On certification to Public Employment Relations Commission.
For affirmance as modified -- Chief Justice Hughes and Justices Sullivan, Pashman, Clifford, Schreiber and Handler. Concurring in part and dissenting in part -- Judge Conford. The opinion of the court was delivered by Pashman, J. Conford, P.J.A.D. (temporarily assigned), dissenting.
During negotiations between the Township of West Windsor and the majority representative of its police department employees, Patrolmen's Benevolent Association Local 130, concerning the adoption of a collective agreement, a dispute arose over the negotiability of a proposal made by the Local. This proposal concerned the contractual definition of a "grievance" which would be presentable under the negotiated grievance procedure contained in the agreement ultimately reached.
The Local contended that a grievance cognizable under the collective agreement had to be defined in terms as broad as those used in the applicable provision of New Jersey Employer-Employee Relations Act, L. 1968, c. 303, as amended by L. 1974, c. 123, N.J.S.A. 34:13A-1 et seq. (the Act): an appeal from the "interpretation, application or violation of policies, agreements and administrative decisions affecting [the employees]." N.J.S.A. 34:13A-5.3. The Local maintained that the statute mandated a definition of "grievance" that would cover matters beyond disputes arising under the terms of the collective agreement.
The Township refused to negotiate any proposal which would expand the contractual definition of a grievance to encompass disputes over matters other than those terms and conditions of employment which would be specified in the collective agreement as ultimately settled. The Township's refusal was based on its apparent belief that to so expand the grievance definition would necessarily subject such disputes to resolution under the contractual grievance procedure. The
Township contended that the contractual grievance procedure could encompass only grievances arising from disputes concerning the interpretation or claimed violation of the terms of the collective agreement. The previous contract between the parties had contained a grievance definition which so limited the scope of grievable matters.*fn1 Under the Township's position, disputes over other matters would not be cognizable as grievances under the collective agreement and would have to be presented in a forum other than that provided by the contractual grievance procedure.
As a result of the disagreement between the parties as to the negotiability of its proposal, the Local filed a petition seeking a scope-of-negotiations determination from the Public Employment Relations Commission (PERC). See N.J.S.A. 34:13A-5.4(d); N.J.A.C. 19:13-1.1 et seq. PERC, acknowledging that it was faced with a matter of first impression, ruled that the Local's proposal to expand the contractual grievance definition was mandatorily negotiable. PERC No. 77-59, 3 NJPER 124 (1977). It held further that N.J.S.A. 34:13A-5.3 mandated a contractual grievance definition of a breadth equivalent to what it ruled was the statute's definition of matters which must be grievable under any negotiated grievance procedure. It accordingly ordered that the parties must negotiate a contractual grievance procedure under which the scope of grievable matters would be coextensive with the language of N.J.S.A. 34:13A-5.3.
The Township appealed PERC's scope determination to the Appellate Division pursuant to N.J.S.A. 34:13A-5.4(d), naming both PERC and the Local as respondents. That court granted the motions of the New Jersey State
Patrolmen's Benevolent Association (the parent organization of the Local), the New Jersey State League of Municipalities and the Governor's Office of Employee Relations to participate in the appeal as amici curiae. On the motion of the New Jersey State League of Municipalities, this Court directly certified the appeal while it was pending unheard in the Appellate Division pursuant to R. 2:12-2. 76 N.J. 236 (1978). With a significant modification, we affirm PERC's ruling.
We agree with PERC that the applicable statutory language speaks in the imperative and accordingly precludes negotiated modification of the breadth of matters which public employees must be able to appeal under any contractual grievance procedure.*fn2 The sentence of N.J.S.A. 34:13A-5.3 here pertinent states:
Public employers shall negotiate written policies setting forth grievance procedures by means of which their employees or representatives of employees may appeal the interpretation, application or violation of policies, agreements, and administrative decisions affecting them, provided that such grievance procedures shall be included in any agreement entered into between the public employer and the representative organization.
