In the Matter of Tanaya Tukes

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3374-14T3

IN THE MATTER OF TANAYA TUKES,

TINA MUCHERSON, TYESHA CUFF,

SARAH PATTERSON, JAYNET PETERSON,

APPROVED FOR PUBLICATION

ERICA HENDERSON, NICOLE BUTLER,

TAMARA PEYTON, TRACY BAILEY, February 23, 2017

ANDREA JONES, ELIZABETH DUNKLE,

DELORES MCSHAN, FRANCES WILLIAMS, APPELLATE DIVISION

MILINDA BANKS, TORRIE KING-BRYANT,

ANGELA PLUTA, PATRICIA SHEPPARD,

JACQUELINE SANDERS, LISA SADLER,

SONDRA CROOK, VERA SWAN, AGATHA

DRUMMOND, MARYLIN PARKER, EUNICE

BENNETT, RONNETTE SATTERFIELD,

NANCY FLORES, CLEOPATRA HIBBERT,

WHITNEY TULL, XENIA RIVERA, KIMONA

ANDERSON, CAROLYN RAWLS, LYDIA RAHN,

FRYDAE WILLLIAMS, DONNA LUCKEY,

KYRA HARTZOG, CHRISTINE BAIRD,

TRENITA BETTERSON, TONYA GREEN,

KATHLEEN THOMPSON, MARSHA BAILEY,

MALVINE TRENT, LANESHA JONES, MARYANN

WOOD, CATHERIN LEWIS, KENTHY STREET,

FRANCES WILLIAMS, ROBERTA TRAVIS,

DAWN WRONIUK, JONELLE COPES, BRIAN

BEACHAUMP, NICHOLAS GRUFF, MARY FIFTH,

WENDY FIFTH, BRENDA BROWN, JOHN

PELECHATY, TIFFANY SMITH, CHRISTOPHER

RODRIGUEZ, BARRY JOHNSON, JOSEPH EGBEH,

LATOYA HOLLAND, MILTON WHITE, SUSAN

RIVERA, BRIAN MORROW and DEWAYNE KENT,

DEPARTMENT OF HUMAN SERVICES.1

________________________

Submitted February 13, 2017 – Decided February 23, 2017

Before Judges Sabatino, Nugent and Haas.

1

The case caption used in appellants' notice of appeal has been

corrected to include the names of all of the appellants.

On appeal from New Jersey Civil Service

Commission, Docket No. 2015-1457.

Weissman & Mintz, LLC and David Beckett Law,

attorneys for appellants (Rosemarie

Cipparulo and David Beckett, on the brief).

Christopher S. Porrino, Attorney General,

attorney for respondent Civil Service

Commission (Melissa Dutton Schaffer,

Assistant Attorney General, of counsel;

Pamela N. Ullman, Deputy Attorney General,

on the brief).

The opinion of the court was delivered by

HAAS, J.A.D.

Appellants, a group of sixty-four Department of Human

Services employees (collectively "appellants"), appeal from the

February 9, 2015 final agency decision of the Civil Service

Commission ("Commission"), which denied their appeal of a

determination of their layoff rights by the Division of

Classification and Personnel Management ("CPM"). We affirm.

I.

We derive the following background facts from the record.

The Department of Human Services ("Department") closed the

Woodbridge Developmental Center and privatized the operations of

the State-staffed Parents and Friends Association

("PAFA/PAFACOM") homes, which provided services to Department

clients with developmental disabilities. As a result, the

Department decided to lay off employees in a number of different

2 A-3374-14T3

job titles, including appellants, who were employed either at

the Vineland Developmental Center, the Woodbine Developmental

Center, or the PAFA/PAFACOM homes. The following titles were

included in the layoff plan: Residential Living Specialist

("RLS"); Cottage Training Supervisor ("CTS"); Head Cottage

Training Supervisor; Senior Cottage Training Technician; Cottage

Training Technician; Human Services Technician; and Human

Services Assistant.

The Department submitted its layoff plan to the CPM for

review. Following its review, the CPM approved the layoff plan

in its entirety.

