On certification to the Superior Court, Appellate Division, whose opinion is reported at 181 N.J. Super. 179 (1981).
For affirmance as modified -- Chief Justice Wilentz and Pashman, Clifford, Schreiber, Handler, Pollock and O'Hern. For reversal -- None. The opinion of the Court was delivered by Handler, J. Schreiber, J., concurring. Schreiber, J., concurring in the result.
[91 NJ Page 22] This case requires us to determine whether a State agency can pass regulations establishing terms and conditions of employment directly affecting its own employees without submitting those matters to collective negotiations.
In State v. State Supervisory Employees Ass'n, 78 N.J. 54, 81 (1978), we held that "the adoption of any specific statute or regulation setting or controlling a particular term or condition of employment will preempt" negotiation on that subject. However, that case involved regulations passed by the Civil Service Commission, a State executive department with regulatory jurisdiction over all public employees in the classified civil service. In contrast, this case involves regulations promulgated by the State Board of Higher Education, which is an agency with statewide regulatory jurisdiction over the field of higher education, including State college employees.
The present dispute arose over the Board's adoption of certain regulations establishing uniform procedures for staff reductions at State colleges during periods of fiscal exigency. N.J.A.C. 9:2-3.1 et seq. On or about May 2, 1980, Chancellor T. Edward Hollander formulated regulations and forwarded them to the Board for its approval. The Council of New Jersey State College Locals, NJSFT-AFT/AFL-CIO, which is the exclusive representative for all full-time faculty and nonmanagerial and professional employees in the State college system, was not consulted and did not participate in the preparation of these proposals.*fn1 Moreover, the Board rejected the Council's repeated requests that the proposed regulations be submitted to collective negotiations before their adoption. The regulations were adopted and went into effect on February 4, 1981. 13 N.J.R. 133(h).
The Council brought this action, challenging the preemptive effect of these rules on collective negotiations. The Appellate Division held, on the strength of State Supervisory, that negotiation
was preempted on the subjects specifically covered by the regulations. 181 N.J. Super. 179 (1981). We granted the Council's petition for certification. 89 N.J. 398 (1982).
The State Board of Higher Education functions as an agency within the State Department of Higher Education. It possesses broad regulatory authority over the State college system. See Assoc. of N.J. State Col. Fac. v. Dungan, 64 N.J. 338, 350-51 (1974). The Legislature has granted the Board "exclusive jurisdiction over higher education in this State and its constituent parts and the requisite power to do all things necessary and proper to accomplish the aims and carry out the duties provided by law." N.J.S.A. 18A:3-13. The Board is responsible for taking steps
to advance long-range planning for the system of higher education as a whole in the state; establish general policy for the governance of the separate institutions; coordinate the activities of the individual institutions which, taken together, make up the system of higher education in New Jersey; and maintain general financial oversight of the state system of higher education. [ N.J.S.A. 18A:3-13]
Moreover, the Board has the power to "establish general personnel policies for the public institutions of higher education," N.J.S.A. 18A:3-14(h); to "adopt bylaws and [to] make and enforce, alter and repeal rules for its own government and for implementing and carrying out this law," N.J.S.A. 18A:3-15; and to exercise "all powers in addition to those specifically provided by law, requisite to the performance of its duties," N.J.S.A. 18A:3-16.
The regulations challenged in this case represent a comprehensive attempt "to preserve the academic integrity of the institutions while respecting the rights of the individual [employees] involved" in the event of a financial crisis at any of the state colleges. This aim is accomplished by establishing a process for determining when a fiscal emergency exists and implementing a plan to meet the crisis, N.J.A.C. 9:2-3.1, -3.2; by offering a framework to guide the Board in deciding how to
reduce expenses while still maintaining the academic integrity of the college, N.J.A.C. 9:2-3.5; by requiring consideration of alternatives other than layoffs, N.J.A.C. 9:2-3.2; by demanding that any layoffs which do result "be based on academic or administrative considerations" and that programs and functions of major instructional or administrative importance be protected, N.J.A.C. 9:2-3.5; by requiring consideration of possible impacts on affirmative action, N.J.A.C. 9:2-3.4; by calling for consultation with the college community before formulating any reduction plan to accommodate the views of those who may be affected, N.J.A.C. 9:2-3.3; by providing notice to the employee unit's representative and requiring fulfillment of agreed-upon contractual obligations, N.J.A.C. 9:2-3.5; and by requiring notice of staff reductions and efforts directed at the reemployment of those who are laid off, N.J.A.C. 9:2-3.6, -3.11. These procedures for declaring a fiscal emergency and reducing the work force have yet to be invoked at any of the state colleges.
The Council argues that these regulations should not be given preemptive effect because the agency that promulgated them also acts as an employer over the very employees that it also regulates. The Council claims that giving preemptive effect to agency regulations affecting terms and conditions of employment would allow the agency to use its regulatory power in an abusive manner to deprive its own employees of their statutory right to participate in the process that governs their employment.
We note at the outset that the public employees of this State have a constitutional right to organize and to present "grievances and proposals through representatives of their own choosing." N.J. Const. (1947), Art. I, par. 19. The Legislature has attempted to define the scope of that right in the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. That Act provides that "the majority representative and designated representatives of the public employer meet at reasonable times and negotiate in good faith with respect to grievances
and terms and conditions of employment." N.J.S.A. 34:13A-5.3. Therefore, like private employees, public employees have the right to engage in collective negotiation on terms and conditions of employment.
However, that right is limited when the subject matter sought to be negotiated is already addressed by legislation. In State Supervisory, we held that "the adoption of any specific statute or regulation setting or controlling a particular term or condition of employment will preempt" negotiation on that subject. 78 N.J. at 81. Thus, we left no doubt that the preemption doctrine applies to any validly adopted regulation, regardless of which agency or department promulgated it, provided the regulation definitively and specifically fixes a term or condition of employment. 78 N.J. at 80-81. As long as such a regulation is consistent with and effectuates the authority delegated to the agency by statute, it is to be given the same binding and preemptive effect that would be accorded to a statute directly establishing the requirements contained in the regulation. See In re IFPTE Local 195 v. State, 88 N.J. 393, 403-04 (1982).
The unique feature of this case, not present in State Supervisory, is that the regulatory agency involved also performs certain employer functions regarding the same employees that it regulates. The Board of Higher Education is part of the Department of Higher Education. N.J.S.A. 18A:3-1. While the Board itself performs only regulatory functions, the Department is responsible for assuming certain employer-type duties, such as participation in collective negotiations as part of the management ...