IN THE MATTER OF RUTGERS THE STATE UNIVERSITY

NOT FOR PUBLICATION WITHOUT THE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 RUTGERS,

THE STATE UNIVERSITY,

Petitioner-Respondent,

and

FOP LODGE 62,

Respondent-Appellant.

September 8, 2016

Submitted February 29, 2016 Decided

Before Judges Nugent and Higbee.

On appeal from New Jersey Public Employment Relations Commission, Docket No. SN-2014-033.

C. Elston & Associates, LLC attorneys for appellant (Catherine M. Elston, of counsel and on the briefs).

McElroy, Deutsch, Mulvaney & Carpenter, LLP attorneys for respondent (John J. Peirano, of counsel; James P. Lidon, on the brief).

Don Horowitz, Acting General Counsel, attorney for respondent New Jersey Public Employment Relations Commission (Mr. Horowitz, on the statement in lieu of brief).

PER CURIAM

The New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 to -43 (the Act), provides, among other things

Where the State of New Jersey and the majority representative have agreed to . . . binding arbitration of disputes involving . . . major discipline . . ., the grievance and disciplinary review procedures established by agreement . . . shall be utilized for any dispute covered by the terms of such agreement.

[N.J.S.A. 34:13A-5.3.]

On this appeal, appellant challenges the Public Employment Relations Commission's (PERC) determination that the statutory reference to the "State of New Jersey" refers only to the State of New Jersey and not to all public employers. Based on its statutory interpretation, PERC restrained binding arbitration of a grievance. For the reasons that follow, we affirm.

Fraternal Order of Police Primary Unit, Lodge 62 (FOP), represents police officers employed by Rutgers, the State University (RU), including the officer contesting the major discipline at issue in this action.1 The discipline was imposed following an internal affairs investigation stemming from a citizen complaint about the conduct of the RU police officer. The RU Police Department sustained several charges against the officer and suspended the officer for eighty hours. The FOP filed a grievance and unsuccessfully pursued it through the first three steps of the grievance procedure contained in the parties' collective negotiations agreement (CNA). The FOP then pursued the fourth step, seeking binding arbitration. RU responded by filing a scope-of-negotiations petition, seeking to restrain binding arbitration. PERC granted RU's petition.

In its August 14, 2014 decision, PERC determined the relevant statute authorizing binding arbitration of disputes involving major discipline discipline which includes a suspension of more than five days "only applies to unionized employees of the State of Jersey." Rutgers, the State University, P.E.R.C. No. 2015-8, 41 N.J.P.E.R. 35, 101, 103 (2014). PERC also rejected procedural challenges FOP had made to RU imposing major rather than minor discipline. Ibid. This appeal followed.

On appeal, FOP argues "the parties negotiated a disciplinary procedure that included binding arbitration for major discipline [and] PERC's restraint of arbitration of that discipline is erroneous." FOP contends that under the express language of N.J.S.A. 34:13A-5.3, its officer "had the contractual right to arbitrate his major discipline." Under the language of the CNA, according to the appellants, there is no exemption from step four of the grievance procedure, and arbitration is required.

RU counters that the penultimate paragraph of N.J.S.A. 34:13A-5.3 does not apply to it. Rather, the relevant statutory provision covers agreements with the "State of New Jersey," not with any "public employers."

In its brief, PERC reiterates its holding "that [RU] has a managerial prerogative to impose major or minor discipline," and that State v. State Troopers Fraternal Ass'n, 134 N.J. 393 (1993) precludes binding arbitration of major disciplinary disputes involving police officers. PERC asserts that it applied its expertise of public employment labor relations in New Jersey and its expert judgment should be accepted on appeal.

FOP asserts that the interpretation of the statute by PERC is erroneous. FOP argues that no deference should be given to PERC because of this erroneous interpretation, which "flies in the face of the express language of the statute and the statute's legislative intent."

