IN THE MATTER OF OCEAN COUNTY COLLEGE VS. OCEAN COUNTY…

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-0446-19T2

IN THE MATTER OF OCEAN
COUNTY COLLEGE,

          Petitioner-Appellant,

v.

OCEAN COUNTY COLLEGE
FACULTY ASSOCIATION,

          Respondent-Respondent.


                   Submitted September 16, 2020 – Decided October 13, 2020

                   Before Judges Alvarez and Mitterhoff.

                   On appeal from the New Jersey Public Employment
                   Relations Commission, P.E.R.C. No. SN-2019-034.

                   Cleary Giacobbe Alfieri Jacobs, LLC, attorneys for
                   appellant (Matthew J. Giacobbe, of counsel and on the
                   briefs; Victoria A. Leblein, on the briefs).
             Dezky, Hunter & DeFillippo, LLC, attorneys for
             respondent (Stephen B. Hunter, of counsel and on the
             brief).

             Christine Lucarelli, General Counsel, attorney for
             respondent New Jersey Public Employment Relations
             Commission (Ramiro Perez, Deputy General Counsel,
             on the statement in lieu of brief).

PER CURIAM

     Petitioner Ocean County College (OCC) appeals from the August 15, 2019

New Jersey Public Employment Commission (PERC) final decision denying

reconsideration of a May 30, 2019 adjudication concluding that two provisions

in a Collective Negotiations Agreement (CNA) were mandatorily negotiable.

We affirm.

     The dispute centers over language included in the prior CNA, effective

from September 1, 2014, through August 31, 2019. OCC contends the clauses

should be excluded. They are:

             Article III, Section J
             Preference – [Faculty Association of Ocean County
             College] Members shall be given preference to Faculty
             duties within their discipline, for which they are
             qualified.

     Additionally, this paragraph is at issue:

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            Article V, Section B (5) (in pertinent part)
            Extra Pay Assignment Priority -
            Full-Time Faculty Members shall have preference,
            according to qualifications, as determined by the
            Department Dean or Vice President of Academic
            Affairs, to teach courses involving extra pay.

Respondent Ocean County College Faculty Association (Association) represents

full-time OCC faculty members.

      In its initial decision on the merits, PERC observed that Article III,

Section J "is phrased as a unit work preservation provision that Association

faculty, if qualified (as determined by [OCC]), are given preference for faculty

duties within their discipline over individuals not represented by the

Association." As to Article V, Section B(5), PERC noted that it "is similarly

[preconditioned] on the faculty being qualified for the duties at issue[.]" PERC

concluded that since the disputed language allows OCC to initially determine

which faculty within their discipline had the appropriate qualifications, there

was no infringement on OCC's "managerial prerogative to make staffing

assignments."

      In the reconsideration decision, PERC did not consider those arguments

OCC had not previously raised, which lacked supporting certifications based on

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                                       3
personal knowledge. As they reiterated, "the clauses at issue are unit work

preservation provisions because they provide preference to Association unit

members over non-unit members."

     Now on appeal, OCC raises the following issues for our consideration:

           POINT I
           THE COMMISSION’S CONCLUSION THAT THE
           PROVISIONS OF THE AGREEMENT WERE
           NEGOTIABLE AND DID NOT INFRINGE ON THE
           COLLEGE’S NON-NEGOTIABLE MANAGERIAL
           PREROGATIVE WAS ARBITRARY, CAPRICIOUS
           AND UNREASONABLE.

                 A. Well established case law.

                 B. Inclusion of Article III, Section J, in the
                 Agreement Infringes on the College’s Non-
                 Negotiable Managerial Prerogative in
                 Violation of the Well-Established Case
                 Law and Legislative Policy.

                 C. Inclusion of Article V, Section B(5), in
                 the Agreement Infringes on the College’s
                 Non-Negotiable Managerial Prerogative in
                 Violation of the Well-Established Case
                 Law and Legislative Policy.

           POINT II
           THE     COMMISSION’S   RECONSIDERATION
           DECISION, AFFIRMING ITS SCOPE DECISION,
           FINDING THAT THE PROVISIONS OF THE

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                                       4
            AGREEMENT WERE NEGOTIABLE AND DID NOT
            INFRINGE   ON  THE  COLLEGE’S    NON-
            NEGOTIABLE MANAGERIAL PREROGATIVE
            WAS AGAINST THE SUBSTANTIAL EVIDENCE
            IN THE RECORD.

