IN THE MATTER OF RUTGERS, THE STATE UNIVERSITY OF NEW JERSEY AND FRATERNAL ORDER OF POLICE, LODGE 62 (PUBLIC EMPLOYMENT RELATIONS COMMISSION) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0990-16T3
IN THE MATTER OF
RUTGERS, THE STATE UNIVERSITY
OF NEW JERSEY,
Petitioner-Respondent,
and
FRATERNAL ORDER OF POLICE,
LODGE 62,
Respondent-Appellant.
_______________________________
Submitted January 29, 2018 - Decided July 27, 2018
Before Judges Messano and Accurso.
On appeal from the Public Employment
Relations Commission, Docket No. SN-2016-
058.
Brickfield & Donahue, attorneys for
appellants, Fraternal Order of Police and
William DeFalco (Joseph R. Donahue, of
counsel and on the brief).
McElroy, Deutsch, Mulvaney & Carpenter, LLP,
attorneys for respondent Rutgers, The State
University of New Jersey (John J. Peirano,
of counsel; James P. Lidon and Seth Spiegal,
on the brief).
Robin T. McMahon, General Counsel, attorney
for New Jersey Public Employment Relations
Commission (Frank C. Kanther, Deputy General
Counsel, on the statement in lieu of brief).
PER CURIAM
Rutgers, The State University of New Jersey, suspended one
of its campus police officers, William DeFalco, for more than
five days following an internal affairs investigation. A five-
day suspension constitutes major discipline. DeFalco's union,
Fraternal Order of Police, Lodge 62, grieved the suspension and
the University's subsequent refusal to advance him on the salary
guide based on a provision of the collective negotiations
agreement conditioning advancement on the officer being
suspension-free in the preceding year.
When the Union demanded binding arbitration following the
University's denial of the grievance after a hearing, the
University filed a scope petition with the Public Employment
Relations Commission. PERC issued a final decision that only
the procedural aspects of the dispute were arbitrable, that is,
the claims relating to notice, an opportunity to be heard and
the University's adherence to contractual investigatory and
disciplinary policies and procedures, including those relating
to advancement under the salary guide. PERC ruled the merits of
the suspension were not arbitrable. Specifically, PERC
2 A-0990-16T3
determined that amendments to N.J.S.A. 34:13A-5.3 in 20031 and
20052 had not altered the holdings of State v. State Troopers
Fraternal Association, 134 N.J. 393 (1993), and County of
Monmouth v. Communications Workers of America, 300 N.J. Super.
272 (1997), prohibiting police officers from arbitrating the
merits of major discipline. We agree and affirm.
Because the sole issue on appeal involves a question of
law, our review is de novo. Mayflower Sec. Co. v. Bureau of
Sec. in Div. of Consumer Affairs of Dep't of Law & Pub. Safety,
64 N.J. 85, 93 (1973). Notwithstanding, we accord PERC's
decision considerable deference because it hinged on
interpretation of the New Jersey Employer-Employee Relations
Act, N.J.S.A. 34:13A-1 to -43, the statute PERC is charged with
administering. See In re Bd. of Fire Com'rs, 443 N.J. Super.
1L. 2003, c. 119, § 2 amended N.J.S.A. 34:13A-5.3 to permit
binding arbitration of disputes involving major discipline of
unionized employees of the State of New Jersey, with the
exception of the State Police, pursuant to the terms of any
collectively negotiated agreement.
2
L. 2005, c. 380, § 1 amended N.J.S.A. 34A:13-5.3 to provide
for a presumption of arbitrability in the interpretation of a
provision of a collectively negotiated agreement providing for
grievance arbitration, expressly providing that doubts as to the
scope of such a clause shall be resolved in favor of
arbitration. See Northvale Bd. of Educ. v. Northvale Educ.
Ass'n, 192 N.J. 501, 516 (2007) (J. Long, dissenting)
(describing the effect of the amendment as "a sea-change" in the
law of public sector arbitration).
3 A-0990-16T3
158, 172 (App. Div. 2015). "The standard of review of a PERC
decision concerning the scope of negotiations is 'thoroughly
settled. The administrative determination will stand unless it
is clearly demonstrated to be arbitrary or capricious.'" City
of Jersey City v. Jersey City Police Officers Benevolent Ass'n,
154 N.J. 555, 568 (1998) (quoting In re Hunterdon Cty. Bd. of
Chosen Freeholders, 116 N.J. 322, 329 (1989)).
Since the Supreme Court's decision in State Troopers, PERC
has consistently restrained binding arbitration of the merits of
major discipline of police officers, including those employed by
Rutgers. See, e.g., In re Rutgers, The State Univ. of New
Jersey and FOP Lodge 62, P.E.R.C. No. 2015-8, 41 N.J.P.E.R.
