On certification to the Superior Court, Appellate Division, whose opinion is reported at 260 N.J. Super. 270 (1992).
For reversal -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, and Garibaldi. Opposed -- None. The opinion of the Court was delivered by Stein, J.
The issue presented by this appeal is whether the so-called "discipline amendment" to N.J.S.A. 34:13A-5.3, L. 1982, c. 103, obligates the New Jersey Division of State Police (State Police or Division) to engage in collective negotiations concerning procedures, including binding arbitration, to review disciplinary determinations affecting state troopers.
A somewhat different issue precipitated the litigation. The basic dispute between the State Troopers Fraternal Association (STFA) and the State Police was whether certain grievances were arbitrable under their existing negotiated agreement. Four state troopers had filed the grievances to challenge the legality of the State Police's use of summary disciplinary hearings to resolve disciplinary violations allegedly committed by those troopers and to determine appropriate sanctions. Contending that the conduct implicated by the alleged violations was not sufficiently serious to warrant disciplinary hearings and customarily had been regarded by the State Police as warranting only written reprimands, the troopers asserted that the use of summary disciplinary hearings to resolve the various infractions was inconsistent with the underlying agreement. The State Police Superintendent rejected the grievances on the ground that they were not authorized by the agreement. The STFA then sought to invoke the binding arbitration mechanism in the agreement to resolve the grievances. The
State objected, asserting that the underlying issue was not arbitrable, and informing the designated arbitrator that the State did not intend to arbitrate.
To avoid the arbitration that the STFA had initiated, the State petitioned the Public Employment Relations Commission (PERC) for a scope-of-negotiations determination pursuant to N.J.S.A. 34:13A-5.4(d) of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 to -29 (the Act). The question posed by the State's petition was whether discipline imposed by the Superintendent of State Police is within the scope of collective negotiations. The State contended that such negotiations were preempted by the broad grant of authority conferred on the State Police Superintendent by N.J.S.A. 53:1-10, which provides:
The superintendent shall, with the approval of the governor, make all rules and regulations for the discipline and control of the state police, and provide the necessary preliminary and subsequent instruction to the troopers in their duties as police officers.
Relying on the 1982 discipline amendment to N.J.S.A. 34:13A-5.3, PERC held that that amendment obligated the State Police to negotiate concerning procedures to review disciplinary determinations, including binding arbitration, notwithstanding the Superintendent's statutory supervisory authority over rules and regulations for discipline of the state troopers. In re State of New Jersey & State Troopers Fraternal Ass'n, 17 NJPER (Lab. Rel. Press) para. 22152 (PERC June 21, 1991). PERC expressly refrained, however, from deciding whether the underlying grievances were arbitrable under the existing agreement, and if arbitrable, meritorious, emphasizing that PERC's function was to address only the abstract issue of whether the subject matter in dispute is within the scope of collective negotiations. Id. para. 22152, at 341. Ironically, the underlying dispute concerning the arbitrability of the grievances under the agreement, which triggered the litigation, has never been resolved and is now moot. Three of the troopers have withdrawn their grievances and the Division has dismissed disciplinary charges against the fourth.
The Appellate Division affirmed PERC's scope-of-negotiations ruling, 260 N.J. Super. 270, 615 A.2d 1286 (1992), observing that "[t]he discipline amendment and its arbitration provisions presumptively apply to all employers and employees covered by the Act." Id. at 280, 615 A.2d 1286. Accordingly, that court concluded that PERC's interpretation of the discipline amendment "preserves the employee's right to negotiate over minor disciplinary proceedings without diluting the employer's authority under N.J.S.A. 53:1-10 to adopt rules governing employee conduct." Id. at 282, 615 A.2d 1286.
We granted the State's Petition for Certification, 133 N.J. 435, 627 A.2d 1141 (1993). Although the grievances that precipitated this litigation have been resolved, we consider and decide the issue presented by this appeal because of its public importance. See Clark v. Degnan, 83 N.J. 393, 397, 416 A.2d 816 (1980).
The underlying controversy between the parties will provide a context for our resolution of this appeal. The relevant labor agreement was in effect from July 1, 1987, to June 30, 1990, and Article XII of that agreement established the policy and procedures for the submission and settlement of grievances filed by state troopers. The grievance provisions of the agreement refer to the three categories of disciplinary proceedings described in the State Police Rules and Regulations:
(1) A general disciplinary hearing, which can result in reduction in rank or grade, suspension with forfeiture of pay, or removal;
(2) A summary disciplinary hearing, which can result in suspension and forfeiture of pay for up to one month; and
(3) A written reprimand, for infractions that the Superintendent determines are not sufficiently serious to warrant a disciplinary hearing, pursuant to which the offending trooper may be suspended with forfeiture of pay for up to five days.
New Jersey State Police Rules and Regulations art. I, § 1(a)-(c) (Aug. 1977) (Rules and Regulations).
