SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4137-18T2

IN RE: THE MATTER OF THE 

ALLEGED IMPROPER PRACTICE 

UNDER SECTION XI 

PARAGRAPH A(d) OF THE PORT

AUTHORITY LABOR RELATIONS 

INSTRUCTION, FINAL DECISION 

AND ORDER OF THE PORT 

AUTHORITY EMPLOYMENT 

RELATIONS PANEL, PORT 

AUTHORITY OF NEW YORK AND

NEW JERSEY,

Plaintiff-Appellant,

v.

THE PORT AUTHORITY 

EMPLOYMENT RELATIONS 

PANEL,

Defendant-Respondent,

and

PORT AUTHORITY POLICE 

BENEVOLENT ASSOCIATION, INC.,

Defendant/Intervenor-Respondent.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

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. R. 1:36-3.
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A-4137-18T2

Argued October 26, 2020 - Decided

Before Judges Mayer and Susswein.

On appeal from the Superior Court of New Jersey, Law 

Division, Hudson County, Docket No. L-2723-18.

Cheryl Alterman argued the cause for appellant (The 

Port Authority Law Department, attorney; Sharon K. 

McGahee, on the briefs).

Christine R. Lucarelli argued the cause for respondent

The Port Authority Employment Relations Panel (New 

Jersey Public Employment Relations Commission, 

attorney; Christine R. Lucarelli, on the brief).

John W. Bartlett argued the cause for intervenorrespondent Port Authority Police Benevolent 

Association, Inc. (Murphy Orlando LLC and D. John 

McAusland, attorneys; Jason F. Orlando, John W. 

Bartlett, and D. John McAusland, on the brief). 

PER CURIAM

Plaintiff Port Authority of New York and New Jersey (Port Authority)

appeals from an April 11, 2019 order dismissing its complaint in lieu of 

prerogative writs and upholding a final agency decision issued by defendant Port 

Authority Employment Relations Panel (Panel). We reverse. 

Defendant-intervenor Port Authority Police Benevolent Association, Inc. 

(PBA) filed an improper practice complaint against the Port Authority, alleging 

the Port Authority violated the terms of the parties' employment agreement by 

November 30, 2020
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failing to conform to safety standards promulgated by the Occupational Safety 

and Health Administration (OSHA). 

The parties dispute whether OSHA applied to uniforms worn by members 

of the Port Authority's aircraft rescue and firefighting (ARFF) department under

their personal protection equipment (PPE). The uniforms were made of 

polyester, rather than cotton, and were potentially dangerous in extreme heat. 

The PBA alleged the Port Authority violated its agreement with PBA members 

by not issuing cotton uniforms, conforming to OSHA standards, until almost 

two years after discovery of the non-compliant polyester uniforms. 

ARFF personnel are assigned to firefighting responsibilities at area

airports in New York and New Jersey operated by the Port Authority. The Port 

Authority issues PPE gear to ARFF personnel. PPE, also known as "bunker 

gear," is the outer layer of protective clothing worn by ARFF members while 

fighting fires. 

Underneath the bunker gear, ARFF members don "station wear" or battle 

dress uniforms (BDUs). BDUs are the uniform worn by ARFF members in the 

station house and resemble a patrol or police uniform. In 2014, the material for 

the BDU attire was sixty-five percent polyester and thirty-five percent cotton.
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A-4137-18T2

The National Fire Protection Association (NFPA) develops "codes, 

standards, recommended practices, and guides . . . developed through a 

consensus standards development process approved by the American National 

Standards Institute." The PBA claimed OSHA uses "NFPA standards as the 

standard of care for firefighter[s]," and that NFPA 1975 set the standard for the 

clothing to be worn by ARFF members.

In 2014, the Port Authority recognized BDUs should have been compliant 

with NFPA 1975 because polyester uniforms posed a safety risk and could cause 

injury to individuals upon exposure to extreme heat. In accordance with NFPA 

1975, BDUs should be cotton or Nomex blend because those materials do not 

melt under intense heat.

The Port Authority began the process of evaluating and switching BDUs 

from polyester to cotton in 2014. The change to cotton BDUs took two-years 

because the Port Authority required a full risk assessment, approval from the 

uniform committee, location of a vendor to provide a large quantity of cotton

BDUs, and a signed contract. On June 22, 2016, the Port Authority received the 

cotton BDUs. 

The Port Authority Board of Commissioners adopted the Labor Relations 

Instruction (LRI) to govern labor relations with its employees and their 
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A-4137-18T2

representatives. See Brown v. Port Auth. Police Superior Officers Ass'n, 283 

N.J. Super. 122, 136 (App. Div. 1995). In accordance with the LRI, the Port 

Authority is empowered to engage in collective bargaining with the PBA 

regarding terms and conditions for union employees. The Panel is authorized to 

adjudicate disputes arising under the LRI. 

On August 19, 2015, the PBA filed Improper Practice Number 15-35 (IP15-35). The PBA alleged the Port Authority violated Article XLII of the parties' 

Memorandum of Agreement (MOA), requiring compliance with OSHApromulgated safety standards for ARFF uniforms. The PBA's improper practice 

charge was referred to the Panel for resolution. 

An improper practice claim is governed by Article XI of the LRI. Article 

XI, entitled "Improper Practices," provides in relevant part as follows:

A. Practices by or on Behalf of Employer

It shall be an improper practice for the Authority or its 

agents or designees deliberately (a) to interfere with, 

restrain or coerce employees of the Authority in the 

exercise of the rights granted in Paragraph A of Section 

II of this Instruction for the purposes of depriving them 

of such rights; . . . . (d) to refuse to negotiate salaries, 

wages, hours, and other terms and conditions of 

employment in good faith with the duly recognized 

representative of its employees . . . . 
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In IP-15-35, the PBA alleged the Port Authority violated LRI Section 

XI(A)(a) and Section XI(A)(d): 

[B]y failing to conform with occupational safety and 

health standards promulgated by OSHA with respect to 

the station house uniform issued and required to be 

worn by members of the [ARFF] details . . . . 

Members are required to wear police battle dress 

uniforms (BDU's) made of a synthetic blend material 

that is not fire resistant and poses a risk of burning 

and/or melting, if exposed to extreme heat.

This Improper Practice [charge] is filed on behalf of all 

police officers assigned to ARFF functions at Newark 

Liberty International Airport/Teterboro Airport, 

LaGuardia Airport and John F. Kennedy International 

Airport.

The PBA also claimed the Port Authority violated Section XLII (1) and 

(2) of the MOA. Section XLII of the MOA, addressing "Safety and Health 

Standards," provides:

1) The Port Authority represents that it attempts 

to conform with and that it does basically conform with 

the Occupational Health and Safety Standards 

promulgated by OSHA.

2) If it is established that the Port Authority does 

not basically conform with OSHA standards, the Port 

Authority will make every good faith effort to come 

into conformance.
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The Occupational Health and Safety Act (Act), authorizes the United 

States Secretary of Labor to promulgate occupational safety or health standards 

for employees. 29 U.S.C. § 655; 29 C.F.R. § 1910.1(a). The Act contains a 

"general duty clause," requiring every employer "furnish to each of his 

employees employment and a place of employment which are free from 

recognized hazards that are causing or are likely to cause death or serious 

physical harm to his employees . . . ." 29 U.S.C. § 654(a)(1). 

OSHA's regulations provide:

Protective equipment, including personal protective 

equipment for . . . extremities, [and] protective clothing 

. . . shall be provided, used, and maintained in a sanitary 

and reliable condition wherever it is necessary by 

reason of hazards and processes or environment, 

chemical hazards, radiological hazards, or mechanical 

irritants encountered in a manner capable of causing 

injury or impairment in the function of any part of the 

body through absorption, inhalation[,] or physical 

contact.

[29 C.F.R. § 1910.132(a).]

Section 1910.132(c) states "[a]ll personal protective equipment shall be of safe

design and construction for the work to be performed." 29 C.F.R. § 1910.32(c).

On November 3, 2015, the Port Authority filed a denial of the allegations 

in IP-15-35. The Panel Chairman appointed a hearing officer, who conducted

hearings on ten non-consecutive days over the course of eighteen months. Upon 
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the completion of the hearings, in an August 15, 2017 report, the hearing officer 

recommended the allegations regarding the Port Authority's issuance of noncotton BDUs be sustained. On February 8, 2018, the Panel issued a tentative 

decision and order, upholding the hearing officer's recommendations.

After receiving comments from the parties, the Panel issued a June 12, 

2018 final decision and order. The Panel found the Port Authority's actions did 

not conform with OSHA-promulgated standards, and the nearly two years it took 

for the Port Authority to comply with OSHA standards demonstrated a lack of 

good faith contrary to the MOA. 

