NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
On October 4, 2013, the Elizabeth Police Superior Officers Association (SOA) filed a grievance against the City of Elizabeth (City) pursuant to the terms of the Collective Negotiations Agreement (CNA) then in effect. The SOA claimed that the City had violated Article XXX of the CNA and "past practice by unilaterally prohibiting captains from pay jobs."1 The police director denied the grievance, stating that "pay jobs are not within the scope of the [CNA]."
When the SOA invoked the arbitration provisions of the CNA, the City petitioned the Public Employee Relations Commission (PERC) for a "Scope of Negotiations Determination." PERC concluded that under the circumstances presented, "the City ha[d] a non-negotiable right to prohibit captains from working `pay jobs.'" By a vote of four-to-three, PERC granted the City's request to restrain binding arbitration under the CNA. This appeal followed.
I.
We discern the following from the record before PERC. Pursuant to a general order of the police department, any officer may work a pay job, "except as otherwise prohibited by the Chief of Police or other proper command authority." In December 2012, the City adopted an ordinance authorizing police officers to work pay jobs, setting compensation at one uniform rate, regardless of rank. If a sergeant, lieutenant or captain were "acting in a supervisory capacity," the ordinance set additional compensation rates based on rank.
In a certification, the City's police director, James Cosgrove, stated that "[r]ecently, the actions of more than a handful of officers, who[] were thought to be performing services for these off[-]duty pay jobs, (including [c]aptains) are currently being investigated for alleged improprieties involving no-show jobs." He attached a recent on-line news article that reported an investigation by the county prosecutor of thirty Elizabeth police officers who were allegedly "repeatedly paid for hours they didn't work." As a result, the police department had "perform[ed] its due diligence" and "review[ed] the protocols and departmental policy concerning the administration of `pay jobs.'"
Cosgrove stated that there were eight captains, twenty-one lieutenants, and thirty-nine sergeants in the department, and this "chain of command create[d] a unique environment for supervising `pay jobs.'" He noted, however, that under the existing policy
[t]here are scenarios where a [c]aptain, while working a "pay job," is being supervised by a lower ranking officer. It is unquestionable that a lower ranking officer would never find fault with any alleged wrongful actions taken by a [c]aptain. Should a lower ranking officer turn in a [c]aptain, that officer would most assuredly experience the ramifications at the Department.
In light of the investigation, effective October 1, 2013, the City issued a directive that prohibited captains from working pay jobs. A more detailed General Order was issued on January 1, 2014, that continued the prohibition on captains and Deputy Chiefs regarding outside work.
Cosgrove stated that his aim "was to curb a rising unity of command problem." Quoting a treatise on police management, Cosgrove stated that "[u]nity of command `requires that every employee be under the direct control of only one supervisor, his immediate supervisor. Unity of command prevents the confusion caused by conflicting orders from different sources.'"
The SOA's president, Richard Shaughnessy, a lieutenant, responded to PERC. He cited Article XXX of the CNA, entitled "Maintenance of Standards", which provided:
All benefits and other terms and conditions of employment which are beneficial to employees shall be maintained at the highest standards existing on the date of commencement of collective negotiations leading to the execution of this Agreement.
Shaughnessy explained that for at least the twenty-seven years that he had been employed as a police officer, captains were always permitted to work pay jobs. Pay jobs that did not require supervisory functions were distributed by dividing the entire police department into four groups alphabetically, and permitting all officers to select pay jobs, with each alphabetic group choosing in a particular week. In other words, the jobs were filled "with any rank up to and inclusive of [c]aptain," thereby insuring "equal access to `pay jobs' for all officers."
The certification attached exhibits detailing thousands of hours of pay jobs for which captains were now ineligible. Shaughnessy claimed that most of the officers implicated in the probe were patrolman, and only two were captains. Shaughnessy further asserted that the existing general departmental order provided oversight of the pay jobs by patrol supervisors.2 Patrol supervisors did not "direct superiors in the performance of their duty," but rather were required to report any officer not performing his pay job to the Inspections Captain. According to Shaughnessy, if the offending officer was himself a captain, policy dictated the Inspections Captain "can move up the chain of command." He noted that there was always a patrol captain on duty to whom the patrol supervisors reported.