The grievance provisions of the state troopers' labor agreement specified that the grievance procedures did not apply to discipline
resulting from general or summary disciplinary hearings. Although the grievance provisions did encompass discipline resulting from written reprimands, that grievance procedure was truncated in that the agreement stated that those grievances were to be submitted directly to the State Police Superintendent, and if not resolved by the Superintendent, to the Attorney General for final resolution.
The agreement distinguished between two kinds of grievances: (1) an allegation of a breach, misinterpretation, or improper application of the provisions of the agreement (a "B-1 grievance"); and (2) a claimed violation, misinterpretation, or misapplication of the rules and regulations, policy, or procedures affecting the terms and conditions of employment (a "B-2 grievance"). The agreement provided that if B-2 grievances could not be resolved pursuant to an intra-departmental grievance procedure described in the agreement, such grievances could be submitted to the Attorney General for final resolution. If B-1 grievances could not be resolved intra-departmentally, those grievances could be submitted for resolution by binding arbitration.
The troopers' grievances focused on the use of summary disciplinary hearings as the mechanism to impose discipline for infractions that the troopers characterized as "minor." Trooper John Christmann, charged with failing to carry his weapon while on duty, was suspended without pay for four days. Trooper Hiram Ortiz, Jr. was charged with disobeying a written order concerning the approved method of searching female suspects, speaking abusively to a female suspect, and failing to search a van in which he had probable cause to believe marijuana was concealed; Ortiz was suspended without pay for eight days. Trooper Michael Karsevar, charged with losing or allowing the theft of his weapon, received a four-day suspension without pay. The fourth trooper had been charged with losing a portable radio and ordered to appear at a summary disciplinary hearing, but the hearing was cancelled after the charge was dismissed.
Although the existing agreement expressly provided that the grievance procedures did not apply to discipline imposed at general or summary disciplinary hearings, the troopers filed B-1 grievances alleging that the State Police's designation of the summary disciplinary hearing procedure constituted a "circumvention" of the agreement. The troopers asserted that the disciplinary violations of which they had been accused customarily had been resolved pursuant to the written-reprimand disciplinary procedure. However, no provision of the agreement defined the type of disciplinary infractions warranting only written reprimands rather than summary or general disciplinary hearings; the State Police Rules and Regulations remit such a determination to the Superintendent's discretion. Rules and Regulations art. I, § 1(c). Nevertheless, after the grievances had been rejected by the Superintendent, the STFA sought relief through the binding arbitration procedure available under the agreement for B-1 grievances. The State then filed its scope-of-negotiations petition with PERC to restrain the arbitration and to elicit a determination about whether the Division is obligated to engage in collective negotiations concerning review procedures and arbitration of state trooper disciplinary proceedings.
Before addressing the merits, we note that the core issue of contractual arbitrability raised by the STFA's request for arbitration was far easier to resolve than the question presented by the scope-of-negotiations petition to PERC. We acknowledge the dictum in Ridgefield Park Education Ass'n v. Ridgefield Park Board of Education, 78 N.J. 144, 393 A.2d 278 (1978), stating that resolution of the scope-of-negotiations issue should precede resolution of the question of contractual arbitrability:
We agree with PERC that contract interpretation is a question for judicial resolution. Thus, where a party resists an attempt to have a dispute arbitrated, it may go to the Superior Court for a ruling on the issue of its contractual obligation to arbitrate. However, the issue of contractual arbitrability may not be reached if the threshold issue of whether the subject matter of the grievance is within the scope of collective negotiations is contested. In that event, a ruling on that issue must be obtained from PERC. Thus, the preferable procedure in the instant case
would have been for PERC to have rendered its scope determination before the issue of contractual arbitrability was addressed.
Nevertheless, the procedure described in Ridgefield Park, supra, is best understood as a recommended, but not exclusive, mechanism for obtaining an orderly resolution of interrelated issues, one primarily administrative and the other contractual. Where, as here, the contractual arbitrability issue is so much more limited than the negotiability question, the more efficient and pragmatic procedure would be for the party resisting arbitration to seek a judicial determination of the arbitrability question, reserving the right to resort to a scope-of-negotiations proceeding before PERC in the event of an adverse ruling. At oral argument counsel for PERC acknowledged that resolution of the issue of arbitrability prior to submission of a scope-of-negotiations petition to PERC may often be preferable to the procedure used in this case.
In resolving the question whether discipline imposed by the Superintendent of State Police is within the scope of collective negotiations, both PERC and the Appellate Division considered the issue to be governed by the literal language of the discipline amendment, L. 1982, c. 103, which revised the final paragraph of N.J.S.A. 34:13A-5.3 to read as follows:
Public employers shall negotiate written policies setting forth grievance and disciplinary review procedures by means of which their employees or representatives of employees may appeal the interpretation, application or violation of policies, agreements, and administrative decisions, including disciplinary determinations, affecting them, provided that such grievance and disciplinary review procedures shall be included in any agreement entered into between the public employer and the representative organization. Such grievance and disciplinary review procedures may provide for binding arbitration as a means for resolving disputes. The procedures agreed to by the parties may not replace or be inconsistent with any alternate statutory appeal procedure nor may they provide for binding arbitration of disputes involving the discipline of employees with statutory protection under tenure or civil service laws. Grievance and disciplinary review procedures established by agreement between the public employer and the
representative organization shall be utilized for any dispute covered by the terms of such agreement.
