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New Jersey State (Div. of State Police) v. New Jersey State Trooper Captains Ass'n

Superior Court of New Jersey, Appellate Division

June 8, 2015


Argued October 8, 2014.

Approved for Publication June 8, 2015.

On appeal from the New Jersey Public Employment Relations Commission, Docket No. RO-2006-087.

Steven W. Suflas argued the cause for appellant ( Ballard Spahr, attorneys; Mr. Suflas and William K. Kennedy, on the briefs).

Marcia J. Mitolo argued the cause for respondent ( Limsky Mitolo, attorneys; Ms. Mitolo, of counsel and on the brief).

Don Horowitz, Acting General Counsel, attorney for respondent New Jersey Public Employment Relations Commission ( Mary E. Hennessy-Shotter, Deputy General Counsel, on the statement in lieu of brief).



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[441 N.J.Super. 56] KENNEDY, J.A.D.

The State of New Jersey, Division of State Police (Division), appeals a New Jersey Public Employment Relations Commission (PERC) determination that, with some exceptions, State Police captains are not " managerial executives" as that term is defined in N.J.S.A. 34:13A-3(f), and therefore are eligible to join collective negotiations units. The Division argues, among other things, that the PERC determination violates the plain language of the statute; uses a flawed " two-pronged" analysis in reaching its conclusion; and contravenes public policy. We have considered these arguments in light of the law and the record, and we affirm.

1. Background.

In June 2006, the New Jersey State Troopers Captains Association (Association) filed a petition with PERC in which it sought to represent a collective negotiations unit of captains employed by the Division. The Division opposed the petition and asserted that captains are managerial executives or confidential employees ineligible for inclusion in any negotiations unit under the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 to -39 (the [441 N.J.Super. 57] Act). After thirteen days of hearings, the record was closed on May 8, 2008, and the hearing officer subsequently issued her report and findings in which she held that, with some exceptions, captains are neither managerial executives nor confidential

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employees as defined by the statute in force at that time, and therefore are eligible for inclusion in an appropriate negotiations unit.

PERC adopted, with some modifications, the hearing officer's report and decision. The Division filed an appeal, but moved for a remand to PERC after the Legislature amended N.J.S.A. 34:13A-3(f) on January 8, 2010. We granted the State's motion and did not retain jurisdiction.

The hearing officer then held five additional days of hearings, following which she recommended that most captains are eligible for representation because their responsibilities and their role in creating policy for the Division placed them at a level below that of an " assistant commissioner" under the amended version of the statute. On January 28, 2012, PERC adopted the hearing officer's report and recommendations, with certain exceptions, and remanded the case to the Deputy Director of Representation to determine whether a majority of the eligible captains want to be represented by the Association. On September 5, 2012, the deputy director issued an order designating the Association as the exclusive agent for collective negotiations on behalf of the eligible captains.

This appeal followed.

2. The Facts.

The facts attendant upon this appeal are largely undisputed. What follows is a brief summary of the salient facts pertinent to the appeal. The Executive Branch of the State is comprised of fifteen principal departments and numerous independent agencies, boards, and commissions. The Division is a part of the New Jersey Department of Law and Public Safety and its core mission is to protect the public by investigating and preventing crimes, [441 N.J.Super. 58] apprehending offenders, and providing homeland security. It is a paramilitary organization with a strict hierarchical structure that identifies its command officers through the use of military titles.

The head of the Division is the superintendent who holds the rank of colonel. The superintendent occupies a cabinet-level position and reports to the Attorney General and the Governor, and is responsible for the overall functioning of the Division. Two lieutenant colonels and three deputy superintendents occupy the next rung in the organization, and they report directly to the superintendent.

The Division is organized into four branches: administration, investigations, field operations, and homeland security; there is also the office of the chief of staff, which is essentially a fifth branch. Those five branches are each led by one of the two lieutenant colonels and three deputy superintendents.

The branches are, in turn, subdivided into sections supervised by majors who occupy the third tier in the leadership hierarchy. Sections are organizational units that are charged with various responsibilities within a branch. For example, the intelligence branch has a section focused upon " special investigations" and the administrative branch has sections for information technology and human resources management. Sections are then divided into bureaus and offices which are supervised by captains.

Most captains are circumscribed by the " chain of command" and are expected to communicate only with their immediate supervisors, as well as their subordinates, in carrying out their police functions. However, some captains are designated as " executive officers" and function as section supervisors, generally exercising greater authority than " regular" captains. For instance, these captains often act as intermediaries

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between other captains and their commanding majors, and interact more frequently with higher-tiered officers than other captains, often being tasked directly with formulating policies and procedures for the Division.

[441 N.J.Super. 59] Captains are expected to " guide" their subordinates and to administer the " day to day duties of their commands." They are also responsible for evaluating the performance of officers under their command and to ...

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