*1 an Order request for the issuance of this Order a written date of Cause; further to Show and it is enjoined from respondent be restrained ORDERED suspension that he period of his practicing during law 1:20-20; and it is further complywith Rule this made entire record of matter be ORDERED attorney law of this part respondent’s file as an permanent State.
Jonathan McDermott, attorneys). Murphy, (Apruzzese, Mastro & Belmar argued respondent Township of Joseph Betley F. the cause for Scatchard, attorneys; Betley and (Capehart Mr. Laurel Mount brief). Adler, in lieu Kelly E. on the letters respondent Borough of for argued N. Litwin the cause Gordon (Litwin Provence, attorneys). Keyport & Packman, Counsel, argued the for R. cause
Martin General Jersey Employment Public Relations Commis- respondent New sion. for New argued the cause amicus curiae
Richard A. Friedman (Zazzali, Nowak, Fagella, Kleinb- Jersey Association Education Friedman, attorneys; Edward M. Mr. Friedman and aum & brief). Suarez, Jr., on the Purcell, Counsel, argued the Associate cause
Edward W. Municipalities Jersey League curiae and New amici New State (William Attorneys Jersey Government J. Institute Kearns, Jr., Counsel, attorney). General amicus curiae G. Kroll submitted a brief on behalf of
Albert (Kroll Carton, attorneys). Jersey Heineman AFL-CIO New State Jahn, Counsel, Cynthia and Robert A. Greitz submit- J. General Jersey curiae New School Boards ted a brief on behalf amicus Association. *5 opinion
Justice LaVECCHIA delivered the of the Court. appeal In this municipalities we review whether three were required negotiate representatives with taking union before layoff negatively impacted actions wages that hours the of employees. municipalities imposed affected Two of on certain public employees mandatory, layoffs, units of temporary, but in the form of a days period reduced number of work a specified over time, negotiating without representa- those actions union with tives. The municipality part third eliminated as of an overall layoff plan positions three full-time replaced clerical them part-time positions; result, with as the affected lost eligibility their for health layoff benefits. That action also was not negotiated However, representatives. with layoff union all three plans approved by had been submitted and the Civil Service (Commission) compliant Commission with all civil service re- quirements for a action. unions public employees
After for in municipality brought each scope-of-negotiations challenges municipal actions, to the the Pub- Employment (PERC), lic Relations separate Commission deci- sions, municipalities held that Jersey violated New Em- - ployer-Employee (EERA), Relations Act N.J.S.A. 34:13A-1 required municipality each to negotiate changes employment. terms and conditions Appellate appeals Division consolidated these and reversed determinations, finding
PERC’s municipal non-negotia- actions ble in all but respect pertinent appeal. one to this
Employee rights in these three circumstances are determined by application three-part test set forth Local IFPTE State, 393, 404-05, v. (1982), 88 N.J. resolving A.2d 187 questions scope about employment negotia- sector test, tions. Based on negotiability we conclude that the layoff plans hinges these three application of the third analysis negotiation Local 195 into takes account whether significantly would interfere with a management determination of governmental policy. Ibid. *6 system have governed by the service the
Municipalities civil exigent facing financial circum- right lay off when to layoffs, en- authorizing temporary which regulation A stances. manner, in such a municipalities address fiscal distress abled to ap- plans layoff developed were was in when these effect Commission, although municipalities the claim that proved by the authority seeking they pursuant to its when Commis- not act did repealed, regulation since has approval. Although the been sion that validity challenged in matter. The fact it is not this during exigent layoffs temporary periods times authorized significant in our review. Whether the fiscal circumstances is existing regulation is not municipalities actively relied that controlling analysis. of our disputes prong the reviewing
In each these under third initially that civil position PERC took the service Local option engage it had to in employer had to show that no other but layoff managerial policy predominate in interests to order for maintaining employees in terms over the interests of PERC, According only upon employment. of their conditions public entity showing employer a could a demon- making such necessary that urgency support finding strate the fiscal third, layoff non-negotiable was based on Local 195’s or action has from managerial-prerogative, prong. PERC retreated in position appeal subsequent agency quasi-judicial in this view, brought In determination that it has to our attention. our position mistakenly high the bar too when PERC’s former set by assessing managerial prerogative governments exercised local distress, confronting fiscal case was the these matters. herein, expressed For the reasons we hold at the time that occurred, they non-negotiable layoff actions at issue were third test. We affirm under the therefore judgment, opinion. Appellate as modified this Division
I. Belmar, Jersey municipalities the New Mount Lau- rel, Keyport (collectively municipalities respondents), or experiencing were All municipalities financial strain. three were (CNAs) operating negotiation agreements under collective with representing municipal employees. unions Following various ef- budget crises, forts to municipality confront their individual each approval plan, obtained from the Commission for a de- Generally scribed detail hereinafter. pertinent stated and as appeal, layoff plans, varying ways, this workers’ reduced impacted hours and wages. following therefore facts and procedural history are culled from the record created before PERC.
A. *7 Borough Keyport (Keyport) The and the International Union (Local Engineers, Operating 68), representing Key- Local 68 port’s employees, 1, January clerical into a entered CNA effective 2008, terms, through Among December 2010. other Article 33 granted Keyport management right the assign employees’ to schedules, provided and Article 5 that in layoff, the event of a Keyport respect employees’ seniority would rights. Article 8 specified that the “work all bargaining employees week for unit (5) shall Monday Friday, be from through and shall consist five (7 Jé) consecutive seven and hour days thirty- one-half work for (37 Jé) seven and one-half hour work week.” 2009, Keyport In experiencing significant was financial difficul- light ties in a pervading lingering economic downturn. Keyport healthcare, pension, faced increased and labor costs revenues; without an in tax in budget increase it had surplus $6,000. expenses less than After efforts to control did strain, Keyport layoff alleviate the plan submitted a traditional to the May Commission on In personnel 2009. order to reduce expenses, plan, pertinent in part, the converted three full-time positions clerical in Department the Construction one —two Registrar part-time Office of the positions.1 Those —into sergeant The also demoted one ato plan officer and police police permanent- laid off officer; one ly however, those decisions are not at issue in this police date; proposed end an identified
layoffs not have did positions and con- full-time permanently eliminated therefore layoff plan represented positions. The part-time to verted them “[wejre economy and necessary for reasons that the reductions Keyport’s prelimi- plan stated efficiency.” particular, the In $135,000 “the and that levy cap budget nary 2009 exceeded may lawfully that it appropriations so Borough must reduce plan on approved the budget 2009.” The Commission adopt a for 22,May unfair-practice charge with an Local 68 filed August by reduc- parties’ CNA
PERC, Keyport violated alleging that union negotiating first with employees’ hours without ing the three that, scope-of- Keyport had filed a representatives. Prior to PERC, binding seeking restrain negotiations petition with grievance had by the union. That grievance filed arbitration of a reduction as a result of the violation of the CNA claimed a Department and Building workweek Thus, the unfair- grievance Registrar’s both Office. hour reduction. charge to the claim of work practice related judgment unfair- summary on the parties filed cross-motions 23, 2010, granted Local September PERC charge. practice On motion, Keyport negotiate concluding required that EERA 68’s full-time employees’ hours from reducing the with Local 68 before negotiations ordering Keyport commence part-time and immediately. *8 mandatorily in hours was determining that the reduction
In three-part negotiability test from applied the negotiable, PERC 404-05, A.2d 187. After deter- N.J. at “intimately directly and hour and benefits decision mining that the (the first workers and welfare” of the clerical affects the work 187, PERC, factor), analyzing A.2d see id. at Local 195 change the three clerical to Also, virtue of the part-time positions, appeal. coverage. not on That issue too is would health insurance lose unchallenged affirmance of PERC's Division’s as a result of the Appellate appeal, on that benefits issue. remand for arbitration factor, Local 195’s third Keyport determined that did not have the managerial prerogative unilaterally to implement position part-time reductions to negotiations because present in the case significantly would not governmental interfere policy. with support, long judicial PERC cited “the line of and Commission precedents” determining that workweek reductions are mandatori- ly negotiable, and reasoned that significant even budgetary con- cerns presented “must be protected through and negotiations process.”
