Opinion
DOCKET NO. A-2962-12T2 DOCKET NO. A-2987-12T2
02-20-2015
IN THE MATTER OF STATE OF NEW JERSEY, Respondent-Respondent, v. COUNCIL OF NEW JERSEY STATE COLLEGE LOCALS, AFT, and COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, Petitioners-Appellants.
Kevin P. McGovern argued the cause for appellant Council of New Jersey College Locals, AFT (Mets Schiro & McGovern, LLP, attorneys; Mr. McGovern, on the briefs). Ira W. Mintz argued the cause for appellant Communications Workers of America, AFL-CIO (Weissman & Mintz, LLC, attorneys; Mr. Mintz, on the briefs). Sally Ann Fields, Senior Deputy Attorney General, argued the cause for respondent, State of New Jersey (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Fields, on the brief). Martin R. Pachman, General Counsel, attorney for New Jersey Public Employment Relations Commission, on the statement in lieu of brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, Maven and Hoffman. On appeal from the New Jersey Public Employment Relations Commission, PERC Docket No. CU-2012-017. Kevin P. McGovern argued the cause for appellant Council of New Jersey College Locals, AFT (Mets Schiro & McGovern, LLP, attorneys; Mr. McGovern, on the briefs). Ira W. Mintz argued the cause for appellant Communications Workers of America, AFL-CIO (Weissman & Mintz, LLC, attorneys; Mr. Mintz, on the briefs). Sally Ann Fields, Senior Deputy Attorney General, argued the cause for respondent, State of New Jersey (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Fields, on the brief). Martin R. Pachman, General Counsel, attorney for New Jersey Public Employment Relations Commission, on the statement in lieu of brief). The opinion of the court was delivered by MAVEN, J.A.D.
In this consolidated appeal, the Council of New Jersey State College Locals, AFT (AFT) and the Communications Workers of America, AFL-CIO (CWA) (collectively "the Unions"), appeal from the January 31, 2013 decision of the Public Employment Relations Commission (PERC) dismissing their clarification of unit petition, to include various employment titles within the bargaining unit. For the reasons that follow, we conclude PERC misapplied the New Jersey Employer-Employee Relations Act (EERA), N.J.S.A. 34:13A-1 to -43, and failed to execute its investigative duties in accordance with its regulations. Therefore, we vacate the decision dismissing the petition and remand this matter for a hearing, in accordance with N.J.A.C. 19:11-6, to develop a record from which PERC can render a decision on the petition.
I.
In this case involving statutory interpretation, we review the matter de novo. Here, the Unions contend PERC's interpretation and application of the EERA is inconsistent with the Higher Education Restructuring Act (the Education Act), N.J.S.A. 18A:64-1 to -27.1. We begin with a brief review of the facts and of the statutes at issue in this case.
With certain limited exceptions, the EERA provides public employees with broad power to form and join labor unions. N.J.S.A. 34:13A-5.3. One such exception excludes "managerial executive" level employees from being a member of a negotiation unit. Ibid. Effective January 18, 2010, the Legislature, through P.L. 2009 c. 314, amended the statutory definition of "managerial executives" as set forth in N.J.S.A. 34:13A-3(f). The amended provision became effective on January 18, 2010, during the term of the collective negotiations agreement between AFT and the State, which expired in June 2011.
In its negotiations with the State for a new contract, AFT presented a demand to the State seeking inclusion of several job titles that had previously been excluded from its bargaining unit, as managerial executives, under the earlier statutory definition. The State rejected the demand, in part, because it deemed the revised definition did not change the classification of these positions as "managerial employees."
AFT is the majority representative for all full-time faculty, non-managerial and professional employees in the State college system.
