July 23, 2012
IN THE MATTER OF THE NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION ALTERNATIVE WORKWEEK PROGRAM FOR 2011.
On appeal from the New Jersey Civil Service Commission, Docket No. 2011-3664.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 29, 2012
Before Judges Grall, Alvarez and Skillman.
The Communications Workers of America, AFL-CIO (CWA) appeals from the Civil Service Commission's (CSC) final decision approving the Department of Environmental Protection's (DEP) modification of that State agency's alternative workweek program (AWP). The DEP has not participated in this appeal.
We affirm substantially for the reasons stated by the Commission in its final decision of April 6, 2011.
DEP has offered its employees an AWP for almost twenty years, and when DEP proposed this modification over half of its employees were participating. DEP initially operated its AWP with authorization from the Merit System Board in the Department of Personnel and now operates the AWP with the authorization of the Civil Service Commission, which was established effective June 30, 2008, in connection with the Legislature's abolition of the Department of Personnel. N.J.S.A. 11A:2-1, :11-1; L. 2008, c. 29, §§ 1, 77, 120. The chief executive officer and administrator of the Commission is the member designated as the Chairperson by the Governor, and the Chairperson is the only Commission member obligated "to devote full time to the duties of the position." N.J.S.A. 11A:2-3.
The Board and now the Commission have authorized State appointing authorities*fn1 to offer AWP in an exercise of the Board's and Commission's successive grants of authority to "effectively implement a comprehensive personnel management system," N.J.S.A. 11A:2-6(d), and "adopt rules for the implementation of hours of work, overtime compensation and holiday pay programs," N.J.S.A. 11A:6-24. See also N.J.S.A. 11A:2-11(e) (formerly requiring the Board and now the Commission to "plan, evaluate, administer and implement personnel programs and policies in State government and political subdivisions operating" under Title 11A). Pursuant to a regulation adopted by the Commission since its formulation, the Commission's "Chairperson, on behalf of the Commission, shall . . . [e]stablish necessary programs and policies for the State and local service." N.J.A.C. 4A:1-3.2(b)(2).
The AWP for employees in State service is authorized by a regulation adopted by the Board and not modified by the Commission, N.J.A.C. 4A:6-2.7. The absence of an amendment to this regulation since the establishment of the Commission explains the continued references to the now abolished Department of Personnel and its Commissioner.
The AWP regulation gives each appointing authority discretion to offer an AWP and flexibility to design, modify, terminate or temporarily suspend its AWP in accordance with its operational needs, subject to hours of weekly work set by the Commissioner and the Commissioner's approval. N.J.A.C. 4A:6-2.7 provides:
(a) Appointing authorities may establish alternative workweek programs, such as a four day workweek, to accommodate operational and/or employee needs.
(b) A program may be developed for year-round use or for a specific portion of a year.
(c) An appointing authority may limit participation in an alternative workweek program to selected groups of job titles, work units and/or work locations to accommodate operational needs.
(d) Department of Personnel assigned workweeks for affected titles, for example, 35 or 40 hours, shall be retained.
(e) Appointing authorities shall develop, subject to Department of Personnel approval, appropriate sick, vacation and administrative leave schedules for employees participating in an alternative workweek program.
(f) Since employees in an alternative workweek program have a longer or shorter workday than employees on a five day workweek schedule, a time differential exists on holidays. This differential shall be equalized in a manner determined by the appointing authority. If a holiday occurs on an employee's regular day off, he or she shall be granted an additional day off consistent with operational needs.
(g) Establishment, modification or termination of an alternative workweek program shall not become effective without the approval of the Commissioner. Requests for these actions must be submitted at least 30 days in advance of the proposed effective date to the Department of Personnel and shall include the same items listed in N.J.A.C. 4A:6-2.6(d).
(h) An appointing authority may authorize a complete or partial temporary suspension of the alternative workweek program if required by operational needs. Within 10 days of the suspension of the program, the appointing authority shall submit to the Commissioner a fully detailed justification and specify the duration of the suspension.
(i) Appointing authorities should consult with affected negotiations representatives concerning alternative workweek programs before implementation.
(j) A description of an appointing authority's alternative workweek program shall be made available to employees upon request.
(k) Overtime compensation for employees in alternative workweek programs shall be regulated in the same manner as for all other employees, except as specified in N.J.A.C. 4A:3-5.3.
The procedures for obtaining approval referenced in paragraph
(g) of this regulation are set forth in N.J.A.C. 4A:6-2.6(d):
Requests for these actions shall be submitted at least 30 days in advance of the proposed effective date to the Department of Personnel and shall include:
1. Justification which relates the requested action to operational and employee needs;
2. Statement of impact on services to the public or agency clientele;
3. Details of the core time, flexible time and meal periods;
4. Groups of job titles, work units and/or work locations to be covered by the program;
5. Procedures governing employee participation in the program;
6. Approval procedures for individual flexitime schedules and changes;
7. Provisions for giving employees at least two weeks notice of termination of the program;
8. Monitoring and evaluation procedures; and
9. Name, address and telephone number of the program administrator. This appeal concerns a proposal for modification of an AWP that DEP submitted to the Commission's Chairperson, Robert Czech, on November 8, 2010, and re-submitted on December 1, after meeting with representatives of the CWA on November 12 and 18.
DEP articulated and explained the changes as follows in its
December 1 submission:
Dual participation in the Voluntary Furlough and [AWP] will no longer be permitted. (Under current model, AWP participation is allowed in conjunction with voluntary furlough).
Employees will be limited to 1 AWP day off per pay period. 1 day off per week will no longer be allowed. (Under the current model, AWP participation is allowed 1 day per week).
All participants may only take Friday as their AWP day off. Managers will be responsible for ensuring that necessary levels of operational coverage are maintained, and that to the extent possible, employees are off on alternate Fridays.
