On appeal from the New Jersey Civil Service Commission, Docket No. 2011-3664.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...