The opinion
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APPROVAL OF THE APPELLATE DIVISION
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Although it is posted on the internet, this opinion is binding only on the
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3817-14T2
IN THE MATTER OF
CITY OF ATLANTIC CITY,
Petitioner-Respondent/
Cross-Appellant,
and
ATLANTIC CITY PROFESSIONAL
FIREFIGHTERS INTERNATIONAL
ASSOCIATION OF FIREFIGHTERS,
LOCAL NO. 198,
Respondent-Appellant/
Cross-Respondent.
_________________________________
Submitted October 25, 2016 – Decided September 20, 2017
Before Judges Messano and Espinosa.
On appeal from the Public Employment Relations
Commission, Docket No. 2015-051.
O'Brien, Belland & Bushinsky, LLC, attorneys
for appellant/cross-respondent (Mark E.
Belland and David F. Watkins, Jr., on the
briefs).
Cleary, Giacobbe, Alfieri & Jacobs, LLC,
attorneys for respondent/cross-appellant City
of Atlantic City (Matthew J. Giacobbe and
Gregory J. Franklin, of counsel and on the
briefs).
Robin T. McMahon, General Counsel, attorney
for respondent New Jersey Public Employment
Relations Commission (David N. Gambert, Deputy
General Counsel, on the brief).
PER CURIAM
Atlantic City Professional Fire Fighters IAFF Local 198 (the
Union) and the City of Atlantic City (the City) were parties to a
collective negotiations agreement (CNA) that expired on December
31, 2014. After the parties reached an impasse during negotiations
for a successor contract, the City filed a petition with the Public
Employment Relations Commission (PERC) to initiate compulsory
interest arbitration and later amended that petition to seek a
scope of negotiations determination.
The petition targeted thirty-five provisions under seven
articles of the expired CNA, asking PERC to determine the
provisions were non-negotiable matters that could not be submitted
to interest arbitration. Following PERC's final decision, the
Union appeals, challenging PERC's determination that fourteen
provisions were not mandatorily negotiable. The City cross-
appeals, challenging PERC's determination that four of the
provisions were mandatorily negotiable. We affirm in part and
reverse in part.
2 A-3817-14T2
I.
"[T]he scope of public employment negotiation is divided,
for purposes of analysis, into two categories of subject matter
comprised of mandatorily negotiable subjects and nonnegotiable
matters of governmental policy." Robbinsville Twp. Bd. of Educ.
v. Washington Twp. Educ. Ass'n, 227 N.J. 192, 198 (2016).
N.J.S.A. 34:13A-5.4(d) vests PERC with "primary jurisdiction"
for the determination "of whether the subject matter of a
particular dispute is within the scope of collective
negotiations." Ridgefield Park Educ. Ass'n. v. Ridgefield Park
Bd. of Educ., 78 N.J. 144, 154 (1978). If PERC determines that
a disputed subject matter is negotiable, "the matter may proceed
to arbitration." Ibid. In contrast, a matter will not be
arbitrable where PERC concludes the "particular dispute is not
within the scope of collective negotiations." Ibid. A party
that disagrees with PERC's decision regarding the scope of
negotiations may appeal to this court. N.J.S.A. 34:13A-5.4(d);
see Ridgefield, supra, 78 N.J. at 155.
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 agreement
3 A-3817-14T2
would not significantly interfere with the determination of
governmental policy." City of Jersey City v. Jersey City Police
Officers Benevolent Ass'n, 154 N.J. 555, 568 (1998) (quoting In
re Local 195, IFPTE, 88 N.J. 393, 404-05 (1982). As to the last
of these criteria, "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." Ibid. (quoting IFPTE, supra, 88 N.J. at 404-05).
This test must be applied on a "case-by-case basis." Troy v.
Rutgers, 168 N.J. 354, 383 (2001).
Substantial deference is accorded to PERC's exercise of its
authority in making a scope of negotiations determination. Twp.
of Franklin v. Franklin Twp. PBA Local 154, 424 N.J. Super. 369,
377 (App. Div. 2012); see City of Jersey City, supra, 154 N.J. at
567. PERC's decision regarding negotiability is to be upheld
unless "it was arbitrary, capricious or unreasonable"; "lacked
fair support in the evidence"; or "violated a legislative policy
expressed or implicit in the governing statute." Twp. of Franklin,
424 N.J. Super. at 377 (quoting Commc'ns Workers of Am., Local
1034 v. N.J. State Policemen's Benev. Ass'n, Local 203, 412 N.J.
Super. 286, 291 (App. Div. 2010)).
4 A-3817-14T2
II.
We first address the Union's challenges to PERCs findings
that certain provisions could not be submitted to interest
arbitration because they were not mandatorily negotiable.
A.
Article 2.C, "Interpretation," provides a general statement
of what categories of issues the City agrees the Union has the
right to negotiate:
The City agrees that the Union has the right
to negotiate as to rates of pay, hours of work,
fringe benefits, working conditions, safety or
personnel and equipment, procedures for
adjustment of disputes and grievances and all
other related matters.
PERC found "personnel and equipment" was not mandatorily
negotiable "because these provisions refer to manning and staffing
levels of personnel as well as the purchase and use of equipment."
The Union argues that PERC erred in finding the disputed language
was not mandatorily negotiable because it "directly implicates
matters of employee safety."
The Union's argument fails because the disputed language
concerns issues separate from "safety." When that language is
deleted from the text, PERC's decision leaves the following intact:
"The City agrees that the Union has the right to negotiate as to
. . . safety . . . ."
5 A-3817-14T2
PERC interpreted the disputed language as concerning only
manning and staffing levels of personnel, issues that fall within
the inherent power and authority of public employers. See Jersey
City, supra, 154 N.J. at 571-73; Paterson Police PBA Local No. 1
v. City of Paterson, 87 N.J. 78, 97(1981); see also In re North
Hudson Reg'l Fire and Rescue, P.E.R.C No. 2000-78, 26 NJPER 31,075
(2000) (a public employer is "not required to negotiate about
overall staffing levels . . . even when staffing decisions may
affect employee safety").
Similarly, an employer may make unilateral decisions
regarding the purchase of equipment unless it directly relates to
employee safety. See In re Twp. of Union, P.E.R.C. No. 87-119,
13 NJPER P18,121 (1987) ("The negotiability of a demand for
equipment turns upon whether the item is predominately concerned
with employee safety or comfort rather than the method and means
of delivering police services to the community which is a non-
negotiable governmental policy determination."); see, e.g., In re
Borough of Ringwood, P.E.R.C. No. 87-118, 13 NJPER P18,120 (1987)
(holding a contract proposal that pertained to type and quantity
of ammunition to be supplied to police officers was not mandatorily
negotiable, because it pertained to matters of governmental
policy); In re Twp. of South Brunswick, P.E.R.C. No. 86-115, 12
NJPER P17,138 (1986) (finding that employer's decision "to equip
6 A-3817-14T2
police vehicles or officers with certain specified guns, other
weapons and quantities of ammunition" was not mandatorily
negotiable because it was "more closely related to matters of
governmental policy than employee safety").
In sum, PERC's decision that "personnel and equipment" in 2.C
pertains to the managerial prerogatives of manning and staffing
levels, and the purchasing of equipment is not arbitrary,
capricious or unreasonable.
B.
The next provisions at issue are Article 16, "Leaves," and
Article 17, "Vacations."
Article 16.C.1 states:
In the event that an employee suffers an
illness or injury in the line of duty, in the
course of employment, or as a result of
his/her employment, he/she shall be
compensated at full pay for a period not to
exceed one (1) year. A Medical Review Board
shall be created for the purpose of examining
all matters pertaining to sick and/or injured
members of the Atlantic City Fire Department.
Any employee may be required to present to
this Board a doctor's certificate to the
effect that the illness or injury specified
above required extended convalescence.
[(Emphasis added).]
