NOT FOR PUBLICATION WITHOUT THE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-3457-16T2
IN THE MATTER OF
OCEAN TOWNSHIP BOARD
OF EDUCATION,
Petitioner-Respondent,
v.
WARETOWN EDUCATION
ASSOCIATION,
Respondent-Appellant.
______________________________
Argued May 15, 2018 – Decided August 15, 2018
Before Judges Fisher and Sumners.
On appeal from the New Jersey Public
Employment Relations Commission, P.E.R.C.
Nos. 2017-45 and 2017-53.
Keith Waldman argued the cause for appellant
(Selikoff & Cohen, PA, attorneys; Keith
Waldman, of counsel and on the brief; Kathleen
L. Kirvan, on the brief).
Allan P. Dzwilewski argued the cause for
respondent Ocean Township Board of Education
(Schwartz Edelstein Law Group, LLC, attorneys;
Allan P. Dzwilewski, of counsel and on the
brief).
Joseph Blaney, Deputy General Counsel, argued
the cause for respondent Public Employment
Relations Commission (Robin T. McMahon,
General Counsel, attorney; Robin T. McMahon,
on the brief).
PER CURIAM
The Waretown Education Association (WEA) appeals from a scope
of negotiations determination by the Public Employment Relations
Commission (PERC), which declared as non-arbitrable, WEA's
grievance that the Ocean Township Board of Education (Board)
violated the parties' collective bargaining agreement (CBA) by
unilaterally assigning job duties performed by a WEA member to a
non-unit member. Because we conclude that PERC misapplied the
test regarding whether a dispute between a public employer and its
employees is negotiable, we reverse.
Beginning in 2003, a WEA member performed the duties of the
part-time positions of Substitute Caller and Transportation
Coordinator (collectively the positions). The job titles and
stipends for the positions have been part of the CBA since the
2008-2011 CBA. A change occurred in 2015, when the WEA member
performing the duties of the positions was promoted to fill the
vacant Superintendent's Secretary position – a non-WEA unit
position – and continued to perform the positions' duties and
receive the stipends for doing so. In response, WEA filed a
grievance under the CBA claiming the Board was required to
negotiate the transfer of recognized unit work to a non-unit
2 A-3457-16T2
employee. Contending the dispute was not negotiable because it
had the managerial prerogative to determine who filled the
positions, the Board filed a scope of negotiations petition with
PERC to restrain the grievance that by then had proceeded to
arbitration. While the arbitration and scope petition were
pending, the CBA expired and the Board unsuccessfully tried to
negotiate the positions out of the CBA's recognition clause during
the ensuing labor negotiations. Consequently, the positions and
stipends continued to be part of the new CBA.
The Board thereafter agreed to post the positions as sought
by WEA. The superintendent's secretary, who was still serving in
the positions, and WEA members applied. The status quo remained,
however, when the Board determined that the superintendent's
secretary was the best-qualified candidate to fill the positions,
and she remained in her non-WEA unit position. Thus, the Board
spurned WEA's demand that only WEA members should hold the
positions.
Following unsuccessful settlement efforts and the
arbitrator's denial of the Board's request to stay the arbitration
award pending the scope of negotiations petition as untimely, the
arbitrator issued his award sustaining the grievance on the basis
that the Board's appointment of the superintendent's secretary to
the positions and keeping her out of the WEA unit was expressly
3 A-3457-16T2
excluded by the CBA. In support, the arbitrator cited the CBA's
recognition clause and stipend schedule covering the positions;
the established past practice that the positions were performed
by a WEA member; the collective bargaining history; the
unpersuasive Board's position that the School Nurse (a WEA
position) could not perform the duties of the Substitute Caller
position during the school day; and finally, the Board's position
that the dispute was non-negotiable was contrary to the CBA.
Thereafter, PERC, which had stayed the scope of negotiations
petition pending the arbitration award, ruled that WEA's
"grievance challenging the [Board's] decision to continue the
superintendent's secretary as the district's substitute caller and
transportation coordinator is not mandatorily negotiable or
legally arbitrable." PERC determined that under the third prong
of three-prong negotiability test articulated in In re Local 195,
IFPTE, 88 N.J. 393, 404-05 (1982), the Board's selection of the
superintendent's secretary was a proper exercise of its managerial
prerogative "to meet its governmental policy goal" to determine
who was best qualified to fill the positions and assign the
responsibilities to that person. PERC denied WEA's motion for
reconsideration; rejecting WEA's arguments that an evidentiary
hearing was a necessary because there were no material facts in
dispute; that the decision rested on the interpretation of the
4 A-3457-16T2
unit-work rule; and that the Board's labor negotiations' proposal
to remove the positions from the CBA was fatal to its claim that
it had the authority to unilaterally assign the positions to a
non-WEA member.
We are mindful that PERC has "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." N.J.S.A. 34:13A-5.4(d); see
also, City of Jersey City v. Jersey City Police Officers Benevolent
Ass'n, 154 N.J. 555, 567-68 (1998). In making a scope of
negotiations determination, PERC decides the "limited" issue of
whether "the subject matter in 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) (quoting In
re Hillside Bd. of Educ., 1 N.J.P.E.R. 55, 57 (1975)).
In our review of a PERC ruling, we give deference to the
agency's interpretation of the New Jersey Employer-Employee
Relations Act (Act), N.J.S.A. 34:13A-1 to -43 "unless its
interpretations are plainly unreasonable, . . . contrary to the
language of the Act, or subversive of the Legislature's intent."
N.J. Tpk. Auth. v. AFSCME, Council 73, 150 N.J. 331, 352 (1997).
