PER CURIAM The State of New Jersey appeals from a September 24, 2015 final agency decision issued by the Public Employee Relations Commission (PERC) determining that the development of procedures for tenure-upon-hire in accordance
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4948-15T3
IN THE MATTER OF
STATE OF NEW JERSEY,
Petitioner-Appellant,
and
COUNCIL OF NEW JERSEY
STATE COLLEGE LOCALS, AFT,
Respondent-Respondent.
_____________________________
Argued October 24, 2017 – Decided November 21, 2017
Before Judges Hoffman and Mayer.
On appeal from the New Jersey Public
Employment Relations Commission, Docket No.
SN-2015-031.
John J. Peirano argued the cause for
appellant (McElroy, Deutsch, Mulvaney &
Carpenter, LLP, attorneys; Mr. Peirano, of
counsel and on the briefs; David M. Alberts,
on the briefs).
Kevin P. McGovern argued the cause for
respondent Counsel of New Jersey State
College Locals, AFT (Mets Schiro McGovern &
Paris, LLP, attorneys; Mr. McGovern, of
counsel and on the brief).
Don Horowitz, Senior Deputy General Counsel,
argued the cause for respondent New Jersey
Public Employment Relations Commission
(Robin T. McMahon, General Council,
attorney; Mr. Horowitz, on the statement in
lieu of brief).
PER CURIAM
The State of New Jersey appeals from a September 24, 2015
final agency decision issued by the Public Employee Relations
Commission (PERC) determining that the development of procedures
for tenure-upon-hire in accordance with
N.J.S.A. 18A:60-16
(Statute) are negotiable, and not pre-empted. We affirm.
On March 31, 2014, the Council of New Jersey State College
Locals, AFT (Council) filed a grievance on behalf of its union
member alleging that eight State colleges and universities
(Colleges) ignored demands to negotiate procedures for offering
tenure-upon-hire to new faculty contrary to the collective
negotiations agreement (CNA) between the State and Council.
The Council's grievance was denied by the New Jersey State
Office of Employee Relations. The Council appealed the denial of
its grievance and requested binding arbitration in accordance with
the CNA. The State filed a petition for a scope of negotiations
determination with PERC and sought to restrain arbitration,
arguing that the Statute preempted negotiation for tenure-upon-
hire procedures. PERC held the Statute did not preempt
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negotiations and denied the State's request to restrain
arbitration.
On appeal, the State argues: (1) the Statute preempts
negotiation over tenure-upon-hire procedures; (2) PERC improperly
relied on Bethlehem Township Board of Education v. Bethlehem
Township Education Association,
91 N.J. 38 (1982); and (3)
compelling negotiations for tenure-upon-hire procedures would
impinge upon public policy determinations.
We first address the appropriate standard of review. The
State argues that appellate review of PERC's scope of negotiations
determination should be de novo because PERC's determination turns
upon interpretation of a statute outside the scope of the agency's
expertise. The Council counters that PERC's determination should
be accorded substantial deference applicable to PERC's
interpretation of its enabling legislation, including scope of
negotiations determinations. See
N.J.S.A. 34:13A-5.4(d).
We are not "bound by [an] agency's legal opinions." A.B. v.
Div. of Med. Assistance & Health Servs.,
407 N.J. Super. 330, 340
(App. Div.), certif. denied,
200 N.J. 210 (2009) ("Statutory and
regulatory construction is a purely legal issue subject to de novo
review.") We need not accord deference where the statute that the
agency interprets is beyond the agency's charge. See Commc'ns
Workers, Local 1034 v. N.J. State Policemen's Benev. Ass'n, Local
3 A-4948-15T3
203,
412 N.J. Super. 286, 291 (App. Div. 2010) ("PERC's
interpretation of the law outside of its charge is entitled to 'no
special deference.'") (quoting In re Camden Cty. Prosecutor,
394 N.J. Super. 15, 23, (App. Div. 2007)). Where a scope of
negotiations determination is guided by PERC's interpretation of
a statute outside its area of expertise, as in this matter, PERC's
decision is not entitled to any special deference and our review
is de novo.