As part of its decision, the CPM determined that the RLS

and CTS titles were comparable and, therefore, the employees in

these titles had "lateral title" displacement or "bumping"

rights to each other. In other words, an employee in either the

RLS title or the CTS title, who had more seniority than another

employee in one of those two titles, could bump the employee

with lesser seniority from his or her title. In turn, the

"bumped" employee might have "demotional title" rights to an

employee in a "lower" title.

As a result of the Departments' layoff plan, twenty-six of

the appellants were bumped from their CTS positions by employees

in RLS or CTS titles with more seniority. In turn, some of

3 A-3374-14T3

these appellants bumped other appellants who held lower titles,

such as Senior Cottage Training Technician, Cottage Training

Technician, and Human Services Assistant. Some appellants in

the lowest titles were laid off.

Appellants appealed the CPM's decision to the Commission, 2

which affirmed the CPM's determination in all respects,

including its finding that employees in the RLS and CTS titles

had lateral title rights to each other. For purposes of their

appeal to this court, appellants only challenge the portion of

the Commission's decision that concerns the lateral title rights

applicable to the RLS and CTS titles. Thus, the issue on appeal

is whether the Commission's decision that the employees in these

two titles had lateral title rights relative to each other was

arbitrary, capricious, or unreasonable. See In re Stallworth,

208 N.J. 182, 194 (2011).

II.

To place that issue in the proper context, we begin by

reviewing the law governing employee layoff rights. The Civil

Service Act, N.J.S.A. 11A:1-1 to 12-6, provides that "[a]

2

Once the CPM makes an initial determination of layoff rights,

an affected employee may appeal to the Commission. N.J.A.C.

4A:8-2.6(a)(2). An appeal from a displacement rights

determination does not involve a hearing, but consists of a

review of the written record. Ibid. The burden of proof in

such an appeal is on the employee. N.J.A.C. 4A:8-2.6(c).

4 A-3374-14T3

permanent employee may be laid off for economy, efficiency, or

other related reason." N.J.S.A. 11A:8-1(a). The Commission is

charged with the responsibility for adopting and enforcing rules

regarding the order of layoff and the determination of employee

layoff rights. Ibid.

Layoffs are to occur in the "inverse order of seniority."

N.J.S.A. 11A:8-1(b). For jobs not involving police or

firefighting titles, "seniority" is defined as "the length of

continuous permanent service only in the [employee's] current

permanent title and any other title that has lateral or

demotional rights to the current permanent title." Ibid. In

the present case, the layoff unit was the Department rather than

any of the individual facilities, such as the Vineland or

Woodbine Developmental Centers, that it operated. See N.J.S.A.

11A:8-1(c) (stating that "a 'layoff unit' means a department or

autonomous agency and includes all programs administered by the

department or agency").

As we stated over fifteen years ago in In re Donohue,

The exercise of lateral or demotional

title rights may have a serious impact on

other government workers, who may be

displaced, as well as on the appointing

authority, whose work force may be

rearranged. Therefore, layoff rights may be

exercised only within the explicitly defined

limits of the layoff unit. In addition, the

determination of layoff rights requires the

application of uniform regulatory criteria

5 A-3374-14T3

based upon a careful analysis of job

qualifications and duties articulated in the

job specifications of the targeted employee,

as compared to the job specifications of

those titles within the layoff unit to which

the targeted individual might have rights.

[In re Donohue, 329 N.J. Super. 488, 497

(App. Div. 2000) (citing N.J.A.C. 4A:8-2.2).

A "demotional title right" is the right of an employee

whose title is the target of a layoff to displace "an employee

in the layoff unit holding a title determined [by the

Commission] to be lower than, but related to the affected title

of the employee." N.J.A.C. 4A:8-2.1(b). Permanent employees

also have displacement rights to "any title previously held on a

permanent basis within current continuous service." N.J.A.C.

4A:8-2.2(f). For these rights, "[d]isplacement may be made only

on the basis of greater permanent continuous service . . . ."

