*1 defer to the of Human expertise Department Services view, my poor rigid this case. this is a case for deference to application. rule Michael air Dougherty’s purifier improved has dramatically government his health money and saved the process. question There is no Michael the purifier that for air necessity. was a should be question medical There also no it. I Humanity economy Medicaid reimbursement. demand am surprised that this Court does not.
For modification and remandment —Chief Justice WILENTZ CLIFFORD, SCHREIBER, HANDLER, and Justices POLLOCK and O’HERN —6.
Dissenting PASHMAN —1. —Justice LOCALS, NEW
COUNCIL OF JERSEY STATE COLLEGE NJSFT-AFT/AFL-CIO, APPELLANT, v. STATE BOARD EDUCATION, OF HIGHER RESPONDENT. 23, Argued August March 1982 Decided 1982. *4 George W. argued appellant (Sauer, Canellis cause for Canellis, Boyle, Dwyer attorneys). & General, Fagella, Deputy Attorney Robert A. argued the (Irwin cause for respondent Kimmelman, I. Attorney General of New L. Jersey, Conley, Erminie former Assistant Attorney General, counsel).
The opinion of the Court was delivered HANDLER, J.
This case us to determine whether a requires agency can pass regulations establishing terms and of employ- conditions ment directly affecting employees its own without submitting those negotiations. matters to collective
23 Ass’n, 54, In v. Supervisory State State 78 N.J. Employees (1978), adoption we held that “the statute any specific regulation setting or controlling particular term or condition of employment preempt” negotiation subject. will on that How- ever, that regulations passed case involved by the Civil Service Commission, department a State executive with regulatory jur- public employees isdiction over all in the civil classified service. contrast, this regulations promulgated by case involves Education, Higher State Board of which with agency is an jurisdiction statewide regulatory higher over the field of educa- tion, including college employees. State present dispute
The
arose over the Board’s
of certain
adoption
"regulations establishing
procedures
uniform
for staff reductions
at
colleges during periods
exigency.
State
of fiscal
N.J.A.C.
2, 1980,
et seq.
May
9:2-3.1
On or about
Chancellor T. Edward
regulations
Hollander formulated
them
and forwarded
approval.
Board for its
The
New Jersey
Council of
Locals, NJSFT-AFT/AFL-CIO,
College
the exclusive
representative
faculty
nonmanagerial
for all full-time
and
professional employees
college
in the
was not
system,
participate
preparation
consulted and did not
in the
.of these
Moreover,
rejected
proposals.1
repeated
Board
the Council’s
requests
regulations
that the
be
proposed
submitted
collective
negotiations
adoption.
adopt-
before their
The
were
4,
133(h).
ed
went into
on
13 N.J.R.
February
effect
1981.
action,
this
brought
challenging
preemptive
The Council
effect of these
collective
negotiations.
Appellate
rules on
held,
strength
Supervisory,
negoti-
Division
on the
of State
1Since it
the exclusive
for this union in
became
representative
negotiated
agreements
has
a series of
with the State.
Council
collective
agreements
covering
have
the same
Some of those
included provisions
topic
addressed
under attack on this
faculty layoffs
appeal.
negotiations
Moreover,
have sometimes used the
parties apparently
proc
agreement
changes
regula
ess to reach
on
administrative
proposals
Higher
tions, which were then
on to the Board of
Education for formal
passed
action.
*6
preempted
subjects
ation was
on the
specifically
by
covered
regulations.
(1981).
N.J.Super.
We granted the Coun-
petition
cil’s
(1982).
for certification.
I The Board of Higher Education functions as an agency within the Department Higher of possesses Education. It regulatory broad authority college system. over the State See Assoc. of N. J. v. Dungan, State Col. Fac. 64 N.J. 350-51 (1974). Legislature The granted juris has the Board “exclusive diction over higher education this State and its constituent parts and the requisite power things to do all necessary and proper accomplish to the aims carry provided out the duties by law.” responsible N.J.S.A. 18A:3-13. Board is for taking steps long-range planning higher to advance for the of education as a whole in system general governance the state; establish for of the institu- policy separate togeth-
tions; coordinate the activities of the individual institutions taken which, higher er, make of education in New up and maintain system Jersey; general oversight higher financial of the state education. system [N.J.S.A. 18A:3-13] Moreover, the Board the power general person- has to “establish policies nel public education,” for the institutions of higher 14(h); N.J.S.A. 18A “adopt bylaws make and [to] :3— enforce, repeal alter and rules for government its own and for implementing law,” 18A:3-15; and carrying out this and to exercise “all powers in addition specifically to those law, provided by requisite performance duties,” to the of its N.JS.A. 18A:3-16.
