PISCATAWAY PBA LOCAL 93 v. TOWNSHIP OF PISCATAWAY
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-6488-04T16488-04T1
PISCATAWAY PBA LOCAL 93,
TOWNSHIP OF PISCATAWAY,
Argued: November 28, 2006 - Decided December 21, 2006
Before Judges Axelrad and Gilroy.
On appeal from the Public Employment Relations Commission, 2005-79.
Stephen B. Hunter argued the cause for appellant (Detzky & Hunter, attorneys; Mr. Hunter, on the brief).
Stacey D. Adams argued the cause for respondent Township of Piscataway (DeCotiis, Fitzpatrick, Cole & Wisler, attorneys; Ms. Adams, on the brief).
Don Horowitz, Deputy General Counsel, argued the cause for respondent Public Employment Relations Commission (Robert E. Anderson, General Counsel, on the brief).
The Piscataway PBA Local 93 ("PBA") appeals from the Public Employment Relations Commission's ("PERC") grant of PBA's motion for summary judgment in its favor, determining that defendant Piscataway Township had committed an unfair labor practice by unilaterally implementing two disputed provisions in its promotion policy and ordering the Township to rescind and negotiate those provisions, but declining to order rescission of the four promotions made pursuant to that policy. We affirm.
The Township and the PBA have been embroiled in conflict since the 1980's. This appeal represents the latest round of that conflict. The present dispute arose out of the Township's unilateral change in its promotional procedures for police officers and its promotion of four candidates to the position of sergeant. There are four components of the promotional review: a written examination, an oral examination, a seniority rating, and a review of each candidate's personnel file. After the parties negotiated over the Township's promotional policy to fill openings for the position of sergeant, they reached an agreement on all but two issues: (1) the sequence of the various components of the promotional process and (2) when the results of the written examination would be disclosed. Believing the two issues were non-negotiable managerial prerogatives, on June 3, 2003 the Township unilaterally implemented a new version of the promotion policy, requiring the file review to be performed after the written examination was administered and providing for immediate disclosure of the results of the written examination before the entire four-step process was completed. Twenty-eight of twenty-nine officers who had originally announced in 2002 that they were interested in taking the examination, signed up and took the examination in 2003.
The PBA then filed an unfair practice charge alleging the unilateral implementation of the new policy violated the Township's duty to negotiate in good faith under the New Jersey Employer-Employee Relations Act ("Act"), N.J.S.A. 34:13A-1 to -39. On August 27, 2003, the Township filed a scope of negotiations petition, claiming the two aspects were non-negotiable under the collective bargaining agreement and were a managerial prerogative of the employer. The unfair practice proceeding was held in abeyance while PERC decided the scope of negotiations petition. The matter was resolved by PERC in favor of the PBA, 30 N.J.P.E.R. 57 (April 30, 2004), which we affirmed in an unpublished opinion. Township of Piscataway v. Piscataway Township PBA Local 93, No. A-5020-03 (App. Div. December 30, 2004).
The present appeal arises by virtue of actions taken by the Township during the pendency of the PERC matters. In December 3, 2003, the Township promoted the four highest ranked candidates to sergeant following the completion of the challenged promotional policy. These four candidates had the highest scores on the written examination and continued to be ranked in the same order after completion of the subjective "review of file" component of the promotional process. One of the four candidates promoted to sergeant was PBA's vice president.
Based on the favorable decision in the scope petition matter, the PBA moved for summary judgment on the unfair practice charge. On February 24, 2005, PERC granted summary judgment, finding the Township committed an unfair practice under the Act by unilaterally implementing the two procedures that were mandatorily negotiable. 31 N.J.P.E.R. 44. PERC ordered the Township to rescind and negotiate the two disputed provisions in the promotional policy and to post a notice of the unfair practice, but rejected PBA's request that the Township rescind the four promotions to the position of sergeant. PERC stated:
The two disputed issues involve the order of the components of the promotional process and when results of the written examination will be disclosed. Nothing in the parties' submissions suggest that the results of the promotional process would have been any different had the PBA's position on these two issues been adopted by the Township and incorporated into its promotional policy. We note in this regard that the Township had a prerogative not to promote any candidates who did not pass the written examination, regardless of when the test was taken during the promotional process or when the results were disclosed.
The PBA moved for reconsideration, submitting a certification from its president stating that other officers did not seek promotions because they believed they would not get a fair shake and some officers did not study as hard because they knew the Township would simply pick its favorite candidate. PERC declined to consider those facts as the basis for reconsideration because they were not in the record when it decided the summary judgment motion. In denying the motion for reconsideration on June 30, 2005, 31 N.J.P.E.R. 71, PERC stated: "Even if we were to consider the statements and the PBA's new certification, the PBA has not shown that the results of the promotional process would have been any different had its positions on these two issues been adopted."
