IN THE MATTER OF STATE OF NEW JERSEY ANDCOUNCIL OF NEW JERSEY STATE COLLEGE LOCALS, AFT(NEW JERSEY PUBLIC EMPLOYMENT RELATIONS COMMISSION)

• Court: New Jersey Superior Court Appellate Division
• Decided: November 21, 2017
• Docket: A-4948-15T3
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4948-15T3

IN THE MATTER OF STATE OF NEW JERSEY,

Petitioner-Appellant,

and

COUNCIL OF NEW JERSEY STATE COLLEGE LOCALS, AFT,

Respondent-Respondent. _____________________________

Argued October 24, 2017 – Decided November 21, 2017

Before Judges Hoffman and Mayer.

On appeal from the New Jersey Public Employment Relations Commission, Docket No. SN-2015-031.

John J. Peirano argued the cause for appellant (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; Mr. Peirano, of counsel and on the briefs; David M. Alberts, on the briefs).

Kevin P. McGovern argued the cause for respondent Counsel of New Jersey State College Locals, AFT (Mets Schiro McGovern & Paris, LLP, attorneys; Mr. McGovern, of counsel and on the brief). Don Horowitz, Senior Deputy General Counsel, argued the cause for respondent New Jersey Public Employment Relations Commission (Robin T. McMahon, General Council, attorney; Mr. Horowitz, on the statement in lieu of brief).

PER CURIAM

The State of New Jersey appeals from a September 24, 2015

final agency decision issued by the Public Employee Relations

Commission (PERC) determining that the development of procedures

for tenure-upon-hire in accordance with N.J.S.A. 18A:60-16

(Statute) are negotiable, and not pre-empted. We affirm.

On March 31, 2014, the Council of New Jersey State College

Locals, AFT (Council) filed a grievance on behalf of its union

member alleging that eight State colleges and universities

(Colleges) ignored demands to negotiate procedures for offering

tenure-upon-hire to new faculty contrary to the collective

negotiations agreement (CNA) between the State and Council.

The Council's grievance was denied by the New Jersey State

Office of Employee Relations. The Council appealed the denial of

its grievance and requested binding arbitration in accordance with

the CNA. The State filed a petition for a scope of negotiations

determination with PERC and sought to restrain arbitration,

arguing that the Statute preempted negotiation for tenure-upon-

hire procedures. PERC held the Statute did not preempt

2 A-4948-15T3 negotiations and denied the State's request to restrain

arbitration.

On appeal, the State argues: (1) the Statute preempts

negotiation over tenure-upon-hire procedures; (2) PERC improperly

relied on Bethlehem Township Board of Education v. Bethlehem

Township Education Association, 91 N.J. 38 (1982); and (3)

compelling negotiations for tenure-upon-hire procedures would

impinge upon public policy determinations.

We first address the appropriate standard of review. The

State argues that appellate review of PERC's scope of negotiations

determination should be de novo because PERC's determination turns

upon interpretation of a statute outside the scope of the agency's

expertise. The Council counters that PERC's determination should

be accorded substantial deference applicable to PERC's

interpretation of its enabling legislation, including scope of

negotiations determinations. See N.J.S.A. 34:13A-5.4(d).

We are not "bound by [an] agency's legal opinions." A.B. v.

Div. of Med. Assistance & Health Servs., 407 N.J. Super. 330, 340

(App. Div.), certif. denied, 200 N.J. 210 (2009) ("Statutory and

regulatory construction is a purely legal issue subject to de novo

review.") We need not accord deference where the statute that the

agency interprets is beyond the agency's charge. See Commc'ns

Workers, Local 1034 v. N.J. State Policemen's Benev. Ass'n, Local

3 A-4948-15T3 203, 412 N.J. Super. 286, 291 (App. Div. 2010) ("PERC's

interpretation of the law outside of its charge is entitled to 'no

special deference.'") (quoting In re Camden Cty. Prosecutor, 394

N.J. Super. 15, 23, (App. Div. 2007)). Where a scope of

negotiations determination is guided by PERC's interpretation of

a statute outside its area of expertise, as in this matter, PERC's

decision is not entitled to any special deference and our review

is de novo.

