On appeal from Public Employment Relations Commission.
Approved for Publication July 11, 1996.
Before Judges Pressler, Wefing and Kole, t/a. The opinion of the court was delivered by Kole, J.A.D. (retired and temporarily assigned on recall).
The opinion of the court was delivered by: Kole
The opinion of the court was delivered by KOLE, J.A.D. (retired and temporarily assigned on recall).
The issue in this case concerns the authority of the New Jersey Turnpike Authority (Authority) to negotiate with a union of its employees with respect to a decision as to employee layoffs. Is such a decision a matter of managerial prerogative which may not be negotiated, pursuant to such cases as State v. State Supervisory Employees Association, 78 N.J. 54, 393 A.2d 233 (1978)? *fn1 Id. at 88. The resolution of that question, in turn, depends upon whether the Authority is a "public employer" within the meaning and policy of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 through 21, as supplemented (the Act), with the restrictions on its powers imposed by that Act.
The Public Employment Relations Commission (PERC), on the Authority's scope of negotiations petition, held that a decision as to layoffs was a managerial function and thus could not be negotiated with the union. The union appeals.
The union contends that the contractual language here involved does not result in interference with inherent management prerogatives in the determination of governmental policy and that a review of the relevant statutory language supports the Conclusion that the governmental policies at stake in public bodies other than the Authority, to which State Supervisory, (supra) , applies, are not present with respect to the Authority. It claims that the Authority is akin to a private, rather than a public, entity.
We are satisfied that under the applicable statutory and case law, the Authority is covered by the Act and, as to the negotiable versus non-negotiable managerial matters, is in no different position from any other public agency subject to the Act. Even if the issue were debatable, we would be constrained to defer to the expertise of PERC in this scope of negotiations matter. State Supervisory Employment Association, (supra) , 78 N.J. at 83; State v. Communications Workers, 285 N.J. Super. 541, 548, 667 A.2d 1070 (App. Div. 1995).
In 1970, the union and the Authority had negotiated agreements regarding terms and conditions of employment for permanent, full-time toll collectors, utility workers and maintenance employees. That contract is the source of the language regarding layoffs that is at issue in the instant appeal. In 1972, the Authority entered into another union contract relating to its permanent full-time office, clerical and technical employees. This contract also contained language regarding layoffs. The same language has been present for twenty-five years in the union contracts.
The most recent agreement contains the following language in Article XXII, entitled "Layoff":
In the Operating Unit, layoffs will only occur as a result of an Act of God and shall be according to seniority within each department and each classification. Those laid off last will be the first offered reinstatement. Employees shall be advised a minimum of thirty (30) days in advance of any layoff. Seniority shall not be lost in the event of recall within two (2) years of the date of the employee's layoff. In the Office, Clerical and Technical Unit, before there are any layoffs of employees in the Unit, the Authority agrees to meet and negotiate with the Union concerning the conditions.
The last contract between the parties covered a period from June 29, 1992 through July 2, 1995. The union is presently engaged in negotiations for a successor agreement with the Authority. In the course of those negotiations the union proposed that the existing language be unchanged. Rather than negotiate, the Authority filed the instant scope of negotiations petition, in which it sought to have the layoff provisions of the Article declared non-negotiable. According to the union, that petition has complicated and delayed the negotiations. The parties have not yet agreed upon a successor contract.
PERC's order is not a model of clarity. It states:
Article XXII is not mandatorily negotiable to the extent that its first sentence precludes layoff unless caused by "an Act of God" and to the extent that its last sentence may be read to require the New Jersey Turnpike Authority to "meet and negotiate" over a ...