PERC also
Keyport’s
concluded that
compliance with the Civil
Act,
Service
N.J.S.A. 11A:1-1
regulations
did not
preempt negotiation
(Local
over
employees’
hours
195’s sec-
factor).
ond
PERC reasoned that
the Civil Service Act and
regulations “do not
mandate
reduction in work hours or other-
Borough’s
wise restrict the
discretion to decide whether or not to
hours,” and,
reduce
moreover,
work
that “the Civil Service Act
provide employees
separate
[EERA]
with
rights,”
distinct
such that compliance with the Civil Service Act
negate
does not
employees’ right
negotiate
under
holding,
EERA. In so
PERC
distinguished
present
case from State New Jersey (Depart-
Protection)
ment
Environmental
v. Communications Workers
America, AFL-CIO,
541, 544, 546, 553,
285 N.J.Super.
667 A.2d
(App.Div.1995),
denied,
143 N.J.
B. (Belmar) Borough of Belmar and the Communications America, (CWA), Workers of AFL-CIO the union representing all *9 (DPW), entered Department of Public Works employees of the 31, 2005, 1, through 2009. January December into a CNA effective forty “working hours shall be provided that Article 7 of the CNA unit,” and (40) employees bargaining in the for all per hours week employees would of the covered provided that each Article 11 increase percent a four wage increase in 2005 and a 3.9% receive addition, provid- through 2009. In Article 18 year each from union, any proposed with the would “discuss ed that Belmar explore all avenues methods.” in order to in experiencing financial difficulties Keyport, Belmar was Like its fiscal To combat a result of the economic downturn. 2009 as cuts; addition, trouble, agreed wage in borough administrators representing municipal employees to ask unions Belmar met with acquiesced unions to a accept wage a freeze. Some them to freeze, agreement. an could not reach but Belmar and CWA 2009, “temporary layoff plan” to the August Belmar submitted involuntary provided approval, which for ten Commission for during period of days all unpaid furlough for DPW 6, 2009, plan, In its Belmar through December October budget that furloughs necessary to achieve a described the levy cap. The Com- comply tax would with State-mandated approved plan. mission charge in October unfair-practice an with PERC
CWA filed unpaid furlough alleging imposition of the Belmar’s required to days parties’ and that Belmar was violated the CNA employment. change in and conditions of negotiate that terms and, summary judgment on parties cross-motions for filed motion. As granted PERC CWA’s October decision, furloughs that the met Keyport PERC determined given furloughs reduced Local 195 test first of the analysis Keyport working largely PERC relied hours. preempt EERA under Act did not determine that the Civil Service factor. the second Local 195 prong, third Local 195 PERC deter-
Finally, respect managerial prerogative that Belmar “did not have mined *10 unilaterally employees’ compensation reduce and workweek.” “consistently PERC reasoned that case law distinguished has non-negotiability permanent staffing nego- reductions from the workweeks, years, tiable in employees’ issues of reductions work and work That when hours.... is so even the latter reductions layoffs could be under or In labeled education Civil Service Laws.” addition, applying the balancing of interests called for under 195, this third factor PERC concluded that “the interest negotiations process preeminent budget- a viable because the ary are dominant particularly considerations and there is no significant governmental policy purpose stake.” PERC noted that the hour allowed laying just cuts Belmar to avoid off one employee proving reducing and criticized Belmar for not “that laying single employee workweek rather than off a needed was keep any programs running any governmental policy or to achieve purpose.”
Accordingly, negotiation required PERC concluded that was impose before Belmar furloughs. could
C. (Mount Laurel) Township of Mount Laurel and Ameri- State, can County Municipal Federation of Employees, and Coun- 71, cil Jersey (AFSCME), South Employers Public into a entered 1, January 2005, CNA 31, effective through December 2008. The provided CNA yearly salary through from increases 2, Article “Management Rights,” entitled stated that Mount Lau- right rel had the layoffs to institute “in the event of of work lack or funds or under conditions where continuation of work would be non-productive.” inefficient Additionally, Article 7 stated (5) “the regularly scheduled workweek consist of shall five consec- days, Monday through utive Friday,” employee’s and that an regular subject hours of work were not to change, “except as required emergency agreed under upon by conditions or both parties.” Belmar, financial Laurel faced serious Keyport
Like Mount representatives In Mount Laurel problems in 2009. June salary request temporary representatives to met with union strain, parties wage the financial but concessions alleviate agreement. August Mount Laurel could an not reach Commission, which called temporary plan to the submitted a eight involuntary furlough days between imposition for the 20, 2009, township on all and June November proposal, police emergency personnel. In its except medical layoffs purpose temporary Mount Laurel stated *11 township’s budget to help was to offset the crisis and address township’s budgetary surplus, had de- restoration of the which plan approved half in 2009. the in creased The Commission October 2009. thereafter,
Shortly charge an unfair-practice filed AFSCME PERC, imposition alleging with Mount Laurel’s unilateral days employees’ furlough negotiation the without violated the rights cross- parties’ parties the and EERA. The filed under CNA summary judgment. motions for On October 2010—coincident negotiability with issuance its determination the PERC’s Belmar case—PERC issued a decision the cross-motions im- summary judgment, Mount to holding that Laurel’s decision subject pose furloughs mandatory negotiation. was PERC’s analysis respect decision its in the Belmar relied on case test, concluding thus prongs first two of the Local 195 that the furloughs directly employee affected work and welfare and that subject negotiation preempted by regula- or the was not statute tion. factor,
On PERC in the fact- engaged the third Local specific balancing of to conclude this factor also interests test weighed negotiability. in favor of See Local 88 N.J. at Weighing parties, the 443 A.2d interests of affecting compensation that decisions and hours of PERC noted traditionally negotiable. PERC that Mount work are concluded objective budgetary Laurel’s was to increase the size its sur- plus, finding “produce[] any that Mount Laurel to had failed evidence establish [wa]s to that it without alternatives to achieve savings furloughing employees.” According- same without ly, managerial PERC determined that Belmar did have workweek, prerogative that, to employees’ stating reduce on bal- ance, negotiations process “the interest preeminent viable budgetary because the considerations are dominant and there is particularly significant no governmental policy purpose at stake.” Having furlough required concluded that the negotiations, decision parties PERC ordered the to negotiations. commence
D. municipalities The appealed three their PERC administrative Division, 3(a)(2), Appellate determinations R. see which 2:2— appeal. consolidated cases on panel The reversed PERC’s decisions to Belmar and Mount Keyport’s Laurel and as to hour reduction, holding obligated negotiate that the towns were not imposition of unpaid furloughs or the reduction from full-time part-time Appellate status. The Division observed that approved Commission had all municipalities’ plans three during the time emergency when the regulation Commission’s permitting “temporary layoffs,” 4A:8-1.1A, N.J.A.C. was in effect. panel further emergency temporary layoff noted that *12 regulation previously challenged upheld had been in and the Appellate Division. It present thus framed the issue as “whether actions, public employers’ the compli which in were effectuated Act, ance subject with the Civil Service were nevertheless to negotiation under the EERA.”