On appeal, the PBA argues: (1) PERC's decision not to restore the status quo relating to the promotional process by rescinding the promotions was arbitrary and capricious, and inconsistent with the goals and objectives of the Act; and (2) PERC's remedy failed to properly balance the interests of the police officers who were adversely affected by the Township's illegal promotions with the interests of the Township. The PBA contends the Township has continued to demonstrate flagrant disregard of the Act and the collective bargaining process; first, by unilaterally implementing provisions it knew were mandatorily negotiable based on a prior PERC ruling and second, rather than waiting to make the promotions or making provisional promotions, by intentionally filling all four sergeant vacancies based on the challenged promotional policy while the unfair practice charge and scope of review petition were pending. According to PERC, the only effective relief under the circumstances is a "complete" or "make whole" remedy "with teeth" that will send a message to the Township that it is accountable for its illegal actions and will restore to the adversely affected police officers faith in the integrity of the labor relations system. Thus, according to the PBA, PERC's refusal to fashion an effective remedy and rescind the promotions was arbitrary and capricious, warranting reversal of the agency's determination.
We disagree. The burden is on the PBA to show PERC's determination was an unfair remedy. We are not convinced PERC erred in declining to grant the PBA "complete relief" under the circumstances of this case. Our scope of review of PERC decisions is narrow; the administrative determination will stand unless it is clearly demonstrated to be arbitrary or capricious. In re Hunterdon County Bd. of Chosen Freeholders and CWA, 116 N.J. 322, 328-29 (1989); West New York Police for Supervisors Ass'n v. Santa Maria, 235 N.J. Super. 123, 125 (App. Div. l989). This is because of the broad authority, wide discretion, and expertise and knowledge of the agency in the field of employer-employee relations in the public sector. Hunterdon, supra, 116 N.J. at 328. PERC has remedial flexibility and is not obligated to provide a complete or make-whole remedy in every unfair labor practice case. Id. at 336; see also Shepard v. Nat'l Labor Relations Bd., 459 U.S. 344, 345, 103 S. Ct. 665, 667, 74 L. Ed.2d 523, 525 (1983); Maywood Bd. of Educ. v. Maywood Educ. Ass'n, 168 N.J. Super. 45, 50 (App. Div. l979). Granziel v. City of Plainfield, 279 N.J. Super. 104 (App. Div. l995), a handicap discrimination case under the LAD, which adopted the "bumping theory" to requiring the displacement of an incumbent employee to accomplish reinstatement of a wronged employee, is inapplicable for a variety of reasons, most critically that PERC did not find anti-union discrimination or animus in the present matter.
We are satisfied PERC performed the appropriate balancing test under the applicable law and did not act arbitrarily or capriciously. Contrary to the PBA's repeated assertions, PERC did not find the Township acted "illegally" or in bad faith as the basis for finding it committed an unfair practice. On the contrary, in granting summary judgment, PERC stated:
Not all violations of 5.4a(5)[of the New Jersey Employer-Employee Relations Act] are predicated on a showing of illegal intent or subjective bad faith. A public employer that unilaterally establishes a mandatorily negotiable term and condition of employment violates the Act regardless of its intent.
Thus, although PERC recognized the Township "met with the PBA and discussed many aspects of the promotional policy," it found the Township violated the Act when it "discussed rather than negotiated over the two disputed aspects of the policy" because "[n]egotiations require dialogue between two parties with an intent to achieve common agreement rather than an employee organization presenting its view and the employer considering it and later announcing its decision."
The record supports PERC's determination that rescission of the four promotions to sergeant was not warranted under the circumstances and would not further the purposes of the Act. This decision was based in large part on PBA's inability to demonstrate that the results of the promotional process would have been any different or that any of their members would have been in a different position had the Township negotiated the two challenged provisions and incorporated the PBA's positions into its new policy. PERC therefore concluded that the most effective remedy to effectuate the intent and purpose of the Act would be to rescind the disputed provisions of the policy and order the Township to negotiate these provisions going forward. We discern no basis to second-guess this decision.
The record is devoid of any evidence that the results of the promotional process were manipulated in any way. Even if the components had been administered in a different order, the numerical results would have been the same, as each component had specific weights assigned, which could not be manipulated by the Township. Moreover, although the PBA speculates that the subjective portions of the promotional review could be manipulated, it offers no evidence that such manipulation actually occurred. In contrast, the Township notes that in order to reduce the subjectivity of the process and alleviate the PBA's fears, it broke down the "review of file" section into specific traits and performance factors as requested by the PBA, and then assigned a specific weight to each of these factors.
Most importantly, the same four candidates who were ranked one through four on the list prior to the subjective "review of file" component continued to be ranked in the same order after completion of the review of file. These four individuals were ultimately promoted to sergeant. Thus, even if the components had been conducted in a different sequence as requested by the PBA, the outcome would have been the same. Additionally, the record belies the PBA's claim of the new policy having a chilling effect on the number of candidates who participated in the promotional process as only one candidate declined to take the test after the Township implemented the June 2003 policy.
The four successful police officers participated in the promotional process in good faith and were granted their promotions to sergeant as the highest ranked candidates. In the absence of proof of actual damages by the PBA or any evidence demonstrating manipulation of the test results, rescinding these promotions, which is a drastic remedy, is not warranted. Maywood, supra, 168 N.J. Super. at 64.
The PBA is the recognized majority representative for all non-supervisory police officers employed within the Township of Piscataway's police department.
December 21, 2006