¶ 35, 2014 N.J. PERC LEXIS 83 at 3 (2014) (holding in a case
involving a ten-day suspension that State Troopers precludes
binding arbitration of major disciplinary disputes involving
police officers), aff'd, In re Rutgers, The State Univ. and FOP
Lodge 62, No. A-0455-14 (App. Div. Sep. 8, 2016); In re Rutgers,
The State Univ. of New Jersey and Superior Officers Ass'n,
P.E.R.C. No. 2013-12, 39 N.J.P.E.R. ¶ 47, 2012 N.J. PERC LEXIS
53 at 1 (2012) (holding in a demotion case that police officers
may not contest major disciplinary sanctions through binding
arbitration); In re Rutgers, The State Univ. and FOP Lodge 62,
P.E.R.C. No. 2007-5, 32 N.J.P.E.R. ¶ 113, 2006 N.J. PERC LEXIS
4 A-0990-16T3
220 at 3-4 (2006) (holding State Troopers, and Commission cases
applying that decision preclude binding arbitration of the
merits of major disciplinary actions against police officers),
aff'd, In re Rutgers, The State Univ. and FOP Lodge No. 62, No.
A-0485-06 (App. Div. Aug. 3, 2007); In re Rutgers, The State
Univ. and FOP, P.E.R.C. No. 96-22, 21 N.J.P.E.R. ¶ 356, 1995
N.J. PERC LEXIS 248 at 4-5 (1995) (same).
The Union asserts "that N.J.S.A. 34:13A-5.3, as amended in
2005, expressly provides for arbitration of major discipline if
agreed to by the parties." It fails, however, to address the
point we made when it raised the same issue against the
University in 2007 and again in 2016, that the 2003 amendment
authorizing binding arbitration of disputes involving major
discipline is directed to "the State of New Jersey" and not
other public employers, such as Rutgers, and thus the amendment
effective in 2005 creating a presumption in favor of
arbitrability is of no assistance to employees of Rutgers.3 See
3
As it pertains to binding arbitration of disputes involving
major discipline, N.J.S.A. 34:13A-5.3 as amended in 2003 and
2005 provides:
Where the State of New Jersey and the
majority representative have agreed to a
disciplinary review procedure that provides
for binding arbitration of disputes
involving the major discipline of any public
(continued)
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In re Rutgers, The State Univ. and FOP Lodge No. 62, No. A-0485-
06 (App. Div. Aug. 3, 2007) (slip op. at 3) ("The FOP presents
no argument based on the current provisions of N.J.S.A. 34:13A-
5.3 addressing arbitration and major discipline."); In re
Rutgers, The State Univ. of New Jersey and FOP Lodge 62, No.
(continued)
employee protected under the provisions of
this section, other than public employees
subject to discipline pursuant to [N.J.S.A.]
53:1-10, the grievance and disciplinary
review procedures established by agreement
between the State of New Jersey and the
majority representative shall be utilized
for any dispute covered by the terms of such
agreement. For the purposes of this
section, major discipline shall mean a
removal, disciplinary demotion, suspension
or fine of more than five days, or less
where the aggregate number of days suspended
or fined in any one calendar year is 15 or
more days or unless the employee received
more than three suspensions or fines of five
days or less in one calendar year.
In interpreting the meaning and extent
of a provision of a collective negotiation
agreement providing for grievance
arbitration, a court or agency shall be
bound by a presumption in favor of
arbitration. Doubts as to the scope of an
arbitration clause shall be resolved in
favor of requiring arbitration.
[Emphasis supplied.]
6 A-0990-16T3
A-0455-14 (App. Div. Sep. 8, 2016) (slip op. at 10) ("[Rutgers]
and its police department are not the State of New Jersey.").4
As the Union has failed to advance any argument to assail
PERC's reasonable interpretation of the 2003 amendment to
N.J.S.A. 34:13A-5.3 as limited to the State of New Jersey, it
provides us no basis on which to find PERC's decision is
arbitrary or inconsistent with the statute. As we advised in
2007, "[w]e decline to consider questions of statutory
interpretation that have not been raised or briefed by the
parties or considered by the agency charged with the
responsibility of administering the law." In re Rutgers, The
State Univ. and FOP Lodge No. 62, No. A-0485-06 (App. Div. Aug.
3, 2007) (slip op. at 3).
Affirmed.
4
We cite our prior unpublished opinions involving the same
parties litigating the same issue not for their precedential
value, they have none, but to illustrate why we decline to
address a statutory argument the Union has again failed to
advance. Because the case history is relevant to the issue
before us, R. 1:36-3's prohibition against the citation of
unpublished opinions is not violated. See Badiali v. N.J. Mfrs.
Ins. Grp., 220 N.J. 544, 560 (2015).
7 A-0990-16T3