The Statute provides:

The board of trustees may, upon the hiring of a new faculty member, grant tenure to the member if he was previously under tenure at an accredited four-year institution of higher education. A State college shall develop procedures regarding the granting of tenure upon hiring to a new faculty member who was previously under tenure at an accredited four- year institution that are consistent with decisions for tenure at the State college, and shall include faculty members in the development of the procedures.

[N.J.S.A. 18A:60-16(b).]

The State argues that tenure-upon-hire is statutorily pre-

empted and therefore non-negotiable. A statute or regulation will

preempt negotiability if it "fixes a term and condition of

employment 'expressly, specifically or [,] and comprehensively.'"

Bethlehem, supra, 91 N.J. at 44 (quoting Council of N.J. State

Coll. Locals v. State Bd. of Higher Educ., 91 N.J. 18, 30 (1982)).

4 A-4948-15T3 The statute or regulation must "speak in the imperative and leave

nothing to the discretion of the public employer." State v. State

Supervisory Emps. Ass'n, 78 N.J. 54, 80 (1978). "Where a statute

sets both a maximum and a minimum level of employee rights or

benefits, mandatory negotiation is required concerning any

proposal for a level of protection fitting between and including

such maximum and minimum." Id. at 82; see also Bd. of Educ. v.

Fair Lawn Educ. Ass'n., 174 N.J. Super. 554, 558 (App. Div. 1980).

We agree with PERC that "the statute's language establishes

no specifics with respect to tenure-upon-hire other than to require

dialogue between administrators and faculty members. Whereas a

preempting statute must be complete and shall say all that there

is to be said, N.J.S.A. 18A:60-16(b), in contrast, does not." The

plain language of the Statute is not so express and explicit

regarding procedures for tenure-upon-hire that the Colleges are

left with no discretion and nothing to negotiate. We find the

express language of the Statute requires negotiations regarding

tenure-upon-hire procedures. See State Supervisory Emps. Ass'n,

supra, 78 N.J. at 82 (setting of guidelines in a statute does not

preclude negotiations for terms that fit within those guidelines).

Next, the State argues that the Statute's reference to

"faculty" precludes negotiations. This concept was expressly

rejected by the Court in Bethlehem Township Board of Education v.

5 A-4948-15T3 Bethlehem Township Education Association, 91 N.J. 38, 48 (1982).

Contrary to the State's argument, the term in the Statute is

"faculty members," not "faculty." The State's misreading of the

Statute is significant because the Legislature specifically and

unambiguously defined "faculty member" in the definition section

of the State and County College Tenure Act, N.J.S.A. 18A:60-7.

"[F]aculty member" "means any full-time member of the teaching

staff appointed with academic rank. Other full-time professional

persons shall be considered faculty members if they concurrently

hold academic rank." N.J.S.A. 18A:60-7(b).

Our role in interpreting the Statute is to "determine and

give meaning to the Legislature's intent[,]" by first examining

"the plain language of the statute, which is typically the best

indicator of intent." In re Plan for Abolition of Council on

Affordable Hous., 214 N.J. 444, 467 (2013). We give words their

"ordinary, generally accepted meaning[,]" but when "the

Legislature uses technical words and phrases that have 'a special

or accepted meaning in the law,' we construe them 'in accordance

with such technical or special and accepted meaning.'" Ibid.

(quoting N.J.S.A. 1:1-1). Courts will not "rewrite a plainly-

written enactment of the Legislature [or] presume that the

Legislature intended something other than that expressed by way

6 A-4948-15T3 of the plain language." Marino v. Marino, 200 N.J. 315, 329 (2009)

(quoting O'Connell v. State, 171 N.J. 484, 488 (2002)).

Because the Legislature defined the term "faculty member" as

any full-time member of the teaching staff, we need not look beyond

the expressed definition of that phrase. Therefore, we disagree

that "faculty" is limited to faculty who serve in a collegial

governance and managerial capacity and excludes faculty who serve

in a union member capacity.

