IN THE MATTER OF CORRECTION MAJOR, DEPARTMENT OF CORRECTIONS.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 27, 2013
On appeal from the New Jersey Civil Service Commission, Docket Nos. 2012-1035 and 2012-1446.
Mario A. Iavicoli argued the cause for appellant, New Jersey Law Enforcement Commanding Officers Association.
Todd A. Wigder, Deputy Attorney General, argued the cause for respondents, Civil Service Commission and Department of Corrections (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Wigder, on the brief).
Before Judges Grall, Koblitz and Accurso.
The New Jersey Law Enforcement Commanding Officers Association (NJLECOA or the Union) appeals from a final decision of the Civil Service Commission (the Commission) approving a change to the State Classification Plan. The Commission's action created the title of Correction Major in the Department of Corrections (DOC) to consolidate comparable functions performed by existing custody supervisory staff in the titles of Correction Captain, Director of Custody Operations 1 and Director of Custody Operations 2 (collectively DOCOs). NJLECOA contends that the DOC's request to abolish the Captain and DOCO titles was motivated by anti-union bias which the Union should have been allowed the opportunity to prove at a contested hearing. We affirm, substantially for the reasons expressed by the Commission in its clear and comprehensive decisions of October 6, 2011 and December 22, 2011.
Before the reclassification complained of occurred, DOCO was the highest ranking law enforcement position in the DOC and Captain, the second-highest. In a September 8, 2011 letter, DOC Commissioner Gary M. Lanigan requested that the Commission consolidate the DOCO and Captain titles into the single title of Correction Major. The DOC explained that although DOCOs had responsibility for the overall custody function at each institution, DOCOs and Captains had similar job responsibilities in that both were responsible for supervision of the custody workforce, maintaining discipline among inmates, assisting with investigations, overseeing training programs and directing the overall operations of the custody unit. The DOC maintained that the responsibilities that were specific to each title were few. DOCOs conducted grievance hearings and prepared budget requests, which Captains did not do. Captains were more typically assigned to supervise a distinct area within the facility, they gave direction to lieutenants, and tended to have more direct contact with employees and inmates than did DOCOs. The DOC believed it would be more efficient to combine these responsibilities and add responsibilities not covered in either job specification. Specifically, the DOC wanted to create a Central Operations Desk to handle emergency situations throughout the prison system and create a few high ranking custody supervisors to undertake regional responsibilities.
In support of its request to consolidate the DOCO and Captain titles, the DOC set forth a proposed restructuring that would accompany the consolidation. Whereas each facility typically had one DOCO and multiple Captains, the new structure would replace the DOCOs and Captains in each facility by dividing oversight of custody operations between two Correction Majors, a Major of Administration and a Major of Security. The Captains assigned to the Special Operations Group, Central Transportation, and Training Units would be converted to Majors. The DOC intended to place six Majors at a new Central Operations Desk to be staffed twenty-four hours a day, which would coordinate the response to all emergency situations, and create three Regional Correction Majors to provide assistance and coordination among the facilities in each region. The Regional and Central Operations Majors were not intended to oversee the other Majors, but simply perform different duties at the same rank. The salary for all Majors would be $116, 000.
The DOC maintained that its proposed structure would enhance oversight and result in an ultimate reduction of twenty full-time positions. The DOC anticipated needing only thirty-eight Majors, instead of the fifty-eight DOCOs and Captains in its budget. No lay-offs or demotions were contemplated, however. Instead, the DOC proposed to laterally transfer all forty-six DOCOs and Captains then employed into the title of Correction Major. Any DOCO or Captain making less than $116, 000 would receive an immediate increase to that salary. Any DOCO or Captain making more than $116, 000 would continue to receive his or her higher salary, which would be "red-circled, " meaning it would not increase or decrease until the time that the Correction Major salary surpassed it. The DOC would not seek to add additional Majors until attrition reduced their number to thirty-eight.
The DOC maintained that its plan would increase efficiency and yield considerable savings. It planned to use the savings to fund the consolidation and help correct a salary disparity among the institutional administrative staff, which it viewed as a significant problem in recruiting and maintaining qualified individuals.
NJLECOA objected to the consolidation on the grounds that it did not promote economy and efficiency and was merely a means to destroy NJLECOA and the DOCOs' and Captains' collective bargaining power. Specifically, NJLECOA contended that the move was in retaliation for the Captains' and NJLECOA's recently successful efforts in assisting the DOCOs to recently unionize. The DOC had opposed the DOCOs efforts to form a union and the DOCOs were forced to litigate the issue before the Public Employment Relations Commission (PERC). Captain Scott Derby, President of NJLECOA, certified to the Commission that a high ranking DOC executive had threatened him because of NJLECOA's support of the DOCOs' unionization petition and warned that if the DOCOs went forward with the petition the DOCO title might be abolished.
In October 2009, after the PERC hearing concluded but before a decision had been issued, the DOC allowed the DOCOs to be certified as a collective bargaining unit. The DOCOs joined NJLECOA but could not reach a collective bargaining agreement with the DOC. Claiming that the DOC refused to negotiate, NJLECOA filed for interest arbitration on behalf of the DOCOs before PERC. Before the interest arbitration could be completed, however, the DOC sought to abolish both the DOCO and Captain ...