NOT FOR PUBLICATION WITHOUT THE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-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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