Opinion
DOCKET NO. A-1742-11T2
08-28-2012
TOWNSHIP OF VOORHEES, Petitioner-Appellant, v. VOORHEES POLICE OFFICERS ASSOCIATION, VOORHEES SERGEANTS ASSOCIATION and VOORHEES SENIOR OFFICERS' ASSOCIATION OF FOP LODGE 56, AND THE FRATERNAL ORDER OF POLICE - NEW JERSEY LABOR COUNCIL, Respondents-Respondents.
Wade, Long, Wood & Kennedy, LLC, attorneys for appellant (John D. Wade, of counsel; Audra A. Pondish, on the briefs). The Cushane Law Firm, LLC, attorneys for respondents FOP Lodge 56 and the Fraternal Order of Police, New Jersey Labor Council (Thomas A. Cushane, on the brief). Martin R. Pachman, General Counsel, attorney for respondent New Jersey Public Employment Relations Commission (Mr. Pachman, on the statement in lieu of brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Simonelli and Waugh.
On appeal from the Public Employment Relations Commission, Agency Docket No. SN-2011-016.
Wade, Long, Wood & Kennedy, LLC, attorneys for appellant (John D. Wade, of counsel; Audra A. Pondish, on the briefs).
The Cushane Law Firm, LLC, attorneys for respondents FOP Lodge 56 and the Fraternal Order of Police, New Jersey Labor Council (Thomas A. Cushane, on the brief).
Martin R. Pachman, General Counsel, attorney for respondent New Jersey Public Employment Relations Commission (Mr. Pachman, on the statement in lieu of brief). PER CURIAM
Petitioner Township of Voorhees (Township) appeals from the final agency determination of the Public Employment Relations Commission (PERC) denying its application for an order restraining binding arbitration of a grievance filed by respondents, which are bargaining units representing police officers of various ranks employed by the Township. We affirm.
I.
We discern the following facts and procedural history from the record on appeal.
The Township and respondents Voorhees Police Senior Officers Association, Voorhees Township Sergeants Association, and Voorhees Township Police Officers' Association are parties to three separate collective bargaining agreements (CBA). Two of the CBAs cover the period from January 1, 2006 through December 31, 2009, and the third covers the period from January 1, 2009 to December 31, 2012. All of the respondent bargaining units are affiliated with respondent Fraternal Order of Police - New Jersey Labor Council (FOP), which filed the grievance at issue on their behalf.
The FOP contends that each of the CBAs at issue requires the Township to maintain prescription co-payment reimbursement plans for retired Voorhees police officers at the same level that was in effect at the time of each employee's retirement date. According to the FOP, past practice and a 2008 grievance settlement agreement between the Township and the FOP prohibit any diminution of health benefits for retirees who were covered by the CBAs after their retirement.
On April 13, 2010, the Township sent a letter to its retirees informing them that, effective July 1, it would "no longer be reimbursing retirees for prescription co-payments in excess of the co-payments provided through the State Health Benefits Program." According to the letter, the change was due to budgetary constraints. On May 11, the FOP filed a joint grievance on behalf of its three bargaining units.
After an unsuccessful attempt to settle the grievance, the FOP filed a request for binding arbitration with PERC on July 14. On August 31, the Township filed a petition for scope of negotiations determination, seeking a determination that the grievance was not subject to binding arbitration because the issues raised were within the Township's discretion and not within the scope of negotiations. The parties agreed to defer the arbitration hearing until PERC issued its determination.
PERC issued its decision on September 22. PERC found that "[t]he parties' collective negotiations agreements contain provisions dealing with medical insurance for retirees." It found that, in line with its previous decisions, the FOP "has a cognizable interest in ensuring that retired employees receive whatever retirement benefits were contracted for in the agreement that was in effect at the time an employee retired." It refused to restrain the arbitration. This appeal followed.
II.
The Township argues on appeal that the FOP lacks standing to assert claims on behalf of retirees, that retirement benefits are not a mandatory topic of negotiation, and that a prescription reimbursement program is a supplemental benefit such that "[o]ne could conclude that" the Township's agreement to provide them in the CBAs was ultra vires and unenforceable.
