IN THE MATTER OF BOROUGH OF MILLTOWN AND OPEIU LOCAL 32

NOT FOR PUBLICATION WITHOUT THE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-1306-17T1

IN THE MATTER OF
BOROUGH OF MILLTOWN,

      Petitioner-Appellant,

and

OPEIU LOCAL 32,

     Respondent-Respondent.
_______________________________

           Argued April 24, 2018 – Decided May 4, 2018

           Before Judges Hoffman and Gilson.

           On appeal from the New Jersey Public
           Employment Relations Commission, P.E.R.C. No.
           2018-15.

           Andrea E. Wyatt argued the cause for appellant
           (Gilmore & Monahan, PA, attorneys; Andrea E.
           Wyatt, on the briefs).

           Kevin P. McGovern argued the cause for
           respondent Opeiu Local 32 (Mets Schiro &
           McGovern, LLP, attorneys; Kevin P. McGovern,
           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, attorney; Joseph
           P. Blaney, on the statement in lieu of brief).
PER CURIAM

     The Borough of Milltown (the Borough) appeals from a Public

Employment    Relations   Commission   (PERC)   determination,       which

declared as arbitrable the decision of whether certain employees

were covered by a collective negotiations agreement (CNA).                We

affirm.

                                   I

     The underlying dispute involves a CNA between OPEIU Local 32

(the Union) and the Borough covering certain Borough employees.

Article I of the CNA addresses recognition and designates the

Union as "the bargaining agent for all full-time and part-time

employees who regularly work in the job titles set forth on

Schedule A . . . ."    Schedule A includes "Part-time Public Safety

Telecommunications Operator," commonly referred to as dispatcher.

Article I also specifically excludes "all supervisors, managerial

executives,   and   confidential   employees"   as   well   as   "seasonal

employees."

     Article XXV defines part-time employees as "employees who

regularly work at least twenty (20) hours per week.              Effective

January 1, 2006 part-time employee means employees who regularly

work at least twenty-five (25) hours per week."        Article XXV then

continues to define benefits for part-time employees.                Those

benefits include "[t]hat portion of any holiday listed in Article

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XII which the employee was regularly scheduled to work."             Article

XII addresses holidays, and includes Christmas Day as a paid

holiday.    Article V addresses overtime and states "[a]ny employee

scheduled or called into work Thanksgiving or Christmas shall be

paid double time plus the regular holiday pay."                Article XXIII

states the grievance process ends with binding arbitration through

PERC.

     Three part-time dispatchers worked on Christmas Day 2016.

They received double time, but not the additional holiday pay.

The Borough asserts the dispatchers were hired after January 1,

2006, and regularly worked less than twenty-five hours per week.

The Union does not dispute that fact.

     The Union filed a grievance with the Borough on behalf of the

part-time dispatchers.     The business administrator for the Borough

denied the grievance on the grounds that "the subject employees

are not members of the Union."           The grievance proceeded to the

next step, where the Committee of the Borough Council held a

meeting with the Union.         The Committee denied the grievance,

"maintain[ing] its position that these employees are not Union

employees."

     The Union next requested arbitration from PERC.             The Borough

responded    by   filing   a   petition    with   PERC   for    a   scope    of

negotiations      determination,   seeking   restraint    of     arbitration

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because the employees are not unit members.                On October 26, 2017,

PERC denied the Borough's request to restrain the arbitration,

reasoning an arbitrator should decide whether the employees are

unit members; the Borough appeals from that decision.

                                        II

     The Borough argues the New Jersey Employer-Employee Relations

Act (the Act), 
N.J.S.A. 34:13A-1 to -43, does not permit a union

to arbitrate grievances on behalf of non-unit members.                    The Union

contends there is a dispute regarding whether the employees are

unit members covered by the CNA, and that dispute is a matter of

contract interpretation that should be decided by the arbitrator.

The Borough responds by arguing there is no factual dispute over

whether the employees are non-unit members because the Union

presented no evidence to the contrary.

     Courts     must   "apply   a   deferential      standard      of    review    to

determinations made by PERC."           Jersey City v. Jersey City Police

Officers     Benevolent   Ass'n,     
154 N.J.   555,   567    (1998).       "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.'"           Id.    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

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settled.     The administrative determination will stand unless it

is clearly demonstrated to be arbitrary or capricious.'"      Id. at

568 (quoting In re Hunterdon Cty. Bd. of Chosen Freeholders, 
116 N.J. 322, 329 (1989)).

     PERC is charged with administering the Act, 
N.J.S.A. 34:13A-

5.2, and has primary jurisdiction to determine "whether the subject

matter of a particular dispute is within the scope of collective

negotiations."    Ridgefield Park Educ. Ass'n v. Ridgefield Park Bd.

of Educ., 
78 N.J. 144, 154 (1978) (citing 
N.J.S.A. 34:13A-5.4(d)).

PERC's role is to make a threshold determination of whether the

disputed matter is something the parties can legally negotiate and

make subject to arbitration.     
N.J.S.A. 34:13A-5.4(d).    PERC may

not interpret contracts; contractual interpretation is for an

arbitrator.     Bd. of Educ. v. CAM/VOC Teachers Ass'n, 
183 N.J.

Super. 206, 211 (App. Div. 1982) (citing Ridgefield Park, 
78 N.J.

at 154).

     PERC has previously held that questions regarding whether a

particular employee is covered under the recognition clause of a

CNA, is a question of contract interpretation for the arbitrator

to decide.    City of Hoboken, P.E.R.C. No. 96-016, 21 N.J.P.E.R. ¶

26214, 1
995 N.J. PERC LEXIS 241 at 6 (1995), aff'd, No. A-1619-95

(App. Div. Feb. 5, 1997).      In Hoboken, a police sergeant also

worked as an Emergency Management Coordinator (EMC).       Id. at 3.

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The issue presented was whether the sergeant was covered under the

recognition clause of the police officers' CNA while performing

duties as an EMC.     Id. at 6.   PERC allowed arbitration, holding,

"We do not decide these questions which properly belong to the

arbitrator instead of us."   Ibid. (citing Ridgefield Park, 
78 N.J.

at 155).

     Here, we agree with the Borough that the Act does not permit

a union to arbitrate grievances on behalf of non-unit members.

See, e.g., Twp. of Lyndhurst, P.E.R.C. No. 2017-41, 43 N.J.P.E.R.

¶ 85, 2
017 N.J. PERC LEXIS 9 at 11 (2017). However, the underlying

dispute here concerns whether the employees are unit members

covered by the CNA.    PERC decides whether a dispute is within the

scope of collective negotiations, that is, whether the Act allows

collective negotiation of the subject.      
N.J.S.A. 34:13A-5.4(d).

However, when the subject is one permitted within the Act and

there is an arbitration clause, the arbitrator decides whether a

subject is actually covered by a particular agreement.    Ridgefield

Park, 
78 N.J. at 155.     In this case, the Borough does not argue

the Act prohibits negotiation of holiday pay; instead the Borough

argues the particular employees are not covered by the particular

agreement.   The question of whether the employees are covered

under the CNA's recognition clause is for the arbitrator to decide.



                                   6                         A-1306-17T1
       Furthermore, we reject the Borough's argument that the Union

presented no evidence to dispute the Borough's contention the

employees are non-unit members.           The Union takes the position that

the CNA covers all part-time dispatchers, arguing the twenty-five

hour    requirement     only    applies     to    certain   benefits.        That

determination does not require a factual finding, but rather a

legal interpretation.          The PERC decision allowing the arbitrator

to     resolve   that   legal     question       was   neither   arbitrary    nor

capricious, but based on established case law.

       Affirmed.




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