IN THE MATTER OF PASSAIC VALLEY WATER COMMISSION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5195-04T15195-04T1

IN THE MATTER OF PASSAIC

VALLEY WATER COMMISSION,

Appellant,

and

C.W.A. LOCAL 1032, AFL-CIO,

Respondent.

_________________________________

 

Argued March 29, 2006 - Decided April 21, 2006

Before Judges Parker and Grall.

On appeal from a Final Decision of the

New Jersey Public Employment Relations Commission, Docket No. SN-2005-66.

Samuel J. Samaro argued the cause for

appellant (Pashman Stein, attorneys;

Mr. Samaro, of counsel and on the brief).

Robert E. Anderson, General Counsel, argued the cause for respondent New Jersey Public Employment Relations Commission.

Rosemarie Cipparulo argued the cause for

respondent C.W.A. Local 1032, AFL-CIO (Weissman & Mintz, attorneys; Ms. Cipparulo, on the brief).

PER CURIAM

Passaic Valley Water Commission (PVWC) appeals from an order of the Public Employment Relations Commission (PERC) on its petition for a scope of negotiations determination. PVWC sought restraints against arbitration of a grievance filed by CWA Local 1032, AFL-CIO on behalf of Rocco Cammalleri, an employee of the PVWC. We affirm substantially for the reasons stated by the Chairman in his written decision of April 28, 2005.

Cammalleri has been employed by PVWC since 1990. In 1999 he was promoted to the title of "Water Repairer" and several of his co-workers employed as "Senior Water Repairers" left PVWC. He assumed the duties of a Senior Water Repairer, a higher classification, and continued to perform them for several years. Although he applied for promotions and additional compensation, PVWC denied the requests.

CWA filed a grievance on Cammalleri's behalf on December 2, 2003. The union sought additional compensation for the out-of-title work he performed during the five-year period. The union invoked Article VII, Section 4 of the Collective Bargaining Agreement. It provides:

No employee shall perform the duties of a higher classification except during the qualifying period or during emergencies, or to fill in for sickness, vacation or other absence of a higher classified employee. Whenever an employee shall have performed the duties of a higher classification for twenty (20) accumulated working days within a sixty (60) day period (vacation periods excepted), he shall receive the starting rate for the higher classification or the step above his old rate, whichever is higher, but not to exceed the maximum for the new classification.

On December 8, 2003, PVWC denied the grievance, asserting that the issue raised involved a question of classification within the purview of the Department of Personnel (DOP). On March 3, 2004, CWA notified PERC of its intent to appeal PVWC's continuing violation of the collective bargaining agreement and seek binding arbitration. On March 31, 2004, PVWC promoted Cammalleri, and on January 6, 2005, PVWC filed its petition for a scope of negotiations determination contending that the issues were within the jurisdiction of DOP and a matter of managerial prerogative and seeking an order restraining binding arbitration.

On April 28, 2005, PERC concluded "that contract clauses requiring additional compensation for work performed in a higher title or different job category are mandatorily negotiable and legally arbitrable" and denied relief. On June 3, 2005, PVWC filed a notice of appeal with this court.

Arbitration proceeded, and we granted PVWC leave to supplement the record. The arbitrator found that Cammalleri had performed the duties of a Senior Water Repairer for several years and that PVWC violated the agreement. Because Article V of the agreement requires the filing of a grievance within ten days of the occurrence and Cammalleri was promoted on March 4, 2004, the arbitrator limited the award to the period starting ten days prior to December 2, 2003 and ending on March 4, 2004. The propriety of that ruling is not before us on this appeal.

On appeal PVWC argues:

I. THE ISSUE THAT PERC HAS DETERMINED TO

BE NEGOTIABLE IS PREEMPTED BY STATUTE

AND BY REGULATION.

A. DISCRETION TO DETERMINE

CLASSIFICATION

B. IT IS ILLEGAL TO ASSIGN OUT-OF-

TITLE WORK

II. PRINCIPLES OF ADMINISTRATIVE COMITY

REQUIRE PERC TO DEFER TO THE DEPARTMENT

OF PERSONNEL ON MATTERS THAT REQUIRE A

DETERMINATION THAT EMPLOYEES ARE

PROPERLY OR IMPROPERLY CLASSIFIED.

We affirm substantially for the reasons stated by the Chairman in his written decision of April 28, 2005, and add only a brief explanation for our decision. The principles are well-established.

"PERC is empowered to 'make policy and establish rules and regulations concerning employer-employee relations in public employment relating to dispute settlement, grievance procedures and administration [and] implement fully all the provisions of [the act it adminsters].' N.J.S.A. 34:13A-5.2." In re Hunterdon Cty. Bd. of Chosen Freeholders, 116 N.J. 322, 328 (1989). The Legislature expects "PERC to use [its] expertise and knowledge of circumstances and dynamics that are typical or unique to the realm of employer-employee relations in the public sector." Ibid. Because the Legislature has authorized PERC to determine in the first instance whether or not a "matter in dispute is within the scope of collective negotiations" pursuant to N.J.S.A. 34:13A-5.4(d), the Supreme Court has held that in the absence of "constitutional concerns or the dictates of legislative intent," PERC's determination of a scope of negotiations petition "will stand unless it is clearly demonstrated to be arbitrary or capricious." Id. at 328-29 (citations omitted).

