NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-4137-18T2
IN RE: THE MATTER OF THE ALLEGED IMPROPER PRACTICE UNDER SECTION XI PARAGRAPH A(d) OF THE PORT AUTHORITY LABOR RELATIONS INSTRUCTION, FINAL DECISION AND ORDER OF THE PORT AUTHORITY EMPLOYMENT RELATIONS PANEL, PORT AUTHORITY OF NEW YORK AND NEW JERSEY,
Plaintiff-Appellant,
v.
THE PORT AUTHORITY EMPLOYMENT RELATIONS PANEL,
Defendant-Respondent,
and
PORT AUTHORITY POLICE BENEVOLENT ASSOCIATION, INC.,
Defendant/Intervenor-Respondent. Argued October 26, 2020 - Decided November 30, 2020
Before Judges Mayer and Susswein.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2723-18.
Cheryl Alterman argued the cause for appellant (The Port Authority Law Department, attorney; Sharon K. McGahee, on the briefs).
Christine R. Lucarelli argued the cause for respondent The Port Authority Employment Relations Panel (New Jersey Public Employment Relations Commission, attorney; Christine R. Lucarelli, on the brief).
John W. Bartlett argued the cause for intervenor- respondent Port Authority Police Benevolent Association, Inc. (Murphy Orlando LLC and D. John McAusland, attorneys; Jason F. Orlando, John W. Bartlett, and D. John McAusland, on the brief).
PER CURIAM
Plaintiff Port Authority of New York and New Jersey (Port Authority)
appeals from an April 11, 2019 order dismissing its complaint in lieu of
prerogative writs and upholding a final agency decision issued by defendant Port
Authority Employment Relations Panel (Panel). We reverse.
Defendant-intervenor Port Authority Police Benevolent Association, Inc.
(PBA) filed an improper practice complaint against the Port Authority, alleging
the Port Authority violated the terms of the parties' employment agreement by
A-4137-18T2 2 failing to conform to safety standards promulgated by the Occupational Safety
and Health Administration (OSHA).
The parties dispute whether OSHA applied to uniforms worn by members
of the Port Authority's aircraft rescue and firefighting (ARFF) department under
their personal protection equipment (PPE). The uniforms were made of
polyester, rather than cotton, and were potentially dangerous in extreme heat.
The PBA alleged the Port Authority violated its agreement with PBA members
by not issuing cotton uniforms, conforming to OSHA standards, until almost
two years after discovery of the non-compliant polyester uniforms.
ARFF personnel are assigned to firefighting responsibilities at area
airports in New York and New Jersey operated by the Port Authority. The Port
Authority issues PPE gear to ARFF personnel. PPE, also known as "bunker
gear," is the outer layer of protective clothing worn by ARFF members while
fighting fires.
Underneath the bunker gear, ARFF members don "station wear" or battle
dress uniforms (BDUs). BDUs are the uniform worn by ARFF members in the
station house and resemble a patrol or police uniform. In 2014, the material for
the BDU attire was sixty-five percent polyester and thirty-five percent cotton.
A-4137-18T2 3 The National Fire Protection Association (NFPA) develops "codes,
standards, recommended practices, and guides . . . developed through a
consensus standards development process approved by the American National
Standards Institute." The PBA claimed OSHA uses "NFPA standards as the
standard of care for firefighter[s]," and that NFPA 1975 set the standard for the
clothing to be worn by ARFF members.
In 2014, the Port Authority recognized BDUs should have been compliant
with NFPA 1975 because polyester uniforms posed a safety risk and could cause
injury to individuals upon exposure to extreme heat. In accordance with NFPA
1975, BDUs should be cotton or Nomex blend because those materials do not
melt under intense heat.
The Port Authority began the process of evaluating and switching BDUs
from polyester to cotton in 2014. The change to cotton BDUs took two-years
because the Port Authority required a full risk assessment, approval from the
uniform committee, location of a vendor to provide a large quantity of cotton
BDUs, and a signed contract. On June 22, 2016, the Port Authority received the
cotton BDUs.
