In the Matter of Tanaya Tukes

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3374-14T3
IN THE MATTER OF TANAYA TUKES,
TINA MUCHERSON, TYESHA CUFF,
SARAH PATTERSON, JAYNET PETERSON,
APPROVED FOR PUBLICATION
ERICA HENDERSON, NICOLE BUTLER,
TAMARA PEYTON, TRACY BAILEY, February 23, 2017
ANDREA JONES, ELIZABETH DUNKLE,
DELORES MCSHAN, FRANCES WILLIAMS, APPELLATE DIVISION
MILINDA BANKS, TORRIE KING-BRYANT,
ANGELA PLUTA, PATRICIA SHEPPARD,
JACQUELINE SANDERS, LISA SADLER,
SONDRA CROOK, VERA SWAN, AGATHA
DRUMMOND, MARYLIN PARKER, EUNICE
BENNETT, RONNETTE SATTERFIELD,
NANCY FLORES, CLEOPATRA HIBBERT,
WHITNEY TULL, XENIA RIVERA, KIMONA
ANDERSON, CAROLYN RAWLS, LYDIA RAHN,
FRYDAE WILLLIAMS, DONNA LUCKEY,
KYRA HARTZOG, CHRISTINE BAIRD,
TRENITA BETTERSON, TONYA GREEN,
KATHLEEN THOMPSON, MARSHA BAILEY,
MALVINE TRENT, LANESHA JONES, MARYANN
WOOD, CATHERIN LEWIS, KENTHY STREET,
FRANCES WILLIAMS, ROBERTA TRAVIS,
DAWN WRONIUK, JONELLE COPES, BRIAN
BEACHAUMP, NICHOLAS GRUFF, MARY FIFTH,
WENDY FIFTH, BRENDA BROWN, JOHN
PELECHATY, TIFFANY SMITH, CHRISTOPHER
RODRIGUEZ, BARRY JOHNSON, JOSEPH EGBEH,
LATOYA HOLLAND, MILTON WHITE, SUSAN
RIVERA, BRIAN MORROW and DEWAYNE KENT,
DEPARTMENT OF HUMAN SERVICES.1
________________________
Submitted February 13, 2017 – Decided February 23, 2017
Before Judges Sabatino, Nugent and Haas.
1
The case caption used in appellants' notice of appeal has been
corrected to include the names of all of the appellants.
On appeal from New Jersey Civil Service
Commission, Docket No. 2015-1457.
Weissman & Mintz, LLC and David Beckett Law,
attorneys for appellants (Rosemarie
Cipparulo and David Beckett, on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent Civil Service
Commission (Melissa Dutton Schaffer,
Assistant Attorney General, of counsel;
Pamela N. Ullman, Deputy Attorney General,
on the brief).
The opinion of the court was delivered by
HAAS, J.A.D.
Appellants, a group of sixty-four Department of Human
Services employees (collectively "appellants"), appeal from the
February 9, 2015 final agency decision of the Civil Service
Commission ("Commission"), which denied their appeal of a
determination of their layoff rights by the Division of
Classification and Personnel Management ("CPM"). We affirm.
I.
We derive the following background facts from the record.
The Department of Human Services ("Department") closed the
Woodbridge Developmental Center and privatized the operations of
the State-staffed Parents and Friends Association
("PAFA/PAFACOM") homes, which provided services to Department
clients with developmental disabilities. As a result, the
Department decided to lay off employees in a number of different
2 A-3374-14T3
job titles, including appellants, who were employed either at
the Vineland Developmental Center, the Woodbine Developmental
Center, or the PAFA/PAFACOM homes. The following titles were
included in the layoff plan: Residential Living Specialist
("RLS"); Cottage Training Supervisor ("CTS"); Head Cottage
Training Supervisor; Senior Cottage Training Technician; Cottage
Training Technician; Human Services Technician; and Human
Services Assistant.
The Department submitted its layoff plan to the CPM for
review. Following its review, the CPM approved the layoff plan
in its entirety.