(Under the current AWP model, employees are able to participate in AWP on any given day within the week/pay period).
Every DEP employee is expected to be at their respective work areas at least from 9 A.M. to 4 P.M. All employees must work a minimum of 7.5 hours per day. AWP employees will be working longer days and therefore shall adjust their workday to begin before 9 A.M. or end after 4 P.M.
In addition, we will not allow employee start times to occur before 8:00 A.M. Limited exceptions may be considered based on operational efficiencies which will be reviewed and approved by the Chief of Staff.
In its supporting submission, DEP noted that its current AWP "presented challenges to its management team's ability to effectively manage employees and make the DEP operate more efficiently." According to DEP, "[i]ssues with AWP ha[d] become more obvious especially as managers face[d] decreasing staffing levels and diminishing morale." Thus, it proposed modifications that would give DEP the "ability to maintain optimum staffing levels during a [two-week] pay period, while still offering employees the opportunity of a shortened workweek in which to attend to family and life issues." With respect to its designation of Friday as the AWP day, DEP explained:
The restriction to Fridays only as the day off will enhance our customer service abilities as well. Although managers will be required to maintain operational efficiencies on any given Friday of the week, constituents will be aware that staffing [sic] whom they may deal with on a specific project or permit, may not be reachable on Friday due to the Department's AWP rule. We are confident that these modifications will better serve the public while still affording employees with a privilege extended to them for the past 18 years.
DEP further advised that it had met with the CWA on November 12 and 18, 2010, and that it planned to inform its employees of the final plan no later than December 3. It asked for approval to make the modifications effective March 12, 2011, the beginning of the seventh of twenty-six pay periods.
On December 2, 2010, DEP advised its employees of modifications it had proposed. On December 20, 2010, the Commission's assistant director of classification and compensation approved DEP's proposal. The assistant director advised that the proposal had been reviewed and found to be "consistent with the provisions of N.J.A.C. 4A:6-2.7."
On January 3 and 13, 2011, the CWA submitted its objections to Chairperson Czech and asked him to deny DEP's request and refer the matter to arbitration. By letter dated January 19, the Chairperson provided his reasons for rejecting the CWA's requests. He explained that N.J.A.C. 4A:6-2.6(f) and N.J.A.C. 4A:6-2.7(i) did not mandate union consultation but suggested it and, in any event, DEP had consulted with the CWA and the employees' consent was not required.
CWA took subsequent steps that led to the Commission's issuance of a written decision approving DEP's modified AWP and denying a stay of its implementation pending appeal to this court.
On this appeal, the CWA presents these arguments:
I. AN ADMINISTRATIVE AGENCY MAY NOT DISREGARD ITS OWN DULY-ENACTED REGULATIONS.
II. THE COMMISSION CANNOT BE PERMITTED TO IGNORE ITS OWN REGULATORY STANDARDS.
III. THE COMMISSION CANNOT BE PERMITTED TO IGNORE FACTS AND ARGUMENTS PRESENTED BY AN INTERESTED PARTY.
IV. NEITHER THE ASSISTANT DIRECTOR OF CLASSIFICATION AND COMPENSATION NOR THE COMMISSION CHAIRPERSON HAD THE AUTHORITY TO APPROVE MODIFICATIONS TO AWPS.
"[A] strong presumption of reasonableness" is afforded to administrative decisions. In re Carroll, 339 N.J. Super. 429, 437 (App. Div.) (internal quotation marks omitted), certif. denied, 170 N.J. 85 (2001). Accordingly, an appellate court's review of an administrative agency's action is limited and deferential.
[It] is restricted to four inquiries: (1) whether the agency's decision offends the State or Federal Constitution; (2) whether the agency's action violates express or implied legislative policies; (3) whether the record contains substantial evidence to support the findings on which the agency based its action; and (4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.
[George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963); In re Larsen, 17 N.J. Super. 564, 570 (App. Div. 1952)).]
After considering the arguments presented in Points I through III in light of the deference due the Commission, we conclude that they lack sufficient merit to warrant discussion beyond that provided by the Commission in its decision of April 6, 2011. R. 2:11-3e(1)(E). The Commission was satisfied that DEP's explanation of its need for modification of the AWP to serve the public better and address decreasing staffing levels was adequate and that DEP had provided sufficient detail about core time, procedures and effective date to meet its obligation under N.J.A.C. 4A:6-2.6(d). The Commission further explained:
[A]lthough the former AWP had been implemented for many years, it must be reiterated that AWPs are discretionary. Modification of an AWP does not take away an employee's entitlement. Moreover, the employees were provided with the intended modifications by e-mail on December 2, 2010 and have been provided with well more than two weeks' notice. Thus, there is no danger of immediate or irreparable harm in the approval of the modified AWP by the Chair/CEO. The employees have had ample notice of the revisions to the AWP and may adjust their lives accordingly. The Commission notes that State workers are afforded generous leave time and may request a leave of absence without pay to attend to personal issues or participate in DEP's Voluntary Furlough Program. See N.J.A.C. 4A:6-1.1 et seq. and N.J.A.C. 4A:6-1.23. It is in the public interest to approve this AWP modification . . . . DEP submits that it would be able to better serve the public if there is an optimum staffing level. DEP is in the best position to ascertain the needs of its customers, who may be adversely affected should further issues arise in staffing.
Substantially for the reasons set forth by the Commission, we affirm. There is no reason to address the CWA's objections to the role played by the Chairperson in this case, because the Commission has rendered a decision approving DEP's modified AWP, as the CWA contends it should. It is worth noting that N.J.A.C. 4A:1-3.3(a)(2) provides that the Commission will "[r]ender final administrative decisions on appeals and other matters referred by the Chairperson."