The Statute provides:
The board of trustees may, upon the hiring of
a new faculty member, grant tenure to the
member if he was previously under tenure at
an accredited four-year institution of higher
education. A State college shall develop
procedures regarding the granting of tenure
upon hiring to a new faculty member who was
previously under tenure at an accredited four-
year institution that are consistent with
decisions for tenure at the State college, and
shall include faculty members in the
development of the procedures.
[N.J.S.A. 18A:60-16(b).]
The State argues that tenure-upon-hire is statutorily pre-
empted and therefore non-negotiable. A statute or regulation will
preempt negotiability if it "fixes a term and condition of
employment 'expressly, specifically or [,] and comprehensively.'"
Bethlehem, supra,
91 N.J. at 44 (quoting Council of N.J. State
Coll. Locals v. State Bd. of Higher Educ.,
91 N.J. 18, 30 (1982)).
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The statute or regulation must "speak in the imperative and leave
nothing to the discretion of the public employer." State v. State
Supervisory Emps. Ass'n,
78 N.J. 54, 80 (1978). "Where a statute
sets both a maximum and a minimum level of employee rights or
benefits, mandatory negotiation is required concerning any
proposal for a level of protection fitting between and including
such maximum and minimum." Id. at 82; see also Bd. of Educ. v.
Fair Lawn Educ. Ass'n.,
174 N.J. Super. 554, 558 (App. Div. 1980).
We agree with PERC that "the statute's language establishes
no specifics with respect to tenure-upon-hire other than to require
dialogue between administrators and faculty members. Whereas a
preempting statute must be complete and shall say all that there
is to be said,
N.J.S.A. 18A:60-16(b), in contrast, does not." The
plain language of the Statute is not so express and explicit
regarding procedures for tenure-upon-hire that the Colleges are
left with no discretion and nothing to negotiate. We find the
express language of the Statute requires negotiations regarding
tenure-upon-hire procedures. See State Supervisory Emps. Ass'n,
supra,
78 N.J. at 82 (setting of guidelines in a statute does not
preclude negotiations for terms that fit within those guidelines).
Next, the State argues that the Statute's reference to
"faculty" precludes negotiations. This concept was expressly
rejected by the Court in Bethlehem Township Board of Education v.
5 A-4948-15T3
Bethlehem Township Education Association,
91 N.J. 38, 48 (1982).
Contrary to the State's argument, the term in the Statute is
"faculty members," not "faculty." The State's misreading of the
Statute is significant because the Legislature specifically and
unambiguously defined "faculty member" in the definition section
of the State and County College Tenure Act,
N.J.S.A. 18A:60-7.
"[F]aculty member" "means any full-time member of the teaching
staff appointed with academic rank. Other full-time professional
persons shall be considered faculty members if they concurrently
hold academic rank."
N.J.S.A. 18A:60-7(b).
Our role in interpreting the Statute is to "determine and
give meaning to the Legislature's intent[,]" by first examining
"the plain language of the statute, which is typically the best
indicator of intent." In re Plan for Abolition of Council on
Affordable Hous.,
214 N.J. 444, 467 (2013). We give words their
"ordinary, generally accepted meaning[,]" but when "the
Legislature uses technical words and phrases that have 'a special
or accepted meaning in the law,' we construe them 'in accordance
with such technical or special and accepted meaning.'" Ibid.
(quoting
N.J.S.A. 1:1-1). Courts will not "rewrite a plainly-
written enactment of the Legislature [or] presume that the
Legislature intended something other than that expressed by way
6 A-4948-15T3
of the plain language." Marino v. Marino,
200 N.J. 315, 329 (2009)
(quoting O'Connell v. State,
171 N.J. 484, 488 (2002)).
Because the Legislature defined the term "faculty member" as
any full-time member of the teaching staff, we need not look beyond
the expressed definition of that phrase. Therefore, we disagree
that "faculty" is limited to faculty who serve in a collegial
governance and managerial capacity and excludes faculty who serve
in a union member capacity.