Said another way, we will only disturb a PERC decision that "is
5 A-3457-16T2
clearly demonstrated to be arbitrary or capricious." Jersey City,
154 N.J. at 568 (citation omitted).
In deciding whether WEA's grievance was arbitrable, PERC was
required to perform its limited function in determining if the
dispute was within the scope of negotiations observed, and not the
merits of the grievance. See Ridgefield Park Educ. Ass'n, 78 N.J.
at 154. In the seminal case of Local 195, our Supreme Court
established the following three-prong test for determining whether
an issue is mandatorily negotiable:
[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.
[88 N.J. at 404.]
In restraining WEA's grievance as non-arbitrable, PERC
determined the third prong sustained the Board's argument that it
did not have to negotiate the appointment of the superintendent's
secretary to perform the duties of the positions. The Court
summarized this prong in stating:
To decide whether a negotiated agreement would
significantly interfere with the
determination of governmental policy, it is
necessary to balance the interests of the
public employees and the public employer.
When the dominant concern is the government's
managerial prerogative to determine policy, a
6 A-3457-16T2
subject may not be included in collective
negotiations even though it may intimately
affect employees' working conditions.
[Id. at 404-05.]
As we see it, WEA's grievance is whether the Board deprived
the WEA of unit work, meaning, "shifting of work from employees
within a negotiations unit to other employees outside the unit."
Jersey City, 154 N.J. at 565. WEA argues that in applying the
Local 195's test of negotiability rule, PERC erred by not following
the Court's ruling sixteen years later in Jersey City, which held
that the transfer of unit work has consistently been held by PERC
to be mandatorily negotiable unless "(1) the union has waived its
right to negotiate over the transfer of unit work, (2)
historically, the job was not within the exclusive province of the
unit-personnel, and (3) the municipality is reorganizing the way
it delivers government services." Jersey City, 154 N.J. at 577.
WEA maintains that since none of these exceptions apply, PERC's
ruling is contrary to its own settled principles, and thus, its
grievance is arbitrable. New Milford Bd. of Educ., P.E.R.C. No.
93-102, 19 N.J.P.E.R. 265, 267 (¶ 24132 1993) (bargaining unit
members have a right to a position within the unit's CBA
recognition clause bargaining); Jersey City Bd. of Educ., P.E.R.C.
No. 80-145, 6 N.J.P.E.R. 434, 435 (¶ 11219 1980)(assigning unit
7 A-3457-16T2
work to non-unit employees for economic or educational policy
reasons is mandatorily negotiable, and therefore arbitrable.).1
PERC and the Board both contend that PERC properly applied
Local 195 in ruling that WEA's grievance was not mandatorily
negotiable, and, thus not arbitrable, because the Board exercised
a managerial prerogative in appointing whom it felt was best
qualified to fill the positions. PERC also argues WEA's reliance
upon New Milford is misguided because that situation involved
extracurricular activities, which are mandatorily negotiable under
N.J.S.A. 34:13A-23, and this dispute involves part-time duties
that are mandatorily negotiable under a law. PERC likewise
contends that its other decisions relied upon by WEA are factually
inapposite.
We agree with PERC and the Board that we need not determine
whether the unit work rule was violated because Local 195 controls
the negotiability test. We, however, part with their assessment
regarding the application of the test to WEA's grievance.
1
We decline to address WEA's additional argument that PERC's
refusal to revisit its decision is an "abrogati[on] of its
statutorily role as a neutral." WEA did not raise this argument
before PERC and it is not jurisdictional in nature nor does it
substantially implicate the public interest. Zaman v. Felton, 219
N.J. 199, 226-27 (2014) (citation omitted). Even had we addressed
the argument, it is without sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(1)(E).
8 A-3457-16T2
We conclude that PERC mistakenly applied Local 195 in
determining that WEA's grievance to maintain work in its unit
interferes with its managerial prerogative to decide who is
qualified to perform the duties of the positions. Through its
Local 195 analysis, PERC determined that WEA seeks to usurp the
Board's managerial prerogative to select who it feels is the person
or persons to fill the positions. We see no such interference in
the Board's managerial prerogative. Because WEA contends that the
positions are part of its unit based on the CBA and past practice,
its grievance seeks the relief of having a unit member fill the
positions. WEA's demand that the holder(s) of the positions be
part of its unit does not dictate whom the Board selects to fill
the positions. Rather, it contends that whoever is hired to fill
the positions must be part of WEA because the unit represents the
positions. We are convinced that to rule otherwise would deny WEA
its collectively bargained right to grieve alleged violations of
the CBA; in this case, concerns over the transfer of WEA unit work
without negotiation.
Given that the Local 195 negotiability test controls, we need
not decide whether the Board's action violated the unit work rule.
Yet, had we done so, we would have agreed substantially with the
reasoning articulated by the arbitrator in his decision sustaining
WEA's grievance as WEA lost positions from its unit when the Board
9 A-3457-16T2
shifted the positions' duties to the superintendent's office.
Jersey City, 154 N.J. at 575-76 (holding there was no need to
address the unit-work rule as the Local 195 negotiability test
applies, but in considering the rule, it would not have applied
since the bargaining unit suffered no loss of positions by the
public employer's reassignment of work from the unit).
Accordingly, PERC should not have restrained WEA's grievance
and the arbitration award in WEA's favor.
Reversed.
10 A-3457-16T2
IN THE MATTER OF OCEAN TOWNSHIP BOARD OF EDUCATION VS. WARETOWN EDUCATION ASSOCIATION (NEW JERSEY PUBLIC EMPLOYMENT RELATIONS COMMISSION)
Combined Opinion