The Port Authority Board of Commissioners adopted the Labor Relations
Instruction (LRI) to govern labor relations with its employees and their
A-4137-18T2 4 representatives. See Brown v. Port Auth. Police Superior Officers Ass'n, 283
N.J. Super. 122, 136 (App. Div. 1995). In accordance with the LRI, the Port
Authority is empowered to engage in collective bargaining with the PBA
regarding terms and conditions for union employees. The Panel is authorized to
adjudicate disputes arising under the LRI.
On August 19, 2015, the PBA filed Improper Practice Number 15-35 (IP-
15-35). The PBA alleged the Port Authority violated Article XLII of the parties'
Memorandum of Agreement (MOA), requiring compliance with OSHA-
promulgated safety standards for ARFF uniforms. The PBA's improper practice
charge was referred to the Panel for resolution.
An improper practice claim is governed by Article XI of the LRI. Article
XI, entitled "Improper Practices," provides in relevant part as follows:
A. Practices by or on Behalf of Employer
It shall be an improper practice for the Authority or its agents or designees deliberately (a) to interfere with, restrain or coerce employees of the Authority in the exercise of the rights granted in Paragraph A of Section II of this Instruction for the purposes of depriving them of such rights; . . . . (d) to refuse to negotiate salaries, wages, hours, and other terms and conditions of employment in good faith with the duly recognized representative of its employees . . . .
A-4137-18T2 5 In IP-15-35, the PBA alleged the Port Authority violated LRI Section
XI(A)(a) and Section XI(A)(d):
[B]y failing to conform with occupational safety and health standards promulgated by OSHA with respect to the station house uniform issued and required to be worn by members of the [ARFF] details . . . .
Members are required to wear police battle dress uniforms (BDU's) made of a synthetic blend material that is not fire resistant and poses a risk of burning and/or melting, if exposed to extreme heat.
This Improper Practice [charge] is filed on behalf of all police officers assigned to ARFF functions at Newark Liberty International Airport/Teterboro Airport, LaGuardia Airport and John F. Kennedy International Airport.
The PBA also claimed the Port Authority violated Section XLII (1) and
(2) of the MOA. Section XLII of the MOA, addressing "Safety and Health
Standards," provides:
1) The Port Authority represents that it attempts to conform with and that it does basically conform with the Occupational Health and Safety Standards promulgated by OSHA.
2) If it is established that the Port Authority does not basically conform with OSHA standards, the Port Authority will make every good faith effort to come into conformance.
A-4137-18T2 6 The Occupational Health and Safety Act (Act), authorizes the United
States Secretary of Labor to promulgate occupational safety or health standards
for employees. 29 U.S.C. § 655; 29 C.F.R. § 1910.1(a). The Act contains a
"general duty clause," requiring every employer "furnish to each of his
employees employment and a place of employment which are free from
recognized hazards that are causing or are likely to cause death or serious
physical harm to his employees . . . ." 29 U.S.C. § 654(a)(1).
OSHA's regulations provide:
Protective equipment, including personal protective equipment for . . . extremities, [and] protective clothing . . . shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards and processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation[,] or physical contact.
[29 C.F.R. § 1910.132(a).]
Section 1910.132(c) states "[a]ll personal protective equipment shall be of safe
design and construction for the work to be performed." 29 C.F.R. § 1910.32(c).
On November 3, 2015, the Port Authority filed a denial of the allegations
in IP-15-35. The Panel Chairman appointed a hearing officer, who conducted
hearings on ten non-consecutive days over the course of eighteen months. Upon
A-4137-18T2 7 the completion of the hearings, in an August 15, 2017 report, the hearing officer
recommended the allegations regarding the Port Authority's issuance of non-
cotton BDUs be sustained. On February 8, 2018, the Panel issued a tentative
decision and order, upholding the hearing officer's recommendations.
After receiving comments from the parties, the Panel issued a June 12,
2018 final decision and order. The Panel found the Port Authority's actions did
not conform with OSHA-promulgated standards, and the nearly two years it took
for the Port Authority to comply with OSHA standards demonstrated a lack of
good faith contrary to the MOA.