We also reject the State's argument that PERC improperly

relied on Bethlehem in determining that tenure-upon-hire

procedures are negotiable. The Bethlehem case involved

promulgating procedures for evaluating tenured teachers in

accordance with regulations adopted by the local boards of

education. Several teachers' unions demanded negotiations to

establish procedures relating to tenured teacher evaluations. The

school districts filed scope of negotiations petitions with PERC,

and the agency concluded that the regulations preempted

negotiation.

The Bethlehem Court disagreed and found that regulations

requiring schools to develop procedures with respect to the

evaluations did not preempt negotiation of those procedures. The

Court reasoned, "[t]his is evidenced by the fact that the rules

specifically leave to each local board the responsibility of

7 A-4948-15T3 fleshing out the details of its program." Bethlehem, supra, 91

N.J. at 46. The Court wrote:

In effect, the Boards ask us to turn a simple legislative requirement of consultation with teachers into a total ban on negotiations. The rule's "in consultation with" language establishes no specifics on teacher evaluation, other than to require a dialogue between school administrators and teachers. The effect of allowing such an open-ended regulation to preempt negotiation on this entire subject matter would be to give local boards carte blanche to establish whatever terms and conditions of employment it desired. . . . . [A] regulation must speak comprehensively and in the imperative if it is to be given preemptive effect. This is because a regulation will preempt negotiation only if it leaves no room for discussion as to what is required of both the employer and the employee. Hence, a preempting regulation must be complete; it must say all there is to be said. This regulation, in contrast, does not.

As we read this provision, it seems clear that the "in consultation with" language was intended to encourage discussion . . . . Therefore, rather than restricting the channels of communication, this provision actually requires discussion and, where appropriate, negotiation on the subjects of procedures for evaluating tenured teachers and the mechanism for discussing evaluation standards.

[Id. at 47–48 (citations omitted).]

PERC cited extensively from the Bethlehem decision finding

that the Statute did not preempt negotiations. Like the Bethlehem

case, the Statute gives a general guideline and directs the

8 A-4948-15T3 Colleges to develop their own procedures with mandatory inclusion

of faculty members. See N.J.S.A. 18A:60-16(b). Similar to the

regulation in Bethlehem, the Statute refers only to procedures,

and not to substantive determinations of hiring or tenure. The

State's attempt to distinguish the Bethlehem case is misguided as

the term "faculty" is not limited to members of the Colleges'

governing body for the reasons we have stated. Nor are we

persuaded by the State's argument that Bethlehem is

distinguishable because the procedures in that case applied to

current employees as opposed to prospective hires. The terms and

conditions of employment for prospective employees are negotiable.

See Belleville Ed. Ass'n v. Belleville Bd. of Ed., 209 N.J. Super.

93, 97 (App. Div. 1986) (establishing that initial placement on

the salary scale for new hires is a term and condition of

employment and is negotiable). The remainder of the State's

arguments distinguishing the Bethlehem case are without sufficient

merit to warrant further discussion. R. 2:11-3(e)(1)(E).

Lastly, we reject the State's argument that compelling

negotiations for tenure-upon-hire procedures would impinge upon

public policy by interfering with the Colleges' managerial rights.

See In re Local 195, IFPTE, 88 N.J. 393 (1982). As the Court

recognized In re Local 195, "negotiation will always impinge to

some extent on the determination of governmental policy. The

9 A-4948-15T3 requirement that the interference be 'significant' is designed to

effect a balance between the interests of public employees and the

requirements of democratic decision making." Id. at 404 (citation

omitted). The hypotheticals proffered by the State lack the

requisite significant interference to deem tenure-upon-hire

procedures non-negotiable. The State did not cite any authority

deeming tenure-upon-hire procedures to be unique from procedures

that affect terms and conditions of employment, including tenure,

so as to be negotiable. See State Supervisory Employees Ass'n,

supra, 78 N.J. at 90-91 ("promotional criteria are not mandatorily

negotiable while promotional procedures are so negotiable.")

We perceive no ambiguity in the Statute that requires us to

reach beyond the plain language to determine its meaning. The

Statute is straightforward and contemplates negotiations for

adopting procedures relating to tenure-upon-hire.

Affirmed.

10 A-4948-15T3