IN THE MATTER OF ROBBINSVILLE TOWNSHIP BOARD OF EDUCATION v. WASHINGTON TOWNSHIP EDUCATION ASSOCIATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF

ROBBINSVILLE TOWNSHIP BOARD

OF EDUCATION,

Respondent-Respondent,

v.

WASHINGTON TOWNSHIP EDUCATION

ASSOCIATION,

Charging Party-Appellant.

______________________________________________________

August 7, 2015

Argued November 5, 2014 Decided

Before Judges Ostrer and Hayden.

On appeal from the Public Employment Relations Commission, Docket No. CO-2010-484.

Keith Waldman argued the cause for appellant (Selikoff & Cohen, attorneys; Mr. Waldman, of counsel and on the brief).

Robin T. McMahon argued the cause for respondent (Cleary, Giacobbe, Alfieri, Jacobs LLC, attorneys; Ms. McMahon, of counsel and on the brief).

Martin R. Pachman, General Counsel, argued the cause for Public Employment Relations Commission.

PER CURIAM

The Washington Township Education Association (the Association) appeals from the November 21, 2013 decision of the Public Employment Relations Commission (PERC) dismissing the Association's unfair practice charges brought pursuant to the New Jersey Employer Employee Relations Act (the Act), N.J.S.A. 34:13A-1 to -30, against the Robbinsville Township Board of Education (the Board). For the reasons that follow, we affirm.

The Association, which represents all certified and non-certified non-supervisory personnel employed by the Board, and the Board entered into a collective negotiations agreement (CNA) effective July 1, 2008 through June 30, 2011. Pursuant to the CNA, new teachers were required to work 188 days; all other teachers were required to work 185. The number of days that the teachers were required to work determined their respective salaries under the CNA.

On March 17, 2010, the State notified the Board that its State aid for the 2010-2011 school year was being reduced. To address this issue, the Board sent a letter to the Association proposing to reopen negotiations on the current CNA. The Association rejected the Board's request. Thereafter, the Board adopted its 2010-2011 school year calendar, which incorporated the 188/185 work day requirement. In May 2010, the Board learned that the Township was also reducing its funding.

In response, the Board met with the Association to again request negotiations in order to avert layoffs and program cuts. The Association maintained that reopening negotiations was not in its best interest. On May 13, 2010, the Board held a meeting to address its budget shortfalls and decided to institute three furlough days for all teachers. The Board determined that permanent layoffs "would only cause more irreparable harm to the District's educational program and students" and "would simply add to the District's budget crisis, not resolve it."

The next day, the Superintendent sent an e-mail to faculty members informing them of the Board's decision to reduce the number of work days with a corresponding prorated reduction in compensation. The furloughs occurred on September 1, October 11, 2010, and February 22, 2011, which were designated "professional development days, not instructional days."

The Association filed unfair practice charges against the Board for violations of N.J.S.A. 34:13A-5.4a(1), (2) and (5) on June 11, 2010. The charges alleged that the Board was required to negotiate with the Association before imposing furlough days as the furloughs involved terms and conditions of employment, and that the Superintendent was directly dealing with the Association's membership rather than through the Association by sending an e-mail to faculty members announcing the furloughs. The Board denied the charges, and the parties cross-moved for summary judgment.

On November 21, 2013, PERC determined that the Board's decision to institute furloughs was "an exercise of its non-negotiable policy determination[.]"1 PERC also found that the Superintendent had "a legitimate and substantial business purpose[]" in sending the e-mail to faculty members as it was meant only to provide notice of the Board's action and, thus, did not interfere with the Association's role as the exclusive representative of the faculty members. Accordingly, PERC granted the Board's motion for summary judgment and dismissed the unfair practice charges. This appeal followed.

On appeal, the Association argues that PERC erred in ignoring "long-standing case law" which consistently held that the length of work days and compensation are mandatorily negotiable.2 In a supplementary letter after the Court issued its decision in Keyport, the Association maintains that Keyport does not control here because in that case the public employees imposed the furloughs pursuant to a civil service regulation that did not apply to the Board. Based upon the applicable law as articulated in Keyport, we conclude that PERC properly determined that the furloughs were non-negotiable managerial decisions.