The Panel found OSHA encompassed the NFPA standards for firefighting
gear used by ARFF members. The Panel determined the Port Authority violated
Article XLII because the polyester BDUs worn by the ARFF members under
their PPE for two years did not satisfy OSHA's general duty clause and therefore
violated the parties' MOA. The Panel also agreed the Port Authority failed to
make a good faith effort to bring BDUs into conformance with the applicable
standards. As a result, the Panel sustained IP-15-35 and ordered the Port
Authority to "cease and desist from unilaterally changing terms and conditions
of employment" and post notice of the violation.
A-4137-18T2 8 On July 12, 2018, the Port Authority filed an action in lieu of prerogative
writs in the Superior Court, challenging the Panel's final decision and order. The
Panel filed an answer and affirmative defenses. The PBA filed a motion to
intervene, which the trial judge granted.
The Panel and the PBA filed motions to dismiss the Port Authority's action
and enter a judgment upholding the Panel's decision and order. The Port
Authority filed opposition to the motions. After hearing counsels' arguments,
the trial judge requested supplemental briefs relating "the obligation under the
MOA of the Port Authority to comply with OSHA to NFPA 1975."
In an April 11, 2019 order and letter opinion, the judge upheld the Panel's
final decision and order and dismissed the Port Authority's action. The judge
concluded the Panel's decision was not arbitrary, capricious, or unreasonable ,
and was supported by substantial credible evidence in the record. She held,
"[T]he policy encouraging safety can be found in the MOA's section regarding
OSHA conformance" and "the fact that NFPA 1975 is not specifically codified
in any federal regulation is not sufficient, when considering the entirety of the
record before the Panel to hold that the Panel clearly erred . . . ." She also
declined to disturb the Panel's determination that the Port Authority "did not act
in good faith to supply the [ARFF members] with cotton BDU's fast enough."
A-4137-18T2 9 The judge reasoned, "[F]unctionally equivalent and properly fitting cotton
BDU's could have been obtained much earlier than [two] years."
On appeal, the Port Authority argues NFPA 1975 is inapplicable to BDUs
and therefore it did not violation OSHA. Absent an OSHA violation, the Po rt
Authority asserts the Panel and the judge erred by finding it violated the MOA.
The Port Authority contends the Panel and trial judge misapplied the law in
finding the non-cotton BDUs violated the MOA because the standard in NFPA
1975 was not promulgated by OSHA nor adopted through OSHA's "general
duty" clause.
Because the Panel is an administrative agency, our review of the Panel's
decision is limited. See In re Alleged Improper Practice under Section XI,
Paragraph A(d) of the Port Auth. Lab. Rels. Instruction, 194 N.J. 314, 330-331
(2008). We accord a deferential standard of review to an agency's determination
unless the decision was arbitrary, capricious, unreasonable, or lacked credible
support in the record. Id. at 331-32. We may also reverse if the agency failed
to follow the law. Ibid. (quoting In re Herrmann, 192 N.J. 19, 28 (2007)).
Whether the trial judge applied the correct standard of review "is a
question of law and thus our review is plenary." ERG Container Servs., Inc. v.
Bd. of Chosen Freeholders, 352 N.J. Super. 166, 173 (App. Div. 2002) (citing
A-4137-18T2 10 Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378
(1995)). We review de novo the "trial court's interpretation of the law and the
legal consequences that flow from established facts . . . ." Manalapan Realty,
L.P., 140 N.J. at 378 (citing State v. Brown, 118 N.J. 545, 604 (1990)).
Applying these standards, we consider the Port Authority's challenge to
the determinations rendered by the Panel and trial judge. At issue in the PBA's
improper practice charge are the standards adopted by the National Fire
Prevention Association (NFPA).1 Specifically, the parties dispute whether
NFPA 1975 is an OSHA standard governing BDUs. If, as argued by the Port
Authority, NFPA 1975 is not an OSHA standard applicable to BDUs, then there
was no OSHA violation and the Port Authority did not violate the MOA.
NFPA 1971 is the "Standard on Protective Ensembles for Structural Fire
Fighting and Proximity Fire Fighting." The Port Authority admits OSHA
enforces NFPA 1971 under its general duty clause and agrees OSHA
incorporated NFPA 1971 by reference. 29 C.F.R. § 1910.6 (a), (t)(34).
1 The NFPA is a global non-profit organization "devoted to eliminating death, injury, [and] property and economic loss due to fire, electrical[,] and related hazards." NFPA Overview, N AT'L FIRE PROT. ASS'N, www.nfpa.org/about- nfpa/nfpa-overview (last visited Nov. 4, 2020). A-4137-18T2 11 However, the Port Authority contends NFPA 1971 pertains only to PPE and not
"station wear" or BDUs.
The standard adopted in NFPA 1971 "establish[ed] minimum levels of
protection for fire fighting personnel assigned to fire department operations
including but not limited to structural fire fighting, proximity fire fighting,
rescue, emergency medical, and other emergency first responder functions."
NFPA 1971, §1.21. NFPA 1971 applied specifically to "new structural fire
fighting protective ensembles 2 . . . for protection . . . during structural
firefighting operations." NFPA 1971, §1.14.
NFPA 1975 is the "Standard on Emergency Services Work Clothing
Elements." Pursuant to NFPA 1975, "work apparel" is defined as "[n]onprimary
protective garments . . . that are intended to be worn by emergency personnel
while on duty." NFPA 1975, §3.3.27. NFPA 1975 defines "nonprimary
protective garment," as "[a] garment or clothing that is not designed nor intended
to be the barrier of protection from a specific hazard exposure." NFPA 1975,
§3.3.18.
2 "Structural fire fighting protective ensemble" is defined as "[m]ultiple elements of compliant protective clothing and equipment that when worn together provide protection from some risks consent, but not all risks of emergency incident operations." NFPA 1971, §3.3.127. A-4137-18T2 12 The purpose of the standard in NFPA 1975 is to "provide emergency
services personnel with work apparel that will not contribute to burn injury
severity." NFPA 1975, §1.2.1. "To achieve this purpose, this standard shall
establish minimum requirements for thermally stable textiles that will not
rapidly deteriorate, melt, shrink, or adhere to the wearer's skin, causing greater,
more severe burn injuries." NFPA 1975, §1.2.1.1. Consequently, textile fabrics
must be tested for "heat resistance," and "shall not melt, drip, separate, or ignite,
and shall not shrink more than [ten] percent in any direction." NFPA 1975,
§7.1.1.1. Section 1.2.1.2 of NFPA 1975 provides "optional flame resistance
requirements and tests to verify the flame resistance of textiles where the
authority having jurisdiction specifies the use of flame resistance textiles for the
construction of work apparel, or where the manufacturer represents work apparel
textiles as flame resistant."
The requirements of NFPA 1975 apply to the "design, performance,
testing, and certification of nonprimary protective work apparel and the
individual garments compromising work apparel" and the "designing,
manufacturing, testing, and certification of new work apparel and the individual
garments comprising work apparel." NFPA 1975, §1.1.1; NFPA 1975, §1.3.1.
NFPA 1975 expressly excludes "clothing that is intended to provide primary
A-4137-18T2 13 protection from given hazard exposures" and "shall not apply to the use of work
apparel." NFPA 1975, §1.1.5; NFPA 1975, §1.3.6.
The explanatory material accompanying this provision confirms NFPA
1975 is inapplicable to work apparel. The explanatory notation states,
"[e]mergency services organizations . . . should determine what requirements
for use of work apparel apply in their jurisdiction." NFPA 1975, §1.3.6.
The Port Authority argues the Panel and trial judge improperly concluded
NFPA 1975 applies to the Port Authority through OSHA's general duty clause
and the MOA. The Port Authority contends NFPA 1975 is inapplicable under
the general duty clause because it is neither mandatory nor a standard
promulgated by OSHA.
"The general duty clause was intended by Congress to cover unanticipated
hazards; Congress recognized that it could not anticipate all of the potential
hazards that might affect adversely the safety of workers." Teal v. E.I. Dupont
de Nemours & Co., 728 F.2d 799, 804 (6th Cir. 1984). If no promulgated OSHA
standards apply, then "the employer is subject to the general duty [clause] to
'furnish to each of his employees employment and a place of employment which
are free from recognized hazards that are causing or likely to cause death or
A-4137-18T2 14 serious physical harm to his employees.'" Brennan v. Butler Lime & Cement
Co., 520 F.2d 1011, 1017 n.9 (7th Cir. 1975) (quoting 29 U.S.C. § 654(a)(1)).
In a Tenth Circuit case, the court noted the Secretary of Labor had
"recognized that only mandatory standards should be seen as national consensus
standards:"
The national consensus standards contain only mandatory provisions of the standards promulgated by those two organizations. ([American National Standards Institute] and [NFPA].) The Standards of ANSI and NFPA may also contain advisory provisions and recommendations the adoption of which by employers is encouraged, but they are not adopted in Part 1910 [of the regulations].
[Usery v. Kennecott Copper Corp., 577 F.2d 1113, 1118 (10th Cir. 1977) (quoting 36 Fed. Reg. 10466 (May 29, 1971)).]
Section 1910.6 of OSHA's regulations enumerates government agency
and private organization standards that OSHA incorporated by reference,
declaring those recognized standards "have the same force and effect as other
standards in this part." 29 C.F.R. § 1910.6(a)(1). Thirty-seven NFPA provisions
are identified in this section, including NFPA 1971; however, NFPA 1975 is not
incorporated by reference. 29 C.F.R. § 1910.6(t).
The MOA requires the Port Authority to comply with safety standards
promulgated by OSHA. There is no specific standard in OSHA addressing
A-4137-18T2 15 BDUs for firefighters. Thus, only OSHA's general duty clause could be invoked
to find the Port Authority violated the MOA. The question is whether the
general duty clause renders NFPA 1975 applicable to the Port Authority as an
OSHA standard requiring the Port Authority's compliance under the MOA.
While the general duty clause may cover "recognized hazards" in the
absence of an actually promulgated standard, the NFPA standard must be
mandatory as opposed to a standard that "should" be followed or adopted by the
Port Authority.
Federal courts have recognized that when an NFPA standard adopts a
"should" standard, rather than a mandatory "shall" standard, OSHA could not
promulgate it as a mandatory standard and would need to follow the procedural
rulemaking process to create a mandatory standard. See Marshall v. Pittsburgh-
Des Moines Steel Co., 584 F.2d 638, 643-44 (3d Cir. 1978); Usery, 577 F.2d at
1118.
The PBA contends NFPA 1975 is an OSHA standard applicable to the
Port Authority through the general duty clause. However, none of the
documents or cases cited by the PBA in support of this argument specifically
address NFPA 1975 or support the position that NFPA 1975 is a mandatory
standard to be followed by the Port Authority under OSHA and the MOA.
A-4137-18T2 16 The PBA relies on a Third Circuit case, Voegele Co. v. Occupational
Safety & Health Rev. Comm'n, 625 F.2d 1075 (3d Cir. 1980), in support of its
argument that courts have adopted standards that would render NFPA 1975
applicable to the Port Authority under the general duty clause. However, the
Voegele case does not inform our analysis regarding the applicability of NFPA
1975 through the general duty clause because the PBA failed to establish that
OSHA considered NFPA 1975 a mandatory standard or otherwise intended to
incorporate NFPA 1975 into the Act.
Here, NFPA 1975 specifically states that it "shall not apply to the use of
work apparel" and leaves the determination of the requirements for work apparel
to the individual emergency service organizations. While NFPA 1975 is a
standard by which the BDUs should comply, it was not mandatory for the Port
Authority to adhere to NFPA 1975 as a promulgated OSHA standard or under
the general duty clause. OSHA did not incorporate NFPA 1975 by reference
and NFPA 1975 specifically allows ARFF members to determine their own
standards.
In the absence of OSHA adopting NFPA 1975, there could be no violation
of the MOA by the Port Authority. Therefore, the Panel and the trial judge
misapplied the law in finding the Port Authority's failure to comply with NFPA
A-4137-18T2 17 1975 violated a standard promulgated by OSHA and, consequently, violated the
parties' MOA. In the absence of any violation on the part of the Port Authority,
we need not address whether the Port Authority lacked good faith in remedying
the violation.
In sum, we reverse and remand to the trial court for the entry of an order
vacating the April 11, 2019 order dismissing the Port Authority's action in lieu
of prerogative writs and instruct the trial court to enter an order dismissing the
PBA's improper practice charge.
Reversed and remanded. We do not retain jurisdiction.
A-4137-18T2 18