, c. 11, § 4. As a result, although this case
3 A-0413-15T4
Read literally, the Act does not permit interest arbitration
for newly certified bargaining units or subject such arbitrations
to the cap. Both N.J.S.A. 34:13A-16(b)(2), requiring interest
arbitration, and the section setting forth the two percent cap,
N.J.S.A. 34:13A-16.7(b), apply by their terms to situations in
which an existing CNA is expiring. However, a literal reading of
the Act would produce absurd results, contrary to its purpose.
See Perez v. Zagami, LLC, 218 N.J. 202, 209-11 (2014).
[W]here a statute or ordinance does not
expressly address a specific situation, the
court will interpret it "consonant with the
probable intent of the draftsman 'had he
anticipated the matter at hand.'" In that
regard, "[i]t is axiomatic that a statute will
not be construed to lead to absurd results."
[Twp. of Pennsauken v. Schad, 160 N.J. 156,
170 (1999) (citations omitted).]
One of the Act's central goals is to resolve law enforcement
labor disputes through interest arbitration. See N.J.S.A. 34:13A-
14(a); In re State, 114 N.J. 316, 326 (1989). That requirement
"shall be liberally construed." N.J.S.A. 34:13A-14(d). Applying
the statute to newly certified bargaining units, negotiating their
first CNAs, serves that purpose. Another important purpose of the
Act is to limit the economic burden on public employers and
presents a novel issue, we acknowledge that our decision may have
limited application.
4 A-0413-15T4
preserve the public fisc. See N.J.S.A. 34:13A-16.8; Assembly Law
and Pub. Safety Comm., Statement to Assembly Comm. Substitute for
A. 3393, Dec. 9, 2010. Therefore, it serves the economic policies
expressed in the Act to apply the two percent salary cap uniformly,
whether an interest arbitration concerns an expiring CNA or the
negotiation of a unit's first CNA.
Accordingly, we agree with PERC that the FOP cannot obtain
the Act's benefits without also accepting its burdens.
Interpreting the Act to give newly certified bargaining units the
benefit of interest arbitration without the financial limit of the
two percent cap would produce a skewed result, at odds with the
Legislature's intent in enacting the salary cap provision.
Affirmed.
5 A-0413-15T4