Article 17.D states:
A maximum of four (4) vacation days may be
converted to sick days per week with approval
of the Medical Review Board. All personnel
7 A-3817-14T2
who are in the negative shall be docked pay
for sick time unless they are convalescing
from a sickness approved by the Medical Review
Board.
[(Emphasis added).]
The City argued the first sentence of Article 17.D was not
negotiable because it was preempted by N.J.S.A. 11A:6-3(e). It
has not appealed, however, from PERC's determination that the
issue may be submitted to interest arbitration.
PERC determined the underlined portions of 16.C.1 and 17.D
were not mandatorily negotiable because "[s]ick leave verification
sis a managerial prerogative." The Union acknowledges that sick
leave verification is a non-negotiable managerial prerogative but
contends it is only a "narrow managerial prerogative." The Union
casts 16C.1 and 17D as involving the "application of a verification
policy [which] is subject to negotiation" and does not involve the
City's abdication of any managerial rights.
PERC noted the distinction between the establishment of a
verification policy, which is the prerogative of the employer, In
re Piscataway Twp. Bd. of Educ. & Piscataway Twp. Educ. Ass'n,
P.E.R.C. No. 82-64, 8 NJPER 95 (1982), and issues involving the
application of those policies, which may be subject to contractual
grievance policies. Ibid.
8 A-3817-14T2
PERC concluded the underlined portion of Article 16.C.1
impinged on the City's managerial prerogative regarding the
verification of sick leave because "it delegates that authority
to a joint employer/employee committee," and concluded the
underlined language in Article 17D was also not mandatorily
negotiable because it had a similar impact on the City's managerial
prerogative to verify sick leave.
By its plain language, Article 16.C.1 "create[s]" a Medical
Review Board "for the purpose of examining all matters pertaining
to sick and/or injured members of the Atlantic City Fire
Department." It was, therefore, not arbitrary or unreasonable for
PERC to conclude that the breadth of this delegation "impinge[d]
on the City's managerial prerogative to verify sick leave since
it delegates that authority to a joint employer/employee
committee."
The following sentence of Article 16.C.1, which states an
employee "may be required" to present a doctor's certificate to
the Board to justify "extended convalescence" further supports the
conclusion that the Medical Review Board would play a role in
verifying sick leave that lies within the employer's prerogative.
The methods the City can utilize to implement its policy are also
non-negotiable. See e.g., Piscataway Twp. Bd. of Educ., supra
(ruling that public employer "has a managerial right to utilize
9 A-3817-14T2
reasonable means to verify employee illness or disability"). The
fact that there is an existing procedure with the stated purpose
to regulate and monitor the use of sick leave does not, as the
Union contends, render PERC's conclusion unreasonable.
Moreover, the disputed language does not concern issues that
would be subject to interest arbitration such as the allocation
of the cost for providing necessary documentation, see Elizabeth
v. Elizabeth Fire Officers Assn., Local 2040, etc., 198 N.J. Super.
382, 386-87 (App. Div. 1985), or a grievance and disciplinary
procedure related to the use of sick leave.
The disputed language in 17.D conditions a determination
regarding sick leave upon approval by the Medical Review Board.
Accordingly, PERC's determination that the language "impact[s] on
the City's managerial prerogative to verify sick leave" is not
arbitrary, capricious or unreasonable.
C.
Article 16.F, "Terminal Leave Options," states in pertinent
part:
Terminal leave shall be amended to provide for
a maximum monetary payment as follows:
. . . .
(d) Employees hired after October 16, 2006,
but before January 1, 2012, shall have maximum
accumulation time of six (6) months;
10 A-3817-14T2
(e) Employees hired after January 1, 2012
will receive a maximum payout cap of
$15,000.00.
[(Emphasis added).]
The issue regarding this provision is whether it is preempted
by N.J.S.A. 11A:6-19.2, which establishes a cap on compensation
for unused sick leave under Title 11A.
Unless preempted by a statute or regulation, vacation and
sick leave are mandatorily negotiable subjects. In re Howell Twp.