Applying three-part determining the from test Local 195 for the scope public sector employment negotiations, panel the deter- mined that the prong unions met the first because all of the directly actions at public issue affected the and work welfare of However, employees. from Keyport’s eliminating aside action benefits, health panel the concluded that “the unions did not satisfy the second prongs and third the [Local ] 195 test municipalities’ complied with the Civil Service
because actions the demote furlough to regulations, Act and the decisions panel non-negotiable policy determinations.” The employees were Keyport required in that arbitration affirmed order respect in of the reduc- issue but reversed PERC health benefits in the Laurel respects and in all Mount Keyport tion in hours and Belmar cases. certification, petition for and CWA filed a certification, raising joint petition collectively
AFSCME filed
municipalities’
reduction in hours —via
the issue of whether
Laurel,
permanent reduc
furloughs
and Mount
and via
in Belmar
Keyport
manda
part-time
to
tion from full-time
status
—were
torily negotiable
granted
EERA. The Court
both
decisions under
(2013).
petitions.
N.J.
Second, petitioners argue that, under the third test, mandatory negotiations Local 195 in not these cases would significantly managerial any prerogatives interfere govern- with or policies employers. mental of the civil service Addressing the arguments of particular, Mount Laurel and Belmar in and CWA argue employees’ AFSCME that the negotiating interest in work compensation outweighs hours and Mount Laurel’s interest increasing budget surplus, as well as Belmar’s interest avoiding lay single employee. need to off a CWA add AFSCME that neither Laurel produced Mount nor Belmar prove inability budget evidence to that the surplus increase a or employee adversely any the loss of one would affect opera- programs. petitioners argue tions or All although workforce non-negotiable managerial reductions are prerogatives, work-hour compensation type reductions of the at issue here are not. if temporary layoff Petitioners contend that plans these are managerial deemed prerogatives, employers civil service be would permitted disguise compensation unilateral hours cuts “layoffs” in order obligation negotiate to avoid their those changes under argue EERA. Petitioners also that the temporary layoff plans managerial are prerogatives purely because the budgetary fiscal or petitioners considerations that assert were governmental issue in all three do policy. cases not involve Finally, petitioners all express concern that if civil service employers permitted are compensation to reduce hours and with- negotiating out demonstrating exigency, provi- without may sions of CNAs impunity, undermining be violated with salutary public policy promoting stability labor-relations through negotiations process. collective
B. Belmar, that Laurel maintain Respondents Keyport, Mount applied negotiability Local 195 Appellate properly Division the the layoff non-negotiable. were determining plans that test First, layoff are non- argue that their actions respondents 195 test because the Civil negotiable prong two of under by imposed negotiation requirement preempts the Service law Legislature have respondents argue that must EERA. All layoffs fully occupy governing to the Civil Service law intended provides comprehensive procedures specific, it that field because may implement layoff plans, employers service which civil negotiation. as- rather than Belmar require which consultation law and EERA contain references serts that both Civil Service prevail of a law should in case indicating that Civil Service 11A:11-2(j); Keyport N.J.S.A. 34:13A-8.1. conflict. N.J.S.A. DEP, supra, N.J.Super. at Mount cite to Laurel to Appellate A .2d Division referred Civil Service where layoff preempts the comprehensive a providing law scheme requirement. EERA negotiation em-
Relatedly, respondents requiring contend that civil service implementing temporary layoff plans ployers negotiate before negate law compliance with would Commission Civil Service regulations designed help employers pass legally civil service compliant budgets exigency permanently times of fiscal without cutting employee positions. Respondents maintain that mandated certainly delay negotiations likely implementa- would derail using undermining feasibility temporary plans, tion of plans present temporary layoff to address immediate effects of fiscal distress.
Further,
law
respondents argue that even if the Civil Service
requirement,
preempt
negotiation
EERA’s
the decision
does not
layoff plan
implement
temporary
non-negotiable
a
must be
analysis
it
under
third
the Local
because
involves
managerial
gov-
prerogatives pertaining to the determination
generally
All
case
policy.
respondents argue that
law
ernmental
has
civil
employer’s
established that a
service
decision to reduce
employees’
year
work
or work
weeks
for economic
reasons is
non-negotiable
governmental
policy.
matter
Belmar argues
temporary layoff plan
non-negotiable,
relying
was
Jersey
College
Council
New
State
Locals v. State Board
Education,
Higher
18, 32,
(1982),
91 N.J.
All argue temporary layoff that plans involve non- negotiable governmental policy determinations because civil ser- employers vice must make concerning delicate decisions the alloca- provide tion of funds in to taxpayers order services to in residents times of financial exigency. Specifically, Mount Lau- emphasizes rel mandatory that negotiation would interfere with employers’ ability civil service to temporary use actions to adjust in a timely exigent manner to changes in economic condi- tions.
C. (NJ AFL-CIO) Jersey Amici New State AFL-CIO and New (NJEA) Jersey Education Association petitioners’ reinforce argu- temporary layoffs ments that in form unpaid furlough days negotiated and demotions must pursuant be to EERA. NJ AFL- CIO adds that the PERC decisions high below were entitled to a degree of Appellate deference and asserts that the Division deci- sion precedent conflicts with legal decades of and the in maintaining interest stable labor similarly relations. NJEA many petitioners’ arguments, advances emphasizing that Civil Sendee law does preemptive that, not contain language and re- public employer’s “layoff,” labeled a decision
gardless of whether mandatorily negotiable. compensation or to reduce work hours (NJSBA) Jersey Association and New New School Boards (NJSLM) support argu- Jersey League Municipalities State They respondents. argue that municipal ments advanced Act compliance with the Civil Service layoff plans implemented non-negotiable. analogizes mu- regulations NJSBA are implement layoff nicipalities’ authority plans pursuant authority teaching pursuant staff to its to reduce Civil Service law appellate does N.J.S.A. 18A:28-9.2NJSLM adds an court interpretations regu- not owe deference to PERC of Civil Service preemption. lations or the doctrine
D. brief, asserting filed PERC a statement lieu of PERC’s However, judgment accepted” be “expert should these cases. argument, general counsel at oral PERC’s indicated that PERC changed position had informed Court that PERC now in the asserts that sufficient information record established that municipalities’ non-negotia- three decisions in these cases were *16 managerial prerogatives under three of the 195 ble Local point, brought Underscoring that PERC’s counsel to the test. attention a November 2013 PERC decision in which Court’s Township that the Board PERC determined Robbinsville of Edu- implement furlough days proper cation’s decision to was a exercise managerial prerogative. of
III. analytic The framework this matter is derived from this for 195, 393, 187, supra, 88 443 A.2d Court’s seminal case N.J. 2 Education, NJSBA maintains that Board 164 Piscataway Township supra, of 880 —relied been 395 A.2d upon by petitioners N.J.Super. impliedly —has rejected N.I.S.A. courts because it and 18A:28-9. by incorrectly interprets applies
338
scope
negotiations
public
which the
of
employers
collective
was addressed.
ease,
In
public
several
representing
State and
unions
employees disagreed
negotiability
provi
as to the
of contractual
concerning
subcontracting,
sions
contracting
limitations
workweek,
establishment of a
reassignment
transfer and
398-400,
determinations.