Our review of "PERC's interpretations of the Act, the statute it is charged with enforcing, is limited." In re Bd. of Fire Comm'rs, 443 N.J. Super. 158, 172 (App. Div. 2015), certif. denied, ___ N.J. ___ (2016). "In the absence of constitutional concerns or countervailing expressions of legislative intent, we apply a deferential standard of review to determinations made by PERC." Id. at 172-73 (quoting City of Jersey City v. Jersey City Police Officers Benevolent Ass'n, 154 N.J. 555, 567 (1998)). "PERC's determination must be upheld unless the party appealing it shows that it is clearly arbitrary and capricious." Id. at 173 (citation omitted).

Here, FOP has not raised any bona fide constitutional concerns to PERC's interpretation of the Act, and we can determine no countervailing expressions of legislative intent. To the contrary, we find PERC's interpretation of the statute consistent with what we can discern as the legislative intent.

N.J.S.A. 34:13A-5.3 states in its entirety

Except as hereinafter provided, public employees shall have, and shall be protected in the exercise of, the right, freely and without fear of penalty or reprisal, to form, join and assist any employee organization or to refrain from any such activity; provided, however, that this right shall not extend to elected officials, members of boards and commissions, managerial executives, or confidential employees, except in a school district the term managerial executive shall mean the superintendent of schools or his equivalent, nor, except where established practice, prior agreement or special circumstances dictate the contrary, shall any supervisor having the power to hire, discharge, discipline, or to effectively recommend the same, have the right to be represented in collective negotiations by an employee organization that admits nonsupervisory personnel to membership, and the fact that any organization has such supervisory employees as members shall not deny the right of that organization to represent the appropriate unit in collective negotiations; and provided further, that, except where established practice, prior agreement, or special circumstances dictate the contrary, no policeman shall have the right to join an employee organization that admits employees other than policemen to membership. The negotiating unit shall be defined with due regard for the community of interest among the employees concerned, but the commission shall not intervene in matters of recognition and unit definition except in the event of a dispute.

Representatives designated or selected by public employees for the purposes of collective negotiation by the majority of the employees in a unit appropriate for such purposes, by the majority of the employees voting in an election conducted by the commission as authorized by this act or, at the option of the representative in a case in which the commission finds that only one representative is seeking to be the majority representative, by a majority of the employees in the unit signing authorization cards indicating their preference for that representative, shall be the exclusive representatives for collective negotiation concerning the terms and conditions of employment of the employees in such unit. An authorization card indicating preference shall not be valid unless it is printed in a language understood by the employees who signs it.

Nothing herein shall be construed to prevent any official from meeting with an employee organization for the purpose of hearing the views and requests of its members in such unit so long as (a) the majority representative is informed of the meeting; (b) any changes or modifications in terms and conditions of employment are made only through negotiation with the majority representative; and (c) a minority organization shall not present or process grievances. Nothing herein shall be construed to deny to any individual employee his rights under Civil Service laws or regulations. When no majority representative has been selected as the bargaining agent for the unit of which an individual employee is a part, he may present his own grievance either personally or through an appropriate representative or an organization of which he is a member and have such grievance adjusted.

A majority representative of public employees in an appropriate unit shall be entitled to act for and to negotiate agreements covering all employees in the unit and shall be responsible for representing the interest of all such employees without discrimination and without regard to employee organization membership. Proposed new rules or modifications of existing rules governing working conditions shall be negotiated with the majority representative before they are established. In addition, the majority representative and designated representatives of the public employer shall meet at reasonable times and negotiate in good faith with respect to grievances, disciplinary disputes, and other terms and conditions of employment. Nothing herein shall be construed as permitting negotiation of the standards or criteria for employee performance.

When an agreement is reached on the terms and conditions of employment, it shall be embodied in writing and signed by the authorized representatives of the public employer and the majority representative.