Ibid. These further rights "shall not be granted when the

employee has either lateral title rights options, or demotional

title rights options to a title with a higher class code than

the previously held title, within the selected job locations."

N.J.S.A. 4A:8-2.2(f)(1).

Finally, permanent employees, like the appellants involved

in this case, have lateral title rights. A "lateral title

right" is defined as "the right of a permanent employee to

exercise displacement rights . . . against an employee in the

6 A-3374-14T3

layoff unit holding a title determined to be the same or

comparable to the affected title of the employee." N.J.A.C.

4A:8-2.1(a).

In order for two positions to have lateral title rights to

each other, the titles, duties, and education and experience

requirements for the two positions do not have to be identical.

N.J.S.A. 11A:8-1(e). Instead, the titles need only have

"substantially similar duties and responsibilities"; "similar"

education and training requirements; and "similar" special

skills, licenses certification or registration requirements.

Ibid.

In addition, titles may be deemed "lateral" to each other

even when an employee who is "bumping" from one lateral title to

another has never performed the actual duties of the title to

which he or she is moving. Ibid. Thus, one title can be deemed

lateral to another when the "employees in [the] affected title,

with minimal training and orientation, could perform the duties

of the designated title by virtue of having qualified for the

affected title[.]" Ibid. (emphasis added).

A lateral title right exists only if the Commission

determines that there are titles comparable to the affected

title within the layoff unit. The determination of "title

7 A-3374-14T3

comparability" is made by the Commission based upon four

factors:

1. The title(s) shall have substantially

similar duties and responsibilities and the

same class code;

2. The education and experience

requirements for the title(s) are the same

or similar and the mandatory requirements

shall not exceed those of the affected

title;

3. There shall be no special skills,

license, certification or registration

requirements which are not also mandatory

for the affected title; and

4. Any employee in the affected title with

minimal training and orientation could

perform the duties of the designated title

by virtue of having qualified for the

affected title.

[N.J.A.C. 4A:8-2.1(a).]

III.

In its thorough written decision, the Commission reviewed

the job descriptions for the RLS and CTS titles, applied the

four-factor test set forth in N.J.A.C. 4A:8-2.1(a), and

determined, like the CPM before it, that the two titles were

comparable and that the employees in each of these titles had

lateral title rights.

Turning to the first factor, the Commission explained that

[i]n order to categorize functions and

duties which are substantially similar,

based on the definition and example of work

8 A-3374-14T3

portions of job specifications, all titles

are slotted into one of the [thirty-nine]

occupational groups recognized in the

Dictionary of Occupational Titles. Titles

are further categorized into occupational

families within the occupational groups

based on the differences in main functions

of titles in each group after further review

of the job specification language. Thus,

occupational groups and families are

utilized as a means of categorizing titles

based on assigned duties and

responsibilities.

Here, it is undisputed that the RLS and CTS titles were both

in the same class code (13) and occupational

group (35 – Direct Care and Related Personal

and Health Services). Occupational group

35 includes occupations concerned with

attending to the direct treatment, physical

comfort, safety, and appearance of

individuals placed in government facilities

for treatment, rehabilitation, education, or

safety. It excludes occupations concerned

with criminal incarceration. The titles are

also in the same family, Residential Care

Services Worker (01).

Thus, the Commission concluded that the RLS and CTS titles

had "the same class code." N.J.A.C. 4A:8-2.1(a)(1). The

Commission then conducted "a review of the job specifications"

for each title and found "that the basic duties and

responsibilities of each title are similar" as required by the

second prong of N.J.A.C. 4A:8-2.1(a)(1).

The job description for the RLS title defines this title in

the following terms:

9 A-3374-14T3

Under direction of a supervisory official in

a small Intermediate Care Facility Unit for

the developmentally disabled in a state

department, acts as a parent surrogate to

clients of that unit providing direct

services in the areas of direct care,

training, feeding, recreation, education,

social education, vocational education, and

direct/indirect services in the areas of

sanitation and cleaning, laundry, and

supportive programming, on the grounds and

in community activities; does related

[3]

duties.