AFT filed a clarification of unit petition, pursuant to N.J.A.C. 19:11-1.5, seeking to include the requested job titles within its negotiation units, arguing the amended legislation permitted those employees of the State Executive Branch below the level of assistant commissioner to be eligible to join a labor union. After the initial filing, CWA intervened on behalf of its member employees and AFT filed an amended petition to include CWA's job titles. The Unions maintained the majority of the employees holding positions in the enumerated job titles did not meet the definition of "managerial executive," and, therefore, should not be excluded from the bargaining unit.
CWA represents professional and supervisory employees at the state colleges and universities.
The petition sought inclusion of the following titles: Assistant Dean, Associate Dean, Director, Associate Director, Managing Assistant Director, Executive Assistant, Executive Director, Assistant Bursar, Associate Bursar, Assistant Controller, Associate Controller, Manager, Officer, Assistant Registrar, Associate Registrar, Assistant to the Dean, and Executive Director.
In the course of its investigation, PERC requested that the parties submit their position statements. In its submission, AFT maintained the submitted employees are State employees for purposes of negotiations. AFT provided job descriptions for each requested title and organizational charts for each represented college and university. It delineated those positions comparable to the level of assistant commissioner and indicated the remaining employees, who were well below that level, were not management executives, and should be included in the bargaining unit. In total, the Unions provided information for as many as thirty-two job titles representing approximately 600 employees from nine state colleges and universities.
AFT did not provide the exhibits in its appendix on appeal.
In its statement, and motion to dismiss the clarification of unit petition, the State asserted that the amended definition for "managerial executives" was not applicable to the submitted positions because college and university employees were not State employees. In response, the Unions refined their position to argue the submitted job titles did not meet the definition of managerial executive either for employees of the State or for other New Jersey public employees.
On January 31, 2013, PERC issued its written decision granting the State's motion, effectively excluding the employees identified by the Unions from the bargaining units. Citing section 20 of the Education Act, PERC determined: (1) college staff and professionals were not State employees, but rather "employees of the respective boards of trustees of the various state colleges"; (2) the amended definition of "managerial executives" did not apply to those employees who held positions in the submitted job titles; and (3) the amendment did not alter the status of these employees who, previously had been excluded as managerial executives.
The Unions each appealed from PERC's determination. We ordered the matters consolidated and now address both appeals in one opinion. AFT and CWA raise the following arguments for our review:
AFT
POINT I
THE DECISION OF THE COMMISSION IS NOT ENTITLED TO HIGH LEVEL OF DEFERENCE BECAUSE IT IS BASED UPON A STATUTORY INTERPRETATION BEYOND THE COMMISSION'S AREA OF EXPERTISE.
POINT II
THE DECISION OF THE COMMISSION SHOULD BE REVERSED BECAUSE IT IGNORES THE PLAIN LANGUAGE OF N.J.S.A. 18A:64-21.1, PROVIDING THAT THE GOVERNOR IS THE EMPLOYER OF STATE COLLEGE EMPLOYEES FOR THE PURPOSE OF APPLYING THE PUBLIC-EMPLOYEE RELATIONS ACT, N.J.S.A. 34:13A-1 ET SEQ.
POINT III
THE DECISION OF THE COMMISSION SHOULD BE REVERSED BECAUSE IT IGNORES THE PLAIN LANGUAGE OF N.J.S.A. 34:13A-5.10, PROVIDING THAT THE BARGAINING UNITS REPRESENTED BY [AFT] ARE TWO OF THE TWELVE BARGAINING UNITS WITHIN THE EXECUTIVE BRANCH OF STATE GOVERNMENT.
POINT IV
THE COMMISSION'S DECISION SHOULD BE REVERSED BECAUSE IT IS CONTRARY TO WELL-SETTLED PRECEDENT FROM BOTH THE COMMISSION AND THE COURTS AND IS INCONSISTENT WITH BASIC PRINCIPLES OF STATUTORY INTERPRETATION.
CWA
POINT I
THE STANDARD OF REVIEW REQUIRES THAT THE AGENCY'S ACTION NOT VIOLATE THE ENABLING ACT'S EXPRESS OR IMPLIED LEGISLATIVE POLICIES OR CONTRAVENE THE PUBLIC POLICY OF THE STATE.
