Opinion
DOCKET NO. A-2478-13T3
05-22-2015
RUTGERS, THE STATE UNIVERSITY OF NEW JERSEY, Petitioner-Respondent, v. UNION OF RUTGERS ADMINISTRATORS-AMERICAN FEDERATION OF TEACHERS, LOCAL 1766, AFL-CIO, Respondent-Appellant.
Ira W. Mintz argued the cause for appellant (Weissman & Mintz, L.L.C., attorneys; Mr. Mintz, on the brief). David M. Alberts argued the cause for respondent Rutgers, The State University of New Jersey (McElroy, Deutsch, Mulvaney & Carpenter, L.L.P., attorneys; John J. Peirano, of counsel; Mr. Peirano and Mr. Alberts, on the brief). Don Horowitz, Acting General Counsel, argued the cause for respondent The New Jersey Public Employment Relations Commission (Mr. Horowitz, attorney and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti, Fasciale and Whipple. On appeal from the New Jersey Public Employment Relations Commission, Docket No. SN-2012-011. Ira W. Mintz argued the cause for appellant (Weissman & Mintz, L.L.C., attorneys; Mr. Mintz, on the brief). David M. Alberts argued the cause for respondent Rutgers, The State University of New Jersey (McElroy, Deutsch, Mulvaney & Carpenter, L.L.P., attorneys; John J. Peirano, of counsel; Mr. Peirano and Mr. Alberts, on the brief). Don Horowitz, Acting General Counsel, argued the cause for respondent The New Jersey Public Employment Relations Commission (Mr. Horowitz, attorney and on the brief). PER CURIAM
The Union of Rutgers Administrators, American Federation of Teachers, AFL-CIO ("URA-AFT"), appeals from a final determination of the Public Employment Relations Commission ("PERC"), dated December 19, 2013, which restrained binding arbitration of a grievance filed by the URA-AFT regarding the staffing of the monitoring of boilers at Rutgers University (the "University"). We affirm.
The salient facts are essentially undisputed. The University's Central Plants operation oversees the heating and cooling systems at buildings throughout the University's New Brunswick-Piscataway campus. Central Plants is staffed with employees around the clock, twenty-four hours a day, seven days a week. Three different types of employees are engaged in the monitoring of boilers.
Licensed boiler operators ("LBOs") monitor boilers in the Central Plants and in stand-alone locations on the campus. The International Union of Operating Engineers, Local 68 is the collective negotiating representative for the LBOs. Shift Operations Specialists ("SOS"), who are represented by the URA-AFT, work eight-hour shifts, Mondays through Fridays, and twelve-hour shifts on Saturdays, Sundays and holidays. In addition, Supervisors of Utility Operations ("SUO") also are involved in the monitoring of boilers on the University's campus.
Historically, so-called off-hours shifts have been staffed by one SOS and one SUO. When an SOS or SUO was out on leave, an SOS employee would be assigned to work that shift and was paid overtime. In October 2010, however, the University changed the manner in which off-hours coverage for the boiler-monitoring function was assigned.
It is our understanding that "off-hour shifts" are shifts for hours outside the regularly-assigned workdays.
As a result, LBOs are assigned to cover off-hours shifts when a regularly-scheduled SOS or SUO was absent due to vacation or leave. The LBOs cover the shifts as part of their regularly-assigned duties, and they are not paid overtime. The LBOs perform the same monitoring of boilers which they normally perform during their regular shifts.
In April 2011, the URA-AFT filed a grievance pursuant to its collective negotiations agreement ("CNA") with the University. The URA-AFT asserted that the University was required to negotiate the issue of whether LBOs could be assigned to perform boiler checks when SOSs and SUOs are out on leave and not available to work their regularly-assigned shifts. The University denied the grievance, and the URA-AFT sought binding arbitration pursuant to the CNA.
The University filed a scope-of-negotiations petition with PERC seeking to restrain the binding arbitration of the URA-AFT grievance. The University asserted that the decision to assign LBOs to perform boiler checks when SOSs and SUOs are out was a matter of managerial prerogative. The University maintained that the LBOs are qualified to perform the boiler checks, the reorganization of the staffing assignments increased departmental efficiency, and the staffing of the boiler checks was not subject to negotiation under the CNA.
In its decision of December 19, 2013, PERC stated that this dispute "primarily involves [the University's] determination as to the staffing levels necessary for the efficient delivery of the boiler monitoring services, which in turn dictates the amount of overtime which may be necessary. This determination is a non-negotiable managerial prerogative." Accordingly, PERC granted the University's application to restrain binding arbitration of the URA-AFT grievance. This appeal followed.