Id. at
443
deci
A.2d 187. The Court’s
sion
establishing
determining
focused on
a test for
whether those
types
scope
of decisions came
proper
within the
of collective
negotiations
403-05,
public
for the
sector. See id. at
public employees, the Court stated in Local 195 that role of “[t]he scope in a negotiations courts case to determine ... appropriately whether an issue is political process decided *17 by negotiations.” Thus, 195, or collective Ibid. in Local Court the
334 interests, three-part weighing test for those estab
articulated “(1) intimately subject negotiable when: the item lishing that a is (2) employees; directly public work and welfare of and affects the subject fully partially preempted or has not or statute been (3) agreement significantly negotiated and would regulation; governmental policy.” Id. at with the determination interfere 404, A .2d 443 factor, pay working respect of the first “rates “ type subjects ‘intimately that are noted for the
hours” models ” employees.’ directly public work and welfare of affect[ the] PBA, 403, supra, (quoting 443 A Police Id. at .2d 187 Paterson 847). subject preempted, A is and therefore N.J. at 432 A.2d factor, non-negotiable regula a statute or under the second when imperative nothing “‘speakfs] leave[s] in the to the tion ” 403-04, public employer.’ 443 A discretion of Id. at .2d 187 Ass’n, at (quoting Supervisory Emps. supra, 78 N.J. State 233). However, analysis, the A.2d under this of the Court negotiable subject that a remains when a or explained statute discretion; subject preserves employer regulation related to that similarly, regulations minimum or maximum when statutes or set respect subject, subject negotiable of a within standards those Id. at A.2d 187. the limits of standards. requires The factor interference with the third policy government significant determination of be order to negotiability. defeat Id. A.2d 187. Court ex plained recogni of the third arises out of consideration factor public employer tion “that most decisions of the affect work public employees negotia and that and welfare some extent always impinge to some tion will extent on determination of Ibid, (citing governmental policy.” Paterson Police PBA 847). Thus, N.J. at 432 A.2d in order to determine negotiation particular subject significantly whether on a would government policy, interfere with formulation of it is balance the interests necessary public managerial government’s preroga- When the dominant concern is employer.
335
subject
negotiations
tive to determine
a
not
be included
collective
policy,
may
working
though
even
it
affect
conditions.
may
employees’
intimately
[Id.
187.]
at
443 A.2d
405,
Neatly
up,
negotiability
summed
a matter’s
turns not
“on
application
talismanic
of labels such
as ‘terms
conditions of
employment’
r]ather,
or ‘managerial prerogatives!
inqui-
]’ [but
ry
on
focuses
to
negotiations
extent
which collective
will
with
interfere
the establishment and
governmental
effectuation of
policy.”
420,
(Handler, J.,
Id. at
Applying those factors to the facts at
the Local
Court
195
provisions
relating
concluded
the contractual
under review
to
subjects
of contracting
subcontracting
non-negotia-
were
negotiation
ble because
significantly
would interfere
with the
government
408,
policy.
determination
at
Id.
A.2d
(majority opinion).
analogized
The Court
policy
the dominant
respect
contracting
concerns
of decisions about
and subcon-
tracting
policy
present
to
determinations
in decisions to reduce
economy
the work force for
efficiency,
which this
has
Court
Ibid,
recognized
non-negotiable.3
(citing
Supervisory
State
Ass’n,
233).
Emps.
at
78 N.J.
A.2d
The Court
further
provisions
held
regarding
workweek hours
employees
negotiable
individual
were
balance of interests on
—the
negotiation
negotiation
the third
favored
because
would not
impede
ability
the State’s
“to determine the number or classifica-
tion
duty
any
at
time.” Id. at
employer]
economic
aspects
when it is
reasons,”
considered
"for
fiscal
but
was
purely
discussion
equated
negotiation;
subcontracting
that said, the
were
to be
held
procedural
aspects
subject
negotiations.
Id. of collective
With matters, negotiations apply we it to the analysis scope of employer in issue here. actions
IV. A. *19 195 in this matter. Prong one the Local test is not issue of layoff resulted in hours disputes, In all three actions reduced work, employ- for pay, with reductions in the affected of resultant impacted municipality each terms and ees. Those actions See, e.g., Educ. employees. conditions of for their Bd. work of of Woodstown-Pilesgrove v. Reg’l Sch. Dist. Woodstown-Piles- (1980) Ass’n, 582, 589, grove Reg’l 81 410 1131 Educ. N.J. A.2d ... (noting pay working appear hours to be items “[r]ates of clearly “category” falling within th[e]” most terms-and-conditions (citation omitted)). Appellate properly so PERC and the Division found, respondents as much. is no need recognize all There prong. to dwell further on Local 195’s first Prongs of test factors in two and three the Local 195 are the Appellate The Division that the issue these matters. concluded in all preemption prong precluded negotiation of actions panel also three matters and reversed PERC on that basis. The that concluding negotiation found that erred was not PERC three, prong basing upon barred under that determination assess- pursu- predominant managerial prerogative ment of the interest in layoffs facing ing the in these civil service communities three to three. prongs financial distress. We therefore turn two and B. preemption two Local 195 standard for rigid parameters. clear test is in its limits within When legislation regulation specific or or condition “establishes term
337 employment action, discretionary that no room leaves then negotiation fully on that preempted.” supra, term is 187; Ass’n, Supervisory Emps. N.J. 443 A.2d see State supra, (establishing 78 N.J. at A.2d preemp- validly applies promulgated tion doctrine to regulations, such as regulations). civil service principle
That
Township
was reinforced in Bethlehem
Ass’n,
Board
Education
Township
v. Bethlehem
Education
(1982):
38, 44,
“Negotiation
preempted
only
N.J.
A.2d 1254
regulation
employment
if the
fixes a term and condition of
ex
(Citation
specifically
pressly,
comprehensively.”
and internal
omitted);
quotation marks
see also Council
N.J. State Coll.
Locals,
(reiterating
Here the Division preemption determined apply on promulgation regulation based of a civil service layoffs permitted temporary had employees State or local service, thereby municipalities and that benefitted civil service claiming such as the three fiscal here distress. N.J.A.C. See 4A:8- (temporarily adopted emergency 1.1A regulation on March 2009; 21, 2009). repealed Specifically effective December and in part, pertinent regulation provided: had a layoff institute appointing temporary or local service may State authority
An A shall be reasons. temporary layoff or other related efficiency for economy, over a unit one or more work days closure of an entire layoff defined as the unit for one or staggered in a of each layoff or a layoff employee defined period a A shall be considered temporary layoff work over a defined period. more days though takes single of individual employees place action even the layoff layoff forth during The shall be set by defined period the defined period. different days staggered appointing in a however-, in its layoff plan; authority temporary stagger off shall not exceed 45 days. one day the maximum period layoff, 4A:8-l.lA(a).] 6,2009); (Apr. N.J.A.C. [41 N.J.R. emergency regulation. background to that important There is emergency regulation at a time adopted the The Commission employ- recognized public sector Jersey long law had when New working in layoff impacting right to take a action er’s for such jurisdictions The authorization of this State. civil service Act, provides which in the Civil Service layoff actions is set forth economy, may laid off for any “permanent employee be 11A:8-I(a). Civil efficiency related reason.” N.J.S.A. or other at all authority place were in regulations fleshing out that service matters. times relevant to these support a First, identify reasons that would regulations action, “layoff to include a demotion layoff action” is defined position: as well as loss
(a) appointing or actions for efficiency, An institute authority may layoff economy, related reasons. other be consid- or other related reasons shall
1. Demotions for economy, efficiency, subject of this chapter. actions and shall be to the requirements ered layoff 4A:8-1.1.] [N.J.A.C.