POINT II
THE LEGISLATURE HAS DECLARED THE GOVERNOR TO BE THE EMPLOYER OF EMPLOYEES OF THE STATE COLLEGES AND UNIVERSITIES.
POINT III
THE COMMISSION'S LIMITED ANALYSIS IGNORES THE RELEVANT PORTIONS OF THE STATUTE IT ADMINISTERS.
II.
We recite the legal principles that guide our review. Further, we set forth those statutory provisions at issue on appeal.
Our role in reviewing an agency decision is limited. In re Stallworth, 208 N.J. 182, 194 (2011) (citing Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980)). We will not upset the ultimate determination of an agency unless shown that it was arbitrary, capricious or unreasonable, or that it violated legislative policies expressed or implied in the statutory scheme administered by that agency. In re Musick, 143 N.J. 206, 216 (1996). We remain "mindful of the deference that courts must accord agency action that purports to effectuate statutory and regulatory authority." Brady v. Dep't of Pers., 149 N.J. 244, 256 (1997). As long as an agency decision is contemplated under its enabling legislation, the action must be accorded a presumption of validity and regularity. Reilly v. AAA Mid-Atlantic Ins. Co. of N.J., 194 N.J. 474, 485 (2008).
The principles governing statutory interpretation are well-established and familiar. In pursuit of our goal to determine and effectuate legislative intent, we "look first to the plain language of the statute, seeking further guidance only to the extent that the Legislature's intent cannot be derived from the words that it has chosen." Headen v. Jersey City Bd. of Educ, 212 N.J. 437, 455-51 (2012) (quoting Pizzullo v. N.J. Mfrs. Ins. Co., 196 N.J. 251, 264 (2008)). The language of a statute is to be given its ordinary meaning, absent a legislative intent to the contrary. Vicenzino v. Bedminster Twp. Bd. of Educ., 312 N.J. Super. 243, 247 (App. Div.), certif. denied, 156 N.J. 408 (1998).
A statute must be "interpreted in an integrated way without undue emphasis on any particular word or phrase and, if possible, in a manner which harmonizes all of its parts so as to do justice to its overall meaning." Chasin v. Montclair State Univ., 159 N.J. 418, 427 (1999) (quoting Zimmerman v. Mun. Clerk of Tp. of Berkeley, 201 N.J. Super. 363, 368 (App. Div. 1985)). We also consider other statutes discussing the same subject matter to give effect to "each constituent part of an overall legislative scheme." State v. Hodde, 181 N.J. 375, 379 (2004). "When considering statutory provisions that relate to the same or similar subject matter, we make every effort to reconcile those laws that appear to be in conflict and attempt to interpret them harmoniously." Oches v. Twp. of Middletown Police Dep't, 155 N.J. 1, 5 (1998). Moreover, where there are several statutes to be addressed, "[s]tatutes in pari materia are to be construed together when helpful in resolving doubts or uncertainties and the ascertainment of legislative intent." Superior Air Prods. Co. v. NL Indus., Inc., 216 N.J. Super. 46, 64 (App. Div. 1987), appeal dismissed, 126 N.J. 308 (1991). The same rules of construction that apply to the interpretation of statutes guide our interpretation of regulations. Headen, supra, 212 N.J. at 451; see U.S. Bank, N.A. v. Hough, 210 N.J. 187, 199 (2012).
Initially, we turn to the Union's argument that the instant ruling by PERC is not entitled to our deference because PERC "is not vested with any particular expertise in the area of higher education law, and because the issue presented to [PERC] was strictly one of statutory interpretation[.]" We reject these contentions.