We also reject the State's argument that PERC improperly
relied on Bethlehem in determining that tenure-upon-hire
procedures are negotiable. The Bethlehem case involved
promulgating procedures for evaluating tenured teachers in
accordance with regulations adopted by the local boards of
education. Several teachers' unions demanded negotiations to
establish procedures relating to tenured teacher evaluations. The
school districts filed scope of negotiations petitions with PERC,
and the agency concluded that the regulations preempted
negotiation.
The Bethlehem Court disagreed and found that regulations
requiring schools to develop procedures with respect to the
evaluations did not preempt negotiation of those procedures. The
Court reasoned, "[t]his is evidenced by the fact that the rules
specifically leave to each local board the responsibility of
7 A-4948-15T3
fleshing out the details of its program." Bethlehem, supra,
91 N.J. at 46. The Court wrote:
In effect, the Boards ask us to turn a simple
legislative requirement of consultation with
teachers into a total ban on negotiations.
The rule's "in consultation with" language
establishes no specifics on teacher
evaluation, other than to require a dialogue
between school administrators and teachers.
The effect of allowing such an open-ended
regulation to preempt negotiation on this
entire subject matter would be to give local
boards carte blanche to establish whatever
terms and conditions of employment it desired.
. . . . [A] regulation must speak
comprehensively and in the imperative if it
is to be given preemptive effect. This is
because a regulation will preempt negotiation
only if it leaves no room for discussion as
to what is required of both the employer and
the employee. Hence, a preempting regulation
must be complete; it must say all there is to
be said. This regulation, in contrast, does
not.
As we read this provision, it seems clear that
the "in consultation with" language was
intended to encourage discussion
. . . . Therefore, rather than restricting
the channels of communication, this provision
actually requires discussion and, where
appropriate, negotiation on the subjects of
procedures for evaluating tenured teachers and
the mechanism for discussing evaluation
standards.
[Id. at 47–48 (citations omitted).]
PERC cited extensively from the Bethlehem decision finding
that the Statute did not preempt negotiations. Like the Bethlehem
case, the Statute gives a general guideline and directs the
8 A-4948-15T3
Colleges to develop their own procedures with mandatory inclusion
of faculty members. See
N.J.S.A. 18A:60-16(b). Similar to the
regulation in Bethlehem, the Statute refers only to procedures,
and not to substantive determinations of hiring or tenure. The
State's attempt to distinguish the Bethlehem case is misguided as
the term "faculty" is not limited to members of the Colleges'
governing body for the reasons we have stated. Nor are we
persuaded by the State's argument that Bethlehem is
distinguishable because the procedures in that case applied to
current employees as opposed to prospective hires. The terms and
conditions of employment for prospective employees are negotiable.
See Belleville Ed. Ass'n v. Belleville Bd. of Ed.,
209 N.J. Super.
93, 97 (App. Div. 1986) (establishing that initial placement on
the salary scale for new hires is a term and condition of
employment and is negotiable). The remainder of the State's
arguments distinguishing the Bethlehem case are without sufficient
merit to warrant further discussion. R. 2:11-3(e)(1)(E).
Lastly, we reject the State's argument that compelling
negotiations for tenure-upon-hire procedures would impinge upon
public policy by interfering with the Colleges' managerial rights.
See In re Local 195, IFPTE,
88 N.J. 393 (1982). As the Court
recognized In re Local 195, "negotiation will always impinge to
some extent on the determination of governmental policy. The
9 A-4948-15T3
requirement that the interference be 'significant' is designed to
effect a balance between the interests of public employees and the
requirements of democratic decision making." Id. at 404 (citation
omitted). The hypotheticals proffered by the State lack the
requisite significant interference to deem tenure-upon-hire
procedures non-negotiable. The State did not cite any authority
deeming tenure-upon-hire procedures to be unique from procedures
that affect terms and conditions of employment, including tenure,
so as to be negotiable. See State Supervisory Employees Ass'n,
supra,
78 N.J. at 90-91 ("promotional criteria are not mandatorily
negotiable while promotional procedures are so negotiable.")
We perceive no ambiguity in the Statute that requires us to
reach beyond the plain language to determine its meaning. The
Statute is straightforward and contemplates negotiations for
adopting procedures relating to tenure-upon-hire.
Affirmed.
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