IN THE MATTER OF STATE OF NEW JERSEY AND FRATERNAL ORDEROF POLICE LODGE 91(PUBLIC EMPLOYMENT RELATIONS COMMISSION)

164 A.3d 433, 450 N.J. Super. 586

• Court: New Jersey Superior Court Appellate Division
• Decided: June 26, 2017
• Docket: A-0413-15T4
• Status: Published

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0413-15T4

IN THE MATTER OF STATE OF NEW JERSEY,

Respondent/Cross-Appellant, APPROVED FOR PUBLICATION

and June 26, 2017

APPELLATE DIVISION FRATERNAL ORDER OF POLICE LODGE 91,

Appellant/Cross-Respondent.

_________________________________

Argued May 16, 2017 - Decided June 26, 2017

Before Judges Reisner, Koblitz and Mayer.

On appeal from the Public Employment Relations Commission, P.E.R.C. No. 2016-11.

Frank M. Crivelli argued the cause for appellant/cross-respondent Fratnernal Order of Police Lodge 91 (Crivelli & Barbati, attorneys; Mr. Crivelli, on the brief).

James J. Gillespie argued the cause for respondent/cross-appellant State of New Jersey (Jackson Lewis, attorneys; Jeffrey J. Corradino, of counsel; Mr. Gillespie, on the brief).

Frank C. Kanther, Deputy General Counsel, argued the cause for respondent New Jersey Public Employment Relations Commission (Robin T. McMahon, General Counsel, attorney; Mr. Kanther, on the brief). The opinion of the court was delivered by

REISNER, P.J.A.D.

Fraternal Order of Police Lodge 91 (FOP) appeals, and the

State cross-appeals, from a September 3, 2015 final decision of

the Public Employment Relations Commission (PERC) adopting, in

pertinent part, a lengthy and meticulously detailed interest

arbitration award deciding the terms of an initial collective

negotiations agreement (CNA) between the Division of Criminal

Justice (DCJ) and a newly certified unit representing DCJ

investigators. The FOP contends that PERC erred as a matter of

law in its February 13, 2015 interlocutory decision directing the

arbitrator to apply the two percent statutory cap on salary

increases, set forth in N.J.S.A. 34:13A-16.7.1 The State contends

that PERC erred in confirming the award with respect to certain

non-salary issues, including an education reimbursement, paid time

off to attend certain educational classes, a $300 clothing

allowance, and arbitration of minor discipline.2

1 That decision did not become ripe for an appeal as of right until PERC issued its final decision. FOP previously filed a motion for leave to appeal, which we denied. 2 Before oral argument of the appeal, the State withdrew an additional issue concerning the manner in which the arbitrator implemented the two percent cap.

2 A-0413-15T4 On the cross-appeal, we conclude that PERC's decision as to

the non-salary issues is not arbitrary and capricious, see In re

State, 443 N.J. Super. 380, 384-86 (App. Div.), certif. denied,

225 N.J. 221 (2016), and we affirm for the reasons stated in the

agency's September 23, 2015 decision. The State's arguments are

without sufficient merit to warrant further discussion. R. 2:11-

3(e)(1)(E).

We affirm on the FOP's appeal, substantially for the reasons

stated in the agency's February 13, 2015 decision. We owe

deference to PERC's reasonable interpretation of its enabling

statute, and we find no basis to depart from that deference here.

See In re Camden Cty. Prosecutor, 394 N.J. Super. 15, 23 (App.

Div. 2007). We agree with PERC that the two percent cap applies

where, as here, a newly certified bargaining unit is negotiating

its first CNA with the public employer. We reject the FOP's

argument, because read as a whole and construed in light of its

purposes, the Police and Fire Public Interest Arbitration Reform

Act, N.J.S.A. 34:13A-14 to -16.9, both entitles a newly certified

unit to demand interest arbitration and subjects that arbitration

process to the two percent cap.3

3 Unless further extended by the Legislature, the two percent cap will expire at the end of 2017 as set forth in N.J.S.A. 34:13A- 16.9. See L. 2014, c. 11, § 4. As a result, although this case

3 A-0413-15T4 Read literally, the Act does not permit interest arbitration

for newly certified bargaining units or subject such arbitrations

to the cap. Both N.J.S.A. 34:13A-16(b)(2), requiring interest

arbitration, and the section setting forth the two percent cap,

N.J.S.A. 34:13A-16.7(b), apply by their terms to situations in

which an existing CNA is expiring. However, a literal reading of

the Act would produce absurd results, contrary to its purpose.

See Perez v. Zagami, LLC, 218 N.J. 202, 209-11 (2014).

[W]here a statute or ordinance does not expressly address a specific situation, the court will interpret it "consonant with the probable intent of the draftsman 'had he anticipated the matter at hand.'" In that regard, "[i]t is axiomatic that a statute will not be construed to lead to absurd results."

[Twp. of Pennsauken v. Schad, 160 N.J. 156, 170 (1999) (citations omitted).]

One of the Act's central goals is to resolve law enforcement

labor disputes through interest arbitration. See N.J.S.A. 34:13A-

14(a); In re State, 114 N.J. 316, 326 (1989). That requirement

"shall be liberally construed." N.J.S.A. 34:13A-14(d). Applying

the statute to newly certified bargaining units, negotiating their

first CNAs, serves that purpose. Another important purpose of the

Act is to limit the economic burden on public employers and

presents a novel issue, we acknowledge that our decision may have limited application.

4 A-0413-15T4 preserve the public fisc. See N.J.S.A. 34:13A-16.8; Assembly Law

and Pub. Safety Comm., Statement to Assembly Comm. Substitute for

A. 3393, Dec. 9, 2010. Therefore, it serves the economic policies

expressed in the Act to apply the two percent salary cap uniformly,

whether an interest arbitration concerns an expiring CNA or the

negotiation of a unit's first CNA.

Accordingly, we agree with PERC that the FOP cannot obtain

the Act's benefits without also accepting its burdens.

Interpreting the Act to give newly certified bargaining units the

benefit of interest arbitration without the financial limit of the

two percent cap would produce a skewed result, at odds with the

Legislature's intent in enacting the salary cap provision.

Affirmed.

5 A-0413-15T4