IN THE MATTER OF RUTGERS, THE STATE UNIVERSITY OF NEW JERSEY AND FRATERNAL ORDER OF POLICE, LODGE 62 (PUBLIC EMPLOYMENT RELATIONS COMMISSION)

NOT FOR PUBLICATION WITHOUT THE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-0990-16T3

IN THE MATTER OF

RUTGERS, THE STATE UNIVERSITY
OF NEW JERSEY,

Petitioner-Respondent,

and

FRATERNAL ORDER OF POLICE,
LODGE 62,

Respondent-Appellant.
_______________________________

Submitted January 29, 2018 - Decided July 27, 2018

Before Judges Messano and Accurso.

On appeal from the Public Employment
Relations Commission, Docket No. SN-2016-
058.

Brickfield & Donahue, attorneys for
appellants, Fraternal Order of Police and
William DeFalco (Joseph R. Donahue, of
counsel and on the brief).

McElroy, Deutsch, Mulvaney & Carpenter, LLP,
attorneys for respondent Rutgers, The State
University of New Jersey (John J. Peirano,
of counsel; James P. Lidon and Seth Spiegal,
on the brief).
 Robin T. McMahon, General Counsel, attorney
for New Jersey Public Employment Relations
Commission (Frank C. Kanther, Deputy General
Counsel, on the statement in lieu of brief).

PER CURIAM

Rutgers, The State University of New Jersey, suspended one

of its campus police officers, William DeFalco, for more than

five days following an internal affairs investigation. A five-

day suspension constitutes major discipline. DeFalco's union,

Fraternal Order of Police, Lodge 62, grieved the suspension and

the University's subsequent refusal to advance him on the salary

guide based on a provision of the collective negotiations

agreement conditioning advancement on the officer being

suspension-free in the preceding year.

When the Union demanded binding arbitration following the

University's denial of the grievance after a hearing, the

University filed a scope petition with the Public Employment

Relations Commission. PERC issued a final decision that only

the procedural aspects of the dispute were arbitrable, that is,

the claims relating to notice, an opportunity to be heard and

the University's adherence to contractual investigatory and

disciplinary policies and procedures, including those relating

to advancement under the salary guide. PERC ruled the merits of

the suspension were not arbitrable. Specifically, PERC

2 A-0990-16T3
determined that amendments to N.J.S.A. 34:13A-5.3 in 20031 and

20052 had not altered the holdings of State v. State Troopers

Fraternal Association, 134 N.J. 393 (1993), and County of

Monmouth v. Communications Workers of America, 300 N.J. Super.

272 (1997), prohibiting police officers from arbitrating the

merits of major discipline. We agree and affirm.

Because the sole issue on appeal involves a question of

law, our review is de novo. Mayflower Sec. Co. v. Bureau of

Sec. in Div. of Consumer Affairs of Dep't of Law & Pub. Safety,

64 N.J. 85, 93 (1973). Notwithstanding, we accord PERC's

decision considerable deference because it hinged on

interpretation of the New Jersey Employer-Employee Relations

Act, N.J.S.A. 34:13A-1 to -43, the statute PERC is charged with

administering. See In re Bd. of Fire Com'rs, 443 N.J. Super.

1
L. 2003, c. 119, § 2 amended N.J.S.A. 34:13A-5.3 to permit
binding arbitration of disputes involving major discipline of
unionized employees of the State of New Jersey, with the
exception of the State Police, pursuant to the terms of any
collectively negotiated agreement.
2
L. 2005, c. 380, § 1 amended N.J.S.A. 34A:13-5.3 to provide
for a presumption of arbitrability in the interpretation of a
provision of a collectively negotiated agreement providing for
grievance arbitration, expressly providing that doubts as to the
scope of such a clause shall be resolved in favor of
arbitration. See Northvale Bd. of Educ. v. Northvale Educ.
Ass'n, 192 N.J. 501, 516 (2007) (J. Long, dissenting)
(describing the effect of the amendment as "a sea-change" in the
law of public sector arbitration).

3 A-0990-16T3
158, 172 (App. Div. 2015). "The standard of review of a PERC

decision concerning the scope of negotiations is 'thoroughly

settled. The administrative determination will stand unless it

is clearly demonstrated to be arbitrary or capricious.'" City

of Jersey City v. Jersey City Police Officers Benevolent Ass'n,

154 N.J. 555, 568 (1998) (quoting In re Hunterdon Cty. Bd. of

Chosen Freeholders, 116 N.J. 322, 329 (1989)).

Since the Supreme Court's decision in State Troopers, PERC

has consistently restrained binding arbitration of the merits of

major discipline of police officers, including those employed by

Rutgers. See, e.g., In re Rutgers, The State Univ. of New

Jersey and FOP Lodge 62, P.E.R.C. No. 2015-8, 41 N.J.P.E.R.

¶ 35, 2014 N.J. PERC LEXIS 83 at 3 (2014) (holding in a case

involving a ten-day suspension that State Troopers precludes

binding arbitration of major disciplinary disputes involving

police officers), aff'd, In re Rutgers, The State Univ. and FOP

Lodge 62, No. A-0455-14 (App. Div. Sep. 8, 2016); In re Rutgers,

The State Univ. of New Jersey and Superior Officers Ass'n,

P.E.R.C. No. 2013-12, 39 N.J.P.E.R. ¶ 47, 2012 N.J. PERC LEXIS

53 at 1 (2012) (holding in a demotion case that police officers

may not contest major disciplinary sanctions through binding

arbitration); In re Rutgers, The State Univ. and FOP Lodge 62,

P.E.R.C. No. 2007-5, 32 N.J.P.E.R. ¶ 113, 2006 N.J. PERC LEXIS

4 A-0990-16T3
220 at 3-4 (2006) (holding State Troopers, and Commission cases

applying that decision preclude binding arbitration of the

merits of major disciplinary actions against police officers),

aff'd, In re Rutgers, The State Univ. and FOP Lodge No. 62, No.

A-0485-06 (App. Div. Aug. 3, 2007); In re Rutgers, The State

Univ. and FOP, P.E.R.C. No. 96-22, 21 N.J.P.E.R. ¶ 356, 1995

N.J. PERC LEXIS 248 at 4-5 (1995) (same).

The Union asserts "that N.J.S.A. 34:13A-5.3, as amended in

2005, expressly provides for arbitration of major discipline if

agreed to by the parties." It fails, however, to address the

point we made when it raised the same issue against the

University in 2007 and again in 2016, that the 2003 amendment

authorizing binding arbitration of disputes involving major

discipline is directed to "the State of New Jersey" and not

other public employers, such as Rutgers, and thus the amendment

effective in 2005 creating a presumption in favor of

arbitrability is of no assistance to employees of Rutgers.3 See

3
As it pertains to binding arbitration of disputes involving
major discipline, N.J.S.A. 34:13A-5.3 as amended in 2003 and
2005 provides:

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
(continued)

5 A-0990-16T3
In re Rutgers, The State Univ. and FOP Lodge No. 62, No. A-0485-

06 (App. Div. Aug. 3, 2007) (slip op. at 3) ("The FOP presents

no argument based on the current provisions of N.J.S.A. 34:13A-

5.3 addressing arbitration and major discipline."); In re

Rutgers, The State Univ. of New Jersey and FOP Lodge 62, No.

(continued)
employee protected under the provisions of
this section, other than public employees
subject to discipline pursuant to [N.J.S.A.]
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.

[Emphasis supplied.]

6 A-0990-16T3
A-0455-14 (App. Div. Sep. 8, 2016) (slip op. at 10) ("[Rutgers]

and its police department are not the State of New Jersey.").4

As the Union has failed to advance any argument to assail

PERC's reasonable interpretation of the 2003 amendment to

N.J.S.A. 34:13A-5.3 as limited to the State of New Jersey, it

provides us no basis on which to find PERC's decision is

arbitrary or inconsistent with the statute. As we advised in

2007, "[w]e decline to consider questions of statutory

interpretation that have not been raised or briefed by the

parties or considered by the agency charged with the

responsibility of administering the law." In re Rutgers, The

State Univ. and FOP Lodge No. 62, No. A-0485-06 (App. Div. Aug.

3, 2007) (slip op. at 3).

Affirmed.

4
We cite our prior unpublished opinions involving the same
parties litigating the same issue not for their precedential
value, they have none, but to illustrate why we decline to
address a statutory argument the Union has again failed to
advance. Because the case history is relevant to the issue
before us, R. 1:36-3's prohibition against the citation of
unpublished opinions is not violated. See Badiali v. N.J. Mfrs.
Ins. Grp., 220 N.J. 544, 560 (2015).

7 A-0990-16T3