As part of its decision, the CPM determined that the RLS
and CTS titles were comparable and, therefore, the employees in
these titles had "lateral title" displacement or "bumping"
rights to each other. In other words, an employee in either the
RLS title or the CTS title, who had more seniority than another
employee in one of those two titles, could bump the employee
with lesser seniority from his or her title. In turn, the
"bumped" employee might have "demotional title" rights to an
employee in a "lower" title.
As a result of the Departments' layoff plan, twenty-six of
the appellants were bumped from their CTS positions by employees
in RLS or CTS titles with more seniority. In turn, some of
3 A-3374-14T3
these appellants bumped other appellants who held lower titles,
such as Senior Cottage Training Technician, Cottage Training
Technician, and Human Services Assistant. Some appellants in
the lowest titles were laid off.
Appellants appealed the CPM's decision to the Commission, 2
which affirmed the CPM's determination in all respects,
including its finding that employees in the RLS and CTS titles
had lateral title rights to each other. For purposes of their
appeal to this court, appellants only challenge the portion of
the Commission's decision that concerns the lateral title rights
applicable to the RLS and CTS titles. Thus, the issue on appeal
is whether the Commission's decision that the employees in these
two titles had lateral title rights relative to each other was
arbitrary, capricious, or unreasonable. See In re Stallworth,
208 N.J. 182, 194 (2011).
II.
To place that issue in the proper context, we begin by
reviewing the law governing employee layoff rights. The Civil
Service Act, N.J.S.A. 11A:1-1 to 12-6, provides that "[a]
2
Once the CPM makes an initial determination of layoff rights,
an affected employee may appeal to the Commission. N.J.A.C.
4A:8-2.6(a)(2). An appeal from a displacement rights
determination does not involve a hearing, but consists of a
review of the written record. Ibid. The burden of proof in
such an appeal is on the employee. N.J.A.C. 4A:8-2.6(c).
4 A-3374-14T3
permanent employee may be laid off for economy, efficiency, or
other related reason." N.J.S.A. 11A:8-1(a). The Commission is
charged with the responsibility for adopting and enforcing rules
regarding the order of layoff and the determination of employee
layoff rights. Ibid.Layoffs are to occur in the "inverse order of seniority."
N.J.S.A. 11A:8-1(b). For jobs not involving police or
firefighting titles, "seniority" is defined as "the length of
continuous permanent service only in the [employee's] current
permanent title and any other title that has lateral or
demotional rights to the current permanent title." Ibid. In
the present case, the layoff unit was the Department rather than
any of the individual facilities, such as the Vineland or
Woodbine Developmental Centers, that it operated. See N.J.S.A.
11A:8-1(c) (stating that "a 'layoff unit' means a department or
autonomous agency and includes all programs administered by the
department or agency").
As we stated over fifteen years ago in In re Donohue,
The exercise of lateral or demotional
title rights may have a serious impact on
other government workers, who may be
displaced, as well as on the appointing
authority, whose work force may be
rearranged. Therefore, layoff rights may be
exercised only within the explicitly defined
limits of the layoff unit. In addition, the
determination of layoff rights requires the
application of uniform regulatory criteria
5 A-3374-14T3
based upon a careful analysis of job
qualifications and duties articulated in the
job specifications of the targeted employee,
as compared to the job specifications of
those titles within the layoff unit to which
the targeted individual might have rights.
[In re Donohue, 329 N.J. Super. 488, 497
(App. Div. 2000) (citing N.J.A.C. 4A:8-2.2).
A "demotional title right" is the right of an employee
whose title is the target of a layoff to displace "an employee
in the layoff unit holding a title determined [by the
Commission] to be lower than, but related to the affected title
of the employee." N.J.A.C. 4A:8-2.1(b). Permanent employees
also have displacement rights to "any title previously held on a
permanent basis within current continuous service." N.J.A.C.
4A:8-2.2(f). For these rights, "[d]isplacement may be made only
on the basis of greater permanent continuous service . . . ."
Ibid. These further rights "shall not be granted when the
employee has either lateral title rights options, or demotional
title rights options to a title with a higher class code than
the previously held title, within the selected job locations."