The question whether a matter is mandatorily negotiable and arbitrable is resolved by determining whether:

(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.

[In re Local 195, IFPTE, 88 N.J. 393, 404 (1982)(emphasis added).]

PVWC's argument is limited to the second prong of this three-part test. It contends that the Civil Service Act (Act), N.J.S.A. 11A:1-1 to -12-6, and regulations promulgated under its authority preclude bargaining over compensation for out-of-title work. Negotiations are precluded by "statutory or regulatory provisions which speak in the imperative and leave nothing to the discretion of the public employer." State v. State Supervisory Employees Ass'n, 78 N.J. 54, 80 (1978).

The statutes and regulations upon which PVWC relies do not include imperatives on the question of compensation for out-of-title work. N.J.S.A. 11A:3-1 authorizes and requires DOP to establish, review, refine and provide specifications for titles and assign and reassign titles to positions. Pursuant to N.J.A.C. 4A:3-3.5(a), DOP may revise classifications as duties change, reclassify a position to a more appropriate title if there is one and establish a new title if necessary. Where the relevant specifications are clear, DOP's role in defining titles by specifying duties is not implicated by negotiations about compensation for performance of duties that are clearly assigned to a higher title.

DOP's regulations provide a remedy that addresses improper assignment of duties of a higher title on a prospective basis. An employee, union or a public employer may appeal a classification by "identify[ing] the specific duties that do not conform to the specification for the title . . . ." N.J.A.C. 4A:3-3.9(d). If a representative of DOP determines that the classification is proper but inappropriate duties have been assigned, DOP may order the "immediate removal of inappropriate duties." N.J.A.C. 4A:3-3.9(d)(1)(ii). That remedy does not preclude additional compensation as an additional remedy. With respect to compensation of employees of political subdivisions, N.J.S.A. 11A:3-7d simply addresses base salary and prohibits payment of a "base salary below the minimum or above the maximum established salary for an employee's title."

Removal of offending duties is a prospective remedy that prevents continuation of a practice that is contrary to the classification system and its goals. It does not provide a remedy for the past abuse. As the Supreme Court recently reasoned, "In the context of labor relations, the lack of a remedy presents a substantial threat to a peaceful and productive workplace." State v. Int'l Fed'n of Prof'l and Technical Eng'rs, Local 195, 169 N.J. 505, 538 (2001).

PVWC relies on N.J.A.C. 4A:3-3.4, which provides:

No person shall be appointed or employed under a title not appropriate to the duties to be performed nor assigned to perform duties other than those properly pertaining to the assigned title which the employee holds, unless otherwise provided by law or these rules.

According to PVWC, because this regulation makes it illegal for an employer to assign out-of-title work, a public employer and its employees cannot agree to a remedy other than removal of offending duties. The claim is that the practice has the potential to undermine the Act's goal of "removing employment in classified service from political control, partisanship and personal favoritism." Aparin v. County of Gloucester, 345 N.J. Super. 41, 55 (Law Div. 2000), aff'd, 345 N.J. Super. 24 (App. Div. 2001).

This argument overlooks N.J.S.A. 11A:4-13(d), which permits out-of-title work in limited emergency circumstances. It also overlooks what is implicit in N.J.A.C. 4A:3-3.9; from time-to-time, without collusion that circumvents the purposes of the Act, circumstances develop in which duties of a higher title are assigned to employees who are not compensated for that work.

We see nothing in this contractual remedy, which by its terms applies only when a grievance is filed within ten days of accrual, that encourages or permits a disregard of the classification system that would undermine the purpose of the Civil Service Act or DOP's authority to administer it. The contract provisions at issue do not permit payment for long-term assignment of out-of-title duties to unqualified or favored employees. The contract provides that the grievance is waived if not filed within ten days. A public employer or employee may seek prospective relief from DOP by appealing the classification at any time.

PVWC also argues that PERC violated principles of "comity and deference" in an area where its responsibilities and those of DOP were overlapping. Hinfey v. Matawan Reg'l Bd. of Educ., 77 N.J. 514, 531-32 (1978). But, on "a comparative scale, [PERC was] in the best position [to act in this case] by virtue of its statutory status, administrative competence and regulatory expertise." Id. at 532. The issue was compensation for assignment of duties of a higher title, a matter of employer-employee relations within the expertise of PERC. See Ridgefield Park Educ. Ass'n v. Ridgefield Park Bd. of Educ., 78 N.J. 144, 154 (1978). The question was not what duties ought be assigned to a particular title, a matter of classification entrusted to the expertise of DOP. While we can envision cases that could raise questions of comity, this is not one. The Chairman's decision addresses the issue:

[T]he fact that Cammalleri or CWA may have been able to request a classification review from DOP does not bar arbitration of a claim that the employer had contractually agreed to pay additional compensation for the work Cammalleri performed, separate and apart from whether a reclassification was warranted. Stated another way, the grievance does not seek to enforce an agreement that would conflict with a DOP ruling.

Affirmed.

 

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A-5195-04T1

April 21, 2006