POLICEMEN'S BENEVOLENT ASSOCIATION, ETC. VS. SALEM COUNTY (L-0018-20 and L-0025-20, SALEM COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3533-19

POLICEMEN'S BENEVOLENT
ASSOCIATION LOCAL NO. 400,

Plaintiff-Appellant,

v.

SALEM COUNTY and
SALEM COUNTY SHERIFF'S
DEPARTMENT,

Defendants-Respondents.

SALEM COUNTY and
SALEM COUNTY SHERIFF'S
DEPARTMENT,

Plaintiffs-Respondents,

v.

POLICEMEN'S BENEVOLENT
ASSOCIATION LOCAL NO. 400,

Defendant-Appellant.

Argued June 9, 2021 – Decided August 19, 2021
 Before Judges Ostrer, Accurso, and Enright.

On appeal from the Superior Court of New Jersey, Law
Division, Salem County, Docket Nos. L-0018-20 and
L-0025-20.

Christopher A. Gray argued the cause for appellant
(Sciarra & Catrambone, LLC, attorneys; Matthew R.
Curran and Christopher A. Gray, of counsel and on the
briefs).

Joseph M. DiNicola, Jr., argued the cause for
respondents (DiNicola & DiNicola, LLC, attorneys;
Joseph M. DiNicola, Jr., on the brief).

PER CURIAM

Plaintiff, Policemen's Benevolent Association Local No. 400, appeals

from a Law Division decision in favor of Salem County vacating an arbitration

award. Although the case has a somewhat tortured procedural history and the

parties do not agree on much of anything, both acknowledge that questions of

managerial prerogative, which are at the heart of this case, are the primary

province of the New Jersey Public Employment Relations Commission.

Unfortunately, PERC has yet to weigh in on the issue. The County did

not file a scope of negotiations petition in this matter until after the arbitration

award when both parties had pending applications before the Law Division

pursuant to N.J.S.A. 2A:24-7. PERC directed the County to withdraw its scope

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petition, following the policy it announced in In the Matter of Twp. of Ocean

Bd. of Educ & Twp. of Ocean Teachers' Ass'n, P.E.R.C. No. 83-164, 9

N.J.P.E.R. ¶ 397, 1983 N.J. PERC LEXIS 14 at 181 (1983), not to entertain a

scope petition after the issuance of an arbitration award. In its 1983 decision,

PERC explained that scope petitions filed after entry of an arbitration award

waste time and money, "frustrati[ng] . . . the arbitration process and the parties."

Id. at 6. The decision instructs an employer wishing "to preserve a 'dispute' over

the legal arbitrability of an arbitration award," to file an action to vacate or

modify the award under N.J.S.A. 2A:24-7, and ask the court "to transfer the

scope of negotiations question to the Commission for resolution pursuant to

Ridgefield Park [Educ. Ass'n v. Ridgefield Park Bd. of Educ., 78 N.J. 144, 153-

55 (1978)]." Id. at 12.

PERC's Ocean Township decision further makes clear the Commission

"will, of course, entertain any scope of negotiations questions which a court

refers to [it] as part of a statutory proceeding to review an arbitration award."

Id. at 12-13. Our own cases endorse that procedure. Judge Pressler explained

in City of Newark v. Newark Council 21, N.J. Civ. Serv. Ass'n, 320 N.J. Super.

8, 17 (App. Div. 1999), that

it has long been settled that where grievance arbitration
of a particular matter is challenged by the public

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 employer on the ground that the subject of the
grievance constitutes a management prerogative and is
hence not negotiable in the first instance, the
jurisdiction of PERC is primary and the trial court
should defer to PERC.

Unfortunately that did not occur here. Instead, the County argued the Law

Division judge should vacate the award because the arbitrator exceeded his

power in issuing an award involving a non-negotiable — and thus non-arbitrable

— issue. The PBA contended the County waived the negotiability issue by

failing to file a timely scope petition with PERC. The judge determined the

arbitrator erred in refusing to consider the negotiability issue on the basis that

the County had not filed a scope petition with PERC. The judge found the "non-

negotiability" argument was raised by the County in the arbitration, and that the

arbitrator should have "address[ed] the In re Local 195[, IFPTE v. State, 88 N.J.

393 (1982)] factors" and "weigh[ed] the interests of the parties as required by

that controlling precedent."