N.J.S.A. 4A:8-2.2(f)(1).
Finally, permanent employees, like the appellants involved
in this case, have lateral title rights. A "lateral title
right" is defined as "the right of a permanent employee to
exercise displacement rights . . . against an employee in the
6 A-3374-14T3
layoff unit holding a title determined to be the same or
comparable to the affected title of the employee." N.J.A.C.
4A:8-2.1(a).
In order for two positions to have lateral title rights to
each other, the titles, duties, and education and experience
requirements for the two positions do not have to be identical.
N.J.S.A. 11A:8-1(e). Instead, the titles need only have
"substantially similar duties and responsibilities"; "similar"
education and training requirements; and "similar" special
skills, licenses certification or registration requirements.
Ibid.In addition, titles may be deemed "lateral" to each other
even when an employee who is "bumping" from one lateral title to
another has never performed the actual duties of the title to
which he or she is moving. Ibid. Thus, one title can be deemed
lateral to another when the "employees in [the] affected title,
with minimal training and orientation, could perform the duties
of the designated title by virtue of having qualified for the
affected title[.]" Ibid. (emphasis added).
A lateral title right exists only if the Commission
determines that there are titles comparable to the affected
title within the layoff unit. The determination of "title
7 A-3374-14T3
comparability" is made by the Commission based upon four
factors:
1. The title(s) shall have substantially
similar duties and responsibilities and the
same class code;
2. The education and experience
requirements for the title(s) are the same
or similar and the mandatory requirements
shall not exceed those of the affected
title;
3. There shall be no special skills,
license, certification or registration
requirements which are not also mandatory
for the affected title; and
4. Any employee in the affected title with
minimal training and orientation could
perform the duties of the designated title
by virtue of having qualified for the
affected title.
[N.J.A.C. 4A:8-2.1(a).]
III.
In its thorough written decision, the Commission reviewed
the job descriptions for the RLS and CTS titles, applied the
four-factor test set forth in N.J.A.C. 4A:8-2.1(a), and
determined, like the CPM before it, that the two titles were
comparable and that the employees in each of these titles had
lateral title rights.
Turning to the first factor, the Commission explained that
[i]n order to categorize functions and
duties which are substantially similar,
based on the definition and example of work
8 A-3374-14T3
portions of job specifications, all titles
are slotted into one of the [thirty-nine]
occupational groups recognized in the
Dictionary of Occupational Titles. Titles
are further categorized into occupational
families within the occupational groups
based on the differences in main functions
of titles in each group after further review
of the job specification language. Thus,
occupational groups and families are
utilized as a means of categorizing titles
based on assigned duties and
responsibilities.
Here, it is undisputed that the RLS and CTS titles were both
in the same class code (13) and occupational
group (35 – Direct Care and Related Personal
and Health Services). Occupational group
35 includes occupations concerned with
attending to the direct treatment, physical
comfort, safety, and appearance of
individuals placed in government facilities
for treatment, rehabilitation, education, or
safety. It excludes occupations concerned
with criminal incarceration. The titles are
also in the same family, Residential Care
Services Worker (01).
Thus, the Commission concluded that the RLS and CTS titles
had "the same class code." N.J.A.C. 4A:8-2.1(a)(1). The
Commission then conducted "a review of the job specifications"
for each title and found "that the basic duties and
responsibilities of each title are similar" as required by the
second prong of N.J.A.C. 4A:8-2.1(a)(1).
The job description for the RLS title defines this title in
the following terms:
9 A-3374-14T3
Under direction of a supervisory official in
a small Intermediate Care Facility Unit for
the developmentally disabled in a state
department, acts as a parent surrogate to
clients of that unit providing direct
services in the areas of direct care,
training, feeding, recreation, education,
social education, vocational education, and
direct/indirect services in the areas of
sanitation and cleaning, laundry, and
supportive programming, on the grounds and
in community activities; does related
[3]
duties.
