IN THE MATTER OF OCEAN COUNTY COLLEGE VS. OCEAN COUNTY COLLEGE FACULTY ASSOCIATION (PUBLIC EMPLOYMENT RELATIONS COMMISSION) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0446-19T2
IN THE MATTER OF OCEAN
COUNTY COLLEGE,
Petitioner-Appellant,
v.
OCEAN COUNTY COLLEGE
FACULTY ASSOCIATION,
Respondent-Respondent.
Submitted September 16, 2020 – Decided October 13, 2020
Before Judges Alvarez and Mitterhoff.
On appeal from the New Jersey Public Employment
Relations Commission, P.E.R.C. No. SN-2019-034.
Cleary Giacobbe Alfieri Jacobs, LLC, attorneys for
appellant (Matthew J. Giacobbe, of counsel and on the
briefs; Victoria A. Leblein, on the briefs).
Dezky, Hunter & DeFillippo, LLC, attorneys for
respondent (Stephen B. Hunter, of counsel and on the
brief).
Christine Lucarelli, General Counsel, attorney for
respondent New Jersey Public Employment Relations
Commission (Ramiro Perez, Deputy General Counsel,
on the statement in lieu of brief).
PER CURIAM
Petitioner Ocean County College (OCC) appeals from the August 15, 2019
New Jersey Public Employment Commission (PERC) final decision denying
reconsideration of a May 30, 2019 adjudication concluding that two provisions
in a Collective Negotiations Agreement (CNA) were mandatorily negotiable.
We affirm.
The dispute centers over language included in the prior CNA, effective
from September 1, 2014, through August 31, 2019. OCC contends the clauses
should be excluded. They are:
Article III, Section J
Preference – [Faculty Association of Ocean County
College] Members shall be given preference to Faculty
duties within their discipline, for which they are
qualified.
Additionally, this paragraph is at issue:
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Article V, Section B (5) (in pertinent part)
Extra Pay Assignment Priority -
Full-Time Faculty Members shall have preference,
according to qualifications, as determined by the
Department Dean or Vice President of Academic
Affairs, to teach courses involving extra pay.
Respondent Ocean County College Faculty Association (Association) represents
full-time OCC faculty members.
In its initial decision on the merits, PERC observed that Article III,
Section J "is phrased as a unit work preservation provision that Association
faculty, if qualified (as determined by [OCC]), are given preference for faculty
duties within their discipline over individuals not represented by the
Association." As to Article V, Section B(5), PERC noted that it "is similarly
[preconditioned] on the faculty being qualified for the duties at issue[.]" PERC
concluded that since the disputed language allows OCC to initially determine
which faculty within their discipline had the appropriate qualifications, there
was no infringement on OCC's "managerial prerogative to make staffing
assignments."
In the reconsideration decision, PERC did not consider those arguments
OCC had not previously raised, which lacked supporting certifications based on
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personal knowledge. As they reiterated, "the clauses at issue are unit work
preservation provisions because they provide preference to Association unit
members over non-unit members."
Now on appeal, OCC raises the following issues for our consideration:
POINT I
THE COMMISSION’S CONCLUSION THAT THE
PROVISIONS OF THE AGREEMENT WERE
NEGOTIABLE AND DID NOT INFRINGE ON THE
COLLEGE’S NON-NEGOTIABLE MANAGERIAL
PREROGATIVE WAS ARBITRARY, CAPRICIOUS
AND UNREASONABLE.
A. Well established case law.
B. Inclusion of Article III, Section J, in the
Agreement Infringes on the College’s Non-
Negotiable Managerial Prerogative in
Violation of the Well-Established Case
Law and Legislative Policy.
C. Inclusion of Article V, Section B(5), in
the Agreement Infringes on the College’s
Non-Negotiable Managerial Prerogative in
Violation of the Well-Established Case
Law and Legislative Policy.
POINT II
THE COMMISSION’S RECONSIDERATION
DECISION, AFFIRMING ITS SCOPE DECISION,
FINDING THAT THE PROVISIONS OF THE
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AGREEMENT WERE NEGOTIABLE AND DID NOT
INFRINGE ON THE COLLEGE’S NON-
NEGOTIABLE MANAGERIAL PREROGATIVE
WAS AGAINST THE SUBSTANTIAL EVIDENCE
IN THE RECORD.
