April 23, 2012
IN THE MATTER OF NEW JERSEY INSTITUTE OF TECHNOLOGY, RESPONDENT-RESPONDENT/ CROSS-APPELLANT, AND FOP LODGE NO. 93, PETITIONER-APPELLANT/ CROSS-RESPONDENT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 25, 2011
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 dated August 12, 2010, PERC upheld the Director's decision. N.J. Inst. of Tech. and FOP Lodge #93, PERC No. 2011-16 (2010). This appeal followed.
Our review of administrative agency action is limited. Generally, we will not disturb an administrative agency's determinations or findings "unless there is a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence." In re Application of Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008). "In the absence of constitutional concerns or countervailing expressions of legislative intent, we apply a deferential standard of review to determinations made by PERC." City of Jersey City v. Jersey City Police Officers Benevolent Ass'n, 154 N.J. 555, 567 (1998). This is particularly so when we review a PERC decision concerning the scope of negotiations.
The Legislature has vested PERC with "the power and duty, upon the request of any public employer or majority representative, to make a determination as to whether a matter in dispute is within the scope of collective negotiations." N.J.S.A. 34:13A- 5.4(d). The standard of review of a PERC decision concerning the scope of negotiations is "thoroughly settled. The administrative determination will stand unless it is clearly demonstrated to be arbitrary or capricious." [In re Hunterdon Cnty. Bd. of Chosen Freeholders, 116 N.J. 322, 329 (1989)] (quoting State v. Prof'l Ass'n of N.J. Dep't of Educ., 64 N.J. 231, 258-59 (1974)). [Id. at 567-68.]
Preliminarily, FOP 93 and NJIT dispute whether their collective negotiations agreement provides for arbitration of disciplinary suspensions or terminations. FOP 93 cites the agreement's Article VII, subsection D(4), which states: "An Officer who is suspended without pay or discharged may file a grievance at Step Three of the grievance procedure." NJIT responds that Article VII, subsection D(4) is a typographical or editing error that is entirely inconsistent with the grievance procedure to which the section refers.
We need not resolve that dispute. Even assuming that FOP 93's interpretation of the agreement is accurate, and further assuming that N.J.S.A. 40A:14-209 is broad enough to encompass arbitration of NJIT's termination of Boyle, FOP 93 did not initially file its request in accordance with that statute, and did not file the request within the extended deadline granted by PERC. Accordingly, PERC's Director of Arbitration properly dismissed FOP 93's request for appointment of an arbitrator.
As we previously noted, N.J.S.A. 40A:14-209(a) provides that county and municipal police officers and firefighters in non-civil service jurisdictions, who have been suspended or terminated for reasons other than matters relating to criminal charges or investigations, may submit an appeal to PERC for arbitration. But the officer or firefighter must submit the appeal for arbitration in a timely manner. "Within 20 days of receiving notice of termination, the officer . . . shall submit his appeal for arbitration to [PERC]." N.J.S.A. 40A:14-210(b) (emphasis added).
Boyle received his notice of termination on July 15, 2009. He never filed a notice for appointment of a member of the Special Disciplinary Arbitration Panel as required by N.J.A.C. 19:12-6.3, one of the regulations that implement N.J.S.A. 40A:14-210. Instead, he mistakenly filed a request under a different procedure. PERC would not allow the instant grievance to proceed as a special disciplinary arbitration because the panels of arbitrators and selection process for traditional grievance arbitrators and special discipline arbitrators are different.
Notwithstanding FOP 93's non-compliance with N.J.S.A. 40A:14-209 and -210 and their implementing regulations, PERC did not initially dismiss the matter. Rather, it ruled that if FOP 93 filed a new request within ten days of the decision, PERC would permit the parties to argue at that time whether the petition should be treated as timely filed. When FOP 93 missed that extended deadline, PERC's Director of Arbitration justifiably dismissed FOP 93's request. PERC subsequently upheld the Director's decision, explaining:
We are not persuaded to relax our rules in this case where we already provided an opportunity to [FOP 93] to file its submission beyond the 20-day statutory period and it failed to do so. Having found that [FOP 93] did not comply with our Order, we do not reach the question of whether we could relax the statutory 20-day filing deadline.
FOP 93 submits that it missed the extended ten-day deadline by three days because the attorney handling the case was on vacation from December 25, 2009 through January 1, 2010, never returned to his law firm following his vacation, and departed suddenly and unexpectedly. Before leaving, the attorney left no instruction to his secretary to fax the petition to PERC. PERC's decision suggests that it might have considered those circumstances had it not previously relaxed the twenty-day statutory filing deadline. Considering FOP 93's failure to properly petition PERC for the appointment of an arbitrator from its special disciplinary panel, and its subsequent failure to meet the filing deadline that PERC had extended, PERC acted well within its authority when it upheld its Director's decision dismissing FOP 93's request. PERC followed the law as set forth in statutory mandates, its decision was based on undisputed facts, and its decision was not arbitrary, capricious, or unreasonable. See In re Application of Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, supra, 194 N.J. at 422.
In light of our disposition of FOP 93's appeal, we need not resolve NJIT's argument that N.J.S.A. 40A:14-209 does not apply to a police officer appointed under Title 18. We consider that issue to be moot.