A straightforward reading of the statutory language indicates that the word "negotiate" applies to the "grievance procedure[ ]" itself and not to the enumeration of the matters as to which the employees "may appeal." Thus, the particular
procedural details of the grievance mechanism are subject to determination by the negotiated agreement of the parties. These details would cover items such as time restrictions, the number of steps in the grievance procedure, the forum for resolution at each step and the forum for final, binding resolution, if any. On the other hand, regardless of the particular procedural details agreed upon, the breadth of matters appealable by the employees must comport with the statutory specification. In effect, under any negotiated grievance procedure, the employees must retain the right to prosecute an appeal over the "interpretation, application, or violation of policies, agreements and administrative decisions affecting them." We construe this enumeration to be a legislative attempt to establish a grievance "definition" which would include everything that could possibly "affect" public employees. See post at 110. The statutory language chosen evinces a legislative intent to ensure that all negotiated grievance procedures would provide public employees with a forum for the presentation of their complaints to their public employers on all matters "affecting them." In N.J.S.A. 34:13A-5.3 the Legislature has seen fit to impose a definition of the matters as to which public employees must be able to present grievances and has thus standardized the scope of all negotiated grievance procedures. The contrary arguments made by the public employer forces herein as to the alleged legislative purpose underlying the statute are refuted by the express language of its enactment. The substantive scope of the grievance mechanism has been imposed by statute, with only its procedural details left to determination by the public employer and its employees in their negotiated agreement.
It is indisputable that the range of matters as to which employees possess the ability to present grievances to their employer constitutes an important term and condition of public employment. We have interpreted N.J.S.A. 34:13A-5.3 to mandate the scope of grievability in public employment. That statute ordains what must be grievable just
as we have today held it commands who must be able to present grievances. See Red Bank Reg. Ed. Ass'n v. Red Bank Reg. High School Bd. of Ed., 78 N.J. 122 (1978). When a specific statute sets a term and condition of employment, a negotiated agreement in contravention of that statute is not authorized by the Employer-Employee Relations Act. State v. State Supervisory Employees Ass'n, 78 N.J. 54, 80 (1978). We hold that N.J.S.A. 34:13A-5.3 is such a statute and that the grievance definition which it mandates accordingly may not be modified by negotiated agreement.
Our holding that N.J.S.A. 34:13A-5.3 mandates the scope of matters as to which public employees must be able to present grievances applies only to the presentation stage of the grievance procedure. The procedural details of the grievance mechanism remain negotiable and are to be set by the negotiating parties. We agree with PERC that the parties are free to provide for a significantly narrower definition of the matters which are grievable beyond the initial presentation stage. Moreover, the decision whether to utilize binding arbitration as a means for grievance resolution is a procedural detail left to the parties to adopt or reject as the terminal step of the contractual grievance mechanism. The parties are free to agree to arbitrate all, some, or none of the matters as to which the employees' right to grieve is guaranteed by N.J.S.A. 34:13A-5.3. In other words, mandatory grievability does not necessarily equal mandatory arbitrability.
The parties may, at their option, agree that different classes of grievable matters will be subject to different types of terminal resolution or even to none at all. For example, grievances involving the application of the relevant provisions of the collective agreement or of any controlling statutes or regulations -- which we have today held are incorporated by reference as terms of the collective agreement, see State v. State Supervisory Employees, supra, 78 N.J. at 80 -- may be subjected to resolution by binding arbitration.
Conversely, the parties may agree that grievances not involving contractual, statutory or regulatory provisions are to be subject only to advisory arbitration or not even to be permitted to proceed beyond the initial presentation stage.*fn3 We emphasize that N.J.S.A. 34:13A-5.3 requires only that all grievances concerning the matters enumerated therein be presentable. The statute guarantees public employees only a right to grievance presentation. It authorizes, but does not require, the parties' negotiated grievance ...