Included in the "Examples of Work" section of the RLS job
description are such duties as: "[a]ssumes responsibility for
the physical, mental, and emotional well[-]being of assigned
clients"; "[p]repares and serves meals to clients, feeds those
unable to help themselves, and trains clients to serve and feed
themselves where applicable"; and "[b]athes, dresses, combs
hair, trims nails, brushes teeth, shaves, and provides whatever
other assistance is required by client to ensure adequate
standards of personal hygiene."
The job description for the CTS titles defines that title
as follows:
Under direction of a Head Cottage Training
Supervisor or other supervisor of an
3
The job descriptions for both the RLS and CTS titles both
provide that "[t]he examples of work for this title are for
illustrative purposes only. A particular position using this
title may not perform all duties listed in this job
specification. Conversely, all duties performed on the job may
not be listed."
10 A-3374-14T3
institution for the developmentally disabled
in the Department of Human Services,
supervises cottage personnel assigned to a
shift; functions in the absence of the Head
Cottage Training Supervisor; conducts
assigned non-professional programs for the
physical, mental and emotional health of
residents, and to develop their potential
abilities in areas of personal self-care,
social training, cleanliness and related
programs; does related work as required.
As "Examples of Work," the CTS job description lists such duties
as: "[s]upervises cottage personnel providing for the personal
care of residents to ensure proper feeding, cleanliness, safety
and well[-]being of residents assigned to a cottage";
"[s]upervises and participates in serving meals to residents and
provides assistance to those unable to feed themselves"; and
"[p]erforms and supervises staff involved in bathing, dressing,
and providing other grooming assistance required by residents
for their appropriate personal hygiene." (emphasis added).
After comparing the job duties for the two positions, the
Commission found that employees in the RLS and CTS titles were
"engaged in para-medical activities" and "participate[d] in
. . . support functions such as recreational, vocational, and
social programs designed to aid in the care, health[,] and
rehabilitation of the physically [ill], mentally ill, or
handicapped." The Commission further observed that the two
titles "have in common the direct care of clients as their duty
11 A-3374-14T3
and responsibility." Thus, the Commission concluded that
employees in the RLS and CTS titles performed "substantially
similar duties and responsibilities" and, therefore, the
criterion set forth in N.J.A.C. 4A:8-2.1(a)(1) had been met.
The Commission next considered N.J.A.C. 4A:8-2.1(a)(2),
which concerns the education and experience requirements for
each title. To be assigned to the RLS title, an employee must
have "[t]wo (2) years of experience in the direct care of the
developmentally disabled in either a residential or community
setting." Similarly, an employee in the CTS title needed "[t]wo
(2) years of experience in the direct care of clients which may
include training or supervision in an institutional, hospital or
residential setting."
The Commission determined that these education and
experience requirements were "the same or similar and the
mandatory requirements [did] not exceed those of the affected
title" under N.J.A.C. 4A:8-2.1(a)(2). As stated above, the only
mandatory requirement for both titles was two years of
experience in the direct care of developmentally disabled
clients.4
4
As noted above, the CTS job description made clear that the
required two years of direct care experience for that title
could include training and supervisory experience. However,
(continued)
12 A-3374-14T3
Moving to the third factor, the job descriptions for both
titles stated that the only license an employee had to have was
a driver's license "if the operation of a vehicle, rather than
employee mobility is necessary to perform essential duties of
the position." No other special skills, licenses, or other
certification or registration requirements were necessary.
Thus, the Commission determined that the RLS and CTS titles were
comparable under N.J.A.C. 4A:8-2.1(a)(3).
Finally, the Commission found that an employee in the RLS
title could perform the duties of the CTS title "with minimal
training and orientation." N.J.A.C. 4A:8-2.1(a)(4). While
employees in the CTS title performed supervisory duties, no
supervisory experience was needed to enter that title. Thus, a
person in the RLS title could exercise his or her lateral title
rights to the CTS title and then presumably be ready, with
minimal training and orientation, to become a supervisor, just
as any new employee in the CTS title would.
IV.