Included in the "Examples of Work" section of the RLS job

description are such duties as: "[a]ssumes responsibility for

the physical, mental, and emotional well[-]being of assigned

clients"; "[p]repares and serves meals to clients, feeds those

unable to help themselves, and trains clients to serve and feed

themselves where applicable"; and "[b]athes, dresses, combs

hair, trims nails, brushes teeth, shaves, and provides whatever

other assistance is required by client to ensure adequate

standards of personal hygiene."

The job description for the CTS titles defines that title

as follows:

Under direction of a Head Cottage Training

Supervisor or other supervisor of an

3

The job descriptions for both the RLS and CTS titles both

provide that "[t]he examples of work for this title are for

illustrative purposes only. A particular position using this

title may not perform all duties listed in this job

specification. Conversely, all duties performed on the job may

not be listed."

10 A-3374-14T3

institution for the developmentally disabled

in the Department of Human Services,

supervises cottage personnel assigned to a

shift; functions in the absence of the Head

Cottage Training Supervisor; conducts

assigned non-professional programs for the

physical, mental and emotional health of

residents, and to develop their potential

abilities in areas of personal self-care,

social training, cleanliness and related

programs; does related work as required.

As "Examples of Work," the CTS job description lists such duties

as: "[s]upervises cottage personnel providing for the personal

care of residents to ensure proper feeding, cleanliness, safety

and well[-]being of residents assigned to a cottage";

"[s]upervises and participates in serving meals to residents and

provides assistance to those unable to feed themselves"; and

"[p]erforms and supervises staff involved in bathing, dressing,

and providing other grooming assistance required by residents

for their appropriate personal hygiene." (emphasis added).

After comparing the job duties for the two positions, the

Commission found that employees in the RLS and CTS titles were

"engaged in para-medical activities" and "participate[d] in

. . . support functions such as recreational, vocational, and

social programs designed to aid in the care, health[,] and

rehabilitation of the physically [ill], mentally ill, or

handicapped." The Commission further observed that the two

titles "have in common the direct care of clients as their duty

11 A-3374-14T3

and responsibility." Thus, the Commission concluded that

employees in the RLS and CTS titles performed "substantially

similar duties and responsibilities" and, therefore, the

criterion set forth in N.J.A.C. 4A:8-2.1(a)(1) had been met.

The Commission next considered N.J.A.C. 4A:8-2.1(a)(2),

which concerns the education and experience requirements for

each title. To be assigned to the RLS title, an employee must

have "[t]wo (2) years of experience in the direct care of the

developmentally disabled in either a residential or community

setting." Similarly, an employee in the CTS title needed "[t]wo

(2) years of experience in the direct care of clients which may

include training or supervision in an institutional, hospital or

residential setting."

The Commission determined that these education and

experience requirements were "the same or similar and the

mandatory requirements [did] not exceed those of the affected

title" under N.J.A.C. 4A:8-2.1(a)(2). As stated above, the only

mandatory requirement for both titles was two years of

experience in the direct care of developmentally disabled

clients.4

4

As noted above, the CTS job description made clear that the

required two years of direct care experience for that title

could include training and supervisory experience. However,

(continued)

12 A-3374-14T3

Moving to the third factor, the job descriptions for both

titles stated that the only license an employee had to have was

a driver's license "if the operation of a vehicle, rather than

employee mobility is necessary to perform essential duties of

the position." No other special skills, licenses, or other

certification or registration requirements were necessary.

Thus, the Commission determined that the RLS and CTS titles were

comparable under N.J.A.C. 4A:8-2.1(a)(3).

Finally, the Commission found that an employee in the RLS

title could perform the duties of the CTS title "with minimal

training and orientation." N.J.A.C. 4A:8-2.1(a)(4). While

employees in the CTS title performed supervisory duties, no

supervisory experience was needed to enter that title. Thus, a

person in the RLS title could exercise his or her lateral title

rights to the CTS title and then presumably be ready, with

minimal training and orientation, to become a supervisor, just

as any new employee in the CTS title would.

IV.