We begin with a review of the well-established applicable legal principles. "PERC is charged with administering the New Jersey Employer-Employee Relations Act (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)). PERC is authorized to "make policy and establish rules and regulations concerning employer-employee relations in public employment relating to dispute settlement, grievance procedures and administration . . . to implement fully all the provisions of this act." N.J.S.A. 34:13A-5.2. "Generally 'we will not upset a State agency's 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)).

Public employees are constitutionally entitled to engage in collective negotiations. N.J. Const., art. I, 19; Council of N.J. State Coll. Locals, NJSFT-AFT/AFL-CIO v. State Bd. of Higher Educ., 91 N.J. 18, 25 (1982). Their representative organization is authorized to negotiate "terms and conditions of employment." N.J.S.A. 34:13A-5.3. So too, public employers are required to negotiate with the majority representatives, ibid., and the Act prohibits employers from refusing to negotiate in good faith. N.J.S.A. 34:13A-5.4(a)(5). However, the scope of those negotiations is limited because of the government's "special responsibilities to the public" to "make and implement public policy." In re Local 195, IFPTE, AFL-CIO, 88 N.J. 393, 401-02 (1982) (citations omitted).

PERC has the authority to determine whether a particular subject is within the scope of negotiations. N.J.S.A. 34:13A-5.4(d). PERC's determination implicates the dichotomy our Court has drawn between "mandatorily negotiable terms and conditions of employment and non-negotiable matters of governmental policy." Local 195, supra, 88 N.J. at 402 (quoting Ridgefield Park Educ. Ass'n v. Ridgefield Park Bd. of Educ., 78 N.J. 144, 162 (1978)).

In order to facilitate the decision whether a subject is negotiable with an employee's representative or is a non-negotiable managerial prerogative, the Supreme Court has provided a three-prong test for negotiability

[A] subject is negotiable between public employers and employees 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.

[City of Jersey City v. Jersey City Police Officers Benevolent Ass'n, 154 N.J. 555, 568 (1998) (quoting Local 195, supra, 88 N.J. at 404-05).]

In this case, prongs one and two are not at issue. There is no dispute that the furloughs resulted in reduced hours of work with resultant reductions in pay, and that these actions necessarily implicate the terms and conditions of employment. See Bd. of Educ. of Woodstown-Pilesgrove Reg'l Sch. Dist. v. Woodstown-Pilesgrove Reg'l Educ. Ass'n, 81 N.J. 582, 589 (1980) ("Rates of pay and working hours [are] items most clearly falling within" the terms and conditions of employment). Nor is there any claim here that the Board's actions were preempted by statute or regulation.3 Consequently, under the facts of this case, the third factor is critical in determining negotiability. See Keyport, supra, __ N.J. __ (slip op. at 4).

Prong three recognizes that most decisions of public employers "affect to some extent the work and welfare of public employees and that requiring negotiation in all such instances would impinge on the determination of public policy." Id. (slip op. at 36). As a result, these often competing interests must be balanced when determining which subjects are mandatorily negotiable. See Twp. of Franklin v. Franklin Twp. PBA Local 154, 424 N.J. Super. 369, 381 (App. Div. 2012). "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." City of Jersey City, supra, 154 N.J. at 568 (citing Local 195, supra, 88 N.J. at 405).