Public employers shall negotiate written policies setting forth grievance and disciplinary review procedures by means of which their employees or representatives of employees may appeal the interpretation, application or violation of policies, agreements, and administrative decisions, including disciplinary determinations, affecting them, provided that such grievance and disciplinary review procedures shall be included in any agreement entered into between the public employer and the representative organization. Such grievance and disciplinary review procedures may provide for binding arbitration as a means for resolving disputes. Except as otherwise provided herein, the procedures agreed to by the parties may not replace or be inconsistent with any alternate statutory appeal procedure nor may they provide for binding arbitration of disputes involving the discipline of employees with statutory protection under tenure or civil service laws, except that such procedures may provide for binding arbitration of disputes involving the minor discipline of any public employees protected under the provisions of section 7 of P.L.1968, c. 303 (C.34:13A-5.3), other than public employees subject to discipline pursuant to R.S.53:1-10. Grievance and disciplinary review procedures established by agreement between the public employer and the representative organization shall be utilized for any dispute covered by the terms of such agreement. For the purposes of this section, minor discipline shall mean a suspension or fine of less than five days unless the employee has been suspended or fined an aggregate of 15 or more days or received more than three suspensions or fines of five days or less in one calendar year.

Where the State of New Jersey and the majority representative have agreed to a disciplinary review procedure that provides for binding arbitration of disputes involving the major discipline of any public employee protected under the provisions of this section, other than public employees subject to discipline pursuant to R.S.53:1-10, the grievance and disciplinary review procedures established by agreement between the State of New Jersey and the majority representative shall be utilized for any dispute covered by the terms of such agreement. For the purposes of this section, major discipline shall mean a removal, disciplinary demotion, suspension or fine of more than five days, or less where the aggregate number of days suspended or fined in any one calendar year is 15 or more days or unless the employee received more than three suspensions or fines of five days or less in one calendar year.

In interpreting the meaning and extent of a provision of a collective negotiation agreement providing for grievance arbitration, a court or agency shall be bound by a presumption in favor of arbitration. Doubts as to the scope of an arbitration clause shall be resolved in favor of requiring arbitration.

Evident is the Legislature's use of the phrases "public employer" and "public employers" in paragraphs five and six, in contrast to the "State of New Jersey" in the seventh paragraph. The phrase "employer" is defined in the Act and includes "'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." N.J.S.A. 34:13A-3(c). The term "State of New Jersey" is thus not a term co-extensive with the term "public employer." "[W]here the Legislature has clearly and explicitly defined a term within a statute, we must assume it did so intentionally and with the intent that its stated definition be applied to that term throughout the statute." Ciesla v. N.J. Dep't of Health & Sr. Servs., 429 N.J. Super. 127, 143-44 (App. Div. 2012) (alteration in original) (quoting Commerce Bancorp, Inc. v. InterArch, Inc., 417 N.J. Super. 329, 336-37 (App. Div. 2010), certif. denied, 205 N.J. 519 (2011)).

Moreover, in construing this statute, as is the case when construing any statute, "words and phrases shall be read and construed with their context, and shall, unless inconsistent with the manifest intent of the legislature or unless another or different meaning is expressly indicated, be given their generally accepted meaning, according to the approved usage of the language." N.J.S.A. 1:1-1. We fail to discern any ambiguity concerning the phrase the State of New Jersey.

RU and its police department are not the State of New Jersey. "Rutgers has been described as 'a hybrid institution at one and the same time private and public, with the State being granted a major voice in management, and the designation 'State University'; and the institution being granted private autonomy and control of physical properties and assets.'" Fine v. Rutgers, 163 N.J. 464, 468 (2000) (quoting Trs. of Rutgers Coll. in N.J. v. Richman, 41 N.J. Super. 259, 289-90 (Ch. Div. 1956)).

Having considered PERC's decision concerning the statute, and having found no countervailing expressions of legislative intent, we cannot conclude PERC's decision is clearly arbitrary and capricious.

Affirmed.

1 For ease of reference we use "FOP" in this opinion to include the organization and the aggrieved member.