PERC is the administrative body charged with interpreting, enforcing, and implementing the EERA. N.J. Tpk. Auth. v. AFSCME, Council 73, 150 N.J. 331, 335 (1997 ) (citing N.J.S.A. 34:13A-5.2). While expressly tasked with administering the EERA, PERC is not precluded from interpreting other statutes, which may be in conflict with the EERA. See Bd. of Educ. of Twp. of Bernards v. Bernards Twp. Educ. Ass'n, 79 N.J. 311, 317 (1979) ("[W]e conclude that PERC's primary jurisdiction does extend to controversies involving asserted conflicts between the Employer-Employee Relations Act and other statutory schemes.").
Here, the question before PERC was whether employees of the state colleges were to be considered State employees for purposes of applying the EERA. As the State argues, resolution of this issue necessarily required PERC to interpret and apply provisions of the EERA and provisions of the Education Act, as both statutes govern aspects involving public employers and employees of state colleges or universities. PERC's authority to resolve the issues in this case falls squarely within its statutory jurisdiction. Ibid. Consequently, we have no hesitation concluding PERC's interpretation of the EERA is entitled to our deferential review. N.J. Tpk. Auth., supra, 150 N.J. at 352.
We turn now to the essential question on appeal, that is, whether PERC correctly interpreted the statutory definition of "managerial executives" as inapplicable to college and university employees. The Unions argue PERC's ruling is inconsistent with the Education Act, contending that college employees are employees of the Executive Branch of State government, and under the revised definition, the submitted job titles are not at or above the level of assistant commissioner. To support its argument, the Unions rely on the definition set forth in N.J.S.A. 34:13A-3(f).
In 2010, the Legislature amended the EERA to redefine "managerial executives." Prior to the amendment, N.J.S.A. 34:13A-3(f) read:
"[m]anagerial executives" of a public employer means persons who formulate management policies and practices, and persons who are charged with the responsibility of directing the effectuation of such management policies and practices, except that in any school district this term shall include only the superintendent or other chief administrator, and the assistant superintendent of the district."The amended provision now states:
"Managerial executives" of a public employer, in the case of the State of New Jersey, means persons who formulate
management policies and practices, but shall not mean persons who are charged with the responsibility of directing the effectuation of such management policies and practices, except that, in the case of the Executive Branch of the State of New Jersey, "managerial executive" shall include only personnel at or above the level of assistant commissioner.
In the case of any public employer other than the State of New Jersey, 'managerial executives' of a public employer means persons who formulate management policies and practices, and persons who are charged with the responsibility of directing the effectuation of such management policies and practices, except that in any school district this term shall include only the superintendent or other chief administrator, and the assistant superintendent of the district.
[N.J.S.A. 34:13A-3(f) (emphasis added to show added text).]
The amendment was adopted to designate the level of state employees who may join bargaining units. The Senate Labor Committee explained the intent of the legislation:
By this change in definition, any manager employed by the Executive Branch of State Government at a level below the level of assistant commissioner, and any manager employed by the State who is not involved with formulating management policies and practices, may join employee organizations and through these organizations collectively negotiate salaries and benefits with public employers.
The bill does not change the existing definition of "managerial executives" . . .
for persons employed by public employers other than the state.
[Statement of the Senate Labor Committee to Senate Bill No. 3071 (December 10, 2009).]
Our review also considers the statutory scheme established by the Legislature for the administration and operation of New Jersey's public higher education system, found in Title 18A. In 1968, when the Legislature enacted the Education Act, it was designed to grant autonomy and governance to the boards of trustees and administrators of colleges and universities. N.J.S.A. 18A:64-1 and -2. At the same time, the law declared all existing and future college faculty and staff were to become employees of their respective colleges rather than the State. N.J.S.A. 18A:64-20 and -21.
The State College Autonomy Law went into effect on July 9, 1968. Council of N.J. State College Locals, NJSFT, AFT/AFL-CIO. v. State, 251 N.J. Super. 577, 580 (App. Div. 1991).
