IN THE MATTER OF COUNTY OF ESSEX AND FOP LODGE 106, COUNTY OF ESSEX AND PBA LOCAL 382, COUNTY OF ESSEX AND PBA LOCAL 183, аnd COUNTY OF ESSEX AND PBA LOCAL 183A.
DOCKET NO. A-3809-22
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Decided May 7, 2024
Argued April 16, 2024
Before Judges Rose, Smith and Perez Friscia.
This opinion shall not “constitute precedent or be binding upon any court.” Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited.
On appeal from the New Jersey Public Employment Relations Commission.
Joseph Michael Hannon argued the cause for appellant County of Essex (Genova Burns, LLC, attorneys; Joseph Michael Hannon and Leonard Salvatore Spinelli, on the briefs).
Frank C. Kanther, Deputy General Counsel, argued the cause for respondent New Jersey Public Employment Relations Commission (Christine Lucarelli, General Counsel, attorney; Frank C. Kanther, on the brief).
Valerie Palma DeLuisi argued the cause for respondents FOP Lodge 106, PBA Local 183, and PBA Local 183A (Law Offices of Nicholas J. Palma, Esq.,
PER CURIAM
This appeal concerns the latest chapter of unfair labor practice charges initially asserted by four police unions against the County of Essex for unilaterally shifting the health insurance of all county employees from a private carrier to the State Health Benefits Program (SHBP) without engaging in good-faith negotiations with those unions. By leave granted, the County appeals from a June 29, 2023 final Public Employment Relations Commission (PERC) decision granting summary judgment in favor of FOP Lodge 106 (FOP 106) and PBA Local 382 (PBA 382).1 PERC adopted the factual findings of a hearing examiner, with one modification that is not germane to this appeal. PERC
On appeal, the County raises four arguments, primarily challenging the remedy imposed. In essence, the County contends PERC‘s remedy is contrary to the SHBP‘s plan design, fails to offset employees’ damages against increased benefits under the new plan, and violates the County‘s right to due process because the unions did not request a remedy on summary judgment. In its final argument, the County asserts summary judgment was premature because there were material issues of fact concerning the interpretation of the parties’ collective negotiations agreements (CNA). Having considered the County‘s contentions in view of the governing legal principles and the record before PERC, we are unpersuaded and affirm PERC‘s final decision granting summary judgment to FOP 106.
I. Statutory & Procedural Background
To give context to the issues presented on appeal, we summarize the facts and procedural history in view of the governing statutory framework.
Under the SHBP Act,
In 2011, the Legislature created the Plan Design Committee (PDC), vesting it with “the exclusive authority to design state health benefits plans.” Rosenstein v. State, Dep‘t of Treasury, Div. of Pensions & Benefits, 438 N.J. Super. 491, 494 (App. Div. 2014). The PDC establishes the components of the SHBP‘s offered plans, which the PDC may create, modify, or terminate in its discretion.
PERC has been empowered by the Legislature to make policy and establish rules and regulations regarding employer-employee relations, including dispute settlement, through the New Jersey Employer-Employee Relatiоns Act (EERA),
If, after receiving evidence, PERC determines a charged party has engaged in an unfair practice, it shall issue an order “requiring such party to cease and desist from such unfair practice, and to take such reasonable affirmative action as will effectuate the policies of [the EERA].”
FOP 106 is the majority union representative of Essex County Department of Corrections’ sergeants, lieutenants, and captains. The CNA between FOP 106 and the County initially was effective from January 1, 2011 through December 31, 2013, and later extended through December 31, 2017.
Entitled “Health Insurance and Section 125 Cafeteria Plan,” Article 21 of the CNA provided “existing Hospitalization, Medical-Surgical and Major Medical Insurance Benefits shall be paid for by the County,” except as set forth in another provision. The provision continued: “The County reserves the right to select the insurance carrier who shall provide such benefits as long as the benefits are not less than those now provided by the County.” (Emphasis added). The CNA also contained a “Retention of Existing Benefits” clause, which stated the rights, privileges, and benefits enjoyed by union employees “shall be maintained and continued by the County during the term of [the a]greement until the rаtification/approval of a successor agreement, notwithstanding any statute, law, ordinance, precedent or ruling by a [c]ourt or [s]tate agency.”
In January, March, and June 2016, the County held three “Labor Roundtable” meetings with its insurance consultant and representatives of the County‘s twenty-six union negotiations units. Utilizing PowerPoint presentations, the insurance consultant compared the costs and benefits between Aetna‘s and the SHBP‘s plans. The attendees were notified that, if the County sought to join the SHBP for 2017, adoption of a resolution was necessary by October 1, 2016.
By September 8, 2016, the County received updated premium rates for 2017 from the SHBP and Aetna, and calculated it would save more than $9.7 million for that year by changing insurance carriers. During another Labor Roundtable on September 13, the County presented this additional information to union representatives. Between September 16 and 22, the County held five
On September 26, 2016, FOP 106 provided the County an offer outlining its prerequisites for consenting to the proрosed change. Two days later, the County rejected FOP 106‘s proposal and adopted Resolution 31, switching the health insurance carrier for all County employees from Aetna to the SHBP, effective January 1, 2017.
On October 11, 2016, the County offered all twenty-six negotiations units extensions of their CNAs, stating the level of health insurance benefits provided through the SHBP beginning January 1, 2017, would remain the same during that calendar year. The County further stated if the benefits provided changed in 2018, and the parties mutually agreed the change was not equal to or greater than the benefits provided in 2017, the County would negotiate in good faith regarding any action undertaken. FOP 106 and the three other unions involved in this litigation refused the County‘s offer; the remaining twenty-two unions agreed to the change in carriers.
Thereafter, FOP and the three other unions filed unfair labor practice chargеs with PERC against the County, alleging violations of the EERA.
To aid in the resolution of the labor dispute before PERC, the unions sought a declaratory ruling from the SHBC to answer four questions pertaining to their unfair practice allegations. Of particular relevance here, in Question 3 the unions inquired whether “the County, as [a] participant in the SHBP” could “reimburse its employees for incremеntal costs arising from changes in negotiated levels of health benefits.”
Recognizing “disputes” could arise between participating employers and employees as to whether a particular cost “complies with the terms of a [CNA],” the SHBC declared “modification of co-payments established by the SHBP is unlawful and a reimbursement of these costs would negatively impact the Program.” The SHBC cited our Supreme Court‘s decision in Borough of East Rutherford v. East Rutherford PBA Local 275, 213 N.J. 190 (2013), and stated “delayed reimbursements” provided to employees would not affect those employees’ utilization of SHBP plans. Noting the question of whether the County‘s participation in the SHBP violated the EERA was pending before PERC, the SHBC was “confident” that “PERC can fashion an appropriate
FOP 106 and the three other unions appealed, and we affirmed. Essex Cnty. Sheriff‘s Officers PBA Loc. 183 v. Dep‘t of the Treasury, Div. of Pensions & Benefits, State Health Benefits Comm‘n, No. A-1228-17 (App. Div. June 14, 2019) (slip op. at 26). Citing the SHBC‘s confidence in PERC‘s ability to issue an appropriate remedy on an unfair practice charge, we rejected the unions’ argument that the SHBC‘s ruling on Question 3 deprived them the possibility of a “make-whole” remedy before PERC. Id. at 24-25. But we declined the unions’ invitation to issue “an advisory opinion about whether any fair remedies – other than dollar-for-dollar reimbursements to individual employees – could be issued in the future by PERC in this matter.” Id. at 25. We concluded: “The questions of remedy must be decided in the first instance by PERC.” Ibid.
Thereafter, PERC‘s Director of Unfair Practices issued complaints and notices of pre-hearings on the unions’ charges, which were consolidated. The County filed an answer, denying the unions’ allegations. Cross-motions for summary judgment followed.
To support their motion, the unions submitted certifications and other information detailing the negative impact on their members from the change in
In its submission, the County acknowledged the change in carriers caused union employees to incur additional costs. However, the County argued those costs were offset by reductions in premium contributions, lower out-of-network deductibles, and other beneficial changes. The County further claimed although it held information sessions for its employees and sought the unions’ consent to change to the SHBP, “their agreement was not required.” The County emphasized the SHBP “was the only financially viable option for a change in health insurance carriers to avoid” Aetna‘s rising costs, аnd the deadline to do so was October 1, 2016 to effectuate “the full benefit of the cost avoidance for health insurance” for 2017.
The cross-motions were referred to a hearing examiner for decision. See
Specifically, the examiner found the change to the SHBP increased prescription drug costs and co-payments for several services and reduced or removed coverage for multiple types of care. According to the examiner, “[t]hese changes in benefits were prohibited by the clear terms of” FOP 106‘s CNA. She further found the County‘s meetings and information sessions did not constitute good-faith negotiations as required by
Although the hearing examiner recognized the unions did not “seek to address a calculation of damages/arguments over possible remedies,” she found their submissions “d[id] not foreclose any make-whole remedy for a violation of the [EERA].” The examiner thus recommended PERC order the County to “[i]mmediately reimburse” all FOP 106 and PBA 382 employees “for any costs or losses incurred since January 1, 2017 as a result of [the] change in health insurance carriers from Aetna to the [SHBP].” The examiner found support for
The County timely filed exceptions to the hearing examiner‘s decision, see
In its June 29, 2023 decision, PERC agreed that the County unilaterally changed its employees’ health insurance to the SHBP without negotiating in good faith with those unions. PERC found the County‘s Labor Roundtable meetings and “informatiоn sessions” did not include a “meaningful dialogue and/or exchange of proposals about a proposed change to negotiable terms and conditions of employment,” as required to satisfy statutory bargaining requirements.
PERC further found the level of health benefits enjoyed by FOP 106 and PBA 382 members “decreased in multiple ways as a result of the change to the
Turning to the County‘s exceptions to the proposed remedy, PERC acknowledged “the preferred procedure” would have encompassed the hearing examiner‘s request for supрlemental briefing from the parties. Nonetheless, PERC noted although the unions did not seek a specific remedy in their moving papers, they did so in their underlying unfair practice charges. Further, because the County raised the issue in its exceptions, PERC concluded the employer had “a full opportunity to oppose” the proposed remedy and was not deprived due process.
Addressing the merits of the proposed remedy, PERC found the examiner‘s proposal “[wa]s supported by [PERC] precedent and [wa]s the least disruptive remedy to address the County‘s violation of the Act.” PERC explained:
Rather than ordering a strict return to the status quo ante, which might require returning all County employees to their previous health plan in addition to financial reimbursement, the establishment of a health
In so finding, PERC rejected the County‘s argument that reimbursement violated SHBP regulations or uniformity requirements. PERC noted SHBP co-payments and deductibles charged at the “point of service” could not be changed. However, because employees were required to pay to their medical providers full co-payments and other costs set by the SHBP, PERC concluded subsequent reimbursement of the difference between those payments and the amounts that would have been paid under the Aetna plans would not affect the SHBP‘s usage or funding. PERC also found reimbursement was appropriate because the remedy was issued “more than six years after” the change to the SHBP. Thus, employees had been paying the higher costs to medical prоviders for that duration without knowing PERC‘s decision and, as such, there was little risk the employees were over-utilizing medical services, which could otherwise affect the SHBP.
Ultimately, PERC concluded the County committed unfair labor practices by altering FOP 106 and PBA 382 employees’ health insurance without engaging in good-faith negotiations with their majority representatives. PERC ordered the County to establish a reimbursement fund to “immediately” reimburse all
II. Standards of Review
Our scope of review of an agency‘s decision is circumscribed. See e.g., Russo v. Bd. of Trs., Police & Firemen‘s Ret. Sys., 206 N.J. 14, 27 (2011). “Our inquiries are limited to: (1) whether the agency followed the law; (2) whether the agency‘s decision is supported by substantial evidence in the record; and (3) whether in applying the law to the facts, the agency reached a supportable conclusion.” In re County of Atlantic, 445 N.J. Super. 1, 11 (App. Div. 2016).
Moreover, our Supreme Court has long recognized the legislative “mandate[] that judicial review of PERC‘s decisions and orders shall be of a very limited scope.” Galloway Twp. Bd. of Educ. v. Galloway Twp. Educ. Ass‘n (Galloway II), 78 N.J. 25, 35 (1978); see also Commc‘ns Workers of Am., Loc. 1034 v. N.J. State Policemen‘s Benevolent Ass‘n, Loc. 203, 412 N.J. Super. 286, 291 (App. Div. 2010) (stating “PERC is charged with administering the [EERA], and its interpretation of the Act is entitled to substantial deference“). “In the absence of constitutional concerns or countervailing exрressions of legislative intent, we apply a deferential standard of review to determinations made by PERC.” City of Jersey City v. Jersey City Police Officers Benevolent Ass‘n, 154 N.J. 555, 567 (1998). Accordingly, we defer to PERC‘s expertise in public sector employer-employee relations. Hunterdon Cnty. Bd. of Chosen Freeholders, 116 N.J. at 328.