Before the Commission, appellants raised three bones of
contention that they again present in their appeal to this
court. First, appellants argued that the CPM and, thereafter,
(continued)
such experience was not mandated for either the CTS title or the
RLS title.
13 A-3374-14T3
the Commission failed to "demonstrate a thorough understanding"
of the job duties performed by the employees in the CTS title. 5
Specifically, appellants asserted that the Commission did not
fully consider the fact that employees in the CTS title were
called upon to perform supervisory duties that the employees in
the RLS title were not.
However, the Commission expressly acknowledged the
supervisory duties performed by employees in the CTS title, and
found that that title was still "comparable" to the RLS title as
required by N.J.S.A. 11A:8.1(e) and N.J.A.C. 4A:8-2.1(a). The
Commission stated:
[CTS] is not a managerial title, as
claimed by the appellants, but is a primary
5
In support of their contention that the Commission must
"thorough[ly] understand" and fully review the respective job
duties of both titles involved in a lateral titles rights case,
appellants cite In re Johnson, 215 N.J. 366, 378, 383-84 (2013),
a case involving a challenge to the Commission's decision to
reclassify a civil service position without first conducting a
complete audit of that position. We note that Johnson is
inapposite to the case at hand because reclassification
decisions are subject to different standards and regulations
than lateral title rights cases. See N.J.A.C. 4A:3-3.5 (setting
standards for reclassification of positions in the civil
service). That having been said, we previously made clear in
Donohue, supra, that the determination of lateral title rights
must be "based upon a careful analysis [and comparison] of job
qualifications and duties articulated in the job specifications"
for both positions at issue. Donohue, supra, 329 N.J. Super. at
497. Thus, we have no difficulty adopting here the Supreme
Court's common-sense observation that a "thorough understanding"
of the duties of a position is necessary in any case where the
title rights of a civil service employee are at stake.
14 A-3374-14T3
level supervisory title, and this is the
difference between the [CTS] and [RLS]
titles. The [CTS] title is assigned to the
"R," or primary level supervisory,
bargaining unit, which include[s] titles
that may be assigned the responsibility for
effectively recommending the hiring, firing,
promoting, demoting[,] and/or disciplining
of employees in non-supervisory titles. As
such, this bargaining unit is defined as
permissive for supervisory responsibilities.
That is, incumbents may or may not supervise
subordinates, or they may supervise a
program. Incumbent primary level
supervisors are not necessarily required to
supervise staff, but the job specification
does permit this function if so required by
the organizational unit.
Thus, contrary to appellants' argument that it did not
"thoroughly understand" the job duties of each position, the
Commission specifically recognized that employees in the CTS
title were primarily supervisors. However, the Commission went
on to explain that the performance of supervisory duties by
employees in the CTS title did not affect the overall
comparability of the CTS and RLS titles for the purpose of
determining lateral title rights. The Commission stated:
The primary level supervisory titles are the
titles in which employees can gain
supervisory experience, and they are not
required to possess supervisory experience
upon appointment. As such, aside from the
fact that bargaining units are not factored
into title rights, primary level supervisors
are not differentiated from non-supervisory
titles in the determination of title rights.
As direct care is the primary focus of each
title, they are functionally similar.
15 A-3374-14T3
[(emphasis added).]
As noted above, the CTS title does not require prior
supervisory experience. The employees in this title are only
required to have two years of experience in the direct care of
clients. Therefore, when an employee enters the CTS title, he
or she must undergo a period of "minimal training and
orientation" prior to performing any supervisory duties.
N.J.A.C. 4A:8-2.1(a)(4).
This would be the same situation where an employee in the
RLS title exercised his or her lateral title rights to enter the
CTS title. The two-year direct patient care experience
requirement for the RLS title is identical to the CTS experience
requirement. Thus, with the same "minimal training and
orientation," an employee moving laterally into the CTS title
could also be expected to perform supervisory functions.
Therefore, the Commission concluded that the actual job duties
for each title were substantially similar.