Our review of administrative agency action is limited. Generally, we will not disturb an administrative agency's determinations or findings "unless there is a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence." In re Application of Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008). "In the absence of constitutional concerns or countervailing expressions of legislative intent, we apply a deferential standard of review to determinations made by PERC." City of Jersey City v. Jersey City Police Officers Benevolent Ass'n, 154 N.J. 555, 567 (1998). This is particularly so when we review a PERC decision concerning the scope of negotiations.
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." N.J.S.A. 34:13A-5.4(d). The standard of review of a PERC decision concerning the scope of negotiations is "thoroughly settled. The administrative determination will stand unless it is clearly demonstrated to be arbitrary or capricious." [In re Hunterdon Cnty. Bd. of Chosen Freeholders, 116 N.J. 322, 329 (1989)] (quoting State v. Professional Ass'n of N.J. Dep't of Educ, 64 N.J. 231, 258-59 (1974)).
[Id. at 567-68.]
The importance of representative standing as an efficient procedural vehicle for addressing the common rights and grievances of association members is well-recognized in New Jersey. See Crescent Park Tenants Ass'n v. Realty Equities Corp., 58 N.J. 98, 111 (1971) (overruling New Jersey Bankers Ass'n v. Van Riper, 1 N.J. 193 (1948), as "incompatible with our current procedural philosophies and with our justly liberal holdings in the field of standing"); N.J. Citizen Action v. Riviera Motel Corp., 296 N.J. Super. 402, 415 (App. Div. 1997) (stating that "New Jersey courts take a broad and liberal approach to standing"). The United States Supreme Court enunciated the criteria required under federal law to establish associational standing when it stated:
[A]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted, nor the relief requested, requires the participation of individual members in the lawsuit.Similarly, our own Supreme Court has recognized associational standing where there was no question of individual members' "stake and adverseness[,] . . . there would have been no attack on standing if individual [members] had joined in the complaint," and the complaint was "confined strictly to matters of common interest and [did] not include any individual grievance which might perhaps be dealt with more appropriately in a proceeding between the individual [member] and the [defendant]." See Crescent Park, supra, 58 N.J. at 108-09.
[Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 333, 343, 97 S. Ct. 2434, 2441, 53 L. Ed. 2d 383, 394 (1977).]
As PERC noted in its decision, it has long taken the position that a collective bargaining unit has standing to file grievances involving the contractual rights of retired members. In contrast to the union in Allied Chemical & Alkali Workers of America v. Pittsburgh Plate Glass Co., 404 U.S. 157, 92 S. Ct. 383, 30 L. Ed. 2d 341 (1971), the case relied upon by the Township, the FOP is not seeking to negotiate on behalf of retired members of its bargaining units. It is merely seeking to enforce what it asserts are their rights under contracts negotiated and agreed to by the Township when the retirees were active members of their respective bargaining units. That distinction was recognized by the Third Circuit in United States Steelworkers of America, AFL-CIO v. Canron, Inc., 580 F.2d 77, 80-81 (3d Cir. 1978) (citation and internal quotation marks omitted), which held that "[e]ven though retirement benefits of former employees already retired are not a mandatory subject of collective bargaining, it does not naturally follow, as the company implies, that a union loses all interest in the fate of its members once they retire."
The FOP has a strong interest in vindicating the rights of its retired members. Consequently, PERC's determination that the FOP has standing to pursue the grievance at issue is not arbitrary, capricious, or unreasonable, nor is it inconsistent with existing law.
The Township's argument that it need not negotiate with the FOP on the issue of co-payments for retired police officers is beside the point as far as this appeal is concerned. The grievance seeks to enforce what the FOP contends are the Township's obligations under prior and existing CBAs. It does not seek to compel the Township to bargain on the issue for future contracts. As the record demonstrates and as determined by PERC, the Township did negotiate and reach an agreement with respect to retiree health benefits in the past. Consequently, whether the Township is required to bargain on the issue in the future does not govern the issue of whether it must comply with the CBAs in which the FOP contends it has already bargained and agreed to make the payments.
We express no view on the issue of future contracts or with respect to the interpretation of the CBAs involved in this appeal.
Whether the prior and current CBAs at issue require the Township to continue the supplemental prescription reimbursement program and whether such an agreement was ultra vires at the time they were entered into are matters for determination through the arbitration process.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION