On appeal from Public Employment Relations Commission.
Michels, King and Dreier. The opinion of the court was delivered by: Dreier, J.A.D.
[193 NJSuper Page 660] This court has before it five appeals from scope determinations of the Public Employment Relations Commission (PERC),
all raising similar issues. On the court's own motion the five above cases have been consolidated for the purpose of this opinion. Two cases were argued and three cases submitted on the briefs.
The issue before the Commission in all of the cases was whether discipline imposed by various public employers was arbitrable under N.J.S.A. 34:13A-5.3. PERC, exercising its jurisdiction under N.J.S.A. 34:13A-5.4(d), found in the East Orange case that discipline was non-arbitrable under State v. Local 195, IFPTE, 179 N.J. Super. 146 (App.Div.1981), certif. den. 89 N.J. 433 (1982) and Jersey City v. Jersey City Police, etc. Ass'n, 179 N.J. Super. 137 (App.Div.1981), certif. den. 89 N.J. 433 (1982). As a result of these decisions, however, N.J.S.A. 34:13A-5.3 was amended, effective July 30, 1982, to make "disciplinary review" negotiable and to provide that such review is a proper subject for binding arbitration. The amended act continued:
Following the amendment this court decided Bergen County Law Enforcement v. Bergen Cty Freeholder Bd., 191 N.J. Super. 319 (App.Div.1983), after which the Atlantic County matter, also before us today, came before PERC for review. In that decision PERC overruled East Orange and found the dispute arbitrable. It stated:
We agree with the County that if we applied East Orange, the instant dispute would not be arbitrable. JNESO, however, has correctly referred the Commission to the decision of the Appellate Division of the Superior Court in Bergen County construing the wording and legislative history of the amendment to N.J.S.A. 34:13A-5.3 to allow binding arbitration of minor disciplinary determinations affecting Civil Service employees. The Court found that although these employees enjoyed certain protections under Civil Service laws and rules, they did not possess statutory protection with respect to a review of minor disciplinary determinations affecting them and that binding arbitration was a legal procedure for filling this gap. Accordingly, pursuant to Bergen County, we hold the instant dispute is arbitrable. (footnotes omitted).
Similar rulings were made in the Willingboro Board of Education, Toms River Board of Education and the County of Morris cases.
The five cases raise different aspects of the problem initially reviewed in Bergen County. In Morris County, Atlantic County and East Orange we are asked to determine whether the statute covers Civil Service employees who have had minor disciplinary actions taken against them for which no appeal lies under the Civil Service laws. N.J.S.A. 11:2A-1. Bergen County squarely determined that the three-day penalty there under consideration was within the ambit of the amended statute. We have reviewed the arguments which have urged us to depart from Bergen County's holding, but we reject them. Neither the Governor's veto messages directed to earlier drafts of the amended act nor the amendment itself can stand against the argument that if the act did not apply to this minor discipline, non-Civil Service employees could bargain for binding arbitration, but Civil Service employees would be relegated to review of minor discipline in the Law Division by an action in lieu of prerogative writs. Romanowski v. Brick Twp., 185 N.J. Super. 197 (Law Div.1982), aff'd o.b. 192 N.J. Super. 79 (App.Div.1983). In such a proceeding, however, the function of the court is to determine only whether the local administrative action was arbitrary, capricious or unreasonable. The non-Civil Service employee would be entitled to a full de novo review. We cannot believe the Legislature intended such an incongruous result.
We determine, therefore, that N.J.S.A. 34:13A-5.3 permits binding arbitration in disciplinary actions not subject to review under the Civil Service or other tenure law.*fn1
The next question, implicated in the Willingboro and Toms River Board of Education cases is whether untenured, non-Civil Service school board ...