By contrast, if PERC‘s interpretation of the EERA is overreaching and “outside the agency‘s charge,” “no special deference” is owed. Township of Franklin v. Franklin Twp. PBA Loc. 154, 424 N.J. Super. 369, 378 (App. Div. 2012); see also In re Camden Cnty. Prosecutor, 394 N.J. Super. 15, 23 (App. Div. 2007). We exercise de novo review of a decision on summary judgment, see Conforti v. County of Ocean, 255 N.J. 142, 162 (2023), and the interpretation of a statute, see Palisades at Fort Lee Condo. Ass‘n v. 100 Old Palisade, LLC, 230 N.J. 427, 442 (2017).
III. Summary Judgment
We first consider the County‘s argument that certain provisions in its CNA with FOP 106 created ambiguities that raised issues of fact precluding summary
Motions for summary judgment in PERC proceedings are governed by
Accordingly, although all reasonable inferences must be drawn in favor of the non-moving party, that party must present sufficient evidence tо demonstrate a genuine issue of material fact. See Cortez v. Gindhart, 435 N.J.
In the present matter, the County goes to great lengths in an attempt to find ambiguity in its CNA with FOP 106 when the agreement plainly states: “The County reserves the right to select the insurance carrier who shall provide such benefits as long as the benefits are not less than those now provided by the County.” The County‘s contention that its ambiguity argument hinges on facts that must be developed at an evidentiary hearing ignores general contract principles. “[I]nterpretation and construction of a contract is a matter of law,” Spring Creek Holding Co. v. Shinnihon U.S.A. Co., 399 N.J. Super. 158, 190 (App. Div. 2008), and may be addressed on a motion for summary judgment, Grow Co. v. Chokshi, 403 N.J. Super. 443, 464 (App. Div. 2008). This analysis includes the question of whether a term in a contract is ambiguous or clear. Nester v. O‘Donnell, 301 N.J. Super. 198, 210 (App. Div. 1997).
When deciding whether there is ambiguity, a court must give contractual language its plain and ordinary meaning. Ibid. An ambiguity exists “if the terms
“[U]nambiguous contracts are to be enforced as written,” and a court should not rewrite a contract “in order to provide a better bargain than contained in [its] writing.” Grow Co., 403 N.J. Super. at 464. Where an agreement is ambiguous, a court must consider the intent of the parties, as evinced by not only the contract‘s express terms, but also surrounding circumstances and the contract‘s underlying purpose. In re County of Atlantic, 230 N.J. 237, 255 (2017). Other considerations include “custom, usage, and the interpretation placed on the disputed provision by the parties’ conduct.” Winslow v. Corp. Express, Inc., 364 N.J. Super. 128, 138 (App. Div. 2003) (quoting Kearny PBA Loc. #21 v. Town of Kearny, 81 N.J. 208, 221 (1979)). Nonetheless, “[a] party that uses unambiguous terms in a contract cannot be relieved from the language
Ultimately, the court‘s function “is to consider what was written in the context of the circumstances under which it was written, and accord to the language a rational meaning in keeping with the expressed general purpose.” Barila v. Bd. of Educ. of Cliffside Park, 241 N.J. 595, 616 (2020) (quoting Owens v. Press Publ‘g Co., 20 N.J. 537, 543 (1956)). For a CNA, such as the one at issue here, that purpose “is a common understanding on the terms and cоnditions of labor.” Ibid.
Against these seminal principles, we are satisfied the CNA unambiguously stated the County was required to maintain all aspects of health insurance benefits at the same or a greater level for the duration of the contract. That the agreement also mentioned a few specific benefits does not render the more general language in Article 21 referring to all “existing Hospitalization, Medical-Surgical and Major Medical Insurance Benefits” nugatory. Indeed, the CNA contained no qualifying terms that the narrower provisions cited by the County were the only benefits it must maintain under the same level of coverage.
We add only the County does not expressly assert it engaged in good-faith negotiations. Rather the focus of its arguments on appeal is whether the change to the SHBP violated the CNA and, if so, whether PERC‘s ordered remedy was appropriate.
In the interest of completeness, however, we note PERC and New Jersey courts have found violations of
The process of negotiation “should ideally lead to communication and understanding between the parties rather than itself becoming the subject of dispute.” Hunterdon Cnty. Bd. of Chosen Freeholders, 116 N.J. at 338. Thus, while an employer “may adhere firmly to a good-faith negotiation position,” ibid., unilateral termination of a benefit previously provided to employees, without any meaningful discussion or back-and-forth between the employer and emplоyee representatives, may constitute an unfair labor practice, id. at 336-38. Good-faith negotiations were not undertaken here.