The regulations challenged represent this case a compre- attempt hensive “to preserve the academic integrity of the institutions while respecting rights of the individual [em- ployees] involved” in the event of a financial any crisis at colleges. state aim accomplished by This establishing proc- a ess for determining when a fiscal emergency exists and imple- crisis, -3.2; a menting plan 3.1, to meet the N.J.A.C. 9:2— offering guide framework to the Board in deciding how to expenses reduce while maintaining still the academic integrity 9:2-3.5; of the college, by requiring N.J.A.C. consideration of 9:2-3.2; alternatives other than layoffs, by demanding N.J.A.C. that any layoffs which do result “be on based academic or administrative programs considerations” and that and functions major instructional or administrative importance protect- be ed, 3.5; N.J.A.C. by requiring consideration of possible 9:2— impacts action, 9:2-3.4; on calling affirmative N.J.A.C. consultation with the college community formulating before reduction plan may those accommodate views of who be affected, 9:2-3.3; by N.J.A.C. providing notice to the employee *7 representative unit’s requiring and fulfillment of agreed-upon 3.5; obligations, contractual by requiring N.J.A.C. and no- 9:2— tice of staff reductions and efforts at the reemployment directed off, 9:2-3.6, of those who are laid N.J.A.C. -3.11. proce- These dures for declaring a fiscal work emergency reducing and the force yet colleges. have to at the any be invoked of state
The argues Council that these should not given be preemptive agency effect because the that them promulgated also acts as an the employer very employees over that it also regulates. The Council claims that to giving preemptive effect agency regulations employ- terms affecting and conditions of ment to agency power would allow the use its in an regulatory abusive deprive employees statutory manner to its own of their right to in participate process governs employ- the that their ment. at that public employees
We note the outset the this of right organize State have a constitutional to and to present “grievances through own proposals representatives and of their I, choosing.” (1947), Art. The par. Legislature N.J.Const. 19. scope has to New attempted right define the of that the Act, Jersey Employer-Employee Relations 34:13A-1 et N.J.S.A. seq. provides representative That Act “the and majority that designated public employer the at rea representatives of meet sonable negotiate good respect griev- times and faith with to N.J.S.A. employment.” of
anees and terms and conditions Therefore, private employees, public employees like 34:13A-5.3. and negotiation in collective on terms right engage have the to employment. conditions of right subject sought that when the matter is limited In by legislation. addressed negotiated already
to be is statute Supervisory, adoption any specific we held that “the of regulation setting controlling particular or term or condi- or subject. that employment preempt” negotiation tion of will on Thus, N.J. preemption at 81. we left no doubt applies validly adopted regulation, regardless of doctrine it, regu- agency department promulgated provided definitively specifically lation fixes a term or condition 78 N.J. at 80-81. As employment. long regulation as such a authority delegated with consistent and effectuates statute, given binding agency by it is to be same directly be accorded to a statute preemptive effect that would regulation. contained in the establishing requirements See State, In re IFPTE v. 88 N.J. (1982). Local 195 403-04 Supervi- case, in unique present feature of this not sory, cer- regulatory agency performs is that the involved also employees tain the same it employer regarding functions of the De- regulates. Higher part The Board of Education is Higher Education. 18A:3-1. While partment *8 functions, Department itself the performs only regulatory Board duties, certain such as responsible assuming employer-type is for manage- the participation negotiations part in collective as of (N.J.A.C. 9:2-5.5) ment team and an arbitrator’s role in resolv- However, disputes.2 Department the is ing employee grievance regularly negotiations with this 2The in collective Department participates conjunction college management. Although the Governor’s union in with handling for the Office of Relations has Employee primary responsibility negotiations the union, State’s side of with this of Department representatives negotiation since the also and have done so at collective every participate negotiating See N.J.A.C. 9:2-5.- Council became the unit’s representative. sole, not the nor even the primary employer of college workers. The college individual administrations at each are primarily responsible for their N.J.S.A. employees, own ISAT IS, and the Employee Governor’s Office of in charge Relations is of negotiating agreements collective the bargaining State. Faculties, New Jersey College Association of v. See Inc. Board Education, of Higher 237, 112 N.J.Super. (Law Div.1970). 242-50 does, Nevertheless, Department the in certain respects, act as the employer college represented of the by workers Coun Therefore, cil. the same agency performing both regulatory and, extent, to a employer lesser functions over group this of employees. agency