Performing that analysis herself, the judge found the challenged decision,

a 2019 special order by the Sheriff reassigning the duties of transporting inmates

from correction officers to sheriff's officers, was a non-negotiable, and therefore

non-arbitrable, subject under the three-part In re Local 195 test. See 88 N.J. at

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403-04. The judge accordingly entered an order vacating the award. The PBA's

motion for reconsideration was denied.

The PBA appeals, arguing the Law Division was without jurisdiction to

rule on the negotiability issue, the County waived its right to obtain that

determination from PERC, and the judge erred in finding the issue non-

negotiable under In re Local 195. The County contends it had no obligation to

negotiate whether corrections officers or sheriff's officers would be assigned

transportation duties by the Sheriff, who oversees both categories of County

employees, and thus the court was correct to find the arbitration award should

be vacated, as the subject was not arbitrable.

The County also argues that "[w]hile the authority on this issue suggests

that the issue of negotiability is one left for PERC[,] there is no authority that

prevents a party from challenging negotiability [in] court, if a scope of

negotiability [petition] is not filed pre-arbitration." It contends that PERC's

refusal to accept a directly-filed scope petition post-arbitration does not alter the

fact that the arbitrator lacked the authority to treat the matter as an arbitrable

grievance in the first place, making the award subject to vacation on the basis

that the arbitrator exceeded his powers under N.J.S.A. 2A:24-8(d) and Newark

Council 21.

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 It is clear to us we have nothing to review in this appeal. Our Supreme

Court has again reminded recently that PERC is "the forum for the initial

determination of whether a matter in dispute is within the scope of collective

negotiations." Barila v. Bd. of Educ. of Cliffside Park, 241 N.J. 595, 614 (2020)

(quoting State v. State Supervisory Emps. Ass'n, 78 N.J. 54, 83 (1978)). We

cannot review the correctness of the trial court's decision as to the negotiability

of this issue,1 and the trial court did not decide anything else.

What obviously should have occurred here is that the County should have

filed its scope petition pursuant to N.J.A.C. 19:13-2.1 before proceeding to

arbitration and the arbitrator rendering his award. Although PERC's regulations

do not require a scope petition to be filed before arbitration, Ridgefield Park

would suggest that is the preferred procedure. See 78 N.J. at 154. PERC clearly

has the authority to suspend an arbitration proceeding while it considers a scope

1
Although we are aware the Court in Board of Education of Township of
Bernards v. Bernards Township Education Ass'n, 79 N.J. 311, 317-18 (1979),
declined to remand a negotiability issue to PERC and decided the issue itself,
the circumstances were very different. First, PERC had decided the same issue
in a prior proceeding. Id. at 317. Second, and perhaps more important, PERC
was participating as amicus curiae in the case and asserted a remand to the
Commission "would not add anything as this Court already has the benefit of
PERC's thinking on the subject." Id. at 317-18. There is no indication PERC
has addressed this issue previously and, of course, PERC is not participating in
this matter.
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of negotiability question. Id. at 155. Short of that, the County should have done

as PERC suggested in its 1983 Ocean Township decision, the case it referenced

in its letter to County counsel directing the County to withdraw its scope petition

post arbitration.

The County should have asked the Law Division judge to transfer the

scope of negotiations question to the Commission for resolution. Even absent

such request, the judge should have declined to decide the negotiability question

and referred that dispute to PERC. See Newark Council 21, 320 N.J. Super. at

17; Bd. of Educ. of Plainfield v. Plainfield Educ. Ass'n, 144 N.J. Super. 521,

525-27 (App. Div. 1976). Although the PBA argues the County should be

estopped from raising non-negotiability now by having failed to file a scope

petition sooner, it has not brought a case to our attention so holding, and our

courts have permitted claims of non-arbitrability to be raised after an arbitration

award. See, e.g., Paterson Police PBA Local No. 1 v. City of Paterson, 87 N.J.

78, 84 (1981); Newark Council 21, 320 N.J. Super. at 17. The union's reliance

on Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) is misplaced as the

County raised non-negotiability both in the arbitration and in the Law Division.

Because we conclude the preservation of PERC's primary jurisdiction over

scope of negotiations issues requires transfer of the scope issue in this case to

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PERC, we vacate the Law Division's order and transfer the matter to PERC for

resolution of that issue. We do not retain jurisdiction.

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