IV. Remedy
A. Due Process
We first consider the County‘s procedural argument that PERC erroneously imposed a remedy, absent a specific request by FOP 106 in its moving papers. See
At a minimum, whether analyzed under the Federal or State Constitution, due process requires adequate notice and an opportunity to be heard. First Resol. Inv. Corp. v. Seker, 171 N.J. 502, 513-14 (2002). “Notice” must “defin[e] the issues” and provide “an adequate opportunity to prepare and respond.” McKewon-Brand v. Trump Castle Hotel & Casino, 132 N.J. 546, 559 (1993). An “opportunity to be heard” must be “at a meaningful time and in a meaningful manner.” Klier v. Sordoni Skanska Constr. Co., 337 N.J. Super. 76, 84 (App. Div. 2001). However, not every justiciable contrоversy requires a trial-type hearing to satisfy the demands of due process. In re Freshwater Wetlands Statewide Gen. Permits, 185 N.J. 452, 466-67 (2006). Rather, “due process is a flexible and fact-sensitive concept.” Ibid.
Initially, we agree with PERC‘s acknowledgement that the hearing examiner should have requested full briefing before proposing a remedy. But we also agree with PERC‘s finding that the County was on notice the unions sought recourse and remedy via the addendum to the unfair practice charges,
More persuasively, however, the County was afforded a full opportunity to argue the issue of remedy in its exceptions to the examiner‘s recommendation, see
B. The Reimbursement Remedy
We turn to the County‘s substantive arguments that the remedy was unlawful. The County argues the issue of whether union employees may be reimbursed for out-of-pocket healthcare costs should have been deferred to the SHBC, which previously concluded such reimbursement would constitute an unauthorized modification of the SHBP plan. The County further claims PERC‘s remedy should have included an “offset” to account for the improved benefits,
Generally, PERC “possesses the authority to order that a party found to have violated the [EERA] make the affected employees whole for their losses sustained by reason of the commission of an unfair practice in violation of
We recognize these agency decisions are not precedential, and Lakeland and Rockaway involved changes to a different State-administered health insurance program, while Pennsauken and Metuchen involved changes to another private health insurance provider. We are persuaded, however, that PERC‘s prior decisions establish the agency has regularly ordered essentially the same remedy for violations of
We find further support in Borough of East Rutherford, 213 N.J. at 193-94, where our Supreme Court affirmed the imposition of a reimbursement award by a PERC arbitrator. There, the PBA employees were enrolled in the SHBP, and under their negotiated contract were required to pay a $5.00 co-payment for doctor office visits. Id. at 193. While that contract was still in effect, the SHBC increased the co-payment to $10.00, and the Borough passed that increase to the PBA members. Ibid. After the employees filed a grievance seeking reimbursement for the difference between the co-payment amounts, the Borough
In her decision, the arbitrator noted there was a clause in the PBA contract stating that any change in insurance benefits “shall result in equal or better coverage,” and found it was of no moment that the Borough was not responsible for the change in co-payments. Id. at 198. The Borough filed an action in the Law Division, and the trial court vacated the arbitrator‘s award, finding it improperly “return[ed] the co-payment to $5” in violation of the SHBC‘s authority. Id. at 199-200.
We reversed. Borough of East Rutherford v. East Rutherford PBA Loc. 275, No. A-5310-09 (July 18, 2011) (slip op. at 16). Because the employees were required to pay the amount ordered by the SHBC at point-of-service, we concluded the arbitrator‘s order was in line with the SHBP‘s uniformity rеquirement. Id. at 14-15. Accordingly, the reimbursement award “had no fiscal impact on the SHBP.” Id. at 15.
Accordingly, we are persuaded PERC‘s reimbursement remedy here was proper. Similar to the CNA at issue in Borough of East Rutherford, the CNA between the County and FOP 106 was contravened by a change in the level of insurance benefits enjoyed by covered employees. See id. at 194-96. Unlike Borough of East Rutherford, where the change was occasioned by a revision in the governing statute over which the employer had no control, see id. at 207-08, here the County voluntarily chose not only to move its employees to the SHBP, but to do so without engaging in proper negotiations with FOP 106. The
We further conclude the remedy PERC ordered does not run afoul of the SHBC‘s statutory authority, for the same reasons articulated by the Court in Borough of East Rutherford. 213 N.J. at 206-07. Among other increased costs, employees have been and still will be expected to pay the co-рayments for doctor visits, treatments, and prescription drugs the SHBP plans require. There is thus no fiscal impact to the SHBP, which will continue to receive payments for the amounts assessed under its plan.