Second, in the civil of a action are detailed the mechanics entity employers governed Civil regulations. Public service layoffs alternatives to required first to consider law are Service 4A:8-1.2, pre-layoff actions. See N.J.A.C. and to take a number layoffs, such as suggest alternatives to regulations 1.3. “[allowing voluntary reduction voluntary furloughs,” “[gjranting optional “[providing employees with by employees,” of work hours *21 changes,” other actions. N.J.A.C. title temporary demotional public entity employer require that the regulations The 4A:8-1.2. include, may but are not pre-layoff, “which certain actions take Initiating temporary hiring promotion limited to: 1. and/or freeze; Separating non-permanent employees; 2. Returning 3. titles; provisional employees permanent Reassigning to their 4. employees; Assisting potentially employees and 5. affected 4A:8-1.3(a). securing transfer or N.J.A.C. employment.” other Importantly, public employer required is to “consult with” the representatives union employees “initiating of affected before 4A:8-1.3(c). N.J A.C. measures under section.” th[at] Third, regulations require approval pro- Commission of a posed layoff; therefore, public employer when a determines to action, proceed layoff with a regulations civil service detail what 4A:8-1.4(a). information must be submitted. See N.J. A.C. That required list of information explanation “[a] includes detailed all taken, pre-layoff alternative and actions ... or ... considered and inapplicable,” summary determined [to be] of consulta- “[a] (7). representatives. 4A:8-1.4(a)(6), tions with” union N.J.A.C. If approved, layoff provided final notice of employees, to affected 4A:8-1.6, N.J.A.C. employees appeal rights have under the system, 4A:8-2.6, N.J.A.C. civil service including right challenge 4A:8-2.6(a)(l) see N.J.A.C. good layoff, faith of the (permitting challenge employer based on assertion that acted “for reasons”). economy, reasons other than efficiency or other related upshot to that detailed scheme is that the decision to proceed layoff with a heavily management decision, is a imbued one, discretionary but a subject approval by the Commission for implementation. layoff
A may is an by public action that be taken sector employer, provided employer follows and civil satisfies service regulatory requirements. The implementing regula statute and layoff tions that authorize a sector do not require that such affecting action terms and employ conditions of They Thus, ment be taken. lack imperative an nature. implementing regulations statute and satisfy do not the essential requirement preemption pertain preclude negotiation
340 403-04, prong supra, N.J. at based on the second 4 case,
Indeed, any we are unaware of and have been directed to none, that to embark on a tradi- has declared the determination preemption layoff non-negotiable tional action to be based on the prong determining scope negotiations. for But the test Ass’n, Emps. Supervisory see 78 N.J. at State comprehensively (explaining regulations A how civil service .2d233 seniority regulate mandatory determining control scheme for layoff, mandatory negoti- reemployment rights preempting seniority, reemployment, layoff rights involving ation of collateral reinstatement). regulation governing temporary layoff When the new actions rule, adopted emergency premise operated as an on was discretionary same basis. 4A:8-1.1A did not mandate an N.J.A.C. by public employers affecting action sector terms and conditions of employment public employees. Adopted emergency for as an measure, regulation quickly public entity employers in offered jurisdictions discretionary temporary civil service forms of new layoff addressing actions for use situations of fiscal distress.4 layoff regulations governing Like the statute and traditional ac- tions, 4A:8-l.l(a), 11A:8-I(a); see N.J.S.A. N.J.A.C. we do not meeting view N.J. A.C. 4A:8-1.1A as the clear standard of an imperative required preemption apply. Providing authority for employer temporary layoff for a sector to take action that impact public employees’ wages paradigmat- has an hours and — examples employment ic of terms and conditions of —does impose a mandate as called for under Local 195’s second preemption. for Appellate misperceived import regula- Division of that mistakenly preemption applicable.
tion and found to be We 3139(a) 2009) regulation's (Sept. 8, For see 41 N.J.R. history repeal, 4701(a) (proposal regulation's repeal) (adoption regulation's and 41 N.J.R. (Dec. 2009). repeal) conclude neither N.J.A.C. 4A:8-1.1A nor civil service statutes and regulations governing layoff traditional preempt negotia- actions tion on the basis of prong two of the Local 195 test of a decision to proceed with a set, because that law does not an imperative, a term and condition employment public employ- *23 governed by ees Civil Service law. We turn therefore to the final and critical factor in the Local 195 test.
V.
Prong three of the Local
subject
195 test holds that a
may affect “the work
public
and welfare of
employees” and
subject
nevertheless
negotiation.
not be
to
Supra,
404,
In explaining prong
the Local 195 Court reaffirmed
that
most
public employer
decisions
a
affect to some extent the
work
public
and welfare of
requiring
and that
negotia
tion in all such instances
impinge
would
on the determination of
Ibid,
public policy.
(citing
PBA,
Paterson
supra,
Police
Application of balancing of interests under three has deep roots when it lay comes to the decision to off thereby
342 public ser- delivery in the involved
adjust
workforce
Ass’n,
our
supra,
Court
Supervisory Employees
vices.
State
“unquestionably
force is
to “cut” work
that the decision
declared
88,
feature of choice government governmental general services are by concern whether provided public organizations. arrangements This contractual with private type or by employees considerations. It concern fiscal solely determination does not necessarily policy judgments to should be about how the work or services provided basic requires government. Deciding best the concerns and or satisfy whether responsibilities given government not to contract aout service implicate tradeoffs. may important Allowing subject negotiation significant such decisions to be to would mandatory subcontracting. ly to resort to We have impair ability public employers held that decisions to reduce the work previously force or economy efficiency non-negotiable subjects. are The decision to contract out work or to subcontract managerial an highlighted area where interests similarly are dominant. This is allowing subcontracting negotiable the fact to be the road to may open grievance legal Imposing negotiate arbitration. a on the state all duty proposed subcontracting instances of would transfer the locus of the decision from the negotiating to the political process table, arbitrators, to the ultimately significantly courts. The of such a result course would interfere with determi- governmental nation of would be inimical to the policy democratic process. (citations omitted).] [Ibid, The Local 195 rationale our expres- informs consideration of the public policy sion of contained temporary the Commission’s layoff rule. The promulgated regula- Commission emergency an authorizing temporary layoffs tion financially while the extant conditions, distressing pervading communities, the State and local supported expansion layoff techniques available to State and governmental local appointing governed by authorities civil service requirements. The regulation layoff Commission’s authorized a governmental mechanism that appointing offered local authorities through a tool which may swift action taken be to address distress, pressing municipalities fiscal appeal empha- in this In recognition size. expression legitimate that clear policy authorizing taken, appears such actions be it that a to us decision to reduce the workforce of within an identified unit, layoff on temporary even a duly basis in accordance with a temporary layoff plan, authorized managerial is as prerog- much ative as the decision to permanently, or to subcontract function permanently or temporary on a basis.
Generically, all go directly above-referenced actions to a policy substantive determination about whether and how to deliver when delivery services by pressing affected serious and economic considerations. Economic indisputably reasons are a 11A:8-I(a) any type.
legitimate layoff See N.J.S.A. basis for economy); layoff reason N.J.A.C. (authorizing action based on 4A:8-l.l(a)(l) 4A:8-l.l(a) (authorizing (same); also N.J.A.C. see DiMattia, N.J.Super. at economy); for demotions statutory regulatory (noting that civil service A.2d public employer to take demotional had authorized amendments reasons). Thus, layoff including layoff budgetary for actions — temporary pursuant to a valid an Commission authorized action, position in from regulation authorizing such or demotion pursuant layoff plan— to part-time approved also an full to status policy of considerable heft management remains a determination support use. recognized so economic or other rationales long as temporary layoff actions at issue here were undertaken emergency regula- municipalities at a time when the Commission’s management tool to address a tion made available an additional budgets pervading affecting municipal was financial downturn that and, municipalities generally particular, in those of the involved basis, Municipal budgets, must be structured a cash here. 40A:4-2, -3, regulations annually, N.J.S.A. ad- balanced see healthy practices promote proper municipal budgeting to dress - responsible municipal governance, to see N.J.A.C. 5:30-3.2 municipalities, municipal government 7.7. In each these responsible way light in a in of an endeavored maintain services each, sight. municipal no economic downturn with relief emergency took while appointing authorities action Commis- authorizing temporary, permanent, regulation sion as well layoff plans They acted on extant was effect. based Commis- options if public policy sion that made those available use other satisfied, layoff requirements including were the con- Commission duty obligation representatives and sultative with union pursue pre-layoff prior alternatives. reasons, cases
For those the context consolidated us, required com- we that these matters before cannot conclude faced pelled negotiation. municipalities, These service when civil lay prior exigency, right had the off under with fiscal *26 by law emergency regulation case and as buttressed in then authorizing temporary layoff effect actions. See 4A:8- N.J.A.C. Although emergency regulation 1.1A. repealed, since has been regulation’s validity challenged is not in it this matter and periods layoffs during authorized of temporary exigent times municipal fiscal circumstances when these were actions taken. municipalities actively existing Whether that regula relied on is not in controlling appeal. tion our review of this PERC, matters, in initial in recognized Even its decisions these management a policy that determination was involved in the impose temporary layoff question decision to a and did not ability Instead, management policy to take such action. it only negotiability evaluated management decision performed balancing-of-interests analysis a under three negotiable. the Local test. PERC found the decision to be It based its determination on its own assessment the fiscal need municipality perception faced each own that other management policy possibly choices could address the financial municipalities distress the particular year faced within the fiscal progress. analysis, Under PERC’s initial municipality each was required to option demonstrate that no other was available layoffs order these managerial prerogative constitute a municipal governing body could exercise the face of the present circumstances fiscal distress. noted, that, position
As PERC now takes under the circum- stances, layoff legitimate management preroga- these actions were ought subject tives not to negotiation. have been ruled thought That second judgment. demonstrated the better initially requiring PERC erred in each municipality to demon- option strate that no other was available it before could take the restricting workdays through measures of temporary layoff or eliminating positions covering full-time while tasks through part-time positions so services to the continued. management policy Those were determinations that constituted prerogatives. They subjected should not have been to PERC’s them that subjecting option” “last standard.
non-deferential
standard,
teachings of
adhere to the
judgment failed to
PERC’s
reductions;
addressing
law
related case
workforce
*27
subject
result,
layoff actions
mistakenly
these
PERC
declared
as a
re
negotiations as
have
negotiations. Adding
PERC would
to
dimension, rendering
injected a
new
quired would have
whole
subject
of arbitrators and
to the decisions
policy determinations
And,
ultimately
negotiability
for
the courts.
review
—over
swiftly
accomplished
in order to effectu
to
actions that needed
be
prompt
relief from
financial
their intended
economic
ate
months,
years,
if
later. More funda
come
distress —would
setting policy for
mentally,
wrong decision makers would be
407-08,
195, supra,
A.2d
347
during
representative).
negotiations
layoff
collective
with
When a
plan
prepared
policy
has been
to accommodate
determinations
delivery
economy
factor,
about the efficient
of services when
is a
public management’s right
reduce its
workforce —
layoff
restructuring
type
positions,
or
of the number
full or
part-time
be
as a management prerogative.
treated
Sever-
—must
past appellate
properly
al
recognized
decisions
have
manage-
ment prerogative present
proceed
when a
decision
with a
See,
DEP,
e.g.,
551-53,
is involved.
N.J.Super.
285
at
1070; DiMattia, supra,
A.2d
N.J.Super.
739 A.2d
450;
Klinger
see also
v.
Cranbury,
Bd.
N.J.Super.
of Educ. of
354, 357-58,
(App.Div.1982)
VI. affirmed, as modified Division is judgment Appellate The reasoning expressed herein. ALBIN, dissenting. Justice years away nearly fifty of this sweeps majority opinion
The municipal jurisprudence, giving em- public-sector labor Court’s hours of power wages to reduce the ployers unilateral negotiations agreements. in collective public employees promised principle guiding public-sector labor today, cardinal Before public workers wages and hours of negotiations had been that public employer’s fiat. The subject negotiation to a are —not mandatorily negotiable wages are simple precept that and hours in the only opinions, but also refrain not this Court’s common Division, Employment and the Public Appellate decisions of (PERC). Relations Commission wages furlough, municipalities two reduced the In the name of a living public-employee workforce unit of an entire and standard (EERA). Employer-Employee Relations Act violation of the municipality of three cut in half the hours and salaries Another workers, munici- depriving of health insurance. Each thus them to achieve its pality have laid off one to three workers could municipal surplus. to increase the budgetary goal, which was Instead, negotia- their collective municipalities chose to breach cases, employees’ In all three agreements unions. tions with their body empowered to enforce the EERA —ruled PERC —the municipalities contravened the that the unilateral actions mandatorily principle wages and are EERA hours of all three majority affirms the overthrow negotiable. *29 PERC decisions. by in majority’s furloughs fiat non-emer-
The endorsement of public-sector gent sign for the future of circumstances is dismal regulation promulgated negotiations. temporary The collective majority relies does not which the the Civil Service Commission unilaterally equation. employers can change the When wages employees, reduce and hours of is there not much left to negotiate. majority’s very Because decision undermines the negotiations, foundation collective which the heart of the EERA, respectfully I dissent.