The Panel found OSHA encompassed the NFPA standards for firefighting 

gear used by ARFF members. The Panel determined the Port Authority violated 

Article XLII because the polyester BDUs worn by the ARFF members under 

their PPE for two years did not satisfy OSHA's general duty clause and therefore 

violated the parties' MOA. The Panel also agreed the Port Authority failed to 

make a good faith effort to bring BDUs into conformance with the applicable 

standards. As a result, the Panel sustained IP-15-35 and ordered the Port 

Authority to "cease and desist from unilaterally changing terms and conditions 

of employment" and post notice of the violation.
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A-4137-18T2

On July 12, 2018, the Port Authority filed an action in lieu of prerogative 

writs in the Superior Court, challenging the Panel's final decision and order. The 

Panel filed an answer and affirmative defenses. The PBA filed a motion to 

intervene, which the trial judge granted.

The Panel and the PBA filed motions to dismiss the Port Authority's action 

and enter a judgment upholding the Panel's decision and order. The Port 

Authority filed opposition to the motions. After hearing counsels' arguments, 

the trial judge requested supplemental briefs relating "the obligation under the 

MOA of the Port Authority to comply with OSHA to NFPA 1975."

In an April 11, 2019 order and letter opinion, the judge upheld the Panel's 

final decision and order and dismissed the Port Authority's action. The judge 

concluded the Panel's decision was not arbitrary, capricious, or unreasonable,

and was supported by substantial credible evidence in the record. She held,

"[T]he policy encouraging safety can be found in the MOA's section regarding 

OSHA conformance" and "the fact that NFPA 1975 is not specifically codified 

in any federal regulation is not sufficient, when considering the entirety of the 

record before the Panel to hold that the Panel clearly erred . . . ." She also 

declined to disturb the Panel's determination that the Port Authority "did not act 

in good faith to supply the [ARFF members] with cotton BDU's fast enough." 
10 A-4137-18T2

The judge reasoned, "[F]unctionally equivalent and properly fitting cotton 

BDU's could have been obtained much earlier than [two] years."

On appeal, the Port Authority argues NFPA 1975 is inapplicable to BDUs 

and therefore it did not violation OSHA. Absent an OSHA violation, the Port 

Authority asserts the Panel and the judge erred by finding it violated the MOA. 

The Port Authority contends the Panel and trial judge misapplied the law in

finding the non-cotton BDUs violated the MOA because the standard in NFPA 

1975 was not promulgated by OSHA nor adopted through OSHA's "general 

duty" clause. 

Because the Panel is an administrative agency, our review of the Panel's 

decision is limited. See In re Alleged Improper Practice under Section XI, 

Paragraph A(d) of the Port Auth. Lab. Rels. Instruction, 194 N.J. 314, 330-331 

(2008). We accord a deferential standard of review to an agency's determination 

unless the decision was arbitrary, capricious, unreasonable, or lacked credible 

support in the record. Id. at 331-32. We may also reverse if the agency failed 

to follow the law. Ibid. (quoting In re Herrmann, 192 N.J. 19, 28 (2007)). 

Whether the trial judge applied the correct standard of review "is a 

question of law and thus our review is plenary." ERG Container Servs., Inc. v. 

Bd. of Chosen Freeholders, 352 N.J. Super. 166, 173 (App. Div. 2002) (citing 
11 A-4137-18T2

Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 

(1995)). We review de novo the "trial court's interpretation of the law and the 

legal consequences that flow from established facts . . . ." Manalapan Realty, 

L.P., 140 N.J. at 378 (citing State v. Brown, 118 N.J. 545, 604 (1990)).

Applying these standards, we consider the Port Authority's challenge to 

the determinations rendered by the Panel and trial judge. At issue in the PBA's 

improper practice charge are the standards adopted by the National Fire 

Prevention Association (NFPA).

1

 Specifically, the parties dispute whether 

NFPA 1975 is an OSHA standard governing BDUs. If, as argued by the Port 

Authority, NFPA 1975 is not an OSHA standard applicable to BDUs, then there

was no OSHA violation and the Port Authority did not violate the MOA. 

NFPA 1971 is the "Standard on Protective Ensembles for Structural Fire 

Fighting and Proximity Fire Fighting." The Port Authority admits OSHA 

enforces NFPA 1971 under its general duty clause and agrees OSHA 

incorporated NFPA 1971 by reference. 29 C.F.R. § 1910.6 (a), (t)(34). 

