On appeal from Superior Court, Chancery Division, Mercer County.
Michels, Kole and Ard. The opinion of the court was delivered by Kole, J.A.D.
[179 NJSuper Page 84] In 1977 the State and the State Troopers NCO Association (NCO) entered into negotiations for a contract to succeed one that was to terminate on June 30, 1978. The parties reached an impasse over various issues. NCO initiated compulsory interest arbitration, pursuant to N.J.S.A. 34:13A-16, in December 1977. An arbitrator was appointed and all disputed issues were resolved except the provision concerning promotions. On January 5, 1979 the State filed a petition with Public Employment Relations Commission (PERC) for a scope of negotiations determination that the promotional article in the recently expired agreement was not a mandatory subject of negotiation. In a decision of April 4, 1979 PERC held that the provisions involving promotional procedures were mandatory subjects of negotiation but that other provisions related to promotional criteria which could not be negotiated.
Arbitration hearings were then held on the parties' proposals for new promotion provisions. Pursuant to "last offer" arbitration, the arbitrator included in the award NCO's last proposal on promotion which purported to accord with PERC's decision as to those matters relating thereto that were negotiable. See N.J.S.A. 34:13A-16(c)(6), (d)-(g); Newark Firemen's Mut. Benev. Ass'n, Local No. 4 v. Newark , 177 N.J. Super. 239 (App.Div.1981).
On October 22, 1979 the State filed a complaint alleging that the award exceeded the scope of the arbitrator's authority and seeking its vacation and an order directing inclusion of the State's proposal in the collective negotiations agreement. NCO filed a counterclaim requesting confirmation and enforcement of the award. The trial judge, after a hearing, entered an order dismissing the State's complaint and granting NCO's counterclaim by confirming and enforcing the arbitrator's award. The State appeals.
After the original argument of this appeal, it appeared that there might be a conflict in material respects between a PERC decision of January 9, 1981 involving a promotional article in the proposed contract of the State Troopers Fraternal Association of New Jersey, Inc. and the PERC opinion involved in the present case. Accordingly, we directed reargument and requested PERC to file an amicus brief, as well as to participate in the further argument. The parties were afforded the opportunity to file supplemental briefs. As indicated below, as a result of PERC's reconciliation of these opinions, some modification, by way of interpretation, is required of the provisions of NCO's last offer which was the subject of the arbitrator's award. Thus, we affirm the trial judge's confirmation of the award subject to that interpretation.
The disputed portions of the NCO offer*fn1 concerned promotions for the positions of Sergeants First Class, Detective Sergeants
First Class and Lieutenants. NCO's proposal, which was included in the award, stated in pertinent part that:
A. Promotions within the Division of State Police (Division) to the rank of these officers shall be made based upon the application of relevant and reasonable criteria to be established by the Division as to each vacancy to be filled by promotion.
B. When any vacancy to be filled by promotion occurs in these positions, the Division shall announce the vacancy, "the criteria and sub-criteria and such constituent part of that criteria and sub-criteria (hereinafter referred to as 'criteria') to be met by the candidates for promotion to such vacancy or vacancies, and the particular weight to be assigned to each of the criteria announced (to be met by the candidates) which will constitute the only and exclusive basis for promotion to the vacancy or vacancies announced in accordance with provisions set forth in this article."
C. (3)(f) The announcement of any such vacancy shall contain the exact weight to be assigned to each criteria to a total weight to be assigned of 100 percentage points (100%).
D. (1) The total weight to be assigned to criteria shall be 100%.
(2) The Division shall apply the criteria to each candidate-applicant (hereafter "candidate") and shall prepare a list of such candidates as to each such position vacancy containing the names of the candidates "in order of highest to lowest total score, the total score for each candidate. . . [and] the parts of the total score relating to each of the criteria for each. . ." candidate.
(3) The candidate with the highest numerical score shall be promoted to fill the vacancy and in the event of multiple vacancies, the promotion shall be made in the order of the highest numerical scores. If the list remains effective for a period after the originally announced vacancies are filled, subsequently announced similar vacancies shall be filled from the remaining candidates on the list in the order of highest score. [E. (4) contains a similar provision].
(4) Each criteria and the weights assigned to each criteria shall remain constant during the promotion process relating to the announcement of a vacancy and shall be and remain identical for similar vacancies during the same promotion ...