IN THE MATTER OF TOWNSHIP OF CLARK

NOT FOR PUBLICATION WITHOUT THE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-0

IN THE MATTER OF

TOWNSHIP OF CLARK,

Petitioner-Respondent,

and

UNION COUNCIL NO. 8,

I.F.P.T.E., AFL-CIO,

Respondent-Appellant.

_______________________________________

October 28, 2016

Argued October 13, 2016 Decided

Before Judges Higbee and Manahan.

On appeal from the Public Employee Relations Commission, SN-2016-028, P.E.R.C. No. 2016-55.

Lauren Sandy argued the cause for appellant Union Council 8 (Loccke, Correia & Bukosky, attorneys; Ms. Sandy, of counsel and on the briefs).

Deborah J. Bracaglia argued the cause for respondent Township of Clark (Apruzzese, McDermott, Mastro & Murphy, P.C., attorneys; Robert J. Merryman, of counsel and on the brief; Ms. Bracaglia, on the brief).

Joseph P. Blaney, Deputy General Counsel, argued the cause for respondent New Jersey Public Employment Relations Commission (Robin T. McMahon, General Counsel; Mr. Blaney, on the brief).

PER CURIAM

Union Council No. 8, I.F.P.T.E., AFL-CIO (Council 8) appeals a decision of the Public Employment Relations Commission (PERC) granting the Township of Clark's (the Township) request to restrain arbitration. For the reasons that follow, we affirm.

The following facts are drawn from the PERC decision and the certification of the Township's chief of police (the chief). Council 8 represents clerical and secretarial employees working within the Township offices and the police department. Council 8 and the Township entered into a collective negotiations agreement (CNA) effective January 1, 2015 through December 31, 2019. Pursuant to the CNA, the grievance procedure ends in a binding arbitration.1 Article 5 of the CNA, captioned "Hours of Work" delineates

Section 1. The established hours of work for all employees, (except as otherwise hereinafter provided,) shall be thirty-five (35) hours in a workweek of five (5) days, beginning on Monday and terminating on Friday. Each day's work shall begin at 8:30 a.m. and terminate at 4:00 p.m., with a half hour (1/2) hour [sic] lunch break.

Prior to the CNA, in April 2000, the Township, Council 8 and the Township's records clerk executed a memorandum of understanding (MOU). In pertinent part, the MOU provides

The purpose of this memorandum is to memorialize the terms and conditions of night duty performed by [r]ecords [c]lerk [grievant]. In December of 1999, the issue of overtime compensation for night duty came into dispute between the Administration and [grievant]. The overtime in dispute amounts to 300 hours retained in [grievant's] overtime account and relates only to evening records overtime accrued between January 1995 and December 1999.

. . . .

Effective January 1, 2000, [r]ecords [c]lerk [grievant] shall open the Records Bureau to the public from the hours of [6:00 p.m. to 8:00 p.m.] one night per week as assigned by the [c]hief of [p]olice. This two[-]hour assignment shall be in addition to the regular work day as outlined in the Council 8 Collective Bargaining Agreement.

In consideration for this two-hour work assignment, [grievant] shall be compensated the next working day with two hours' compensatory leave, taken at the end of her scheduled working day. It is understood that no overtime shall result from this agreement and that compensatory time granted may not be converted to cash. If evening hours are cancelled due to illness, vacation or other contingency, no compensatory time will be granted the following day.

. . . .

Of the 300 hours identified as [r]ecords overtime accrued between 1995 and 1999, [grievant] agrees to relinquish 100 hours to the Town; 200 hours will be retained in her overtime account.

The purpose of this agreement is to: recast the past practice of overtime compensation for evening [r]ecords work; establish a well-defined, collaborative working plan which is fair and equitable to the employee and the Town; avoid formal grievance procedures related to the past practices by the employer and employee.

Subsequent to his appointment, the chief reviewed the Township police department's operations with the goal of providing effective and efficient services to residents notwithstanding limited available resources. As a result of the review, the chief determined that daytime court sessions rarely extended beyond 5:00 p.m. and that the Township municipal court had not scheduled evening court sessions for approximately five years. In light of these court session changes coupled with available electronic communications, such as e-mail and facsimile, the chief concluded that there was no longer a need to schedule the records clerk outside of her regular work hours.2

The chief notified the records clerk in a memorandum dated October 12, 2015, that, effective January 1, 2016, she would be working regular hours, 8:30 a.m. to 4:00 p.m., as set forth in the CNA. On October 14, 2015, Council 8 grieved the change as a violation of the CNA. Consequently, on October 29, 2015, Council 8 filed a request for submission of a panel of arbitrators with the State Board of Mediation, identifying the grievance to be arbitrated as a "unilateral change in working hours." In response, the Township filed a scope of negotiations petition with PERC on November 11, 2015, arguing that, pursuant to its managerial prerogative, it was authorized to determine when an employee's services were required. The Township sought by its petition, a restraint of binding arbitration of the grievance.

After conducting its review, PERC determined that the decision to eliminate evening hours for the records clerk was in accord with the Township's managerial prerogative to determine when public services will be offered as well as the most efficient manner in which to deploy its employees. In reaching its decision, PERC found that

[T]he Township curtailed the evening hours of the [r]ecords [c]lerk because municipal court sessions were no longer being scheduled after [5:00 p.m.] and did not normally run past [5:00 p.m.] and based upon the [c]hief's belief that with the use of email and facsimiles, the public does not need physical access to the [c]lerk in the evening. We also find that the predominate interest affected by the grievance is the Township's managerial prerogative to determine when the public should have access to the [r]ecords [c]lerk and when to assign work outside of the regular work schedule and that it makes no difference to the outcome whether one characterizes the MOA as a negotiated work schedule or a method of compensating additional hours worked. Lastly, we find that the loss of compensatory time as a result of the exercise of this managerial prerogative is not a severable claim . . . and that Council 8 has not produced any evidence that the [c]lerk's workload increased as a result of the Township's action.

