On appeal from the New Jersey Public Employment Relations Commission, Docket No. DA-2010-002.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Ashrafi and Nugent.
In this dispute over respondent New Jersey Institute of Technology's (NJIT) termination of one of its police officers, the officer's representative, FOP Lodge No. 93 (FOP 93), appeals from the New Jersey Public Employment Relations Commission's (PERC) August 12, 2010 final decision that upheld the Director of Arbitration's dismissal of FOP 93's request for appointment of an arbitrator. NJIT cross-appeals from PERC's determination that NJIT police officers are entitled to arbitrate disciplinary terminations under N.J.S.A. 40A:14-209, the statute that permits certain county and municipal law enforcement officers and firefighters to arbitrate such terminations. PERC has filed a brief in which it argues, among other things, that PERC properly dismissed FOP 93's request for an arbitrator, and that NJIT's cross-appeal should be dismissed for two reasons: NJIT lacks standing to prosecute the cross-appeal, and the central issue NJIT raises in the cross-appeal is moot.
We conclude that PERC's dismissal of FOP 93's request for arbitration was not arbitrary, capricious or unreasonable, and therefore affirm. In view of that determination, we dismiss NJIT's cross-appeal as moot.
The facts are essentially undisputed. NJIT is authorized to "appoint such persons as the governing body may designate to act as policemen for the institution." N.J.S.A. 18A:6-4.2. FOP 93 is the exclusive negotiating representative*fn1 for non-supervisory, full-time police officers appointed and employed by NJIT, who hold a rank below that of sergeant. Joseph Boyle was a police officer employed by NJIT and represented by FOP 93. His disciplinary termination triggered the events that resulted in this appeal.
On July 14, 2009, NJIT terminated Boyle, effective July 15, 2009, for
unauthorized absences, job abandonment, excessive absenteeism, and
neglect of duty. In response, FOP 93 informed NJIT's vice president of
human resources that it was "going to refer this matter to PERC
according to article 7, step 3 of the grievance procedure."*fn2
On July 24, 2009, FOP 93 filed its request for arbitration
with PERC.*fn3 FOP 93 did not petition for
special disciplinary arbitration by requesting an arbitrator from
PERC's Special Disciplinary Arbitration Panel as required by N.J.A.C.
19:12-6.4, but instead filed for traditional grievance arbitration.
On August 11, 2009, NJIT asserted in a letter to FOP 93 that arbitration for major discipline of police officers was not permitted under current law. When FOP 93 refused to withdraw its arbitration request, NJIT filed a scope petition*fn4 on August 31, 2009, seeking to restrain binding arbitration of FOP 93's grievance challenging Boyle's termination. On December 17, 2009, PERC granted NJIT's request to restrain binding arbitration.
In its decision, PERC interpreted State v. State Troopers Fraternal Association, 134 N.J. 393 (1993), as holding that police officers may not arbitrate the merits of a major disciplinary dispute. Based on that interpretation, PERC determined that the merits of Boyle's termination could not be submitted to traditional binding grievance arbitration. PERC explained that it could not permit Boyle's "grievance to proceed as a special disciplinary arbitration because the panels of arbitrators and selection process for traditional grievance arbitrators and special disciplinary arbitrators are different." N.J. Inst. of Tech., supra, PERC No. 2010-48, 35 NJPER ¶158 n.1.
PERC next decided that FOP 93 could arbitrate a disciplinary termination under N.J.S.A. 40A:14-209, the statute that permits police officers and firefighters in non-civil service jurisdictions to appeal non-criminal terminations to binding arbitration. After deciding that issue, PERC addressed NJIT's argument that neither Boyle nor FOP 93 had filed for arbitration under N.J.S.A. 40A:14-209. PERC agreed, but ruled that "[i]f a petition is filed within ten days of this decision, we will permit the parties to argue at that time whether the petition should be treated as timely filed." FOP 93 and Boyle missed the ten-day extended filing deadline.
The ten-day deadline expired on December 28, 2009. FOP 93 prepared a request for appointment of an arbitrator from PERC's Special Disciplinary Arbitration Panel and dated it December 28, 2009, but did not file it with PERC until December 31, 2009. NJIT objected to PERC considering FOP 93's untimely filed request. On January 20, 2010, PERC's Director of Arbitration dismissed FOP 93's request with prejudice because FOP 93 had not filed it by the extended filing deadline. The Director subsequently denied FOP 93's motion for reconsideration. In a decision ...