POINT III
THE COMMISSION’S CONCLUSION THAT THE
PROVISIONS OF THE AGREEMENT WERE
NEGOTIABLE AND DID NOT INFRINGE ON THE
COLLEGE’S NON-NEGOTIABLE MANAGERIAL
PREROGATIVE WAS ARBITRARY, CAPRICIOUS
AND UNREASONABLE AS IT WAS
INCONSISTENT WITH ITS MANDATE.
POINT IV
THE COMMISSION’S CONCLUSION THAT THE
PROVISIONS OF THE AGREEMENT
CONSTITUTED UNIT WORK PRESERVATION
CLAUSES WAS ARBITRARY, CAPRICIOUS,
UNREASONABLE AND CONTRARY TO PRIOR
COMMISSION DECISIONS.
"The standard of review of a PERC decision concerning the scope of
negotiations is 'thoroughly settled.'" City of Jersey v. Jersey City Police Officers
Benevolent Ass'n, 154 N.J. 555, 568 (1998) (quoting In re Hunterdon Cnty. Bd.
of Chosen Freeholders, 116 N.J. 322, 329 (1989)). PERC's decisions regarding
negotiability are upheld unless "arbitrary, capricious or unreasonable, . . .
lack[ing] fair support in the evidence," or in "violat[ion] of a legislative policy
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expressed or implicit in the governing statute." Twp. of Franklin v. Franklin
Twp. PBA Loc. 154, 424 N.J. Super. 369, 377 (App. Div. 2012) (quoting
Commc'n Workers of Am., Loc. 1034 v. N.J. State Policemen's Benevolent
Ass'n., Loc. 203, 412 N.J. Super. 286, 291 (App. Div. 2010)). The burden of
establishing the improper nature of the agency action is upon the party
challenging it. In re Adoption of Amends. to N.E. Upper Raritan, Sussex Cty.,
435 N.J. Super. 571, 582 (App. Div. 2014).
In reviewing PERC decisions, our role is "sensitive and circumspect."
Hunterdon Cty., 116 N.J. at 328. PERC's decisions are "regulatory
determination[s] of an administrative agency that is invested by the legislature
with broad authority and wide discretion in a highly specialized area of public
life." Ibid. Substantial deference is therefore accorded to PERC's scope of
negotiations determinations. Twp. of Franklin, 424 N.J. Super. at 377.
A three-part test is employed to determine when a subject is negotiable
between public employers and employees: "(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
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agreement would not significantly interfere with the determination of
government policy." City of Jersey City, 154 N.J. at 568 (1998) (quoting In re
Loc. 195 IFPTE, 88 N.J. 393, 404-05 (1982)). As to the third factor, "it is
necessary to balance the interest 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." Ibid. (quoting IFPTE, 88 N.J. at 404-05). The test is applied on a
case-by-case basis. Troy v. Rutgers, 168 N.J. 354, 383 (2001).
The unit work rule prohibits the "shifting of work from employees within
a negotiations unit to other employees outside the unit." City of Jersey City,
154 N.J. at 565. It "require[s] collective bargaining before workers in the
bargaining unit are replaced by non-unit workers, the objective being to provide
the union with at least an opportunity to negotiate an acceptable alternative[.]"
Id. at 576. It protects the unit from loss of jobs and the consequent reduction
in union membership. See Id. at 568-79. Having reviewed the record and
applicable standards of review, we are satisfied that OCC has not shown that
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PERC's decision was arbitrary, unreasonable, capricious or contrary to well -
established precedent.
Article III, Section J simply seeks to protect Association members from
outside instructors and staff who could perform the same duties. The very
concerns implicated by the unit work rule are present here. Consequentially, the
provision does not interfere with managerial authority; it states preference is to
be given to faculty where such responsibilities fall "within their discipline, for
which they are qualified." Thus, the clause preserved work traditionally
performed by unit employees within their discipline while balancing OCC's
interest in ensuring that appointments are made to those who are qualified to
perform the job.
Similarly, Article V, Section B (5) does not interfere with OCC's ability
to select the most qualified individual to teach a specific course. That section
of the CNA accords extra pay assignment priority to full-time faculty members
only where the Dean of Vice-President of academic affairs has determined that
he or she is qualified. Again, managerial authority and prerogatives remain with
OCC. Association members are given preference over non-members when both
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are equally qualified. The language balances the need to preserve opportunities
for Association members with OCC's need to determine which candidates are
most qualified for extra pay opportunities.
Thus, PERC's decision finding the relevant paragraphs to be mandatorily
negotiable does not interfere with the employer's managerial prerogative. It is
neither arbitrary, capricious, nor unreasonable, and is in accord with the
legislative mandate.
Affirmed.
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