Thus, PERC granted the Township's request to restrain arbitration of the grievance. This appeal followed.

On appeal Council 8 argues that PERC's restraint of the grievance arbitration was improper because changes in hours of work and schedules are mandatorily negotiable. We disagree and conclude the Township acted within its managerial prerogative under these circumstances, to determine when public services will be offered.

We commence our discussion with a recitation of our standard of review of PERC's decisions. "PERC is charged with administering the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 to -29, and its interpretation of the Act is entitled to substantial deference." CWA, Local 1034 v. N.J. State PBA, Local 203, 412 N.J. Super. 286, 291 (App. Div. 2010) (citing N.J. Tpk. Auth. v. AFSCME, Council 73, 150 N.J. 331, 352 (1997)). "Our inquiries are limited to: (1) whether the agency followed the law; (2) whether the agency's decision is supported by substantial evidence in the record; and (3) whether in applying the law to the facts, the agency reached a supportable conclusion." In re Cty. of Atl., 445 N.J. Super. 1, 11 (App. Div.), certif. granted, ___ N.J. ___ (2016) (citing City of Jersey City v. Jersey City Police Officers Benev. Ass'n, 154 N.J. 555, 567 (1998); Morris Cty. Sheriff's Office v. Morris Cty. Policeman's Benev. Ass'n, Local 298, 418 N.J. Super. 64, 74-75 (App. Div. 2011)).

"The Legislature has vested PERC with 'the power and duty, upon the request of any public employer or majority representative, to make a determination as to whether a matter in dispute is within the scope of collective negotiations.'" City of Jersey City, supra, 154 N.J. at 567-68 (quoting N.J.S.A. 34:13A-5.4(d)). "The standard of review of a PERC decision concerning the scope of negotiations is thoroughly settled. The administrative determination will stand unless it is clearly demonstrated to be arbitrary or capricious." Id. at 568 (citations and internal quotations omitted).

"Questions concerning whether subjects are mandatorily negotiable should be made on a case-by-case basis." Troy v. Rutgers, 168 N.J. 354, 383 (2001) (citing City of Jersey City, supra, 154 N.J. at 574). The Supreme Court has established a three-part test for scope of negotiations determinations. In re Local 195, IFPTE, 88 N.J. 393, 403 (1982). A subject between public employers and employees is negotiable when

(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. To decide whether a negotiated agreement would significantly interfere with the determination of governmental policy, it is necessary to balance the interests of the public employees and the public employer. When the dominant concern is the government's managerial prerogative to determine policy, a subject may not be included in collective negotiations even though it may intimately affect employees' working conditions.

[Id.at 404-05.]

Here, the salient issue is whether the otherwise negotiable issue relating to work hours is preempted by the Township's managerial prerogative to determine policy.

Our Supreme Court has consistently held that determining the hours and days during which a service will be operated to achieve the greatest efficiency is a decision within managerial prerogative. See Local 195, supra, 88 N.J. at 418 (holding a subject non-negotiable where it "impinges on the ability of the employer to make rational decisions on how to best reassign employees to achieve the greatest efficiency"); Paterson Police PBA, Local 1 v. Paterson, 87 N.J. 78, 98 (1981) ("Municipal decisions about how to organize and deploy their police forces to comply with economic needs are unquestionably policy decisions and affect the public welfare.").

This court has held that a modification of an employee's work schedule may not be a matter of managerial prerogative. Twp. of Franklin v. Franklin Twp. PBA Local 154, 424 N.J. Super. 369, 382 (App. Div. 2012) (finding the Township mischaracterized the schedule modification as a managerial decision "bottomed on a need to achieve efficiency and conserve municipal resources" since the proposal resulted in each officer working more hours per year for the same pay).

Council 8 also argues that the Township's justification for the change in the record clerk's evening hours was "flawed" and that the basis for the change should not have been considered by PERC in its determination. Again, we disagree. In order to establish whether the change in work hours was mandatorily negotiable or excepted as a managerial prerogative, PERC was required to balance the interests of the public employee and the public employer. In the application of this balancing test, PERC found that the rationale for the record clerk to work evening hours was for the exclusive purpose of serving the needs of the public during the hours of the municipal court. PERC further found that in the absence of that public need, due to the altered hours of the court and the ability to utilize electronic communications, the Township's policy decision to effectuate efficient use of the record clerk's work hours promoted the public interest. Through our independent application of the balancing test, we conclude, as did PERC, that the public interest predominated over the interest of the public employee; especially where, as PERC noted, the employee's workload, unlike Twp. of Franklin, was not "increased as a result of the Township's action."

In sum, we are satisfied that in reaching its decision, PERC applied the correct standard of review, abided by the appropriate legal standards, and properly analyzed the scope of negotiations test. Further, PERC's decision was supported by substantial evidence in the record which rendered the decision neither arbitrary nor capricious.

Council 8's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(E).

Affirmed.

1 In its brief, Council 8 refers to the CNA as the "collective bargaining agreement."

2 We note that the Township and Council 8 entered into a CNA in 2015 that maintained the work schedule for the record clerk, including evening hours. At the time the agreement was entered into, the Township had already changed the municipal court session to the daytime.