1

 The NFPA is a global non-profit organization "devoted to eliminating death, 

injury, [and] property and economic loss due to fire, electrical[,] and related 

hazards." NFPA Overview, NAT'L FIRE PROT. ASS'N, www.nfpa.org/aboutnfpa/nfpa-overview (last visited Nov. 4, 2020).
12 A-4137-18T2

However, the Port Authority contends NFPA 1971 pertains only to PPE and not 

"station wear" or BDUs.

The standard adopted in NFPA 1971 "establish[ed] minimum levels of 

protection for fire fighting personnel assigned to fire department operations 

including but not limited to structural fire fighting, proximity fire fighting, 

rescue, emergency medical, and other emergency first responder functions."

NFPA 1971, §1.21. NFPA 1971 applied specifically to "new structural fire

fighting protective ensembles2. . . for protection . . . during structural 

firefighting operations." NFPA 1971, §1.14.

NFPA 1975 is the "Standard on Emergency Services Work Clothing

Elements." Pursuant to NFPA 1975, "work apparel" is defined as "[n]onprimary 

protective garments . . . that are intended to be worn by emergency personnel 

while on duty." NFPA 1975, §3.3.27. NFPA 1975 defines "nonprimary 

protective garment," as "[a] garment or clothing that is not designed nor intended 

to be the barrier of protection from a specific hazard exposure." NFPA 1975, 

§3.3.18.

2

 "Structural fire fighting protective ensemble" is defined as "[m]ultiple 

elements of compliant protective clothing and equipment that when worn 

together provide protection from some risks consent, but not all risks of 

emergency incident operations." NFPA 1971, §3.3.127.
13 A-4137-18T2

The purpose of the standard in NFPA 1975 is to "provide emergency 

services personnel with work apparel that will not contribute to burn injury 

severity." NFPA 1975, §1.2.1. "To achieve this purpose, this standard shall 

establish minimum requirements for thermally stable textiles that will not 

rapidly deteriorate, melt, shrink, or adhere to the wearer's skin, causing greater, 

more severe burn injuries." NFPA 1975, §1.2.1.1. Consequently, textile fabrics 

must be tested for "heat resistance," and "shall not melt, drip, separate, or ignite, 

and shall not shrink more than [ten] percent in any direction." NFPA 1975,

§7.1.1.1. Section 1.2.1.2 of NFPA 1975 provides "optional flame resistance 

requirements and tests to verify the flame resistance of textiles where the 

authority having jurisdiction specifies the use of flame resistance textiles for the 

construction of work apparel, or where the manufacturer represents work apparel 

textiles as flame resistant."

The requirements of NFPA 1975 apply to the "design, performance, 

testing, and certification of nonprimary protective work apparel and the 

individual garments compromising work apparel" and the "designing, 

manufacturing, testing, and certification of new work apparel and the individual 

garments comprising work apparel." NFPA 1975, §1.1.1; NFPA 1975, §1.3.1. 

NFPA 1975 expressly excludes "clothing that is intended to provide primary 
14 A-4137-18T2

protection from given hazard exposures" and "shall not apply to the use of work 

apparel." NFPA 1975, §1.1.5; NFPA 1975, §1.3.6.

The explanatory material accompanying this provision confirms NFPA 

1975 is inapplicable to work apparel. The explanatory notation states,

"[e]mergency services organizations . . . should determine what requirements 

for use of work apparel apply in their jurisdiction." NFPA 1975, §1.3.6.

The Port Authority argues the Panel and trial judge improperly concluded 

NFPA 1975 applies to the Port Authority through OSHA's general duty clause 

and the MOA. The Port Authority contends NFPA 1975 is inapplicable under 

the general duty clause because it is neither mandatory nor a standard 

promulgated by OSHA.

"The general duty clause was intended by Congress to cover unanticipated 

hazards; Congress recognized that it could not anticipate all of the potential 

hazards that might affect adversely the safety of workers." Teal v. E.I. Dupont 

de Nemours & Co., 728 F.2d 799, 804 (6th Cir. 1984). If no promulgated OSHA 

standards apply, then "the employer is subject to the general duty [clause] to 

'furnish to each of his employees employment and a place of employment which 

are free from recognized hazards that are causing or likely to cause death or 
15 A-4137-18T2

serious physical harm to his employees.'" Brennan v. Butler Lime & Cement 

Co., 520 F.2d 1011, 1017 n.9 (7th Cir. 1975) (quoting 29 U.S.C. § 654(a)(1)).

