IN THE MATTER OF ATLANTIC COUNTY SHERIFF'S OFFICE (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NOT FOR PUBLICATION WITHOUT THE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
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2095-19

IN THE MATTER OF ATLANTIC
COUNTY SHERIFF'S OFFICE,

Petitioner-Respondent,

and

PBA LOCAL 243,

Respondent-Appellant.

Argued May 5, 2021 – Decided June 8, 2021

Before Judges Alvarez and Mitterhoff.

On appeal from the New Jersey Public Employment
Relations Commission, PERC No. 2020-33.

Michael P. DeRose argued the cause for appellant
(Crivelli & Barbati, LLC, attorneys; Michael P.
DeRose, on the brief).

Jennifer P. Starr argued the cause for respondent
Atlantic County Sheriff's Office (Atlantic County
Department of Law, attorneys; Jennifer P. Starr, on the
brief).
 Ramiro A. Perez, Deputy General Counsel, argued the
cause for respondent New Jersey Public Employment
Relations Commission (Christine Lucarelli, General
Counsel, attorney; Ramiro A. Perez, on the statement in
lieu of brief).

PER CURIAM

On December 19, 2019, the Public Employment Relations Commission

(PERC) restrained binding arbitration sought by Policemen's Benevolent

Association (PBA) Local 243. The union's grievance alleged that the Atlantic

County Sheriff's Department violated the parties' Collective Negotiating

Agreement (CNA), extended through December 31, 2022, in a Memorandum of

Agreement (MOA), by virtue of staffing policies in the Atlantic County civil

and criminal courthouses. We affirm.

The PBA represents sheriff's officers and investigators, exclusive of the

sheriff, undersheriff, chief sheriff's officers, sergeants, captains, and lieutenants.

The union alleges current staffing policies violate CNA Article 1.04, Article

3.01, "and any other applicable articles of the Labor Agreement, the Attorney

General's Guidelines on Internal Affairs, Federal, State, and/or PERC law, court

[s]ecurity [p]lan or a controversy . . . ." The PBA claimed that sheriff staffing

created unsafe conditions in the civil and criminal courtrooms in Atlantic City

and Mays Landing, and did not comply with the Administrative Office of the

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Courts Model Court Security Plan. That plan, issued some years ago, requires

an officer to be present in the courtroom whenever a judge or hearing officer is

conducting proceedings.

Undersheriff Richard Komar certified, in support of the application to

restrain arbitration made to PERC, that the County meets that plan, and that in

fact, in addition to an officer assigned to a courtroom as a baseline when court

is in session, one officer is assigned per incarcerated defendant in the criminal

courtrooms. Komar had initially denied the grievance because the County was

in compliance with the state plan, actually exceeding it, and because staffing

decisions fell within management's prerogative. The Sheriff's Department also

denies the PBA's allegation that at times one officer was responsible for multiple

courtrooms. The Sheriff's Department pulled log-in records of a particular day

in the month for a number of years to prove its position.

PERC administers the New Jersey Employer-Employee Relations Act

(Act), N.J.S.A. 34:13A-1 to -30, and is vested with the authority to determine

whether a particular issue falls within the scope of collective negotiations. In re

Jersey City v. Jersey City Police Officers Benev. Ass'n, 154 N.J. 555, 567-68

(1998). Relying on Paterson Police PBA Local No. 1 v. City of Paterson, 87

N.J. 78, 92-93 (1981), PERC ruled that although the scope of arbitrable issues

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available to police and firefighters is greater than for other public employees, it

cannot include subjects within the category of managerial prerogatives,

including staffing decisions. To allow the grievance to proceed on that issue

"would significantly interfere with the County's policymaking powers." Thus,

consistent with past precedent and practice, "[w]here a grievance has challenged

staffing decisions, but seeks no safety-related remedy that can be granted

without affecting staffing levels, we have restrained arbitration." PERC further

explained that "because the County's staffing decisions are neither mandatorily

nor permissibly negotiable[,]" arbitration would be restrained.

The PBA now asserts PERC's decision was arbitrary, capricious, and

lacking support in the law. The standard is correct. When an agency's decision

is reviewed on appeal, it is not disturbed absent "a showing that it was arbitrary,

capricious or unreasonable, or that it lacked fair support in the evidence, or that

it violated a legislative policy expressed or implicit in the governing statute."

Commc'ns Workers of Am., Local 1034 v. N.J. State Policemen's Benev. Ass'n,

Local 203, 412 N.J. Super. 286, 291 (App. Div. 2010) (internal emphasis

omitted) (quoting In re Camden Cnty. Prosecutor, 394 N.J. Super. 15, 22-23

(App. Div. 2007)). Given the strong presumption of reasonableness we accord

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such judgments, we review them in limited fashion. Twp. of Franklin v.

Franklin Twp. PBA Local 154, 424 N.J. Super. 369, 377 (App. Div. 2012).

Decisions regarding which subjects are mandatorily negotiable are made

on a case-by-case basis. Id. at 378. The negotiability and arbitrability of an

issue is resolved based on whether:

(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.

[In re Jersey City, 154 N.J. at 568.]

As to the first prong, ordinarily matters such as the rate of compensation

or work hours are deemed to have a direct impact on the work and welfare of

public employees. Franklin Twp., 424 N.J. Super. at 379. The second prong

addresses "issues not statutorily preempted from arbitration." Ibid. The third

criterion is whether a negotiated agreement would significantly interfere with a

determination of governmental policy—in other words, whether it would

interfere with managerial prerogatives. See Morris Cnty. Sheriff's Off. v.

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Morris Cnty. Policemen's Benev. Ass'n, Local 298, 418 N.J. Super. 64, 75-76

(App. Div. 2011).

Staffing decisions are ordinarily considered the exercise of a managerial

prerogative, as significant policy concerns play into them. Examples of such

decisions would be the transfer or reassignment of employees, decisions to

reduce a work force for economy or efficiency, and to contract out or to

subcontract work. See In re Local 195, 88 N.J. 393, 408, 417 (1982). By

framing this question in terms of safety, the PBA hopes to cast the sought-after

arbitration as outside the scope of the managerial prerogative.

The record does not substantiate the union's claim that the County's

practices are unsafe, however, or fail to comply with the Model Court Plan.

Even if that were the case, it is not PERC's role to resolve factual disputes.

Rather, its role is limited to resolution of the scope-of-negotiations petition.

Richfield Park Ed. Ass'n v. Richfield Park Bd. of Ed., 78 N.J. 144, 154 (1978)

("[W]hether the facts are as alleged by the grievant . . . is not to be determined

by a commission in a scope proceeding.").

By attempting to cast the question as one of safety, the PBA attempts to

establish a premise that would enable PERC to resolve a factual dispute not

within its actual mandate. Thus, there is nothing arbitrary, capricious,

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unreasonable, lacking support in the evidence, or in violation of PERC's

legislative grant of authority in its decision that this staffing decision was not

arbitrable. There was no impropriety in the restraint of arbitration. See In re

Herrmann, 192 N.J. 19, 27-28 (2007).

Affirmed.

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