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Since that time, the Legislature has addressed the potential intersection between Title 18A and Title 34 and confirmed that nothing in the Education Act "shall be construed or interpreted to contravene or modify the provisions of the [EERA]. N.J.S.A. 18A:64-21.4. The Education Act also provides "[t]he Governor shall continue to function as the public employer" for purposes of the EERA, and act as the chief spokesperson on behalf of the State colleges with respect to all matters under negotiation. N.J.S.A. 18A:64-21.1. The 1994 amendments to the Education Act, creating the New Jersey Commission on Higher Education. P.L. 1994, c. 48, did not change the Governor's role.
III.
With that statutory framework in mind, we address the Unions' argument that in considering the two statutes, the EERA and Education Act, PERC failed to reconcile those provisions of the law that appear to be in conflict, and failed to interpret them harmoniously. According to the Unions, "an apparent conflict exists between N.J.S.A. 18A:64-20, which purports to designate the respective boards of trustees as the employer of record, and N.J.S.A. 18A:64-21.1, which specifically designates the Governor as the public employer for the purposes of applying [the EERA]."
Addressing this apparent conflict, the Unions posit that a harmonious reading of the provisions leads to the conclusion that while the respective Boards of Trustees have the authority over the day-to-day management of their employees, the Governor is the public employer for purposes of applying the terms of the EERA. Accordingly, the Unions interpret the amendment to create a more limited definition of "managerial executive," and, consequently, employees of the State's Executive Branch below the level of assistant commissioner are eligible to join a labor union. In contrast, the State emphasizes that PERC gave full effect to N.J.S.A. 18A:64-21.1 by concluding the Governor is the public employer acting on behalf of State college or universities for negotiation purposes only (emphasis added). Since the Unions' petition did not involve negotiations, the unchanged portion of the statutory definition applied to those employees.
At oral argument before us, AFT and CWA each argued for an expansive interpretation of the EERA. CWA cautioned if the submitted titles are not considered State employees, the outcome of CWA's negotiations would render disparate treatment for similarly situated employees who are represented in one of the twelve units recognized by the Executive Branch. In support of its position, AFT pointed to other decisions in which PERC concluded the Governor was the public employer.
Upon our careful review of the statutory provisions at issue in this case, we perceive no ambiguity in the language of the Education Act or in the EERA that requires us to reach beyond the plain language to determine their meaning. The provisions are written in a straightforward manner and clearly express that college faculty and staff are employees of the respective college boards of trustees, and the Governor is the public employer for State employees for purposes of the EERA. Likewise the amended definition of "managerial executives" clearly states to whom the definition applies. An objective reading of the statue comports with the Legislative intent that the definition of "managerial executives" for "employees other than State employees" did not change.
Courts generally will not "'rewrite a plainly-written enactment of the Legislature [or] presume that the Legislature intended something other than that expressed by way of the plain language.'" Marino v. Marino, 200 N.J. 315, 329 (2009); see also Headen, supra, 212 N.J. at 449 ("We presume that the Legislature was aware of its own enactments and did not intend to create intentional conflict between the two statutory schemes without expressly overriding provisions.") In our view, the State's interpretation, as adopted by PERC, is the most reasonable and literal interpretation of the statute. We therefore conclude, PERC correctly determined that college employees are not state employees when applying N.J.S.A. 34:13A-3(f) for the determination of whether any such employee is a managerial executive.
IV.
The dispute over whether these employees are State employees or other public employees does not, however, answer the question of whether the employee positions listed in the petition are managerial executives. The State argued that "all of the requested titles ha[d] historically been excluded from representation" and "they should continue to be deemed [as] managerial executives who cannot be represented by any union." The Unions, having submitted additional positions in the petition that may not have previously been considered in the context of N.J.S.A. 34:13A-3(f), posited in a refined position that all of the job titles, "including that of Assistant to Dean and the Executive Director title . . . meet either definition of 'managerial executive' that appears in [the statute]." (emphasis in the original).
In its review of this matter, PERC is tasked with the responsibility of interpreting and applying its statutes. In that regard, PERC must determine whether the submitted job titles fit the "local government" definition of managerial executives as applied to public employees other than state employees.