In a Tenth Circuit case, the court noted the Secretary of Labor had 

"recognized that only mandatory standards should be seen as national consensus 

standards:" 

The national consensus standards contain only 

mandatory provisions of the standards promulgated by 

those two organizations. ([American National 

Standards Institute] and [NFPA].) The Standards of 

ANSI and NFPA may also contain advisory provisions 

and recommendations the adoption of which by 

employers is encouraged, but they are not adopted in 

Part 1910 [of the regulations].

[Usery v. Kennecott Copper Corp., 577 F.2d 1113, 

1118 (10th Cir. 1977) (quoting 36 Fed. Reg. 10466 

(May 29, 1971)).]

Section 1910.6 of OSHA's regulations enumerates government agency

and private organization standards that OSHA incorporated by reference, 

declaring those recognized standards "have the same force and effect as other 

standards in this part." 29 C.F.R. § 1910.6(a)(1). Thirty-seven NFPA provisions 

are identified in this section, including NFPA 1971; however, NFPA 1975 is not 

incorporated by reference. 29 C.F.R. § 1910.6(t).

The MOA requires the Port Authority to comply with safety standards 

promulgated by OSHA. There is no specific standard in OSHA addressing 
16 A-4137-18T2

BDUs for firefighters. Thus, only OSHA's general duty clause could be invoked 

to find the Port Authority violated the MOA. The question is whether the 

general duty clause renders NFPA 1975 applicable to the Port Authority as an 

OSHA standard requiring the Port Authority's compliance under the MOA.

While the general duty clause may cover "recognized hazards" in the 

absence of an actually promulgated standard, the NFPA standard must be 

mandatory as opposed to a standard that "should" be followed or adopted by the 

Port Authority.

Federal courts have recognized that when an NFPA standard adopts a 

"should" standard, rather than a mandatory "shall" standard, OSHA could not 

promulgate it as a mandatory standard and would need to follow the procedural 

rulemaking process to create a mandatory standard. See Marshall v. PittsburghDes Moines Steel Co., 584 F.2d 638, 643-44 (3d Cir. 1978); Usery, 577 F.2d at 

1118. 

The PBA contends NFPA 1975 is an OSHA standard applicable to the 

Port Authority through the general duty clause. However, none of the 

documents or cases cited by the PBA in support of this argument specifically 

address NFPA 1975 or support the position that NFPA 1975 is a mandatory 

standard to be followed by the Port Authority under OSHA and the MOA.
17 A-4137-18T2

The PBA relies on a Third Circuit case, Voegele Co. v. Occupational 

Safety & Health Rev. Comm'n, 625 F.2d 1075 (3d Cir. 1980), in support of its

argument that courts have adopted standards that would render NFPA 1975 

applicable to the Port Authority under the general duty clause. However, the

Voegele case does not inform our analysis regarding the applicability of NFPA 

1975 through the general duty clause because the PBA failed to establish that 

OSHA considered NFPA 1975 a mandatory standard or otherwise intended to 

incorporate NFPA 1975 into the Act. 

Here, NFPA 1975 specifically states that it "shall not apply to the use of 

work apparel" and leaves the determination of the requirements for work apparel 

to the individual emergency service organizations. While NFPA 1975 is a 

standard by which the BDUs should comply, it was not mandatory for the Port 

Authority to adhere to NFPA 1975 as a promulgated OSHA standard or under 

the general duty clause. OSHA did not incorporate NFPA 1975 by reference 

and NFPA 1975 specifically allows ARFF members to determine their own 

standards.

In the absence of OSHA adopting NFPA 1975, there could be no violation 

of the MOA by the Port Authority. Therefore, the Panel and the trial judge 

misapplied the law in finding the Port Authority's failure to comply with NFPA 
18 A-4137-18T2

1975 violated a standard promulgated by OSHA and, consequently, violated the 

parties' MOA. In the absence of any violation on the part of the Port Authority, 

we need not address whether the Port Authority lacked good faith in remedying 

the violation.

In sum, we reverse and remand to the trial court for the entry of an order 

vacating the April 11, 2019 order dismissing the Port Authority's action in lieu 

of prerogative writs and instruct the trial court to enter an order dismissing the 

PBA's improper practice charge. 

Reversed and remanded. We do not retain jurisdiction.