I. A. Borough The of Belmar and a local affiliate the Communica- (CWA), represents employees tion Workers America which in public-works signed department, negotiations Belmar’s a collective (CNA) 1, agreement January 31, through effective December agreement provided 2009. That the workweek for each employee forty every would be hours employee would salary receive a 3.9% increase 2005 and a 4.0% increase each year 2008, through from 2006 budget 2009. In surplus Belmar’s $1,630,802 $1,284,563. declined from To offset the decrease surplus, requested employees forgo Belmar that its their 4% salary public-works for 2009. department increase The agreement. demanded that Belmar adhere to its Taking my-way-or-the-highway approach, Belmar fur- loughed day per workers one week from October through 2009, wiping salary December out their 4% increase for 2009. Belmar could savings by have achieved the same laying just Instead, off one worker. it chose to reduce the hours and wages bargaining of the entire unit in agreement. violation of its
B. Township of Mount Laurel an affiliate of the American State, County Municipal Federation Employees, AFL-CIO (AFSCME), represents workers, which Township’s blue-collar entered into a CNA that ended on December 2008. The agreement remained parties effect after December while negotiated new agreement contract. The set forth the work wages hours and employee. each
350 $600,000. 2009, budget surplus declined to Laurel’s
In Mount Township its blue-collar work- the asked surplus, the To increase days eight- an voluntary furlough eight of over a accept ers Laurel then the offer. Mount period. The declined month workers days eight sav- employees for involuntarily furloughed those —a laying employees. off ings equivalent to three
C. AFL-CIO, of Borough Keyport of a local affiliate the The a Borough’s employees, clerical entered into represents which the January through December from CNA effective wages, employee’s work hours and agreement set forth each provided that salary agreement a increase. The including first, layoffs necessary. if were employees be laid off newest would Keyport budget surplus in its over six- experienced decline depleted surplus, response to its year period. half Borough steps, cutting in took certain which involved employees. Halving the salaries wages of three clerical hours and their health in the cancellation of of those also resulted Borough taken violated The unauthorized actions benefits. the CNA.
D. cases, municipalities engaged In all three PERC found by eschewing negotiations peremp- practices in unfair labor wages targeted employees. torily decreasing hours and PERC Relying jurisprudence, this observed Court’s “ ‘surely working compensation are terms and condi- hours Employer- employment contemplation within tions ” Belmar, Borough P.E.R.C. No. Employee Act.’ Relations (2010) (quoting Bd. Educ. 36 NJPER Ass’n, 1, 6-7, A.2d Englewood Englewood 64 N.J. v. Teachers (1973)). municipalities could not that the determined PERC violating their contractual com- justify actions in their unilateral Belmar, held that example, For in the case PERC mitments. *31 Borough not reducing “[t]he has asserted that the workweek laying single employee keep rather than off a any was needed to programs running any governmental policy purpose.” or achieve Laurel, Township Id. at Mount P.E.R.C. No. 409, (2010), 411 Township NJPER PERC found that the did “produce[ any ] evidence to establish that it is without alterna-
tives to savings achieve the same furloughing employ- without any operations ees nor has it shown that programs or would be layoff employees hindered if it had to budget- to achieve the same ary savings implementing PERC, temporary layoffs.” instead of effect, concluded furloughing that the a disguise was driving wages down employees. the of entire work units of specialized is a agency designated
PERC
by
administrative
interpret, implement,
statute to
Tpk.
enforce
EERA. N.J.
AFSCME,
73,
331, 335,
Auth. v.
Council
N.J.
negotiable policy determinations.” Appellate erred majority concedes that Division Ante at regulation preempted PERC. finding that the civil service Accordingly, only remaining issue is 118 A .3d at 1056. majority argues municipalities were exercis whether —as —the trump them ing managerial prerogative that allowed wages are negotiations: all and hours principle guiding collective correct, nearly majority mandatorily negotiable. If the is then wrong. This has never fifty jurisprudence of our Court years hours process negotiations wages held that the of collective unilaterally arrogating to public employer bypassed can be wages power itself the to reduce and hours.
II.
rights
given comprehensive
under
“Public
are
Cnty. Bd.
Employer-Employee Relations Act.” In re Hunterdon
327,
597;
Freeholders,
116
561
see
supra,
N.J. at
A.2d
Chosen
of
Perhaps
among
also
34:13A-1 to 34:13A-43.
foremost
N.J.S.A.
freely
public employer
a
negotiate with
rights
right
is the
to
those
employment.
and
of
34:13A-
over the terms
conditions
N.J.S.A.
5.4(a)(5).
“[rjefusing
public employer
a
The EERA forbids
from
majority representative
em-
good
with a
of
negotiate
faith
concerning
of
ployees
appropriate
in an
unit
terms and conditions
negotiations break down
employment.” Ibid. Public-sector labor
categories:
‘“mandatorily negotiable
and condi-
into
terms
two
non-negotiable
employment
governmental
matters of
tions of
”
195,
402,
(quoting
443
policy.’
88 N.J. at
A.2d 187
Educ.,
Ridgefield
v.
Park
78
Ridgefield Park Educ. Ass’n
Bd. of
(1978)).
144, 162,
N.J.
354 Act Relations Jersey Employer-Employee New
interpreting the Sayvreville Bd. mandatorily negotiable.”); working hours are (1983) (“[A]n 138, 83-105, 140 Educ., 9 NJPER P.E.R.C. No. of unilaterally alters it duty negotiate when employer violates of a term and condition governing existing practice or rule an year of or the amount length of the work as the employment, such Ass’n, P.E.R.C. Educ. salary....”); Hackettstown employee’s an (“[PERC] (1980) consistently 263, has 263 6 NJPER No. (or 12 11 of and year the abolition length of the work held that the a positions) is of 10 month and the creation positions month (Footnotes omit- employment.” mandatory term and condition ted)). elsewhere, categorical it Jersey, has been just in but
Not New wages and bargaining that public-sector collective imperative of al., Mastering Paul M. Secunda et negotiated. See hours must be (2014) wages hours are (noting that and Labor Law 185-87 bargaining); see public-sector collective mandatorily negotiable in 741, 426, Educ., 512 P.2d 212 Kan. Ass’n v. Bd. also Nat’l Educ. (1973) professional and conditions (concluding that “terms hours); wages Detroit included and public employees service” of Detroit, 487, Mich.App. City Ass’n v. Police Officers (1975) mandatory wages hours “are (noting that N.W.2d setting); public-employment subjects bargaining” of collective Bd., Emp.-Mgmt. Relations Cnty. Dist. v. Local Gov’t Sch. Clark (1974) (noting 117-18 530 P.2d 90 Nev. wages employees). with negotiate hours and
employer must
test
is not intended
scope-of-negotiations
The Local 195
dispute
negotia-
there can be no
an issue about which
resolve
—the
is
public-sector setting.1 The test
bility wages
hours in the
negotiable
non-negotiable,
the Local 195
assessing
or
whether a matter
"(1)
item
whether
intimately
directly
a determination
test requires
(2)
subject has not been
welfare of
affects the work and
public employees;
(3)
negotiated
regulation;
statute or
or
fully
partially preempted
govern-
significantly
agreement
interfere with the determination
would
404,
355
matters,
hours,
wages
for
unlike
fall in
gray
intended
and
that
negotiable
non-negotiable.
point
area between what is
This
is
throughout
jurisprudence.
clearly
made clear
If matter
our
falls
wages
hours,
category
Thus,
within the
inquiry
of
is over.
“[wjhere
employment
significantly
condition of
tied to the
relationship
pay
of
days
the annual rate of
to the number of
worked,
negotiation
then
proper.”
would be
Bd.
Educ.
of
of
Woodstoum-Pilesgrove Reg’l
Woodstown-Pilesgrove
Sch. Dist. v.
(1980).
Reg’l
Ass’n,
582, 591,
Educ.
