IN THE MATTER OF MONMOUTH UNIVERSITY, and WEST LONG BRANCH PBA, LOCAL NO. 141

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
 
 
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5635-04T2

IN THE MATTER OF
MONMOUTH UNIVERSITY,

Respondent-Respondent,

and

WEST LONG BRANCH PBA,
LOCAL NO. 141,

Petitioner-Appellant.

__________________________________

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July 25, 2006

Argued April 24, 2006 Decided

Before Judges Fall and C.L. Miniman.

On appeal from a Decision of the Public Employment Relations Commission, Docket No. CO-2005-075.

Michael A. Bukosky argued the cause for appellant (Loccke & Correia, attorneys; Mr. Bukosky, on the brief).

John J. Peirano argued the cause for respondent Monmouth University (McElroy, Deutsch, Mulvaney & Carpenter, attorneys; Mr. Peirano, of counsel and on the brief).

Donald Horowitz argued the cause for respondent Public Employment Relations Commission (Robert E. Anderson, General Counsel; Mr. Horowitz, Deputy General Counsel, on the brief).

 
PER CURIAM
This is an appeal from a decision of the Public Employment Relations Commission (PERC), which held that Monmouth University was a private employer, and, as such, was not subject to its jurisdiction. Because PERC only has jurisdiction over disputes between public employers and public employees, we affirm.
The facts of this case are not in dispute. PBA Local 141 in West Long Branch is the collective bargaining representative for all supervisory police officers employed by Monmouth University. See footnote 1 Its police department, prior to the date in question, recognized the positions of corporal, sergeant, lieutenant and captain in the collective bargaining unit. On August 13, 2004, the position of captain was removed from the collective bargaining unit in a unilateral action taken by the University.
On September 22, 2004, the West Long Branch PBA Local No. 141 (PBA) filed an unfair practices charge and a clarification-of-unit petition. In these charges, the PBA contended that the University is a public employer, falling within such designation in the New Jersey Public Employer-Employee Relations Act, N.J.S.A. 34:13A-5.4a (Act). PBA contended that the actions of the University in eliminating the position from the collective bargaining unit were a violation of the Act. PBA requested that PERC issue an unfair practices charge. In response, the University argued that it was a private employer under the Act and was not subject to the jurisdiction of the Commission.
The Director of Unfair Practices and Representation consolidated the charge and petition for disposition. An administrative investigation was conducted pursuant to N.J.A.C. 19:14-1.6 and N.J.A.C. 19:11-2.2. Statements were then submitted by both parties to aid the Director in his decision. On March 1, 2005, the Commission's Director of Unfair Practices and Representation concluded that Monmouth University:
is not a public employer within the meaning of N.J.S.A. 34:13A-3(c), the Commission is without jurisdiction to consider the merits of the unfair practice charge and clarification of unit petition. Accordingly, both matters must be dismissed.
 
On March 14, 2005, PBA filed an appeal and a request for PERC review pursuant to N.J.A.C. 19:14-2.3 and N.J.A.C. 19:11-8.1, respectively. On March 30, 2005, Monmouth University filed a response with the Commission in opposition to the appeal, arguing that the dismissal by the Director should be sustained. The University contended that it was not a public employer and, as such, the National Labor Relations Board (NLRB) was vested with the exclusive jurisdiction to resolve labor disputes.
On May 26, 2005, PERC handed down its written decision on this matter. PERC held that the unfair practices charge and the clarification-of-unit petition were to be dismissed. The Commission found that Monmouth University was not an agent of the State and PERC had no jurisdiction over these disputes. The PBA filed this appeal on June 27, 2005, and raises the following issues.
I. PERC ERRED BY FAILING TO RULE ON THE QUESTION AS TO WHETHER THE POLICE EMPLOYEES AT ISSUE ARE PUBLIC EMPLOYEES.

II. THE LEGISLATURE INTENDED THE IDENTITY OF PUBLIC EMPLOYERS AND EMPLOYEES TO BE BROADLY AND LIBERALLY CONSTRUED.

III. DETERMINATION OF THE LEGAL STATUS OF MONMOUTH UNIVERSITY AS PUBLIC OR PRIVATE EMPLOYER IS NOT NECESSARY TO DETERMINE PERC'S JURISDICTION OVER THIS MATTER.
 
The scope of this court's review of PERC's decision is a limited one. The Supreme Court has held that "an administrative agency's interpretation of a statute that it is charged with enforcing is entitled to due deference." In Re Bridgewater Twp. 95 N.J. 235, 244 (1984).
The judicial role is restricted to the following four inquires:

