NOT FOR PUBLICATION WITHOUT THE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-4334-18T1
IN THE MATTER OF RUTGERS,
THE STATE UNIVERSITY OF
NEW JERSEY,
Petitioner-Respondent,
and
FOP LODGE 164, SUPERIOR
OFFICERS ASSOCIATION,
Respondent-Appellant.
_______________________________
Argued June 4, 2020 – Decided July 22, 2020
Before Judges Suter and DeAlmeida.
On appeal from the New Jersey Public Employment
Relations Commission, PERC No. 2019-44.
Catherine Mary Elston argued the cause for appellant
(C. Elston & Associates, LLC, attorneys; Catherine
Mary Elston, of counsel and on the briefs; Cathlene Y.
Banker, on the briefs).
James P. Lindon argued the cause for respondent
Rutgers, The State University of New Jersey (McElroy,
Deutsch, Mulvaney & Carpenter, LLP, attorneys;
James P. Lidon, of counsel and on the brief; Kelly R.
Anderson, on the brief).
Don Horowitz, Senior Deputy General Counsel, argued
the cause for respondent the New Jersey Public
Employment Relations Commission (Christine
Lucarelli, General Counsel, attorney; Don Horowitz, on
the statement in lieu of brief).
PER CURIAM
Lodge 164 of the Fraternal Order of Police, Superior Officers Association
(the FOP), appeals from a scope-of-negotiations determination by the Public
Employment Relations Commission (PERC). See N.J.S.A. 34:13A-5.4(d). We
affirm.
I.
In May 2018, Rutgers, the State University of New Jersey (Rutgers)
terminated Sergeant Michael Farella's employment as a member of the Rutgers
Police Department for disciplinary reasons. The FOP filed a grievance under
the collective negotiations agreement, challenging the termination decision
and—following appointment of an arbitrator, who scheduled an arbitration
proceeding—unsuccessfully pursued arbitration through three steps 1 of the
grievance procedure.
1
The third step was waived by the parties.
A-4334-18T1
2
In November 2018, Rutgers filed a petition with PERC for a scope-of-
negotiations determination, seeking to restrain binding arbitration. Rutgers
contended the termination action constituted major discipline, which was not
subject to binding arbitration.
Under N.J.S.A. 34:13A-5.3, as construed by well-
settled Commission and court precedent, the merits of
major discipline imposed upon a police officer are non-
negotiable and, thus, non-arbitrable matters of
managerial prerogative. Consequently, the University
seeks a determination by the Commission that the
grievance seeks binding arbitration concerning a non-
negotiable matter, and an order restraining arbitration.
FOP opposed the scope petition, arguing that State v. State Troopers
Fraternal Association, 134 N.J. 393 (1993), relied on by Rutgers, was not the
"sweeping opinion" that Rutgers said it was. Because the statutes governing
operations of Rutgers' police do not provide for discipline, see N.J.S.A. 18A:6-
4.2 to -11, the FOP argued State Troopers did not preclude arbitration; rather, it
is the "statutory authority of the public employer to determine the discipline to
be imposed."
On April 25, 2019, PERC granted Rutgers' request to restrain binding
arbitration. Citing State Troopers, PERC concluded "[p]olice officers may not
contest the merits of major disciplinary sanctions (suspension or fines of more
than five days, demotions, and terminations) through contractual binding
A-4334-18T1
3
arbitration." Although N.J.S.A. 34:13A-5.3 was amended after State Troopers
was decided, PERC found this did not "expand the right to binding arbitration
for police officers beyond review of minor disciplinary actions," citing
Monmouth County v. CWA, 300 N.J. Super. 272 (App. Div. 1997). FOP
appealed PERC's decision.
The arbitration hearing was scheduled for August 2019. The arbitrator
would not cancel the hearing at Rutgers' request because "[t]here is nothing in
the PERC ruling that mentions or precludes the arbitration of procedural issues
of disciplinary determinations, which will be the issue before the [a]rbitrator at
the August 20, 2019 hearing." Rutgers filed a motion with PERC seeking
compliance and enforcement of its earlier decision that the FOP opposed.
In a letter dated August 7, 2019, PERC denied without prejudice Rutgers'
request to commence enforcement proceedings relief because it "believe[d]
Rutgers[] ha[d] the ability to cross-appeal [from the FOP's earlier appeal] and
apply to the Appellate Division for a stay of the arbitration." PERC also stood
by its April 25, 2019 decision "restraining arbitration without qualification,"
noting that "neither party raised procedural issues or presented documents
relating to procedural arguments addressed at earlier steps of the grievance
procedure." Rutgers sought emergent relief. On August 20, 2019, we granted
A-4334-18T1
4
Rutgers' request to stay the arbitration and to cross-appeal the April 25, 2019
order and August 7, 2019 letter, but we denied the cross-appeal as moot because
we stayed the arbitration. The FOP amended its notice of appeal to include the
August 7, 2019 letter.
On appeal, the FOP raises these issues:
II. PERC ACTED ARBITRARILY AND
CAPRICIOUSLY IN REJECTING FOP 164'S
CONTENTION THAT THE PROHIBITION
AGAINST CONTESTING THE MERITS OF MAJOR
DISCIPLINARY SANCTIONS THROUGH
CONTRACTUAL BINDING ARBITRATION
ENUNCIATED IN [STATE TROOPERS] DOES NOT
APPLY TO CAMPUS POLICE OFFICERS.
III. PERC ACTED ARBITRARILY AND
CAPRICIOUSLY WHEN IN ITS AUGUST 7, 2019
LETTER DECISION IT CONSTRUED ITS APRIL 25,
2019 DECISION AND ORDER AS NOT BEING
LIMITED TO THE RESTRAINT OF ARBITRATION
AS TO THE MERITS OF THE DISCIPLINARY
TERMINATION CHALLENGED BY FOP 164'S
GRIEVANCE.
II.
"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.'" In re Belleville Educ. Ass'n, 455 N.J. Super. 387, 400 (App. Div.
A-4334-18T1
5
2018) (quoting City of Jersey City v. Jersey City Police Officers Benevolent
Ass'n, 154 N.J. 555, 567-68 (1998)). "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." Ibid. (quoting Jersey City, 154 N.J. at 568).
The FOP does not present any argument that would permit this court to
reverse PERC’s decision on the grounds that: "(1) it was arbitrary, capricious,
or unreasonable; (2) it violated express or implied legislative policies; (3) it
offended the State or Federal Constitution; or (4) the findings on which it was
based were not supported by substantial, credible evidence in the record." Shim
v. Rutgers, 191 N.J. 374, 384 (2007). PERC's decision restrained binding
arbitration on the merits of a major discipline of a police officer—here a Rutgers
police officer. This has been PERC's position consistently since State Troopers
was decided.
There is no indication PERC's decision violated express or implied
legislative policies. The FOP did not address that N.J.S.A. 34:13A-5.3 was
amended after State Troopers to refer expressly to major discipline. Only 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
A-4334-18T1
6
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.
[N.J.S.A. 34:13A-5.3.]
The Rutgers police are not the State of New Jersey as referenced in the
statute. See Fine v. Rutgers, 163 N.J. 464, 468 (2000) (providing that Rutgers
is 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." (internal quotation mark omitted)) (quoting Trs.
of Rutgers Coll. in N.J. v. Richman, 41 N.J. Super. 259, 289-90 (Ch. Div. 1956)).
PERC's decision to restrain arbitration, therefore, did not violate any express or
implied legislative policy.
There is no allegation, here, that the federal or state constitution was
offended by PERC's decision. And, no one questions that termination from
employment is major discipline.
The FOP argues that PERC's decision was arbitrary and capricious
because PERC referenced its prior consistent decisions and decisions from our
A-4334-18T1
7
court that have affirmed the PERC decisions. It certainly is not arbitrary or
capricious for PERC to decide this case consistent with its past cases or ours.
The FOP argues that State Troopers has been read too broadly by PERC.
We find no merit in that argument. "We first observe that 'the Legislature is
presumed to be aware of judicial construction of its enactments[.]'" DiProspero
v. Penn, 183 N.J. 477, 494 (2005) (quoting N.J. Democratic Party, Inc. v.
Samson, 175 N.J. 178, 195 n. 6 (2002)). The Legislature amended the
underlying statute since State Troopers but not to address the issue the FOP
raises. The argument advanced by the FOP, therefore, does not provide us with
a basis to conclude that PERC's decision was inconsistent with this statute or
was arbitrary, capricious or unreasonable.
The FOP contends that PERC erred by not addressing the arbitrability of
certain claimed procedural issues. However, the scope petition only raised an
issue about major discipline; it did not raise procedural issues. We decline to
address arguments that were not made to PERC in the scope petition. See Neider
v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
Affirmed.
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8
IN THE MATTER OF RUTGERS, THE STATE UNIVERSITY OF NEW JERSEY AND FOP LODGE 164, ETC. (PUBLIC EMPLOYMENT RELATIONS COMMISSION)
Combined Opinion