In determining that even temporary layoffs are non-negotiable, the Keyport Court reasoned that the decision to institute temporary layoffs implicates the same managerial prerogatives as permanent layoffs or subcontracting. Keyport, supra, __ N.J. __ (slip op. at 36-37, 39) (citing Local 195, supra, 88 N.J. at 406 (subcontracting); State v. State Supervisory Emps. Ass'n, 78 N.J. 54, 88 (1978) (layoffs); DiMattia v. N.J. Merit Sys. Bd., 325 N.J. Super. 368, 374-75 (App. Div. 1999)). Indeed, the Court apparently rested its decision on this prior case law, notwithstanding the Court's "recognition of that clear expression of legitimate public policy authorizing such action" embodied in the regulation permitting furloughs. Keyport, supra, __ N.J. __ (slip op. at 39).4 The Court reasoned that decisions whether to permanently or temporarily lay off public employees reflect "substantive policy determination[s] about whether and how to deliver public services[.]" Ibid. Moreover, the Court reinforced long-standing case law that economic considerations "are indisputably a legitimate basis for a layoff of any type." Ibid. As the Court stressed, requiring negotiations over temporary furloughs "would transfer the locus of the decision from the political process to the negotiating table . . . and ultimately to the courts. The result of such a course would significantly interfere with the determination of governmental policy and would be inimical to the democratic process." Id. at 38 (quoting Local 195, supra, 88 N.J. at 408) (citations omitted).

Moreover, similar to the municipalities' actions in Keyport, the Board imposed furloughs in response to the economic downturn and the significant reductions in funding from State and local government. Further, the Board sought to achieve a balance between the interests of public employees and the need to maintain and provide reasonable services. Thus, the furloughs at issue here are also exempted from negotiations under prong three. As the Court concluded in Keyport,

When a layoff plan has been prepared to accommodate policy determinations about the efficient delivery of services when economy is a factor, the public management's right to reduce its workforce -- by a layoff or restructuring of the number and type of positions, full or part-time - must be treated as a management prerogative.

[Id. at 44.]

Thus, we conclude that PERC properly determined that the Board was not required to negotiate before instituting the furloughs. Id. at 45.

Next, the Association argues that as the exclusive representative of faculty members, the Board was prohibited from directly dealing with its members with regard to mandatorily negotiable terms and conditions of employment. The Association contends that the Superintendent's e-mail discussing the change in the number of work days and compensation violated the Act, and constituted more than just a simple "notice to employees" as it invited faculty members to talk with the Superintendent regarding these issues. We disagree.

N.J.S.A. 34:13A-5.4(a)(1) and (2) prohibits public employers, their agents or representatives from "[i]nterfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act" or otherwise "[d]ominating or interfering with the formation, existence or administration of any employee organization." Here, as the record shows and PERC found, the Superintendent's e-mail did not seek to undermine the Association or interfere with the Association-faculty relationship. Rather, it was advisory in nature and served only to give notice to affected employees about the non-negotiable temporary lay-offs. As this determination was supported by the record, and hence was not "arbitrary or capricious[,]" City of Jersey City, supra, 154 N.J. at 568, we defer to the factual determinations and conclusions of PERC, the agency tasked with enforcing the Act. See In re Hunterdon Cnty. Bd. of Chosen Freeholders, 116 N.J. 322, 328 (1989) (noting that under the Act, the Legislature has empowered PERC with "broad authority and wide discretion" based on the agency's expertise and knowledge in this "highly specialized area of public life.").

Affirmed.

1 The Board relied on an unpublished Appellate Division decision, which was pending before the Supreme Court at the time and which the Court recently affirmed. Borough of Keyport v. Int'l Union of Operating Engineers, Local 68, Nos. A-0581-10, A-1411-10, A-1453-10 (App. Div. Feb. 26, 2013), certif. granted, 216 N.J. 366 (2013), aff'd, __ N.J. __ (2015).

2 The Association specifically argued that we should not rely on the reasoning in the unpublished Keyport decision because it was not based on the applicable law. Due to the recent affirmance, we need not address this contention.

3 In Keyport, the furloughs were made at a time when a civil service regulation, since repealed, allowed temporary furloughs. N.J.A.C. 4A:8-1.1(a). However, that regulation did not apply to the Board.

4 Thus, we reject the Association's argument that the regulation permitting furloughs in Keyport means that the Court's decision is not applicable here. The Court was clear that the regulation did not create an exemption to negotiating under prong two. Id. at 35.