Bd. of Educ., P.E.R.C No. 2015-58, 41 NJPER P131 (2015).
"Negotiation on terms and conditions of employment will be
preempted by a statute or regulation if the provision addresses
the particular term or condition 'in the imperative and leave[s]
nothing to the discretion of the public employer.'" Old Bridge
Bd. of Educ. v. Old Bridge Educ. Ass'n., 98 N.J. 523, 529 (1985)
(quoting IFPTE, supra, 88 N.J. at 403-04).
The cap established by N.J.S.A. 11A:6-19.2 applies to
employees who commence service on or after May 21, 2010.1 N.J.S.A.
1
N.J.S.A. 11A:6-19.2 states:
Notwithstanding any law, rule or regulation
to the contrary, a political subdivision of
the State, or an agency, authority or
instrumentality thereof, that has adopted the
provisions of Title 11A of the New Jersey
Statutes, shall not pay supplemental
compensation to any officer or employee for
11 A-3817-14T2
11A:6-19.2 does not, however, "affect the terms in any collective
negotiations agreement with a relevant provision in force on that
effective date."
PERC found Article 16.F.3(e) was preempted by N.J.S.A. 11A:6-
19.2 because it "effectively allows employees hired on or after
May 21, 2010 through January 1, 2012 to be paid for accumulated
sick leave in excess of $15,000 in contravention of N.J.S.A. 11A:6-
19.2." This reasoning ignores the proviso that the statute is not
to affect the terms of a CNA in force on its effective date.
Because the CNA in force on May 21, 2010 did not expire until
December 31, 2012, the exclusion of employees who commenced service
during the interim period from May 21, 2010 through December 31,
2012 was sanctioned by N.J.S.A. 11A:6-19.2. We therefore conclude
accumulated unused sick leave in an amount in
excess of $15,000. Supplemental compensation
shall be payable only at the time of
retirement from a State-administered or
locally-administered retirement system based
on the leave credited on the date of
retirement. This provision shall apply only
to officers and employees who commence service
with the political subdivision of the State,
or the agency, authority or instrumentality
thereof, on or after the effective date [May
21, 2010] of P.L.2010, c.3. This section
shall not be construed to affect the terms in
any collective negotiations agreement with a
relevant provision in force on that effective
date.
[N.J.S.A. 11A:6-19.2 (emphasis added).]
12 A-3817-14T2
that PERC erred in its interpretation of the law and that Article
16.F(3)(e) is mandatorily negotiable.
D.
Article 18, "Acting Out Of Title," includes the following:
18.A.2(d) In the absence of an existing Civil
Service list, the senior person who is
qualified shall be placed in the vacancy for
ninety (90) working days and receive the pay
at the higher rank. After these ninety (90)
working days, the next senior person with
qualifications shall replace that person and
the same conditions will prevail. In the
event of a two-part promotional examination,
in which an interim list is issued, only
personnel on the interim list will be deemed
"qualified" to act out-of-title in the higher
position. Aa9-13, 82.
18.A.2(g) When a promotional vacancy is
created due to the terminal leave provision,
and where there is an existing promotional
list, such promotion shall be made within
fifteen (15) consecutive days of the vacancy.
In the event there is no existing list,
Section [A].2(d) will prevail. Aa83.
[(Emphasis added).]
PERC found the underlined sentences of 18.A.2(d) and all of
18.A.2(g) were not mandatorily negotiable because "both require
the City to fill a promotional vacancy," which is a managerial
prerogative. The Union contends these provisions are mandatorily
negotiable because "nothing in the CNA infringes on the City's
right to determine when to fill a vacancy or select promotional
13 A-3817-14T2
criteria," and the provisions at issue address procedural rather
than substantive matters. (emphasis in original). We disagree.