When an performs regulator dual roles -as both and employer, possibility the the agency exists could use its preemptive power regulatory arbitrary in an abusive or manner to insulate from with negotiations itself its The employees. potential mere grounds for such abuse is not and of itself to hold that does not preemption apply regulations promulgated by such agencies. possibility ques- raises serious 5(a). Department party The has been named a as at least three of the agreements negotiated by agree- collective the The June Council. representatives signed by Employee ment was of both Office of Relations Higher (the and the Chancellor chief of Education executive officer of the Department secretary Board, 18A:3-12, -20). and of the The Board Department’s negotiating 9:2-5.5(a), has even codified the role in N.J.A.C. provides: purposes negotiation For of collective on all economic issues all employer applicable public issues determined to be to all institu- education, representative higher employer’s Negotiating tions of is a comprised representatives institutions, Committee of the institution or Education, Department Higher Negotia- Office of the State representative employer’s governing tor. On all other issues the is the public higher board of the institution of education. addition, Department plays significant resolving employee role in grievances. employee grievances initially processed are Formal president college Chancellor, involved and submitted to the next who hearing must hold a and issue a on written decision the matter. union may through then contest the Chancellor’s decision arbitration.
tions about the soundness
rule that
would accord absolute
and unqualified
a
preemption
regulation
affecting terms and
conditions of employment
passed by
when
an agency qua em-
ployer
govern
employment
the
terms and conditions of its
own employees.
fully
legislative
To effectuate
the
policy of
protecting
rights
public
the
employees,
of State
while at the
same
encouraging
proper discharge
statutory
time
the
re-
sponsibilities
the
agencies,
preemption accorded to
ad-
ministrative regulations
the
governing
employment
agen-
of an
cy’s own employees
qualified.
must be
an agency
determination whether
regulation af
fecting terms and
of employment
conditions
should be given
preemptive
may depend upon
effect
application
direct
regulation to the agency’s
employee
own
and the agency’s
posture vis-a-vis the employees
regulation.
affected
We
therefore
agency
hold
if the
acts
solely
regulator
as
has
employer
affected,
no direct
employees
interest over the
its
regulations fixing
employment
terms and conditions of
must be
given the same preemptive effect as a statute. See Bethlehem
Assn.,
(1982);
Tp. Bd.
N.J. 38
Tp.
of Ed. v. Bethlehem
Ed.
However,
State Supervisory,
In this there can be no really despite doubt that the agency’s role, employer regulations the deserve preemptive treatment. The broad enjoys regulatory authority Board over the See college system. 18A:3-13, -14, State -15 and role, -16. The agency’s employer while considerable in certain respects, secondary was basically comparison regula with its Moreover, tory responsibilities. the Board had sound reasons for adopting regulations. They these major address matter of Board, concern to the namely, functioning of the State college system in a crisis situation. Additionally, regulations appear employees reasonable and fair to the affected.3 Further more, suspicious there is no indication of circumstances sur rounding their There had been passage. negotiating prob some lems at the time passage. problems appar of those ently nothing had to do with how to make staff reduction addition, during periods exigency. decisions of fiscal employee union notice and full adequate opportunity had to express regulations proposal stage. its views on the at Consequently, regulations passed we find that these were are, good they specifically faith and extent that address subject staff procedures making of reductions at State argues regulations 3Petitioner are unfair these because affect they only bargaining in the unit that This assertion is employees petitioner represents. regulations inaccurate. These to all non-Civil Service in the apply employees college just and not those by petitioner. system, represented Specifical- deans, excluded from the Council’s unit are associate and ly “vice-presidents, managerial executives,” assistant deans and other all of these individuals yet subject regulations. are to the emergencies, deserving fiscal colleges during preemptive treatment.