81 N.J.
410 A.2d1131
Woodstoum-Pilesgrove,
negotiation
we held that
was re-
quired when a board
education unilaterally
single
of
extended a
day by
any
school
two
without
compensation
hours
additional
the school’s
teachers.
Id.
410
1131. Similarly,
A.2d
Englewood,
3, 6-7,
Board
Education
the text and the Act. spirit Relations Employer-Employee Conversely, hours, wages outside of the realm of we have held that a employer required negotiate is not matters squarely See, fall managerial that within prerogatives. e.g., Local 195, supra, 406-07, 417, 88 N.J. at (concluding A.2d 187 subcontracting reassignment well as transfer or non-negotiable subjects); are Paterson Police PBA Local No. 1 v. City Paterson, 78, 98, (1981) (holding N.J. A.2d 847 municipal regarding organization deployment decisions police Ass’n, negotiable); Supervisory forces are not Emps. State *35 relating 84, seniority (finding 233 that 393 A. 2d
supra, 78 N.J. preempted civil recall, reemployment is layoffs, bumping and negotiable). not therefore service laws and cutting work involuntary furloughing of an entire The unit — Mount in Belmar and wages, as occurred employees hours and holdings in this Woodstowrir- incompatible with Court’s Laurel —is Appel- Englewood and the Education Pilesgrove and Board Edu- Piscataway Township Board holding in late Division’s halving wages of clerical involuntary of hours The cation. those cases. incompatible with workers is also III. wages hours and to be require our case law That the EERA and public entities place municipalities and other negotiated does not jacket decline. The Civil strait when revenues budgetary in a may laid off “permanent employee[s] be provides Act Service N.J.S.A. 11A:8- economy, efficiency or other related reason.” for 1(a). Belmar, single employee would have laying the off of a In savings furloughing the of an entire work same as achieved the negotiations agreement. violating collective unit —and without the municipalities option the Keyport, the had In Mount Laurel and accomplish necessary savings rather laying employees to the off wages reducing than the of workers. decisions, majority relies on overturning the PERC the
In three promulgated in regulation that was emergency civil service the though even the repealed in December March 2009 regulation.2 arguments on that municipalities did not rest their emergency regulation that: The provided appointing or local service institute a in State may temporary An authorify reasons. A or other related temporary layoff for efficiency layoff economy, for or more work of an entire unit one shall defined as the closure layoff be staggered a of each or a employee layoff over a defined period layoff days over a defined A layoff one or more work period. temporary unit for days though single even of individual action layoff shall be considered layoff during the defined different period. takes days place essence, Ante at A3d at emergency regulation synonymous furlough. defined a as with a That regulation municipality furlough plan allowed to submit a for acceptance Acceptance to the Civil Service Commission. however,
plan,
furlough
negotiable.
not mean a
did
was not
A
employer’s compliance
regulations
with civil service
process,
public employer
end of
must also
satisfy
requirements
of the EERA. Prosecutor’s Detectives &
Investigators
Freeholders,
Cnty.
v.
Ass’n Hudson
Bd. Chosen
(“Our
N.J.Super.
(App.Div.)
duty
A.2d 897
is to
read the Civil
Act
Employer-Employee
Service
and the
Relations
Act,
us,
applied
situations
so
both
before
are
*36
given
role.”),
denied,
harmonized
is
appropriate
and each
certif.
(1974).
330,
N.J.
331A.2d 30
majority
Even
acknowledges
regulation
the
the
did not
preempt
obligation
municipality
negotiate.
the
to
Ante at
Instead,
majority
A.3d at 1056.
the
submits that —based
emergency regulation
municipalities
the
exercising
were
a
—the
managerial prerogative
right
unilaterally
and thus had the
to
347,118
furlough employees.
majority
Ante at
A.3d at 1060. The
on subject
focuses
three of the Local
test: “a
is
negotiable
public employers
employees
between
...
when
a
negotiated agreement
significantly
would not
interfere with the
governmental policy.”
determination of
Reducing wages and hours entire municipalities incompatible political power by the and is with raw employ- requirement that the and conditions EERA’s terms negotiation. through resolved ment be regulation majority’s emergency civil service The reliance on disguise. The nothing preemption more than appears to be purposes ani- regulation have been harmonized with should Here, furloughing merely name mating the EERA. invoked to wages justify cutting of hours of the unilateral —an previously unacceptable jurisprudence. under action our Clearly, municipali- economic in which we live in difficult times budgets. struggle problems facing their But the ties balance Belmar, Laurel, Keyport Mount are no different were and municipalities. of other None of facing than those a multitude municipalities in confronted state of emer- this case an economic options left gency so that it was without other reasonable severe furloughing employees. than units of entire By path municipalities, taken sanctioning the these negotia- majority has in the the collective struck a stake heart of process. negotiations agreement is of little tions A collective value unilaterally municipality wages hours and when can reduce the power public employees by calling furlough. it a moreover, furlough, powerful club is a that can be wielded negotiations table to coerce concessions. end, way way *37 right wrong
In the and a to achieve there is economy efficiency Cutting wages with EERA. and consistent the agree- in negotiated hours of an work unit of and entire violation by our keeping name —is with time- whatever ments — jurisprudence EERA. honored and the
IV. Division, thirty-three Appellate page filed a Before PERC arguing for of the decisions. In a brief affirmance three PERC Division, supplemental Appellate letter to the March PERC labor, management, wrote: “The Commission’s and mem- applied knowledge negotiations practices concerning bers their workweek, compensation, agreed and work schedules and that the workweek, Borough obligation negotiate had an the reduction in year compensation work of the CWA unit That members. expert judgment be accepted.” should a letter to the Clerk of concerning present appeals, this Deputy Attorney Court General, counsel, general on behalf of PERC’s “[T]he wrote: position Commission no on the takes Petitions for Certification” municipalities. filed Appellate PERC filed its Division Then, prior brief with this no given Court. with notice this Court, about-face, general a complete PERC’s counsel made an- argument nouncing at oral changed that PERC had mind longer no stood behind the PERC decisions before us. In an reasoning, pointed exercise circular counsel to a 2013 PERC decision, Education, Township Robinsville Board P.E.R.C. No. (2013), upholding involuntary NJPER 253-54 furlough teachers, very three which turn relied on case, Appellate opinion in Division approach this whose PERC had strenuously opposed.
Merely composition because the changed of PERC has dramati- cally during the current administration does not that our mean change. standard of should review Counsel faulted cannot be taking his newly composed orders from the PERC. But our review is from the decisions applies PERC before us. Deference to those decisions, regardless change personnel on PERC. The majority accepting changed position mistaken PERC’s erode the traditional standard of on appeal. review the cases
Y. By overruling endorsing furloughs the PERC decisions cases, emergency in these under regulation, even civil service majority negotiated agreement wages has held that a significantly hours govern- interferes with the determination of policy. ment holding only contrary jurispru- That is not to our
dence, legislative policy enunciated it is in conflict with the also wages if negotiations nothing mean the EERA. Collective only hope table for One can hours are not on the discussion. negotiations damage majority on the collective inflicts emergency civil service period limited to the process will be regulation in effect. was respectfully
I dissent. therefore LaVECCHIA, For affirmance modified—Justices PATTERSON, (temporarily Judge CUFF SOLOMON assigned) —4. ALBIN —1.
For Dissent —Justice RABNER Participating Not Justice and Justice —Chief FERNANDEZ-VINA.