On appeal from the Public Employment Relations Commission.
King, Brody and Thomas. The opinion of the court was delivered by King, P.J.A.D.
The issue on appeal is whether this public employer, the State of New Jersey, Division of State Police, may agree in a collective bargaining agreement to allow an arbitrator at a grievance procedure to review minor disciplinary determinations made by the Superintendent or his designated subordinate. We conclude that this subject matter, minor discipline, is legally arbitrable. We thus agree with the Public Employment Relations Commission (PERC) and affirm. We reject the Attorney General's position that review of minor discipline of the State Police must remain exclusively within the State Police command structure under our statutory scheme.
On December 17, 1990, appellant, the State of New Jersey, as employer, petitioned for a scope of negotiations determination pursuant to N.J.S.A. 34:13A-5.4(d) of the Employer-Employee Relations Act, N.J.S.A. 34:13A-1 to -21 (the Act). The State sought to prevent binding arbitration of grievances filed by the State Troopers Fraternal Association. The particular grievances asserted that the employer had circumvented the parties' negotiated grievance procedure by departing from the practice of punishing certain minor offenses by reprimands and brief suspensions and instead subjected four State Troopers to summary disciplinary hearings, outside the scope of the grievance procedure.
PERC, a tripartite body of seven members -- composed of public employer, public employee, and public interest representatives,
N.J.S.A. 34:13A-5.2 -- unanimously declined to restrain arbitration of these grievances. PERC's holding was very narrow. PERC simply held that the public employer could legally have agreed under the so-called 1982 "discipline amendment" to N.J.S.A. 34:13A-5.3; L. 1982, c. 103, § 1, to arbitrate these minor disciplinary determinations. PERC did not hold that this "discipline amendment" repealed or diminished the employer's statutory power to make rules and regulations concerning discipline of the State Police. Nor did PERC even consider the issue of whether the grievances, in fact, were contractually arbitrable, or whether the grievances had substantive merit.
PERC made these undisputed factual findings. The grievants had asserted that the Superintendent of the State Police had violated the collective negotiations agreement when he held summary disciplinary hearings and suspended troopers for short periods rather than issuing written reprimands without hearings. The parties had entered into a collective negotiations agreement effective from July 1, 1987 to June 30, 1990. The grievance procedure in Article XII in that agreement covered grievances over written reprimands. The grievance procedure excluded matters relating to removals or disciplinary actions resulting from actual hearings held pursuant to State Police Rules and Regulations. Specifically, Article XII(D)(3) of the agreement stated: "These [grievance] procedures are not applicable to matters relating to removal or disciplinary action resulting from hearings pursuant to the Rules and Regulations."
Article I of the State Police rules and regulations provides for three categories of disciplinary proceedings:
1. a general disciplinary hearing which may result in a dismissal, a reduction in rank or grade, or an unpaid suspension,
2. a summary disciplinary hearing which may result in an unpaid suspension of a month or less,
3. a written reprimand and accompanying unpaid suspension of five days or less.
Under the third category, three written reprimands within two years could subject an employee to such disciplinary hearing as the Superintendent may order. This third category of disciplinary proceedings was the one allegedly contemplated by the grievance procedure set out in the agreement.
On February 9, 1989 Trooper Christman was ordered to appear at a summary disciplinary hearing. The charge alleged that he had violated regulations by not carrying his weapon while on duty. He did not contest the factual basis for the charge but claimed that in the past only written reprimands had been issued for such offenses. The charge was sustained and he was suspended without pay for four days.
On May 9, 1989 Trooper Ortiz was ordered to appear at a summary disciplinary hearing on charges that he had violated Division regulations: he had allegedly disobeyed a written order on search techniques on female suspects, spoke abusively to a female suspect, and carelessly searched a vehicle for drugs. The hearing officer found the first and ...