Appellants also argued that the RLS and CTS titles could
not be deemed comparable because they were in different
bargaining units. The Commission addressed and rejected this
contention. The Commission stated that the RLS title was
"assigned to the "'H'" bargaining unit, Health, Care,
16 A-3374-14T3
Rehabilitation Services[.]" The CTS title was "assigned to the
"'R,'" or primary level supervisory, bargaining unit[.]"
However, as the Commission found, nothing in the governing
statute, N.J.S.A. 11A:8-1, or regulations, N.J.A.C. 4A:8-2.1 to
-2.6, provides that the bargaining unit for any title must be
considered in determining lateral title rights. Moreover, the
Commission reiterated that "the primary focus of each title" was
the direct care of clients. Thus, the Commission concluded that
the RLS and CTS titles were "functionally similar" and,
therefore, comparable within the intendment of N.J.S.A. 11A:8-
1(e) and N.J.A.C. 4A:8-2.1(a).
Finally, appellants argued that the Commission did not
adequately consider the fact that employees in the CTS title
usually worked in larger State facilities, while employees in
the RLS title most frequently assisted clients in smaller group
home settings. Once again, however, the Commission expressly
addressed and rejected this assertion.
As the Commission explained, the layoff unit in this case
was the entire Department, including all programs, facilities,
and group homes managed by the Department. See N.J.A.C. 4A:8-
1.5(a). The Commission noted that as the appointing authority,
the Department had "the right to determine the organization
17 A-3374-14T3
structure of its operation" and, therefore, could assign
employees to various facilities as deemed necessary.
The Commission further observed that "[a]s long as there
[were] no improper reporting relationships or
misclassifications, how the facility is organized is not under
the jurisdiction of the Commission or reviewable in the context
of a layoff appeal." Moreover, the experience requirements for
both titles did not require that the required two years of
direct care experience had to be in any particular facility.
Under these circumstances, the Commission concluded that the two
titles were comparable regardless of the nature or size of the
facility where the employees in the titles had previously been
assigned. This appeal followed.
V.
On appeal, appellants contend that the Commission's "final
decision is arbitrary, unreasonable[,] and not supported by
substantial evidence in the record." As noted above, they raise
the three same arguments they unsuccessfully presented to the
Commission. Appellants assert that the Commission: (1) failed
to demonstrate that it "thoroughly understood" the job duties of
the RLS and CTS titles; (2) did not consider that the two job
titles were in different bargaining units; and (3) did not give
sufficient weight to the fact that employees in the CTS title
18 A-3374-14T3
usually worked in larger facilities than employees in the RLS
title. Appellants also add a fourth contention and allege that
a search of "title inquiry screens" on an internet database did
not reflect the title rights later determined by the Commission.
We disagree with all of these contentions.
Established precedents guide our task on appeal. Appellate
review of an administrative agency decision is limited. In re
Herrmann, 192 N.J. 19, 27 (2007). A "strong presumption of
reasonableness attaches" to the Commission's decision. In re
Carroll, 339 N.J. Super. 429, 437 (App. Div.), certif. denied,
170 N.J. 85 (2001). Appellants have the burden to demonstrate
grounds for reversal. McGowan v. N.J. State Parole Bd., 347
N.J. Super. 544, 563 (App. Div. 2002); see also Bowden v.
Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div. 1993)
(holding that "[t]he burden of showing the agency's action was
arbitrary, unreasonable or capricious rests upon the
appellant"), certif. denied, 135 N.J. 469 (1994).
Appellate courts generally defer to final agency actions,
only "reversing those actions if they are 'arbitrary, capricious
or unreasonable or [if the action] is not supported by
substantial credible evidence in the record as a whole.'" N.J.
Soc'y for the Prev. of Cruelty to Animals v. N.J. Dep't of
Agric., 196 N.J. 366, 384-85 (2008) (alteration in original)
19 A-3374-14T3
(quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80
(1980)). Under the arbitrary, capricious, or unreasonable
standard, our scope of review is guided by three major
inquiries: (l) whether the agency's decision conforms with
relevant law; (2) whether the decision is supported by
substantial credible evidence in the record; and (3) whether in
applying the law to the facts, the administrative agency clearly
erred in reaching its conclusion. Stallworth, supra, 208 N.J.
at 194.