II
question
preempt
The
whether these
serve to
negotiation requires
analysis.
preemption
further
doctrine
applies
expressly
“which
set terms and conditions
Thus,
employment.”
Supervisory,
(A) The initial consideration whether the regula- or threshold is tions- a term condition of employment address would ordinarily require negotiation. Only when an administrative regulation subject mandatory addresses a otherwise topic negotiation preemption would doctrine become relevant only regulation actually because then could serve to bar negotiations. employment negotiation Jersey
Public New has divid categories: nonnegotiable ed into two distinct matters that are governmental they policy “mandatorily because involve and negotiable terms and of employment.”4 Ridgefield conditions Ed., 144, Ridgefield (1978). Park Ed. Ass’n v. Bd. of 78 N.J. 162 Negotiation required only regarding condi those terms and employment' intimately tions of “which affect the directly and public employees work and welfare of which negotiated and on agreement significantly would not interefere with exercise generally subjects negotiation 4There are no New permissive Jersey negotiation. Woodstown-Pilesgrove Bd of Ed. of v. Woods- public employee town-Pilesgrove (1980); Ridgefield Ass’n, 582, Ed. 81 N.J. 588 n.1 Park Ed. Ridgefield (1978). Ed., 144, Ass’n v. Bd. of 78 N.J. 162
31
management
inherent
prerogatives pertaining to the determi-
governmental
nation of
policy.” Bd. of Ed. of Woodstown-Piles-
grove v. Woodstown-Pilesgrove
Ass’n,
582,
Ed.
81 N.J.
591
(1980), quoting
Supervisory,
Accord,
Cases Higher Board of Education have adhered analysis this same making scope for of negotiation determina- tions. In Ass’n of College Faculties v. N. Higher J. Bd. of Ed., (1974), 66 76-77 N.J. this Court held Board-promul- gated guidelines on employment outside should have nego- been tiated adoption before their because they “directly affected the work and welfare of the college employees, related to the terms and conditions of employment . . . and not did [the teachers’] affect any major educational policy.” See also Dungan, 64 N.J. (criteria 338 nonnegotiable); Rutgers tenure Council v. N. J. Ed., Higher Bd. of N.J.Super. (App.Div.1973) (unilateral adoption of ratio student-faculty budgetary and calendar with- prior out negotiation did not violate Employer-Employee Rela- Act). tions case,
In this the regulations constitute a detailed compre- hensive determining handling scheme for a financial crisis *12 They at of colleges. give the State board of trustees at each college authority to declare a state of fiscal emergency college president at the to direct institution to formulate a with the plan dealing emergency. for N.J.A.C. 9:2-3.1, They -3.2. offer a framework to guide the board in deciding expenses maintaining how to reduce while the academ- integrity ic They require of the institution. N.J.A.C. 9:2-3.5. making affirmative action be considered in reduction staff They decisions. call participation N.J.A.C. 9:2-3.4. for the of college community developing recommendations to be approval. submitted for the 9:2-3.3. they board’s N.J.A.C. And provide notice reductions and reemployment for of staff of those who are laid off. 9:2-3.6 —3.11. N.J.A.C.
32
To the extent that the challenged in this case involve the substantive criteria determining for the existence of a fiscal emergency, necessity for making reductions, staff and the reemployment of employees, laid-off are they clearly nonnegotiable as managerial matters of prerogative pertaining to the governmental determination policy. of to the extent they address matters not involving substantive governmental discretion responsibility, merely pro but aspects cedural reaching of and effectuating such determina tions, they concern terms and conditions of employment ordinar ily subject negotiation. 195,
In Local
we held that the actual transfer or reassignment
of an employee is
mandatorily negotiable
not
because the sub
stantive decision to transfer or
an
reassign
employee
preemi
nently
governmental
policy responsibility that would
signif
be
icantly
impaired
encumbered or
if it
subject
were
mandatory
negotiation.
However, we
recognized
also
in Local 195 the distinction
between
public
employer’s substantive decision to transfer
or assign employees
procedural process
and the
to be followed in
*13
making such a decision. We
ruled
the former constitutes
inherent managerial prerogatives, while the latter does not.
Thus, we held that the procedures
implementing
substantive
decisions relating
reassignments
to transfers
subject
are
mandatory negotiation
procedural
pose
sig-
because
matters
no
nificant threat of interference with the public employer’s ability
to make substantive policy determinations.
aspects making during emergency. staff reductions fiscal Subjecting procedures the issue of to mandatory negotiation would have significant upon any major no effect educational Therefore, policy. we find procedural aspects of the subject matter addressed require these would negotiation unless otherwise preempted by specific terms of themselves.
(B)
Negotiation
employment
on terms and conditions of
will
preempted by
be
a duly
regulation
regulation
enacted
if the
particular
addresses the
term
condition “in the imperative
nothing
public
to the
employer.”
discretion
leave[s]
Thus,
Supervisory,
regulation
confined within
established
those
Id.
limits.
In many respects, the
in this
suffi
regulations
case are
ciently specific regarding procedures to warrant
them
giving
preemptive
regulations
effect.
while these
are bind
ing and
agreement,
cannot be altered
contractual
not
they do
preclude negotiation on additional
with
procedures consistent
procedural
regulations.
example,
mechanisms
For
N.J.A.C. 9:2-3.6 allows the Board “at least two weeks” in which
give
proposed
to
notice
layoffs. Setting
of
a
of
longer period
time for giving
negotiation.
notice remains
to
N.J.
open
And
requires
give layoff
A.C. 9:2-3.7
the Board to
notices to individ
ual
soon
employees
possible.”
“as
as
This indefinite time frame
negotiation.
also remains
open
regard
to reemployment,
N.J.A.C.
rehiring
9:2-3.8 authorizes the
of faculty members
believes,
“who the President
of
judg
as a result
his academic
ment, are qualified
position.”
to fill the
The procedures relating
to rehiring, including notice
rudimentary
due
vital
process,
ly
employment
affect
negotiable.5
interests and are
Cf. Donald
Wildwood,
son v.
(1974)
Bd. of Ed. of No.
65 N.J.
(even
236
nontenured teacher entitled to
of due process
rudiments
as to
Thus,
nonrehiring).
regulations
prohibit
not
do
negotiation
rehiring
of teacher
5Adequate procedural
requirements
layoffs
terms
goals
are
to achieve
well
important
educational
as
as to protect employee
emergency
interests. The declaration of a fiscal
should not be used to subvert
academic freedom.
American
Profs.
Co.,
Cf.
Assoc. of Univ.
v. Bloomfield
(Ch.Div.1974),
(App.Div.1975)
129
136
442
N.J.Super.
aff'd,
N.J.Super.
(college
subterfuge
used
financial difficulties as a
remove tenured teach
ers). See also
v.
of
University
America,
Browzin
Catholic
The conclusion that these regulations
prohibit negotia-
do not
tion on
procedures
additional
consistent with the
*15
supported by the fact that
the regulations
require
themselves
that the lines
open.
developing
of communication be left
In
plan to deal with a
emergency,
college president
fiscal
must
Thus,
“consult
college community.”
with the
9:2—3.3.
N.J.A.C.
these
simply permit
do not
discussion between the
parties. They mandate that such discussions take
As we
place.
noted in Local
public employees
discussions between
public employers
the public
by promoting
further
interest
labor
peace
by
on
generating suggestions
public employees
from
improve
how to
the efficiency
public programs.