Although reimbursement at the time of service is inappropriate and could affect utilization of services and raise the SHBP‘s costs, that is not what PERC ordered here. Rather, reimbursement will not occur until an employee makes a claim with FOP 106 and that claim is forwarded to the County for evaluation and payment. Indeed, as PERC noted in its decision, it has been years since FOP 106 and PBA 382 employees were moved to their new insurance plans and, presumably, they have utilized services without knowing whether or when they would ever be reimbursed. Accordingly, there is little risk – or proof – that employees have been overusing their health insurance during that time. See
Nor are we persuaded that the SHBC‘s prior declaratory ruling in this matter foreclosed PERC from ordering reimbursement. The SHBC expressly stated the question of whether an unfair labor practice occurred was for PERC to decide and that PERC was the body that should craft a remedy if such a violation were found. Although the SHBC stated “modification” of an SHBP plan via reimbursement was impermissible, no plan was modified here.
Finally, we reject the County‘s argument that the level of reimbursement due FOP 106 employees should be “offset” by the value of other, improved health benefits the employees may now enjoy with the SHBP. Again, we are persuaded by PERC‘s prior decisions.
For example, in Borough of Metuchen, 1984 NJ PERC LEXIS 124, at *6-7, PERC noted, in certain situations, the plans available from the employer‘s new chosen insurance carrier offered greater benefits than those of the former carrier. However, PERC disagreed with the employer that losses suffered by some union members should be “set-off” by the gains that other members would
Similarly, in Township of Pennsauken, 1987 NJ PERC LEXIS 571, at *7-8, PERC rejected the public employer‘s argument that reimbursement was inappropriate because the change it made to its insurance carrier resulted in a plan that provided the same or better benefits “on balance.” PERC found the employer‘s CNA “d[id] not clearly give [it] an ‘on balance’ option,” and that because some benefits were reduced, an unfair labor practice had occurred. Ibid.
Moreover, in In re Township of Union, P.E.R.C. No. 2002-55, 28 N.J.P.E.R. ¶ 33070, 2002 NJ PERC LEXIS 119, at *15-16 (2002), PERC commented that if an employer had negotiated a contract providing it could unilaterally change insurance to an “equivalent” or “substantially equivalent” health plan, it could have argued its change to a plan where some benefits were better and some were worse was not subject to negotiation with employee units. However, because its contract obligated it to maintain “at least equal” benefits, this argument failed. Ibid.
Similarly, in the present matter, the CNA expressly permitted the County to change insurance carriers “as long as the [new] benefits [we]re not less than
Further, New Jersey courts generally have observed a remedy for an unfair labor practicе may require “extra” payments or reimbursement to aggrieved employees. For example, in State v. International Federation of Professional & Technical Engineers, Local 195, 169 N.J. 505, 537-38 (2001), the Supreme Court concluded PERC could award back pay to employees who were improperly denied overtime, even though other individuals already were paid to do the work during the disputed hours. The Court stated the “sanctity of the contract” between a public employer and its employees “eclipse[d] the financial concern” that the employer “may have to pay twice.” Id. at 538.
This emphasis on fairness to employees stems from the Court‘s recognition “that making employees whole for their actual economic losses attributable to the commission of an unfair labor practice ‘is part of the vindication of the public policy which [the agency] enforces.‘” Galloway I, 78 N.J. at 11 (quoting Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 197 (1941)).
In Galloway I, the Supreme Court recognizеd that denying PERC the ability to award a particular remedy “where that remedy is necessary to cure the effects of an unfair practice would substantially thwart the legislative goal of
Although Galloway I concerned an award of back pay rather than health insurance costs, id. at 5, we are persuaded the same rationale applies here. The record supports PERC‘s decision that the County failed to engage in proper negotiations before changing carriers. In the interest of deterring such behavior, PERC‘s remedy provides “teeth” to the agency‘s unfair practice finding. Conversely, permitting the County to “offset” the differences in costs could incentivize public employers to violate their contracts with employees without negotiations, provided some aspects of the new insurance carrier‘s policies were better. We conclude PERC‘s imposition of a reimbursement remedy without an “offset” was not arbitrary, capricious, or unreasonable, and fully supported by the record. See
Affirmed.
CLERK OF THE APPELLATE DIVISION