            POINT III
            THE COMMISSION’S CONCLUSION THAT THE
            PROVISIONS OF THE AGREEMENT WERE
            NEGOTIABLE AND DID NOT INFRINGE ON THE
            COLLEGE’S NON-NEGOTIABLE MANAGERIAL
            PREROGATIVE WAS ARBITRARY, CAPRICIOUS
            AND      UNREASONABLE    AS   IT   WAS
            INCONSISTENT WITH ITS MANDATE.

            POINT IV
            THE COMMISSION’S CONCLUSION THAT THE
            PROVISIONS   OF     THE   AGREEMENT
            CONSTITUTED UNIT WORK PRESERVATION
            CLAUSES WAS ARBITRARY, CAPRICIOUS,
            UNREASONABLE AND CONTRARY TO PRIOR
            COMMISSION DECISIONS.

      "The standard of review of a PERC decision concerning the scope of

negotiations is 'thoroughly settled.'" City of Jersey v. Jersey City Police Officers

Benevolent Ass'n, 154 N.J. 555, 568 (1998) (quoting In re Hunterdon Cnty. Bd.

of Chosen Freeholders, 116 N.J. 322, 329 (1989)). PERC's decisions regarding

negotiability are upheld unless "arbitrary, capricious or unreasonable, . . .

lack[ing] fair support in the evidence," or in "violat[ion] of a legislative policy

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                                         5
expressed or implicit in the governing statute." Twp. of Franklin v. Franklin

Twp. PBA Loc. 154, 424 N.J. Super. 369, 377 (App. Div. 2012) (quoting

Commc'n Workers of Am., Loc. 1034 v. N.J. State Policemen's Benevolent

Ass'n., Loc. 203, 412 N.J. Super. 286, 291 (App. Div. 2010)). The burden of

establishing the improper nature of the agency action is upon the party

challenging it. In re Adoption of Amends. to N.E. Upper Raritan, Sussex Cty.,

435 N.J. Super. 571, 582 (App. Div. 2014).

      In reviewing PERC decisions, our role is "sensitive and circumspect."

Hunterdon Cty., 116 N.J. at 328.           PERC's decisions are "regulatory

determination[s] of an administrative agency that is invested by the legislature

with broad authority and wide discretion in a highly specialized area of public

life." Ibid. Substantial deference is therefore accorded to PERC's scope of

negotiations determinations. Twp. of Franklin, 424 N.J. Super. at 377.

      A three-part test is employed to determine when a subject is negotiable

between public employers and employees: "(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


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agreement would not significantly interfere with the determination of

government policy." City of Jersey City, 154 N.J. at 568 (1998) (quoting In re

Loc. 195 IFPTE, 88 N.J. 393, 404-05 (1982)). As to the third factor, "it is

necessary to balance the interest 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." Ibid. (quoting IFPTE, 88 N.J. at 404-05). The test is applied on a

case-by-case basis. Troy v. Rutgers, 168 N.J. 354, 383 (2001).

      The unit work rule prohibits the "shifting of work from employees within

a negotiations unit to other employees outside the unit." City of Jersey City,

154 N.J. at 565. It "require[s] collective bargaining before workers in the

bargaining unit are replaced by non-unit workers, the objective being to provide

the union with at least an opportunity to negotiate an acceptable alternative[.]"

Id. at 576. It protects the unit from loss of jobs and the consequent reduction

in union membership. See Id. at 568-79. Having reviewed the record and

applicable standards of review, we are satisfied that OCC has not shown that


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PERC's decision was arbitrary, unreasonable, capricious or contrary to well -

established precedent.

      Article III, Section J simply seeks to protect Association members from

outside instructors and staff who could perform the same duties. The very

concerns implicated by the unit work rule are present here. Consequentially, the

provision does not interfere with managerial authority; it states preference is to

be given to faculty where such responsibilities fall "within their discipline, for

which they are qualified."     Thus, the clause preserved work traditionally

performed by unit employees within their discipline while balancing OCC's

interest in ensuring that appointments are made to those who are qualified to

perform the job.

      Similarly, Article V, Section B (5) does not interfere with OCC's ability

to select the most qualified individual to teach a specific course. That section

of the CNA accords extra pay assignment priority to full-time faculty members

only where the Dean of Vice-President of academic affairs has determined that

he or she is qualified. Again, managerial authority and prerogatives remain with

OCC. Association members are given preference over non-members when both


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are equally qualified. The language balances the need to preserve opportunities

for Association members with OCC's need to determine which candidates are

most qualified for extra pay opportunities.

      Thus, PERC's decision finding the relevant paragraphs to be mandatorily

negotiable does not interfere with the employer's managerial prerogative. It is

neither arbitrary, capricious, nor unreasonable, and is in accord with the

legislative mandate.

      Affirmed.




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