A public employer has a non-negotiable, managerial
prerogative to determine the manning levels necessary for the
efficient delivery of governmental services. Irvington PBA Local
29 v. Town of Irvington, 170 N.J. Super. 539 (App. Div. 1979),
certif. den. 82 N.J. 296 (1982); see also, Jersey City, supra, 154
N.J. at 571-73; Paterson, supra, 87 N.J. at 97. This managerial
prerogative includes the right to decide not to staff a position.
See, e.g., In re City of Long Branch, P.E.R.C No. 83-15, 8 NJPER
P13,211 (1982). PERC's conclusion that these provisions tread
upon the City's managerial prerogative is reasonable and will not
be disturbed.
E.
The Union challenges PERC's determinations regarding several
provisions of Article 23, "Transfers and Assignments."
23.A. Transfers and assignments shall provide
the highest degree of efficiency in every unit
of the Fire Department by assigning a
combination of experienced and less
experienced personnel. Whenever possible,
each unit shall consist of the following
balance:
One (1) Company Officer
One (1) Senior Firefighter
Two (2) Journeymen Firefighters
One (1) Apprentice Firefighter.
[(Emphasis added).]
14 A-3817-14T2
PERC determined 23.A was not mandatorily negotiable based on
the principle that "staffing and manning levels are a managerial
prerogative." The Union contends that as a result of the
qualifying language "whenever possible," the provision does "not
restrict the City's ability to direct staffing in any way." In
addition, the Union asserts "[t]his clause speaks to the safety
goals . . . and operations of the department."
In short, the provision states "each unit shall consist of"
a specific balance "whenever possible." It sets a specific
standard that would deprive the City of its discretion to direct
staffing, allowing for the limited exception when to do so is not
possible. The provision thus establishes a presumptive staffing
level, which conflicts with the City's managerial prerogative.
The exception affords no remedy for this because the presumptive
requirement remains. Even if "whenever possible" were considered
to have some ameliorative effect, it ultimately fails to do so
because that question is not left to the sole discretion of the
City.
"Public employers are not required to negotiate about
overall staffing levels or how many firefighters or fire officers
will be on duty at a particular time, even where staffing decisions
may effect [sic] employee safety." In re City of Plainfield,
15 A-3817-14T2
P.E.R.C No. 2015-40, 41 NJPER P91 (2014). Therefore, the argument
that this provision "speaks to . . . safety goals" fails to remove
this provision from the City's prerogative to determine its minimum
staffing levels. PERC correctly determined that Article 23.A is
not mandatorily negotiable.
23.C. A higher seniority vacancy may be
covered by a firefighter with a lower service
time. However, a lower seniority vacancy may
not be covered by a firefighter with a higher
service time. Exception: Journeyman
firefighters may cover when no apprentice is
available.
In determining that 23.C was also not mandatorily negotiable,
PERC reasoned that "the filling of vacancies," "[t]ransfers and
reassignments" are all non-negotiable managerial prerogatives.
Aa8. The Union argues 23.C pertains to the procedures for
transfers and reassignments, and thus is a negotiable matter.
Contrary to the Union's argument, 23.C pertains to
substantive policy determinations rather than mere procedures.
The consideration of seniority in making temporary assignments has
been found to "relate[] to the substantive criteria for
reassignment." IFPTE, supra, 88 N.J. at 418. This provision
limits the City in its decision to transfer and assign its
employees by restricting what firefighter can provide coverage for
another firefighter based on seniority. Therefore, PERC correctly
found that 23.C was not mandatorily negotiable.
16 A-3817-14T2
Paragraph 23.J addresses "Posting Procedure and Selection
Criteria."
23.J.1. When a vacancy or new position occurs
within the bargaining unit, it shall be filled
temporarily by the Chief of the Department.
The City shall immediately post notices on the
bulletin boards in all fire stations setting
forth the classification, job duties and
requirements, hours and days of work, starting
time and wage rate of the job to be filled
permanently. Employees desiring to apply for
the job shall make application to the Chief
of the Department setting forth their
qualifications, seniority, etc. Copies of
these applications and of the notices are to
be filed with the Secretary of the Union.
Notices shall remain posted for ten (10) days.
Employees who do not make application within
the period of the posting shall have no right
to consideration for the job, with the
exception that employees (who) are not at work
during the entire posting period and who have
sufficient qualifications and seniority shall
be considered for the job. Aa95-96; Aa4-5.
23.J.2. In filling vacancies by promotion or
transfer, where ability and other
qualifications are equal, seniority within the
Fire Department shall control. The term
"ability and other qualifications" used herein
shall include observing the rules and
regulations of the Fire Department. The Chief
of the Department shall define and determine
the standards of "ability and other
qualifications," which cannot be arbitrarily
or selectively established. Aa96.
23.J.4. The Chief of the Department may deny
placement of an applicant possessing ability
and other qualifications to the vacant or new
position, should the Chief of the Department
determine, exercise bona fide discretion, that
17 A-3817-14T2
such individual is needed more in the position
already assigned.
[(Emphasis added).]
The Union argues that PERC erred in finding the underlined
sections of 23.J.1, 23.J.2, and 23.J.4 were not mandatorily
negotiable because they "relate to transfer procedures and do not
improperly restrict the City's ability to make personnel
decisions."
PERC determined that the first sentence of 23.J.1 was not
mandatorily negotiable because "[a]n employer cannot be required
to fill a vacant or new position since it is a managerial
prerogative." PERC reasoned the language "shall be filled"
requires the employer to make temporary appointments to fill
vacancies. The Union contends this provision "does not restrict
the ability of the Fire Chief to determine when to fill a
position."
As previously discussed, "[t]he decision whether to fill a
vacant position is a governmental policy one. Thus, an agreement
that forces an employer to fill a vacant position substantially
limits that governmental policymaking determination." In re City
of Atlantic City, P.E.R.C No. 2001-56, 27 NJPER P32,061 (2001).
PERC has consistently held that a union is not permitted "to
18 A-3817-14T2
enforce an agreement to fill a vacant position should the employer
decide not to do so." Ibid.
Contrary to the Union's argument, the first sentence of 23.J.1
requires that a vacancy or new position "shall" be filled "[w]hen"
it occurs without any limitation. It thus encroaches upon
managerial prerogatives not to fill such positions and is not
mandatorily negotiable.
PERC determined the third sentence in 23.J.2 and all of 23.J.4
concerned "criteria for selection" that were managerial
prerogatives. Specifically, PERC found the language "which cannot
be arbitrarily or selectively established" in 23.J.2 allowed the
criteria established by the employer to be second-guessed by an
arbitrator. PERC found that 23.J.4 similarly "infringe[d] on the
managerial prerogative to make assignments under particular
circumstances by limiting them to situations in which the Chief
exercises 'bona fide discretion.'"
PERC's reasoning and conclusions are sound and will not be
disturbed.
F.
The Union challenges PERC's determinations regarding three
provisions of Article 24, "Health and Safety."
24.A. The general safety and health for
members of the Atlantic City Fire Department
is the responsibility of the Chief of the
19 A-3817-14T2
Department. The Joint Labor/Management Safety
and Health Advisory Committee shall have the
responsibility for making recommendations on
safety and health matters impacting members
of the Atlantic City Fire Department. Such
safety and health consideration shall include
protective equipment and technological
innovations. The Committee shall meet at the
call of the Chairman, or upon majority vote
of its members, but at least quarterly.
PERC determined the second sentence of 24.A was mandatorily
negotiable because it concerns recommendations regarding health
and safety and that the third sentence of 24.A was not mandatorily
negotiable because it "involves the potential purchase and use of
certain equipment." The Union argues PERC erred because the
language only grants the Joint Labor/Management Safety and Health
Advisory Committee the responsibility to make recommendations; it
does not vest the Committee with binding authority regarding the
purchase and use of equipment.
Provisions regarding specific equipment "predominantly
related to employee safety or comfort" are mandatorily negotiable.
In re Cty. of Union (Union County), P.E.R.C No. 84-23, 9 NJPER
P14,248 (1983). In finding that 24.A was not mandatorily
negotiable, PERC relied on its decision in Union County where it
found a proposed provision that established a "Police Department
Safety Committee," and vested it with binding authority on issues
20 A-3817-14T2
that included the purchase of equipment was not mandatorily
negotiable.
The provision at issue here does not endow the Joint
Labor/Management Safety and Health Advisory Committee with
authority to make the decision, let alone binding authority. The
responsibilities are clearly delineated. The Committee is tasked
with "the responsibility for making recommendations on safety and
health matters," including "protective equipment and technological
innovations." But the authority to make decisions regarding the
"general safety and health for members of the Atlantic City Fire
Department" resides with the Chief of the Department. As a result,
we conclude PERC's reliance upon its decision in Union County is
misplaced and that it erred in finding this provision was not
mandatorily negotiable.
24.F. The City pledges to do whatever is
economically feasible regarding increased
staffing levels to ensure continued safe fire
protection of its citizens and a continued
safe working environment for members of the
bargaining unit.
PERC found 24.F was not mandatorily negotiable because it
"refers to 'safety manning standards' and requires the City to
make a 'pledge' to do 'whatever is economically feasible regarding
increased staffing levels.'" The Union argues 24.F was mandatorily
negotiable because it "concerns a non-binding safety pledge
21 A-3817-14T2
undertaken by the City regarding increased staffing levels." It
asserts a "non-binding pledge does not impose a significant
limitation on the City's managerial prerogative to make staffing
decisions."
The Union attempts to cast the pledge "to do whatever is
economically feasible" as merely aspirational. We disagree. The
statement establishes a presumptive standard "regarding increased
staffing" that is external to the City's exercise of its discretion
in staffing and therefore impinges upon the City's managerial
prerogative. PERC's conclusion that the subject was not
mandatorily negotiable was, therefore, not arbitrary, capricious
or unreasonable.
24.G. First level supervisors shall be trained
by the Department at a level equal to or better
than standards described in N.F.P.A. Standard
No. 1021 Fire Officer.
PERC found this provision improperly "mandates the level of
training the City must provide to its employees," because training
has long been recognized as a managerial prerogative. PERC
concluded that 24.G "improperly infringes upon the City's
managerial prerogative to set the training standards for its
employees." The Union argues 24.G is mandatorily negotiable
because it "does not seek to set the baseline training
22 A-3817-14T2
requirement," and instead "seeks greater training than that
required."
A public employer has the prerogative to require employee
training, In re Twp. of Lower, P.E.R.C No. 2014-74, 40 NJPER P167
(2014), and to "decide which employees will be trained, how they
will be trained, and how long they will be trained." In re City
of Orange Twp., P.E.R.C No. 2005-31, 30 NJPER P151 (2004). In
contrast, a matter is negotiable "to the extent it concerns course
work separate from and in addition to the employer's mandatory
training courses." Ibid. For example, "additional compensation
for education or training that is not a job requirement is
mandatorily negotiable." In re Twp. of Teaneck, P.E.R.C No. 2000-
33, 25 NJPER P30,199 (1999).
24.G sets forth the basic standard for how first level
supervisors will be trained (i.e., at minimum, equal to the
identified standard). It does not "address[] additional training
above the mandated requirement," as the Union contends. Because
24.G infringes upon the employer's managerial prerogative to
decide how to train its employees, PERC correctly found that this
provision was not mandatorily negotiable.
III.
In its cross-appeal, the City challenges PERC's
determinations regarding several provisions of Article 18, "Acting
23 A-3817-14T2
out of Title," contending PERC erred in finding that the following
provisions were mandatorily negotiable: 18.A.2; 18.A.2(c);
18.A.2(d) (underlined sentence); and 18.B.2(f) (underlined
sentences).
18.A.2. Regulations for Class A: In the
event an employee is assigned to act out-of-
title, he/she shall be selected from an
existing promotional list of eligible
employees. If no existing list is current,
such employee shall be selected from the rank
next preceding the vacated position. . . .