Before the Commission, appellants raised three bones of

contention that they again present in their appeal to this

court. First, appellants argued that the CPM and, thereafter,

(continued)

such experience was not mandated for either the CTS title or the

RLS title.

13 A-3374-14T3

the Commission failed to "demonstrate a thorough understanding"

of the job duties performed by the employees in the CTS title. 5

Specifically, appellants asserted that the Commission did not

fully consider the fact that employees in the CTS title were

called upon to perform supervisory duties that the employees in

the RLS title were not.

However, the Commission expressly acknowledged the

supervisory duties performed by employees in the CTS title, and

found that that title was still "comparable" to the RLS title as

required by N.J.S.A. 11A:8.1(e) and N.J.A.C. 4A:8-2.1(a). The

Commission stated:

[CTS] is not a managerial title, as

claimed by the appellants, but is a primary

5

In support of their contention that the Commission must

"thorough[ly] understand" and fully review the respective job

duties of both titles involved in a lateral titles rights case,

appellants cite In re Johnson, 215 N.J. 366, 378, 383-84 (2013),

a case involving a challenge to the Commission's decision to

reclassify a civil service position without first conducting a

complete audit of that position. We note that Johnson is

inapposite to the case at hand because reclassification

decisions are subject to different standards and regulations

than lateral title rights cases. See N.J.A.C. 4A:3-3.5 (setting

standards for reclassification of positions in the civil

service). That having been said, we previously made clear in

Donohue, supra, that the determination of lateral title rights

must be "based upon a careful analysis [and comparison] of job

qualifications and duties articulated in the job specifications"

for both positions at issue. Donohue, supra, 329 N.J. Super. at

497. Thus, we have no difficulty adopting here the Supreme

Court's common-sense observation that a "thorough understanding"

of the duties of a position is necessary in any case where the

title rights of a civil service employee are at stake.

14 A-3374-14T3

level supervisory title, and this is the

difference between the [CTS] and [RLS]

titles. The [CTS] title is assigned to the

"R," or primary level supervisory,

bargaining unit, which include[s] titles

that may be assigned the responsibility for

effectively recommending the hiring, firing,

promoting, demoting[,] and/or disciplining

of employees in non-supervisory titles. As

such, this bargaining unit is defined as

permissive for supervisory responsibilities.

That is, incumbents may or may not supervise

subordinates, or they may supervise a

program. Incumbent primary level

supervisors are not necessarily required to

supervise staff, but the job specification

does permit this function if so required by

the organizational unit.

Thus, contrary to appellants' argument that it did not

"thoroughly understand" the job duties of each position, the

Commission specifically recognized that employees in the CTS

title were primarily supervisors. However, the Commission went

on to explain that the performance of supervisory duties by

employees in the CTS title did not affect the overall

comparability of the CTS and RLS titles for the purpose of

determining lateral title rights. The Commission stated:

The primary level supervisory titles are the

titles in which employees can gain

supervisory experience, and they are not

required to possess supervisory experience

upon appointment. As such, aside from the

fact that bargaining units are not factored

into title rights, primary level supervisors

are not differentiated from non-supervisory

titles in the determination of title rights.

As direct care is the primary focus of each

title, they are functionally similar.

15 A-3374-14T3

[(emphasis added).]

As noted above, the CTS title does not require prior

supervisory experience. The employees in this title are only

required to have two years of experience in the direct care of

clients. Therefore, when an employee enters the CTS title, he

or she must undergo a period of "minimal training and

orientation" prior to performing any supervisory duties.

N.J.A.C. 4A:8-2.1(a)(4).

This would be the same situation where an employee in the

RLS title exercised his or her lateral title rights to enter the

CTS title. The two-year direct patient care experience

requirement for the RLS title is identical to the CTS experience

requirement. Thus, with the same "minimal training and

orientation," an employee moving laterally into the CTS title

could also be expected to perform supervisory functions.

Therefore, the Commission concluded that the actual job duties

for each title were substantially similar.

