August 3, 2007
IN THE MATTER OF RUTGERS, THE STATE UNIVERSITY, RESPONDENT,
F.O.P. LODGE NO. 62, APPELLANT.
On appeal from the New Jersey Public Employment Relations Commission, Docket No. SN-2006-086.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 10, 2007
Before Judges C.S. Fisher and Grall.
Lodge No. 62 of the Fraternal Order of Police (the FOP), which represents police officers employed by Rutgers, the State University (RU), appeals from a scope-of-negotiations determination by the Public Employment Relations Commission (PERC). N.J.S.A. 34:13A-5.4d. A member of the RU Police Department (RUPD) was charged with violating departmental rules and was dismissed. The FOP filed a grievance, which was denied, and demanded binding arbitration. Seeking to restrain binding arbitration, RU petitioned PERC for a scope-of-negotiations determination. PERC concluded that under the Supreme Court's decision in State v. State Troopers Fraternal Ass'n, 134 N.J. 393 (1993) and this court's decision in County of Monmouth v. Commc'ns Workers of Am., 300 N.J. Super. 272 (App. Div. 1997), a "police officer cannot seek arbitral review of [a] termination." Rutgers, The State Univ., P.E.R.C. No. 2007-5. The FOP argues that PERC improperly applied the rule established in State Troopers, because the Court's decision is based on factors peculiar to the organization of the Division of State Police.
Our courts recognize and generally defer to PERC's special responsibility and expertise in matters involving the scope of negotiations and arbitration and interpretation of the statutes it administers. In re Hunterdon County Bd. of Chosen Freeholders, 116 N.J. 322, 328-29 (1989). The Legislature and the courts have addressed the question of binding arbitration of disciplinary matters and potential conflict with managerial prerogatives on numerous occasions. See N.J.S.A. 34:13A-5.3; New Jersey Tpk. Auth. v. New Jersey Tpk. Supervisors Ass'n, 143 N.J. 185, 201-02 (1996) (discussing the relationship between managerial prerogatives and N.J.S.A. 34:13A-5.3); State Troopers, supra, 134 N.J. at 407-18 (same); County of Monmouth, supra, 300 N.J. Super. at 282-91 (same). N.J.S.A. 34:13A-5.3 has been substantially revised since 1993, when the Court issued its decision in State Troopers. L. 1996, c. 115, § 4; L. 2003, c. 119, § 2; L. 2005, c. 161, § 2; L. 2005, c. 380, § 1. The FOP presents no argument based on the current provisions of N.J.S.A. 34:13A-5.3 addressing arbitration and major discipline.*fn1
We decline to consider questions of statutory interpretation that have not been raised or briefed by the parties or considered by the agency charged with the responsibility of administering the law.
The FOP does not present any argument that would permit this court to reverse PERC's decision on the ground that: "(1) it was arbitrary, capricious, or unreasonable; (2) it violated express or implied legislative policies; (3) it offended the State or Federal Constitution; or (4) the findings on which it was based were not supported by substantial, credible evidence in the record." Shim v. Rutgers, ___ N.J. ___, ___ (2007) (slip op. at 10). The FOP argues that State Troopers is distinguishable based on differences between the structure and nature of the RUPD and the Division of State Police. The FOP also presents arguments based on the 1982 amendment to N.J.S.A. 34:13A-5.3, the statement of the legislator who sponsored that amendment and PERC's decisions concerning minor discipline. This case involves major discipline and arises under a statute that, however, is materially different than the statute as amended in 1982. See, e.g., New Jersey Tpk. Auth. v. Local 196, 190 N.J. 283 (2007) (affirming decision of arbitration reinstating Turnpike employee dismissed for misconduct). The FOP has not presented any argument that would permit us to conclude that PERC's determination is arbitrary or inconsistent with N.J.S.A. 34:13A-5.3. See Shim, supra, ___ N.J. at ___ (slip op. at 10); New Jersey Tpk. Auth., supra, 143 N.J. at 191-205.
The FOP argues that members of the RUPD, like other police officers, should be afforded substantive and procedural rights to ensure against dismissal that is not based on a showing of "just cause." That issue is not properly before this court on this appeal from a scope-of-negotiations determination by PERC. See Ridgefield Park Educ. Ass'n v. Ridgefield Park Bd. of Educ., 78 N.J. 144, 154 (1978) (describing the narrow question before PERC on determinations about scope of collective negotiations); cf. County of Monmouth, supra, 300 N.J. Super. at 298 (discussing course of action available to an employee who has no statutory right to a hearing); cf. Shim, supra, ___ N.J. at ___ n.4 (slip op. at 9 n.4) (review of a determination about domicile made by RU is reviewable in the Appellate Division).