In its reply, the City furnished further media reports about the investigation, including a report that two officers had pled guilty and resigned from the department. The article, dated February 27, 2014, quoted a spokesman for the Prosecutor's Office who confirmed the office's investigation was concluded.
PERC determined that in light of the "reported, investigated, [and] highly published," allegations against the officers, some of whom were criminally convicted, the City "performed its due diligence and determined that a lack of unity of rank and supervision was a problem for the `pay jobs' system." PERC continued, "[h]ow the City responds to the Prosecutor's investigation is a policymaking issue of public importance[,]" and permitting "an arbitrator to second-guess [the policy-making decision of the police department] would substantially limit the City's policy-making power."
Citing some of its prior decisions, PERC recognized that "the `pay jobs' system ... provides opportunities for extra income for officers[,]" and "[s]everal aspects of off-duty employment," such as the rate of pay and "[a]llocation of outside employment opportunities among qualified officers," were "mandatorily negotiable." However, PERC held that "the City's determination that Captains are no longer qualified to perform `pay jobs' is not negotiable," and it restrained arbitration of the SOA's grievance.
II.
The SOA argues PERC's decision must be reversed because the subject matter of the grievance "is within the scope of collective negotiations," particularly because the grievance involved the "allocation" of, and not the "administration" of, pay jobs. It also contends that the decision was "unsupported by the evidence," and exceeded the agency's authority. The City counters, urging us to affirm PERC's decision because, given the particular facts of this case, the "administration" of pay jobs is a "managerial prerogative" outside the scope of negotiations.
We have considered these arguments, in light of the record and applicable legal standards. We affirm.
We set forth some general principles.
PERC is charged with administering the New Jersey Employer-Employee Relations Act (Act), N.J.S.A. 34:13A-1 to -29, and its interpretation of the Act is entitled to substantial deference. Appellate courts will not upset a State agency's determination in the absence of a showing that it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence, or that it violated a legislative policy expressed or implicit in the governing statute. Although an agency's interpretation of the statute it is charged with administering ... is entitled to great weight, ... [appellate courts] will not yield to PERC if its interpretation is plainly unreasonable, contrary to the language of the Act, or subversive of the Legislature's intent.
PERC's interpretation of the law outside of its charge is entitled to no special deference. Moreover, deference is not afforded when PERC's interpretation gives a provision of the Act greater reach than the Legislature intended, and PERC must follow judicial precedents interpreting the Act[.]
[Commc'ns Workers of Am., Local 1034 v. N.J. State Policemen's Benevolent Ass'n, Local 203, 412 N.J.Super. 286, 291 (App. Div. 2010) (first alteration in original) (internal citations omitted).]
"PERC has primary jurisdiction to make a determination on the merits of the question of whether the subject matter of a particular dispute is within the scope of collective negotiations." Ridgefield Park Educ. Assoc. v. Ridgefield Park Bd. of Educ., 78 N.J. 144, 154 (1978) (citing N.J.S.A. 34:13A-5.4(d)). "[T]he reach of this decision is limited." Ibid. "`The Commission is addressing the abstract issue: is the subject matter in dispute within the scope of collective negotiations.'" Ibid. (quoting In re Hillside Bd. of Ed., 1 NJPER 55, 57 (1975)).
The Court has "detailed the fundamental test for the negotiability of subjects between public employers and employees[.]" City of Jersey City v. Jersey City Police Officers Benevolent Ass'n, 154 N.J. 555, 568 (1998).
[A] subject is negotiable between public employers and employees when (1) the item intimately and directly affects the work and welfare of public employees; (2) the subject has not been fully or partially preempted by statute or regulation; and (3) a negotiated agreement would not significantly interfere with the determination of governmental policy. To decide whether a negotiated agreement would significantly interfere with the determination of governmental policy, it is necessary to balance the interests of the public employees and the public employer. When the dominant concern is the government's managerial prerogative to determine policy, a subject may not be included in collective negotiations even though it may intimately affect employees' working conditions.
[Ibid. (alteration in original) (emphasis added) (quoting In re Local 195, IFPTE, 88 N.J. 393, 404-05 (1982)).]
In this case, PERC cited to its prior decision in In re City of Paterson, PERC No. 2004-6, 29 NJPER 120 (2003). There, the city's actions followed an investigation by the prosecutor of police officers receiving pay for "off-duty" work while being on duty at the police department. In re City of Paterson, supra, 29 NJPER at 120. The city decided to administer the off-duty work program which had been previously administered by the PBA, and required that every officer who worked an off-duty detail in uniform must have the approval of the public safety director. In re City of Paterson, supra, 29 NJPER at 120. PERC concluded that unlike "the rates, fees and allocation of off-duty opportunities" which were negotiable, the city's "policymaking powers would be substantially limited" if it was prohibited from "administering the off-duty employment system or requiring the approval of [the public safety director]." In re City of Paterson, supra, 29 NJPER at 135.
The SOA argues that unlike City of Paterson, supra, the issue in this case is about allocation of the pay jobs, not the administration of the pay job program. It also contends that the circumstances of this case are vastly different, because the allegations of no-show jobs implicated only two captains, yet all captains lost the opportunity to benefit from pay jobs. We are unpersuaded by these arguments.
Ensuring a chain-of-command that enhances the department's reputation and integrity strikes us as a highly-discretionary policy decision, the kind which weighs heavily in favor of the City when balancing the employees' and employer's interests. The SOA argues that all officers, regardless of rank, have a duty to report transgressions within the force regardless of the rank of the transgressor. That may be, but there is no reason why the City cannot adopt a policy that optimizes that aspirational outcome by eliminating natural inhibitions that a lesser ranking officer might feel in reporting a superior ranking officer. Any claim that such inhibitions do not exist is naïve.
Nor do we accept the proposition that the problem among the rank of captain was small, and therefore, not adequate justification for the City's decision. Obviously, the problem from the City's perspective implicated more than two officers. It sought to prospectively limit the opportunity for further abuse.
The SOA argues the issue is one of allocation of the pay jobs, not administration of the program. However, the City did not prohibit specific officers from obtaining pay jobs, nor did it alter the distribution of pay jobs among otherwise-eligible officers. It only prohibited officers of a certain rank from eligibility, and, in so doing, it effectively re-defined the administration of the program; the City did not allocate who received pay jobs among those who were eligible. As a result of the City's decision, no officer on a pay job could outrank, or be of equal rank to, the Inspections Captain or patrol captain, who the SOA concedes have overall supervisory responsibility in the event of a problem.
Additionally, the SOA argues that PERC's decision was "unsupported by the evidence." In particular, the SOA objects to PERC's use of the phrase "no longer qualified" in describing why the captains were prohibited from the pay jobs, and argues there was no evidence to support the conclusion that captains were unqualified to work pay jobs. However, PERC's use of the term was not pejorative. We think PERC only meant to say that under the terms of the new general order, captains were no longer eligible for pay jobs.
Lastly, the SOA argues PERC exceeded its authority under Ridgefield Park Educ. Assoc., supra, because it failed to limit its consideration to the scope of negotiations issue and considered the merits of the grievance. The argument lack sufficient merit to warrant extensive discussion. R. 2:11-3(e)(1)(E). As already noted, "`[w]hen the dominant concern is the government's managerial prerogative to determine policy, a subject may not be included in collective negotiations even though it may intimately affect employees' working conditions.'" City of Jersey City, supra, 154 N.J. at 568 (quoting Local 195, supra, 88 N.J. at 404-05). Deciding which police officers are eligible for pay jobs is a policy decision reserved to management.
Affirmed.