Appellants also argued that the RLS and CTS titles could

not be deemed comparable because they were in different

bargaining units. The Commission addressed and rejected this

contention. The Commission stated that the RLS title was

"assigned to the "'H'" bargaining unit, Health, Care,

16 A-3374-14T3

Rehabilitation Services[.]" The CTS title was "assigned to the

"'R,'" or primary level supervisory, bargaining unit[.]"

However, as the Commission found, nothing in the governing

statute, N.J.S.A. 11A:8-1, or regulations, N.J.A.C. 4A:8-2.1 to

-2.6, provides that the bargaining unit for any title must be

considered in determining lateral title rights. Moreover, the

Commission reiterated that "the primary focus of each title" was

the direct care of clients. Thus, the Commission concluded that

the RLS and CTS titles were "functionally similar" and,

therefore, comparable within the intendment of N.J.S.A. 11A:8-

1(e) and N.J.A.C. 4A:8-2.1(a).

Finally, appellants argued that the Commission did not

adequately consider the fact that employees in the CTS title

usually worked in larger State facilities, while employees in

the RLS title most frequently assisted clients in smaller group

home settings. Once again, however, the Commission expressly

addressed and rejected this assertion.

As the Commission explained, the layoff unit in this case

was the entire Department, including all programs, facilities,

and group homes managed by the Department. See N.J.A.C. 4A:8-

1.5(a). The Commission noted that as the appointing authority,

the Department had "the right to determine the organization

17 A-3374-14T3

structure of its operation" and, therefore, could assign

employees to various facilities as deemed necessary.

The Commission further observed that "[a]s long as there

[were] no improper reporting relationships or

misclassifications, how the facility is organized is not under

the jurisdiction of the Commission or reviewable in the context

of a layoff appeal." Moreover, the experience requirements for

both titles did not require that the required two years of

direct care experience had to be in any particular facility.

Under these circumstances, the Commission concluded that the two

titles were comparable regardless of the nature or size of the

facility where the employees in the titles had previously been

assigned. This appeal followed.

V.

On appeal, appellants contend that the Commission's "final

decision is arbitrary, unreasonable[,] and not supported by

substantial evidence in the record." As noted above, they raise

the three same arguments they unsuccessfully presented to the

Commission. Appellants assert that the Commission: (1) failed

to demonstrate that it "thoroughly understood" the job duties of

the RLS and CTS titles; (2) did not consider that the two job

titles were in different bargaining units; and (3) did not give

sufficient weight to the fact that employees in the CTS title

18 A-3374-14T3

usually worked in larger facilities than employees in the RLS

title. Appellants also add a fourth contention and allege that

a search of "title inquiry screens" on an internet database did

not reflect the title rights later determined by the Commission.

We disagree with all of these contentions.

Established precedents guide our task on appeal. Appellate

review of an administrative agency decision is limited. In re

Herrmann, 192 N.J. 19, 27 (2007). A "strong presumption of

reasonableness attaches" to the Commission's decision. In re

Carroll, 339 N.J. Super. 429, 437 (App. Div.), certif. denied,

170 N.J. 85 (2001). Appellants have the burden to demonstrate

grounds for reversal. McGowan v. N.J. State Parole Bd., 347

N.J. Super. 544, 563 (App. Div. 2002); see also Bowden v.

Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div. 1993)

(holding that "[t]he burden of showing the agency's action was

arbitrary, unreasonable or capricious rests upon the

appellant"), certif. denied, 135 N.J. 469 (1994).

Appellate courts generally defer to final agency actions,

only "reversing those actions if they are 'arbitrary, capricious

or unreasonable or [if the action] is not supported by

substantial credible evidence in the record as a whole.'" N.J.

Soc'y for the Prev. of Cruelty to Animals v. N.J. Dep't of

Agric., 196 N.J. 366, 384-85 (2008) (alteration in original)

19 A-3374-14T3

(quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80

(1980)). Under the arbitrary, capricious, or unreasonable

standard, our scope of review is guided by three major

inquiries: (l) whether the agency's decision conforms with

relevant law; (2) whether the decision is supported by

substantial credible evidence in the record; and (3) whether in

applying the law to the facts, the administrative agency clearly

erred in reaching its conclusion. Stallworth, supra, 208 N.J.

at 194.