On appeal, the URA-AFT argues: (1) PERC's decision is inconsistent with decisions of this court and not entitled to deference; (2) longstanding PERC and judicial precedent establishes that grievances challenging the reassignment of overtime work to non-unit employees are legally arbitrable; and (3) PERC erroneously failed to distinguish court precedent which holds that allocation of overtime is negotiable and arbitrable. We reject these arguments and affirm.
"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 Jersey City v. Jersey City Police Officers Benevolent Ass'n, 154 N.J. 555, 567-68 (1998) (quoting N.J.S.A. 34:13A-5.4(d)). When reviewing a PERC decision, we consider
(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency bases its action; and (3) whether, in applying the legislative policy to the facts, the agency erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.We also apply a deferential standard of review to PERC decisions, "[i]n the absence of constitutional concerns or countervailing expressions of legislative intent[.]" Ibid. (citing In re Hunterdon Cnty. Bd. of Chosen Freeholders, 116 N.J. 322, 329 (1989)). See also State v. State Troopers Fraternal Assoc., 134 N.J. 393, 401 (1993) (noting that PERC decisions are entitled to "appropriate deference").
[Id. at 567 (quoting In re Musick, 143 N.J. 206, 216 (1996)) (internal quotation marks omitted).]
The URA-AFT argues that PERC's decision must be reversed because disputes over the assignment of overtime work to non-unit employees involve matters that are mandatorily negotiable, and its grievance challenging such assignments is subject to binding arbitration under the CNA. The URA-AFT further argues that the University does not have the managerial prerogative to have LBOs perform boiler checks when SOSs or SUOs are out. It argues that while using SOSs to perform the boiler checks on overtime might cost the University more than using LBOs on straight time, the University may not make that choice as a matter of managerial prerogative. We disagree.
The Legislature has delegated to PERC the authority to determine the scope of issues that are subject to collective negotiations. N.J.S.A. 34:13A-5.4(d). Such determinations turn upon the distinction between "'mandatorily negotiable terms and conditions of employment[,] and non-negotiable matters of government policy.'" In re Local 195, IFPTE, 88 N.J. 393, 402 (1982) (quoting Ridgefield Park Educ. Ass'n v. Ridgefield Park Bd. of Educ., 78 N.J. 144, 162 (1978)). Thus, the question to be addressed in a scope of negotiations petition is, "in light of the competing interests of the State and its employees, whether an issue is appropriately decided by the political process or by collective negotiations." Ibid.
In Jersey City, the Court established "the fundamental test" for deciding the scope of negotiations:
[A] subject is negotiable between public employers and employees when (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. To decide whether a negotiated agreement would significantly interfere with the determination of governmental policy, it is necessary to balance the interests of the public employees and the public employer. When the dominant concern is the government's managerial prerogative to determine policy, a subject may not be included in collective negotiations even though it may intimately affect employees' working conditions.
[Jersey City, supra, 154 N.J. at 568 (citing Local 195, supra, 88 N.J. at 404-05) (internal quotation marks omitted).]
The Jersey City Court considered whether the City was obligated to negotiate with unions representing the City's police officers before implementing a reorganization plan. Id. at 558. The plan proposed to "transfer police officers from administrative and non-police positions to operational positions and to fill the administrative and non-police positions with civilian personnel." Ibid. The City did not negotiate with the police unions before implementing the reorganization. Ibid. Thereafter, the police officers' unions filed unfair practices charges with PERC, claiming that the City "unilaterally transferr[ed] work from police personnel to civilian employees [who were] not included in the police officers' bargaining units." Ibid.
The Court in Jersey City determined that the first prong of the negotiability test was satisfied where "'overtime opportunities'" for police officers would be diminished by the civilianization of certain positions. Id. at 570. The second prong, pertaining to preemption, did not apply. Ibid. The Court found that the third prong's "'interference with governmental policy' standard" was dispositive. Ibid.
The Court noted that in the "non-police context," the Court had held that the "'substantive decision to transfer or reassign an employee is preeminently a policy determination.'" Id. at 571 (quoting Local 195, supra, 88 N.J. at 417). Because the City "implemented the reorganization primarily for the purpose of improving the Department's effectiveness and performance, [its] actions constitute[d] an inherent policy determination that would . . . be impermissibly hampered by negotiations." Id. at 573.
Here, the record supports PERC's decision that the University had the managerial prerogative to assign LBOs who were being paid straight time to handle boiler checks during off-hours shifts, when SOSs or SUOs are out. As PERC noted in its final decision, the University has established staffing levels it deems necessary for the efficient performance of the boiler-monitoring services on the campus. PERC noted that the staffing assignments "dictate[d] the amount of overtime [that] might be necessary" for performance of the tasks involved. PERC reasonably found that the University's staffing determinations are within its managerial prerogative.