(1) whether the agency's decision offends the State or Federal Constitution; (2) whether the agency's action violates express or implied legislative policies; (3) whether the record contains substantial evidence to support the findings on which the agency based its action; and (4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[George Harms Constr. Co. v. N.J. Turnpike Auth., 137 N.J. 8, 27 (1994).]
Accordingly, "[o]ur function is to determine whether the administrative action was arbitrary, capricious or unreasonable." Burris v. Police Dep't, Twp. of W. Orange, 338 N.J. Super. 493, 496 (App. Div. 2001) (citing to Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)). The precise issue is whether the findings of the agency could have been reached on the credible evidence in the record, considering the proofs as a whole. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).
The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the person challenging the administrative action. McGowan v. New Jersey State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002); Barone v. Department of Human Servs., Div. of Med. Asst. & Health, 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).
Additionally, "[i]t is settled that '[a]n administrative agency's interpretation of statutes and regulations within its implementing and enforcing responsibility is ordinarily entitled to our deference." Wnuck v. N.J. DMV, 337 N.J. Super. 52, 56 (App. Div. 2001) (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997). "Absent arbitrary, unreasonable or capricious action, the agency's determination must be affirmed." Wnuck, supra, 337 N.J. Super. at 56. (citing to R & R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999).
"Generally, the wisdom, prudence and good sense of the Legislature in the enactment of law are not questions for the judiciary to resolve." Id. at 57 (citing to Burton v. Sills, 53 N.J. 86, 95 (1968)); see also Burt v. W. Jersey Health Sys., 339 N.J. Super. 296, 309 (App. Div. 2001).
Although we must give deference to an administrative agency charged with interpretation of the law, we are not bound by the agency's legal opinions. Levine v. DOT, DMV, 338 N.J. Super. 28, 32 (App. Div. 2001) (citing to G.S. v. Department of Human Servs., 157 N.J. 161, 170 (1999); see also Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973).
In both representation and unfair practices cases, the decision of the administrative agency shall not be disturbed "unless it has been shown . . . that it violated legislative policies expressed or implied in the act governing the agency. In re County of Morris v. Morris Council No. 6, 371 N.J. Super. 246, 261 (App. Div. 2004), certif. denied, 182 N.J. 427 (2005); see also Bridgewater, supra, 95 N.J. at 245; In re Hunterdon County Bd. of Chosen Freeholders, 116 N.J. 322, 329 (1989).
The PBA contends that Monmouth University employees working in the police department are performing public services in enforcing criminal laws and, as such, are acting as agents of the State of New Jersey. More specifically, PBA contends that the "[p]erformance of police services are ipso facto services performed by public employees." The PBA alleges that PERC did not address the issue of whether the employees in question were public employees, but rather focused on the fact that Monmouth University was a private institution. This argument stands the enabling legislation on its head.
The New Jersey Employer Employee Relations Act prohibits unfair practices by public employers. N.J.S.A. 34:13A-5.4(a). See footnote 2 N.J.S.A. 34:13A-3(c) provides in pertinent part:

The term "employer" . . . shall include "public employers" and shall mean the State of New Jersey, or the several counties and municipalities thereof, or any other political subdivision of the State, or a school district, or any special district, or any authority, commission, or board, or any branch or agency of the public service.

The statute goes on to define the term employee in N.J.S.A. 34:13A-3(d):
The term "employee" . . . shall include any public employee, i.e., any person holding a position, by appointment or contract, or employment in the service of a public employer, except elected officials, members of boards and commissions, managerial executives and confidential employees.

There is nothing in the specific language of the statute that would suggest the status of "public employee" is determined by the nature of the job duties performed by the employee. Rather, the statute specifically defines a "public employee" as someone employed by a "public employer." It is erroneous to commence the analysis by beginning with the nature of the job functions performed.
In its decision, PERC held that:
Our jurisdiction does not turn on the nature of the duties performed, but on the nature of the employer. These employees work for a private employer and therefore are not subject to the jurisdiction of this state.

The agency here is entitled to deference with respect to its interpretation of the statute creating it, and its factual findings may not be overturned unless they are arbitrary, capricious or without substantial support in the record. Monmouth University is not a "branch or agency of a public service" and does not become a public employer simply because it has elected to employ its own police force. It is a private university employing private university police officers.
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We have considered the balance of the PBA's claims of error and conclude that they do not merit further discussion. R. 2:11-3(e)(1)(D).
Affirmed.
Footnote: 1 Monmouth University is authorized to employ its own police force pursuant to N.J.S.A. 18A:6-4.1 et seq. Specifically, N.J.S.A. 18A:6-4.2 provides that "[t]he governing body of any institution of higher education . . . may appoint such persons as the governing body may designate to act as policemen for the institution." Additional sections of the statute indicate that an application to determine the fitness of the person to serve as an officer must be made to the chief of police of the municipality or town where the institution is located or to the superintendent of the state police. N.J.S.A. 18A:6-4.3.
Footnote: 2 The Act provides in pertinent part:
 
a. Public employers, their representatives or agents are prohibited from:

(1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act.
(2) Dominating or interfering with the formation, existence or administration of any employee organization.
(3) Discriminating in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage employees in the exercise of the rights guaranteed to them by this act.
(4) Discharging or otherwise discriminating against any employee because he has signed or filed an affidavit, petition or complaint or given any information or testimony under this act.
(5) Refusing to negotiate in good faith with a majority representative of employees . . . .
(6) Refusing to reduce a negotiated agreement to writing and to sign such agreement.
(7) Violating any of the rules and regulations established by the commission.

[N.J.S.A. 34:13A-5.4(a)].
 

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