Neither PERC nor the Appellate Division approached the issue in the context of our basic guidelines for determining the negotiability of terms and conditions of employment between public employers and employees. The guidelines balance the managerial interests of the public employer and the bargaining interests of the public employees to ascertain whether collective negotiations about the matter in issue would significantly interfere with the public employer's responsibility to determine governmental policy. In re IFPTE Local 195 v. State, 88 N.J. 393, 404-05, 443 A.2d 187 (1982).
We acknowledge that the literal provisions of the discipline amendment apply to the State Police as well as to other public employers, and that we review with appropriate deference PERC's determinations implementing the provisions of the Act. In re Hunterdon County Bd. of Chosen Freeholders, 116 N.J. 322, 328, 561 A.2d 597 (1989). Nevertheless, the principle that "statutes are to be read sensibly rather than literally," Schierstead v. Brigantine, 29 N.J. 220, 230, 148 A.2d 591 (1959), warrants a measured review of the decisional law leading to the adoption of the discipline amendment to verify that PERC and the Appellate Division have perceived accurately the Legislature's purpose.
As originally enacted, the New Jersey Employer-Employee Relations Act mandated that public employers negotiate in good faith with the majority representative of public employees "with respect to grievances and terms and conditions of employment." L. 1968, c. 303, § 7. The Legislature, however, left undefined the phrase "terms and conditions of employment" and left unspecified "what subjects were negotiable and what subjects were outside the sphere of negotiation." Dunellen Bd. of Educ. v. Dunellen Educ. Ass'n, 64 N.J. 17, 24, 311 A.2d 737 (1973). Our 1973 decisions in the so-called " Dunellen trilogy" established the need to determine on a case-by-case basis the subjects that are mandatorily negotiable under the Act, as distinguished from matters of governmental policy exclusively within the prerogative of management.
Dunellen, supra, 64 N.J. at 30-31, 311 A.2d 737 (holding that consolidation of high school social studies and English departments not proper subject of mandatory negotiation or arbitration); Burlington County College Faculty Ass'n v. Board of Trustees, 64 N.J. 10, 16, 311 A.2d 733 (1973) (holding that formulation of college calendar fixing length and division of college year was managerial prerogative and not proper subject of mandatory negotiation); Board of Educ. v. Englewood Teachers Ass'n, 64 N.J. 1, 7, 311 A.2d 729 (1973) (holding that working hours and compensation of special education teachers are "terms and conditions of employment" and thus suitable for negotiation and grievance procedures). We also took note of the limitation set forth in N.J.S.A. 34:13A-8.1 specifying that no provision of the Act could "annul or modify any statute or statutes of this State." We observed in Dunellen that that strong qualifying language "clearly precluded any expansive approach" to the negotiability of terms and conditions of public employment, 64 N.J. at 31, 311 A.2d 737, especially where the subject sought to be negotiated was encompassed by existing legislation. Id. at 28-29, 311 A.2d 737.
Dissatisfaction with the Dunellen limitations on negotiability prompted the Legislature to amend the Act in 1974. L. 1974, c. 123. See State v. State Supervisory Employees Ass'n, 78 N.J. 54, 67, 393 A.2d 233 (1978). The most significant change was an amendment to N.J.S.A. 34:13A-8.1. Prior to the amendment that section ended with the phrase "nor shall any provision hereof annul or modify any statute or statutes of this State," the language we relied on in Dunellen to preclude negotiability under the Act of subjects within the purview of existing legislation. 64 N.J. at 28-29, 311 A.2d 729. The 1974 amendment revised that portion of N.J.S.A. 34:13A-8.1 to read: "[N]or shall any provision hereof annul or modify any pension statute or statutes of this State." L. 1974, c. 123, § 6 (emphasis added). In State Supervisory, we rejected both the State's contention that the amendment had no effect on the scope of negotiations under the Act and the union's contention that the legislative purpose was to mandate negotiation over all subjects except for matters covered by pension statutes.
Rather, we adopted PERC's interpretation of the 1974 amendment, which would have precluded negotiation concerning matters beyond the statutory authority of the public employer and would not have permitted public employers to agree to terms that would violate a statutory imperative. 78 N.J. at 79-80, 393 A.2d 233. Nevertheless, we modified our holding in Dunellen by recognizing that under the 1974 amendment a general statutory enactment would no longer preclude mandatory negotiations over terms and ...