When an agency decision satisfies such criteria, we accord
substantial deference to the agency's fact-finding and legal
conclusions, acknowledging "the agency's 'expertise and superior
knowledge of a particular field.'" Circus Liquors, Inc. v.
Governing Body of Middletown Twp., 199 N.J. 1, 10 (2009)
(quoting Greenwood v. State Police Training Ctr., 127 N.J. 500,
513 (1992)). We will not substitute our judgment for the
agency's even though we might have reached a different
conclusion. Stallworth, supra, 208 N.J. at 194; see also In re
Taylor, 158 N.J. 644, 656-57 (1999) (discussing the narrow
appellate standard of review for administrative matters).
Applying these principles here, we discern no basis for
disturbing the Commission's decision establishing appellants'
layoff rights. We affirm substantially for the reasons set
20 A-3374-14T3
forth in the Commission's thorough written decision and add the
following comments.
As they did before the Commission, appellants again allege
that the Commission failed to appreciate that employees in the
CTS title performed supervisory duties in addition to their
direct patient care responsibilities, while their colleagues in
the RLS title did not. However, the Commission dealt with this
issue head-on in its decision, finding that prior supervisory
experience was not a requirement for the CTS title and that to
enter either title, an employee only had to have two years of
direct patient care experience.
Thus, an employee in the RLS title could laterally move
into the CTS title and, just like any other new employee in that
position, begin providing supervision as well as direct care "by
virtue of having qualified for the affected title" after
receiving normal "minimal training and orientation." N.J.S.A.
11A:8-1(e); N.J.A.C. 4A:8-2.1(a)(4). Therefore, the Commission
properly determined that the RLS and CTS titles were comparable
and that the employees in each title had lateral title
displacement rights based on seniority.
Contrary to appellants' contentions, the Commission also
considered the fact that employees in the RLS and CTS titles
fall under different bargaining units. Again, however, that is
21 A-3374-14T3
a distinction without a difference. An employee's bargaining
unit at the time of a layoff is simply not one of the relevant
factors that the Commission must consider in determining lateral
title rights. N.J.S.A. 11A:8-1(e); N.J.A.C. 4A:8-2.1(a)(4).
The Commission also noted from its exhaustive review of the
job titles and duties of the affected employees that individuals
holding the CTS title were more frequently assigned to larger
facilities than their counterparts in the RLS title. However,
the assignment of employees to particular facilities is a
prerogative of the Department and does not affect the overall
comparability of the two titles.6 As the Commission found, the
supervisory and direct patient care duties performed by the
employees were substantially similar regardless of their
specific work location.
Finally, appellants assert that prior to the Commission's
approval of the Department's layoff plan, information available
on a Commission computer database did not list the RLS and CTS
titles as having lateral displacement rights to each other.
However, when this discrepancy was brought to the Commission's
attention, the Commission promptly determined that this error
6
As noted above, the layoff unit in this case was the entire
Department, including all programs administered by the
Department, and not just one or more of its individual
facilities. N.J.S.A. 11A:8-1(c); N.J.A.C. 4A:8-1.5(a).
22 A-3374-14T3
was "a systems related issue" caused by a "recent department
code change made to the CTS title." The Commission attempted
"to manually fix the issue but the [computer database] system
[was] not permitting any additions." The Commission notified
its "systems staff" of the matter, and the proper information
was later uploaded to the system.
In the meantime, the Commission made written documentation
available to all interested parties concerning the lateral and
demotional title rights of all of the titles affected by the
layoff. Thus, the mere fact that a computer glitch temporarily
prevented the lateral title rights pertaining to the RLS and CTS
titles from being available on the database had no impact
whatsoever on the Commission's subsequent review and approval of
the Department's layoff plan.
In sum, the Commission did not act arbitrarily,
capriciously, or unreasonably in determining that employees in
the RLS and CTS titles had lateral title rights to each other,
and its decision is fairly supported by substantial evidence in
the record.
Affirmed.
23 A-3374-14T3