18.A.2(c) If there is an existing Civil
Service list the higher rank, the number one
person on the list shall be placed in the
vacancy.
18.A.2(d) In the absence of an existing Civil
Service list, the senior person who is
qualified shall be placed in the vacancy for
ninety (90) working days and receive the pay
at the higher rank. After these ninety (90)
working days, the next senior person with
qualifications shall replace that person and
the same conditions will prevail. In the
event of a two-part promotional examination,
in which an interim list is issued, only
personnel on the interim list will be deemed
"qualified" to act out-of-title in the higher
position.
18.B.2(f) In the event of a promotional list,
only personnel on the list will act out-of-
title in the higher position. In the even
[sic] there is no individual on the list
permanently assigned to a Company, pursuant
to Civil Service Commission Regulations,
personnel on the list will be reassigned to
perform the acting out-of-title work. If
there is no promotional list, then the acting
out-of-title position will be performed by a
24 A-3817-14T2
journeyman assigned by seniority. At the
company level, the acting out-of-title
position will be rotated on a four (4) day
working basis. In the even [sic] of a two-
part promotional examination, in which an
interim list is issued, only personnel on the
interim list will be deemed "qualified" to act
out-of-title in the higher position.
The disputed provisions establish procedures for temporary
"out-of-title" assignments. As PERC found, the provisions do not
require the City to make any out-of-title assignment; they identify
a procedure to be followed after the City has exercised its
prerogative to make such an assignment. PERC reasoned, "Thus, the
language does not interfere with the decision whether to fill a
temporary vacancy and the fact that there is a civil service list
means that the employees eligible to be assigned to the temporary
vacancy are qualified."2
Citing its prior decisions, PERC noted "it is mandatorily
negotiable for the employer to agree to make promotional
assignments based on an existing promotional list of eligible
employees." In Township of Wall, PERC stated:
Promotional criteria are not mandatorily
negotiable while promotional procedures are.
Absent preemption, an employer may normally
2
Notably, PERC concluded the first two sentences in Article
18.A.2(d) and language in Article 18.A.2(g) were not mandatorily
negotiable because they would require the City to fill a
promotional vacancy, treading upon a managerial prerogative. The
Union appealed from those determinations and we have affirmed
PERC's rulings.
25 A-3817-14T2
agree to promote employees in the order they
are listed on a promotional list developed by
applying its own unilaterally-set criteria to
the eligible candidates. Unless an employer
has announced a change in its promotional
criteria, it may remain obligated to fill
positions from that list.
[In re Twp. of Wall, P.E.R.C No. 2002-22, 28
NJPER P33,005 (2001), (citations omitted)
aff'd, No. A-1640-01 (App. Div. Jan. 6,
2003).]
The City argues the authorities relied upon by PERC are
distinguishable and afford no support for PERC's conclusion
because they concerned circumstances in which the public employer
had established its own promotional criteria for filling vacancies
and making personnel assignments, where in this case, the
promotional criteria is established by the fact the City is a
civil service jurisdiction. However, to the extent that
promotional criteria are established by Title 11A, the City lacks
any managerial prerogative to deviate from mandated procedures.
We are therefore unpersuaded by this argument.
In sum, on the Union's challenges to the following provisions
or portions thereof, 2.C, 16.C.1, 17.D, 18.A.2(d) and (g), 23.A,
23.C, 23.J.1, 23.J.2, 23.J.4, 24.F and 24.G, we affirm PERC's
determinations that the disputed language constitutes terms that
are not mandatorily negotiable. We reverse PERC's determinations
that the disputed language in 16.F.3(e) and 24.A refers to terms
26 A-3817-14T2
that are mandatorily negotiable. On the City's appeal, we affirm
PERC's determinations that the disputed language in 18.A.2,
18.A.2(c), 18.A.2(d) and 18.B.2(f) refer to subjects that are
mandatorily negotiable.
Affirmed in part, reversed in part. We do not retain
jurisdiction.
27 A-3817-14T2