or fairness of
case,
Ill The final issue in this case is whether the violate statute, tenure State’s 18A:60-1 et The seq. N.J.S.A. Coun- which, cil claims that these regulations, among things, other encourage schools to affirmative making consider action in staff decisions, 3.4, reduction N.J.A.C. violate the tenure statute’s 9:2— provision faculty dismissals of tenured be on based seniori- ty- statutory provision, 18A:60-3,
The relevant reads as follows: Nothing right contained in this shall be held chapter to limit commissioner in the case of educational institution conducted any under his jurisdiction, college, or or of the supervision control, board of trustees aof in the college, case of a to reduce the number of associate professors, professors, registrars, assistant professors, instructors, or other supervisors, teachers, per- teaching sons in a such employed institution or institutions when capacity the reduction is due to a natural diminution of the number of students or pupils in the institution or resulting institutions. Dismissals from such reduction shall age, not marriage, be reason of religion, by residence, sex, or race, political affiliation. When such associate professors, assistant professors, professors, registrars, instructors, or other supervisors, teachers, in a persons employed teaching under tenure are dismissed capacity reason of such reduction those associate assistant professors, professors, professors, instructors, supervisors,
registrars, teaching having teachers, other in a persons employed capacity least number of of service to their credit shall years be dismissed in preference having longer to those terms of service. clearly tenure statute refers to teaching staff reductions necessitated a “natural diminution in pupils.” statute makes no reference to the specific subject matter ad- dressed by these regulations of how to make faculty —that layoff at colleges decisions during periods of fiscal emer- Moreover, gency. this recognized Court has that the statutory protections of tenure are inapplicable in cases of fiscal emergen- cy. See Nichols v. Bd. of Ed. of Jersey City, 9 N.J. (1952) *16 (statute referring to reductions of staff due to “natural diminu- tion” inapplicable layoffs held necessitated financial emer- gency).
Statutes should be read in a reasonable manner to
only
include
those situations legitimately contemplated by the
Legislature. See, e.g., Loboda v. Clark Township,
The Council
reads
tenure laws to require
layoff
that
decisions always be
seniority. Therefore,
based on
it contends
that these
conflict with the tenure statute’s seniority
approach because, for example, they encourage the colleges to
consider affirmative action in making staff reduction decisions.
making
argument,
See N.J.A.C. 9:2-3.4.
In
this
the Council
fails
appreciate
enjoys
that
the Board
broad discretion in
18A:3-13,
regulating the
college system.
See
-14,
rejected
-15 and -16.
It
we
was for this reason that
There,
claim in Dungan.
adopted general
similar
the Board had
guidelines
granting
faculty
for the
of tenure to
members at
colleges.
rejecting
argument
guidelines
that these
laws,
violated the tenure
explained
we
that “the Board has been
legislatively
power
guidelines
vested with the
to establish tenure
educationally
long
guide-
which it considers
as those
desirable so
lines are
impair any specific
reasonable
nature and do not
Be-
statutory provision dealing with tenure.”
IV Accordingly, the of the Division is af- judgment Appellate opinion. firmed as modified this SCHREIBER, J., concurring. agency promulgates regula-
When- an administrative a rule or pursuant enabling statutory authority tion to its and in accord- prescribed procedures, regulation, ance with that rule or in the limitation, absence of a constitutional is valid and effective. Its employees are validity depend does not on whether its own directly regulation sufficiently affected. If the covers an item longer negotiable, preempted. so that it is no then matter is valid, it the rule is regulation Once is determined inquiry irrespective persons is at an end of whether the affected employees promulgating agency are —for governmental agency by been vested in the authority has Legislature. *17 I of the extent of agree majority’s analysis with the Board of regulations adopted by the State preemption Higher Education and its conclusion do not statute, violate the et seq. State’s tenure N.J.S.A. 18A:60-1 Accordingly, join I the affirmance of the Division’s Appellate judgment as modified.
SCHREIBER, J., concurring in the result.
For affirmance as WILENTZ modified —Chief Justice PASHMAN, CLIFFORD, HANDLER, SCHREIBER, POL- LOCK and O’HERN —7.
For reversal —None. EDUCATION, BETHLEHEM OF TOWNSHIP BOARD APPELLANT CROSS-RESPONDENT, AND v. BETHLEHEM ED- TOWNSHIP ASSOCIATION, UCATION RESPONDENT AND CROSS-APPEL- LANT. EDUCATION, LINDEN BOARD OF APPELLANT AND CROSS-RE- SPONDENT, ASSOCIATION, v. LINDEN EDUCATION RESPONDENT AND CROSS-APPELLANT.
Argued January 12, August 1982 Decided 1982.