The URA-AFT contends that Jersey City does not support PERC's decision because, in that case, the City re-assigned work that had been handled by police officers to civilians in order to increase the number of officers in field positions, thereby enhancing the City's ability to combat crime. The URA-AFT argues that in this case, the University did not make the shift assignments for the reasons of efficiency. The URA-AFT asserts that the University's sole motivation is to save money by having LBOs perform the boiler checks on straight time, rather than having SOSs or SUOs perform the tasks on overtime.
Again, we disagree. In Jersey City, the Court focused on public safety concerns, but there the Court indicated that whether a particular staffing decision falls within the employer's managerial prerogative must be decided on a case-by-case basis. Id. at 574-75. Here, PERC reasonably found that the University's staffing assignments were based on its goal of having the boiler checks performed in an efficient and more cost-effective manner.
The URA-AFT further argues that PERC's decision is inconsistent with Morris County Sheriff's Office v. Morris County Policemen's Benevolent Association, Local 298, 418 N.J. Super. 64 (App. Div. 2011). There, the administrator at the Morris County Correctional Facility ("MCCF") attempted to reduce unnecessary overtime expenditures by discontinuing "the practice of assigning employees on holidays to work posts that are closed on the weekend." Id. at 69.
Thus, certain employees had been assigned to work but they had nothing to do and were paid overtime. Ibid. The County maintained that "the closing of non-essential posts on holidays implicates its non-negotiable managerial prerogative to determine staffing levels." Id. at 70. The County also asserted that the "intent behind the new policy was to decrease overtime expenditures because [its] budget had to be reduced." Ibid. In determining whether the decision to close the non-essential posts on holidays was a matter subject to mandatory negotiation, we observed that "the employees' interest is the ability to earn augmented holiday pay while the employer's interest is controlling costs and determining staffing needs." Id. at 76.
We held that the decision not to staff positions that have no function on holidays was within the County's managerial prerogative because it implicated "the essential duty of government to 'spend public funds wisely.'" Id. at 77 (quoting Caldwell-West Caldwell Educ. Ass'n v. Caldwell-West Caldwell Bd. of Educ, 180 N.J. Super. 440, 452 (App. Div. 1981)). We also noted that "the avoidance of featherbedding and make-work assignments is a 'governmental policy determination' because it furthers efficient allocation of resources." Ibid. (quoting Paterson Police PBA Local v. Paterson, 87 N.J. 78, 98 (1981)).
This case does not involve the staffing of positions at a time when they have no function. Nevertheless, the University's assignment of LBOs to handle boiler checks when SOSs or SUOs are out is a matter that implicates its responsibility to spend the public's funds wisely and efficiently allocate its limited resources. See id. at 77 (quoting Caldwell-West Caldwell Educ. Ass'n, supra, 180 N.J. Super. at 452). The record shows that LBOs can perform the functions during their regular assignments, at straight pay, whereas the University would be required to pay SOSs overtime if they are assigned to fill in for workers on leave. Having the LBOs perform the boiler checks under these circumstances is a non-negotiable governmental policy choice because it furthers the efficient allocation of resources.
The URA-AFT also contends that PERC's decision is inconsistent with our decision in Township of Franklin v. Franklin Township PBA Local 154, 424 N.J. Super. 369 (App. Div. 2012). In that case, the Township had proposed modifications to the work schedules of police officers that would have increased the hours they were required to work. Id. at 374. We affirmed PERC's orders which required "mandatory negotiation of '[t]he current work schedule and any proposal to change [that] schedule.'" Id. at 378 (first alteration in original).
We noted that, unlike the elimination of wasteful shift assignments at issue in Morris County, the shift changes in Franklin were "not targeted to curb abusive practices or the misuse of municipal resources." Id. at 382. They "[struck] at the heart of negotiated . . . terms because they attempt[ed] to alter the level of compensation and work hours of police employees without negotiation." Ibid.
We stated that the proposed modifications to the work schedule did not "merely adjust work assignments[.]" Id. at 383. Rather, they cut "in half the number of the contractually negotiated days . . . , resulting in each officer working more hours per year for the same pay." Ibid.
This case does not, however, concern a reduction in any contractually-negotiated work days, and it does not alter the number of hours employees are required to work for the same pay. This dispute concerns the assignment of overtime work, in limited circumstances, when SOSs and SUOs are out, and LBOs can be assigned to handle the boiler-monitoring tasks at straight pay that the SOSs would otherwise perform on overtime. Thus, the URA-AFT's reliance upon Franklin is misplaced.
We have considered the other arguments raised by the URA-AFT, including its contention that PERC's decision in this matter is a departure from other decisions that PERC has issued, and its contention that PERC failed to engage in the balancing of interests required by Jersey City. We conclude that these arguments are without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION