IN THE MATTER OF STATE OF NEW JERSEY JUDICIARY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1747-10T3

IN THE MATTER OF

STATE OF NEW JERSEY JUDICIARY,

Petitioner-Respondent,

and

PROBATION ASSOCIATION OF NEW

JERSEY (Case-Related Professional

Unit),

Respondent-Appellant.

___________________________________

October 19, 2012

Argued December 7, 2011 - Decided

Before Judges Sapp-Peterson and Ostrer.

On appeal from the Public Employment Relations Commission, Docket No. SN-2010-060.

David I. Fox argued the cause for appellant (Fox and Fox, L.L.P, attorneys; Mr. Fox, of counsel and on the brief; Nora R. Locke, on the brief).

Sally Ann Fields, Senior Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Fields, on the brief).

Christine Lucarelli, Deputy General Counsel for Public Employment Relations Commission, on the statement in lieu of brief.

PER CURIAM

In this appeal the Probation Association of New Jersey, Case-Related Professional Unit ("PANJ") appeals from the final administrative agency decision from the Public Employment Relations Commission ("PERC") restraining arbitration of a grievance filed by PANJ in which it claimed the State of New Jersey Judiciary ("Judiciary") violated its contractual obligation under the Compensation Plan for Judicial Employees in the Case-Related Professional Unit. PERC ruled that the nature of the grievance involved a challenge to Judiciary staffing decisions, which is a non-negotiable management prerogative, and therefore "enforcement of the Compensation Plan must be sought in another forum." We affirm.

On appeal, PANJ contends PERC's decision was arbitrary, capricious, and unreasonable because the decision failed to "consider all relevant factors[.]" We disagree.

By way of factual background, on April 8 and May 9, 2009, PANJ filed two separate, statewide grievances pursuant to the collective bargaining agreement ("Agreement") the parties entered, which covered the period from July 1, 2008 through June 30, 2012. Both grievances contained the exact allegations, which we set forth below:

Designation of grievance:

Contractual: (Identify the specific contract provision or policy violated or misapplied - Article 27, Article 24.1, 24.2, Compensation Plan for Judicial Employee's PCR Unit, Article 11.1, 11.2, Article 7.4, Article 6, et al[.)]

Non-contractual: Fundamental Fairness, Employee Moral[e], Discriminatory Practices[.]

Statement of grievance: (Please provide specific information for the following)[:]

Identify how the contract provision was violated or misapplied. Whereas, the New Jersey Judiciary is not filling the vacant Master Probation Officer positions/designations as called for in the current Collective Bargaining Agreement, thus denying all applicants a promotional opportunity. Whereas there are a limited number of positions, this [a]ffects employee moral[e].

Identify the specific consequence(s) of the contract provision or policy violation or misapplication.

N/A

Identify what steps labor has taken to resolve the violation or misapplication prior to the filing of the grievance.

N/A

Relief sought:

1. PANJ is seeking immediately to have the position of Master Probation Officer be posted and filled immediately, throughout the [S]tate i[n] accordance with the Professional Line Staff contract and Compensation Plan for Judicial Employee[]s[.]

2. That this position not be applied to cost savings by the Judiciary, due to the limited number of positions available and the effect that this has on employee moral[e].

On July 29, 2009, an independent Judiciary hearing officer conducted a hearing during which PANJ maintained that under a prior Agreement and the Compensation Plan, the Judiciary was required to maintain at least 100 Master Probation Officers (MPOs) statewide. PANJ further contended the current Agreement and side letters confirmed the continuation of this staffing requirement, and the Judiciary's failure to honor this contractual obligation was "creating poor morale among PANJ-CR members."

The hearing officer (HO) denied the grievance. The HO acknowledged the undisputed fact that under the 1998 Compensation Plan, the Judiciary agreed "to staff 100 non-roll-in MPOs statewide." The HO also found the Judiciary failed to rebut the evidence presented on behalf of PANJ demonstrating that the agreement to staff 100 MPOs remains in force and effect. The HO concluded that these findings were not dispositive. Rather, the HO concluded that staffing decisions are "non-negotiable, non-arbitrable managerial prerogative" and this "prerogative exists even when an agreement regarding staffing levels is in place. In such instances, such an agreement is not enforceable."

On September 9, 2009, PANJ submitted the issue to arbitration. An arbitrator was appointed, but prior to any hearing, the Judiciary filed a scope of negotiations petition with PERC seeking the restraint of arbitration on the basis that the grievance challenged "staffing levels that are non-negotiable managerial prerogative." PANJ opposed the petition, essentially arguing that the Judiciary was disregarding the terms of the Compensation Plan, which was negotiated to establish consistency in the pay scale for probation officers throughout the Judiciary and was "approved by the Legislature, Civil Service Commission and the Supreme Court as a result of separate actions settling a federal lawsuit[.]"

On October 28, 2010, PERC issued its decision restraining arbitration. The decision did not address the merits of the grievance or any defenses the Judiciary may assert in response to the grievance. Rather, PERC limited its review to determining whether the subject of the grievance was "mandatorily negotiable" and in that regard concluded that the decision to fill MPO vacancies implicated non-negotiable staffing decisions. The present appeal followed.

The administrative agency decision being challenged here is that of PERC, which is statutorily charged to administer the New Jersey Employer Employee Relations Act (Act), N.J.S.A. 34:13A 1 to 29. PERC is statutorily authorized to "make policy and establish rules and regulations concerning employer-employee relations in public employment relating to dispute settlement, grievance procedures and administration including . . . to implement fully all the provisions of [the] [A]ct." N.J.S.A. 34:13A-5.2. In Re Hunterdon Cnty. Bd. of Chosen Freeholders, 116 N.J. 322, 328 (1989). As such, PERC's statutory mandate is broad and reflects the Legislature's intent to confer upon PERC "a high degree of confidence in the ability of PERC to use expertise and knowledge of circumstances and dynamics that are typical or unique to the realm of employer-employee relations in the public sector." Ibid. Thus, PERC's interpretation of the Act is entitled to substantial deference. N.J. Tpk. Auth. v. AFSCME, Council 73, 150 N.J. 331, 352 (1997). Consequently, we will not disturb its determination "'in the absence of a showing that it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence, or that it violated a legislative policy expressed or implicit in the governing statute.'" In re Camden Cnty. Prosecutor, 394 N.J. Super. 15, 22-23 (App. Div. 2007) (quoting Cnty. of Gloucester v. Pub. Emp't Relations Comm'n, 107 N.J. Super. 150, 156 (App. Div. 1969), aff'd, 55 N.J. 333 (1970)).

The Legislature, in the first instance, has expressly authorized PERC to determine whether the subject matter of a grievance is within the scope of collective negotiations:

d. The [PERC] shall at all times have 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. The commission shall serve the parties with its findings of fact and conclusions of law. Any determination made by the commission pursuant to this subsection may be appealed to the Appellate Division of the Superior Court.

[N.J.S.A. 34:13A-5.4(d)].

Here, PERC recognized that compensation is a negotiable matter but concluded the nature of the grievance only addressed staffing levels. This conclusion is supported by the record. The grievance, on its face, was confined to enforcing what PANJ argues was embodied in the Compensation Plan, staffing the Master Probation Officer position to the agreed upon level of 100 positions. We note, however, PANJ recognized that in the Compensation Plan, funding limitations affected movement into the Master Probation Officer level, and as such, the Judiciary and PANJ "reached a compromise on [movement from Senior Probation Officer (Journey Level) to Master Probation Officer (Master Level) and payment of salary increase in connection with such promotion] for the balance of this Agreement," which covered the period January 1, 1995 to June 30, 1999. Under that Agreement:

There shall be one hundred (100) employees selected as herein set forth from the list of employees deemed eligible as herein defined for promotion to Master P.O. in accordance with the provisions of Section C.(1)(b), "Movement to Master[.]" Fifty (50) of those employees shall be selected and promoted no later than April 15, 1998, and the remaining fifty (50) shall be selected and appointed on or before June 15, 1998. As set forth herein, the range for such compensation shall be $4[]000 above the range for the Journey level. Upon promotion, there shall be a base annual salary adjustment in connection with the promotion in the amount of $3[]000[,] effective in pay period two (2) of calendar year 1998[,] which ends January 16, 1998 for those promoted as of April 15, 1998[,] and effective pay period fourteen (14) of calendar year 1998[,] which ends July 3, 1998 for those promoted as of June 15, 1998.

Thus, notwithstanding that the staffing of positions has historically been subject to management prerogatives, the Judiciary entered into a settlement that required selection of 100 employees for promotion to MPO. Beyond this Agreement, there is no other evidence that the Judiciary, through its negotiations with PANJ, negotiated away its management prerogatives regarding staffing positions. Instead, the July 1, 2008 to June 30, 2012 Agreement executed between the Judiciary and PANJ states otherwise.

Article 7.6D governing "Advancement from Journey to Master Level," merely sets forth the eligibility requirements for advancement to MPO "subject to . . . a[n] [MPO] opening." It does not mandate the promotion. In contrast, Article 7.6C, "Advancement from Basic to Journey Level," expressly provides:

[E]mployees at the basic level (Probation Officer) who achieve five (5) years of service (provisional and permanent) and who meet the competencies needed for advancement on the career progression instrument, and who do not have serious criminal or disciplinary charges against them shall be advanced to the journey level (Senior Probation Officer). (Emphasis added).

Thus, beyond the terms and duration of the Compensation Plan, it is evident the Judiciary has not relinquished its otherwise non-negotiable management prerogative to decide not to fill promotional vacancies. See Paterson PBA No. 1 v. Paterson, 87 N.J. 78, 98 (1981).

Notwithstanding the very clear language in the grievance challenging the Judiciary's failure to fill the MPO position and claimed negative impact upon employee morale in failing to do so, PANJ, in apparent concession that staffing decisions remain the non-negotiable prerogative of management, have characterized the issue on appeal as compensation rather than staffing levels. The grievance at issue is not a "totally different situation," as PANJ urges. Likewise, we reject PANJ's contention in its "Preliminary Statement" that the issues in this appeal "are special and extraordinary critical legal issues." While we agree, as PANJ urges, that the Judiciary's decision not to fill vacant MPO positions impacts progression of compensation for those employees eligible for promotion to MPO positions, this impact does not convert what is clearly a management prerogative into an arbitrable matter.