The regulations governing PERC set forth the procedure for processing petitions for "clarification of unit." The Director of Representation "shall investigate the petition to determine the facts." N.J.A.C. 19:11-2.2. During the investigation, "[t]he petitioner, the public employer, and any intervene[er] shall present documentary and other evidence, as well as statements of position, relating to the matters and allegations set forth in the petition." N.J.A.C. 19:11-2.6(a). Upon review of the evidence, the Director of Representation may issue a decision based on its administrative investigation or may conduct a hearing pursuant to N.J.A.C. 19:11-6.1. A hearing shall be conducted:
1. If it appears to the Director of Representation that substantial and material factual issues exist which, in the exercise of reasonable discretion, may more appropriately be resolved after a hearing; or
2. If it appears to the Director of Representation that the particular circumstances of the case are such that, in the exercise of reasonable discretion, the Director determines that a hearing will best serve the interests of administrative convenience and efficiency.
[N.J.A.C. 19:11-2.6(f).]
It is evident from our review of the decision that PERC did not make any factual determinations with respect to the specific job functions or reporting hierarchy of the job titles submitted by the Unions. Nor did PERC determine which positions are excluded from the negotiations unit as managerial executives. Succinctly, PERC failed to substantiate the basis for concluding that all of the identified titles were managerial executive positions.
We recognize the regulations grant the Director of Representation discretion to determine whether a fact-finding hearing would aid the investigation. Though the Director apparently chose not to conduct a hearing, we are convinced, under the facts of this case, it was improvident not to do so. The Unions requested a hearing "to determine whether the[] duties [of the submitted titles] fit within the new definitions established by the amendment." Moreover, the Unions provided a substantial amount of information for hundreds of employees to describe the various job functions, reporting lines, and organizational hierarchy, all in an effort to distinguish these positions from the level of assistant commissioner. Even if the Unions were incorrect in their interpretation of which section of the 2009 amendment to N.J.S.A. 34:13A-3(f) applied to their petition, they were entitled to a complete and thorough investigation of their submission. PERC's rather brief written decision does little to explain the agency's review of the petition or to support its decision with factual determination of the evidence presented by the Unions.
We, therefore, conclude PERC acted arbitrarily and capriciously in dismissing the petition without first conducting a complete review of the functions ascribed to the job titles submitted by the Unions. Given the documentation provided for PERC's review, we are convinced the Unions' request for a hearing should have been granted. Based on the foregoing, we hereby vacate the decision issued by PERC dismissing the Unions' petition for unit clarification and remand this matter for PERC to conduct a thorough fact-finding investigation, with a hearing, in accordance with its regulations.
On remand, PERC should be guided in its review by the factors set forth in New Jersey Turnpike Authority, in which the Court elaborated on the two-part statutory definition and established the factors to be considered when determining whether a person is a management executive. N.J. Tpk. Auth., supra, 150 N.J. at 337. The Court held:
A person formulates policies when he develops a particular set of objectives designed to further the mission of [a segment of] the governmental unit and when he selects a course of action from among available alternatives. A person directs the effectuation of policy when he is charged with developing the methods, means and extent of reaching a policy objective and thus oversees or coordinates policy implementation by line supervisors. . . . Whether or not an employee possesses this level of authority may generally be determined by . . . three factors: (1) the
relative position of that employee in his employer's hierarchy; (2) his functions and responsibilities; and (3) the extent of discretion he exercises.
[Ibid. (quoting Borough of Montvale, P.E.R.C. No. 81-52, 6 N.J.P.E.R. ¶11259 (1980)).]
The purpose of the hearing will be to conduct a review of the job functions submitted by the Unions to determine if any of the employees are managerial executives as defined for "public employers other than the State of New Jersey." N.J.S.A. 34:13A-3(f).
Affirmed in part, reversed and remanded in part. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION