IN THE MATTER OF OCEAN TOWNSHIP BOARD OF EDUCATION VS. WARETOWN EDUCATION ASSOCIATION (NEW JERSEY PUBLIC EMPLOYMENT RELATIONS COMMISSION)

• Court: New Jersey Superior Court Appellate Division
• Decided: August 15, 2018
• Docket: A-3457-16T2
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3457-16T2 IN THE MATTER OF OCEAN TOWNSHIP BOARD OF EDUCATION,

Petitioner-Respondent,

v.

WARETOWN EDUCATION ASSOCIATION,

Respondent-Appellant. ______________________________

Argued May 15, 2018 – Decided August 15, 2018

Before Judges Fisher and Sumners.

On appeal from the New Jersey Public Employment Relations Commission, P.E.R.C. Nos. 2017-45 and 2017-53.

Keith Waldman argued the cause for appellant (Selikoff & Cohen, PA, attorneys; Keith Waldman, of counsel and on the brief; Kathleen L. Kirvan, on the brief).

Allan P. Dzwilewski argued the cause for respondent Ocean Township Board of Education (Schwartz Edelstein Law Group, LLC, attorneys; Allan P. Dzwilewski, of counsel and on the brief).

Joseph Blaney, Deputy General Counsel, argued the cause for respondent Public Employment Relations Commission (Robin T. McMahon, General Counsel, attorney; Robin T. McMahon, on the brief).

PER CURIAM

The Waretown Education Association (WEA) appeals from a scope

of negotiations determination by the Public Employment Relations

Commission (PERC), which declared as non-arbitrable, WEA's

grievance that the Ocean Township Board of Education (Board)

violated the parties' collective bargaining agreement (CBA) by

unilaterally assigning job duties performed by a WEA member to a

non-unit member. Because we conclude that PERC misapplied the

test regarding whether a dispute between a public employer and its

employees is negotiable, we reverse.

Beginning in 2003, a WEA member performed the duties of the

part-time positions of Substitute Caller and Transportation

Coordinator (collectively the positions). The job titles and

stipends for the positions have been part of the CBA since the

2008-2011 CBA. A change occurred in 2015, when the WEA member

performing the duties of the positions was promoted to fill the

vacant Superintendent's Secretary position – a non-WEA unit

position – and continued to perform the positions' duties and

receive the stipends for doing so. In response, WEA filed a

grievance under the CBA claiming the Board was required to

negotiate the transfer of recognized unit work to a non-unit

2 A-3457-16T2 employee. Contending the dispute was not negotiable because it

had the managerial prerogative to determine who filled the

positions, the Board filed a scope of negotiations petition with

PERC to restrain the grievance that by then had proceeded to

arbitration. While the arbitration and scope petition were

pending, the CBA expired and the Board unsuccessfully tried to

negotiate the positions out of the CBA's recognition clause during

the ensuing labor negotiations. Consequently, the positions and

stipends continued to be part of the new CBA.

The Board thereafter agreed to post the positions as sought

by WEA. The superintendent's secretary, who was still serving in

the positions, and WEA members applied. The status quo remained,

however, when the Board determined that the superintendent's

secretary was the best-qualified candidate to fill the positions,

and she remained in her non-WEA unit position. Thus, the Board

spurned WEA's demand that only WEA members should hold the

positions.

Following unsuccessful settlement efforts and the

arbitrator's denial of the Board's request to stay the arbitration

award pending the scope of negotiations petition as untimely, the

arbitrator issued his award sustaining the grievance on the basis

that the Board's appointment of the superintendent's secretary to

the positions and keeping her out of the WEA unit was expressly

3 A-3457-16T2 excluded by the CBA. In support, the arbitrator cited the CBA's

recognition clause and stipend schedule covering the positions;

the established past practice that the positions were performed

by a WEA member; the collective bargaining history; the

unpersuasive Board's position that the School Nurse (a WEA

position) could not perform the duties of the Substitute Caller

position during the school day; and finally, the Board's position

that the dispute was non-negotiable was contrary to the CBA.

Thereafter, PERC, which had stayed the scope of negotiations

petition pending the arbitration award, ruled that WEA's

"grievance challenging the [Board's] decision to continue the

superintendent's secretary as the district's substitute caller and

transportation coordinator is not mandatorily negotiable or

legally arbitrable." PERC determined that under the third prong

of three-prong negotiability test articulated in In re Local 195,

IFPTE, 88 N.J. 393, 404-05 (1982), the Board's selection of the

superintendent's secretary was a proper exercise of its managerial

prerogative "to meet its governmental policy goal" to determine

who was best qualified to fill the positions and assign the

responsibilities to that person. PERC denied WEA's motion for

reconsideration; rejecting WEA's arguments that an evidentiary

hearing was a necessary because there were no material facts in

dispute; that the decision rested on the interpretation of the

4 A-3457-16T2 unit-work rule; and that the Board's labor negotiations' proposal

to remove the positions from the CBA was fatal to its claim that

it had the authority to unilaterally assign the positions to a

non-WEA member.

We are mindful that PERC has "the power and duty, upon the

request of any public employer or majority representative, to make

a determination as to whether a matter in dispute is within the

scope of collective negotiations." N.J.S.A. 34:13A-5.4(d); see

also, City of Jersey City v. Jersey City Police Officers Benevolent

Ass'n, 154 N.J. 555, 567-68 (1998). In making a scope of

negotiations determination, PERC decides the "limited" issue of

whether "the subject matter in dispute [is] within the scope of

collective negotiations." Ridgefield Park Educ. Ass'n v

Ridgefield Park Bd. of Educ., 78 N.J. 144, 154 (1978) (quoting In

re Hillside Bd. of Educ., 1 N.J.P.E.R. 55, 57 (1975)).

In our review of a PERC ruling, we give deference to the

agency's interpretation of the New Jersey Employer-Employee

Relations Act (Act), N.J.S.A. 34:13A-1 to -43 "unless its

interpretations are plainly unreasonable, . . . contrary to the

language of the Act, or subversive of the Legislature's intent."

N.J. Tpk. Auth. v. AFSCME, Council 73, 150 N.J. 331, 352 (1997).

Said another way, we will only disturb a PERC decision that "is

5 A-3457-16T2 clearly demonstrated to be arbitrary or capricious." Jersey City,

154 N.J. at 568 (citation omitted).

In deciding whether WEA's grievance was arbitrable, PERC was

required to perform its limited function in determining if the

dispute was within the scope of negotiations observed, and not the

merits of the grievance. See Ridgefield Park Educ. Ass'n, 78 N.J.

at 154. In the seminal case of Local 195, our Supreme Court

established the following three-prong test for determining whether

an issue is mandatorily negotiable:

[A] subject is negotiable between public employers and employees when (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 agreement would not significantly interfere with the determination of governmental policy. [88 N.J. at 404.]

In restraining WEA's grievance as non-arbitrable, PERC

determined the third prong sustained the Board's argument that it

did not have to negotiate the appointment of the superintendent's

secretary to perform the duties of the positions. The Court

summarized this prong in stating:

To decide whether a negotiated agreement would significantly interfere with the determination of governmental policy, it is necessary to balance the interests of the public employees and the public employer. When the dominant concern is the government's managerial prerogative to determine policy, a

6 A-3457-16T2 subject may not be included in collective negotiations even though it may intimately affect employees' working conditions.

[Id. at 404-05.]

As we see it, WEA's grievance is whether the Board deprived

the WEA of unit work, meaning, "shifting of work from employees

within a negotiations unit to other employees outside the unit."

Jersey City, 154 N.J. at 565. WEA argues that in applying the

Local 195's test of negotiability rule, PERC erred by not following

the Court's ruling sixteen years later in Jersey City, which held

that the transfer of unit work has consistently been held by PERC

to be mandatorily negotiable unless "(1) the union has waived its

right to negotiate over the transfer of unit work, (2)

historically, the job was not within the exclusive province of the

unit-personnel, and (3) the municipality is reorganizing the way

it delivers government services." Jersey City, 154 N.J. at 577.

WEA maintains that since none of these exceptions apply, PERC's

ruling is contrary to its own settled principles, and thus, its

grievance is arbitrable. New Milford Bd. of Educ., P.E.R.C. No.

93-102, 19 N.J.P.E.R. 265, 267 (¶ 24132 1993) (bargaining unit

members have a right to a position within the unit's CBA

recognition clause bargaining); Jersey City Bd. of Educ., P.E.R.C.

No. 80-145, 6 N.J.P.E.R. 434, 435 (¶ 11219 1980)(assigning unit

7 A-3457-16T2 work to non-unit employees for economic or educational policy

reasons is mandatorily negotiable, and therefore arbitrable.).1

PERC and the Board both contend that PERC properly applied

Local 195 in ruling that WEA's grievance was not mandatorily

negotiable, and, thus not arbitrable, because the Board exercised

a managerial prerogative in appointing whom it felt was best

qualified to fill the positions. PERC also argues WEA's reliance

upon New Milford is misguided because that situation involved

extracurricular activities, which are mandatorily negotiable under

N.J.S.A. 34:13A-23, and this dispute involves part-time duties

that are mandatorily negotiable under a law. PERC likewise

contends that its other decisions relied upon by WEA are factually

inapposite.

We agree with PERC and the Board that we need not determine

whether the unit work rule was violated because Local 195 controls

the negotiability test. We, however, part with their assessment

regarding the application of the test to WEA's grievance.

1 We decline to address WEA's additional argument that PERC's refusal to revisit its decision is an "abrogati[on] of its statutorily role as a neutral." WEA did not raise this argument before PERC and it is not jurisdictional in nature nor does it substantially implicate the public interest. Zaman v. Felton, 219 N.J. 199, 226-27 (2014) (citation omitted). Even had we addressed the argument, it is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

8 A-3457-16T2 We conclude that PERC mistakenly applied Local 195 in

determining that WEA's grievance to maintain work in its unit

interferes with its managerial prerogative to decide who is

qualified to perform the duties of the positions. Through its

Local 195 analysis, PERC determined that WEA seeks to usurp the

Board's managerial prerogative to select who it feels is the person

or persons to fill the positions. We see no such interference in

the Board's managerial prerogative. Because WEA contends that the

positions are part of its unit based on the CBA and past practice,

its grievance seeks the relief of having a unit member fill the

positions. WEA's demand that the holder(s) of the positions be

part of its unit does not dictate whom the Board selects to fill

the positions. Rather, it contends that whoever is hired to fill

the positions must be part of WEA because the unit represents the

positions. We are convinced that to rule otherwise would deny WEA

its collectively bargained right to grieve alleged violations of

the CBA; in this case, concerns over the transfer of WEA unit work

without negotiation.

Given that the Local 195 negotiability test controls, we need

not decide whether the Board's action violated the unit work rule.

Yet, had we done so, we would have agreed substantially with the

reasoning articulated by the arbitrator in his decision sustaining

WEA's grievance as WEA lost positions from its unit when the Board

9 A-3457-16T2 shifted the positions' duties to the superintendent's office.

Jersey City, 154 N.J. at 575-76 (holding there was no need to

address the unit-work rule as the Local 195 negotiability test

applies, but in considering the rule, it would not have applied

since the bargaining unit suffered no loss of positions by the

public employer's reassignment of work from the unit).

Accordingly, PERC should not have restrained WEA's grievance

and the arbitration award in WEA's favor.

Reversed.

10 A-3457-16T2