On appeal from Public Employment Relations Commission.
Coleman, Bilder and Stern. The opinion of the court was delivered by Coleman, J.h., P.J.A.D.
This is an appeal by the Council of New Jersey State College Locals, NJSFT, AFT/AFL-CIO, (Council)*fn1 from a final decision of the Public Employment Relations Commission (PERC) which refused to modify or rescind certain regulations promulgated by the New Jersey State Board of Higher Education (Board). The challenged regulations were promulgated to implement the Autonomy College Law, N.J.S.A. 18A:3-14 et seq. and N.J.S.A. 18A:64-1 et seq., designed to grant to "the State colleges a greater degree of autonomy and [to] provide[ ] for a new governance structure for the colleges." Statement of the Senate Education Committee to Assembly Bill No. 1173 (July 9, 1986). PERC found that the contested regulations preempt negotiations.
At or about the time the Autonomy Law became effective on July 9, 1986, the Council finalized negotiations for a Collective Agreement that was effective for the period of July 1, 1986 to June 30, 1989. Pertinent to this appeal is Article XXXV of the Collective Agreement which provides:
The parties to this agreement for the period July 1, 1986 to June 30, 1989 for the State Colleges Unit agree that the provisions of the State Compensation Plan and Civil Service Rules and Regulations, and the procedures provided therein, which establish terms and conditions of employment and which were applicable to the employees in the State College Unit on June 30, 1986, and which may have been or which may be affected by the enactment and application of A-1173 (S-1469) and A-1777 (S-1470) [the Autonomy Law] shall be continued unless changed by negotiation or regulation.
While the above Collective Agreement was operative, the Board promulgated certain regulations dealing with the classification of titles and reclassification appeal procedures, N.J.A.C.
9:6A-3.1 to 3.6, necessitated by the Autonomy Law as replacement of certain Civil Service regulations. Although Council was afforded an opportunity to discuss the proposed regulations, the Board refused to engage in any negotiation respecting the classification and reclassification appeals procedure regulations despite Council's demands for negotiations. These new regulations became effective January 4, 1988, see 20 N.J.R. 89(c).
The pivotal issue in this appeal is whether mandatory negotiations were required before promulgating the regulations. Council took the position below and on this appeal that Article XXXV of the Collective Agreement, the prevailing statutory and decisional law, require each aspect of the replacement regulations to be negotiated.
Hearings were conducted during 1989 to determine whether the Board had violated provisions of the New Jersey Employer-Employee Relations Act (Act), N.J.S.A. 34:13A-5.4a(1) and (5), by not negotiating with the Council respecting the contested regulations prior to adoption. The hearing examiner concluded that despite Council's demands for negotiations and the Board's position that certain matters related to terms and conditions of employment were negotiable, the Board refused to negotiate on matters such as the classification and reclassification appeal procedures. The Hearing Examiner found that such a refusal to negotiate constituted a violation of the Act, N.J.S.A. 34:13A-5.4a(5). The Hearing Examiner concluded, however, that the regulations should not be rescinded because the Council failed to establish that they actually changed any terms and conditions of employment.
The Council filed exceptions to the Hearing Examiner's final conclusion contending that the adopted regulations changed the appeal procedures for classification and reclassification determinations which affected the terms and conditions of employment thereby requiring negotiations. It is undisputed that under N.J.A.C. 9:6A-3.3, 3.5 and 3.6, the Chancellor and the Department
of Higher Education have been substituted for the (Civil Service) Department of Personnel as the persons to decide the classification and ...