When an agency decision satisfies such criteria, we accord

substantial deference to the agency's fact-finding and legal

conclusions, acknowledging "the agency's 'expertise and superior

knowledge of a particular field.'" Circus Liquors, Inc. v.

Governing Body of Middletown Twp., 199 N.J. 1, 10 (2009)

(quoting Greenwood v. State Police Training Ctr., 127 N.J. 500,

513 (1992)). We will not substitute our judgment for the

agency's even though we might have reached a different

conclusion. Stallworth, supra, 208 N.J. at 194; see also In re

Taylor, 158 N.J. 644, 656-57 (1999) (discussing the narrow

appellate standard of review for administrative matters).

Applying these principles here, we discern no basis for

disturbing the Commission's decision establishing appellants'

layoff rights. We affirm substantially for the reasons set

20 A-3374-14T3

forth in the Commission's thorough written decision and add the

following comments.

As they did before the Commission, appellants again allege

that the Commission failed to appreciate that employees in the

CTS title performed supervisory duties in addition to their

direct patient care responsibilities, while their colleagues in

the RLS title did not. However, the Commission dealt with this

issue head-on in its decision, finding that prior supervisory

experience was not a requirement for the CTS title and that to

enter either title, an employee only had to have two years of

direct patient care experience.

Thus, an employee in the RLS title could laterally move

into the CTS title and, just like any other new employee in that

position, begin providing supervision as well as direct care "by

virtue of having qualified for the affected title" after

receiving normal "minimal training and orientation." N.J.S.A.

11A:8-1(e); N.J.A.C. 4A:8-2.1(a)(4). Therefore, the Commission

properly determined that the RLS and CTS titles were comparable

and that the employees in each title had lateral title

displacement rights based on seniority.

Contrary to appellants' contentions, the Commission also

considered the fact that employees in the RLS and CTS titles

fall under different bargaining units. Again, however, that is

21 A-3374-14T3

a distinction without a difference. An employee's bargaining

unit at the time of a layoff is simply not one of the relevant

factors that the Commission must consider in determining lateral

title rights. N.J.S.A. 11A:8-1(e); N.J.A.C. 4A:8-2.1(a)(4).

The Commission also noted from its exhaustive review of the

job titles and duties of the affected employees that individuals

holding the CTS title were more frequently assigned to larger

facilities than their counterparts in the RLS title. However,

the assignment of employees to particular facilities is a

prerogative of the Department and does not affect the overall

comparability of the two titles.6 As the Commission found, the

supervisory and direct patient care duties performed by the

employees were substantially similar regardless of their

specific work location.

Finally, appellants assert that prior to the Commission's

approval of the Department's layoff plan, information available

on a Commission computer database did not list the RLS and CTS

titles as having lateral displacement rights to each other.

However, when this discrepancy was brought to the Commission's

attention, the Commission promptly determined that this error

6

As noted above, the layoff unit in this case was the entire

Department, including all programs administered by the

Department, and not just one or more of its individual

facilities. N.J.S.A. 11A:8-1(c); N.J.A.C. 4A:8-1.5(a).

22 A-3374-14T3

was "a systems related issue" caused by a "recent department

code change made to the CTS title." The Commission attempted

"to manually fix the issue but the [computer database] system

[was] not permitting any additions." The Commission notified

its "systems staff" of the matter, and the proper information

was later uploaded to the system.

In the meantime, the Commission made written documentation

available to all interested parties concerning the lateral and

demotional title rights of all of the titles affected by the

layoff. Thus, the mere fact that a computer glitch temporarily

prevented the lateral title rights pertaining to the RLS and CTS

titles from being available on the database had no impact

whatsoever on the Commission's subsequent review and approval of

the Department's layoff plan.

In sum, the Commission did not act arbitrarily,

capriciously, or unreasonably in determining that employees in

the RLS and CTS titles had lateral title rights to each other,

and its decision is fairly supported by substantial evidence in

the record.

Affirmed.

23 A-3374-14T3