SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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I N THE MATTER OF THE NEW JERSEY STATE B OARD OF EXAMINERS OF HEATING, VENTILATING , AIR CONDITIONING AND REFRIGERATION (HVACR) CONTRACTORS , THE DIVISION OF CONSUMER AFFAIRS AND SMART NEW JERSEY STATE COUNCIL, DAVID CASTNER AND JAMES HARPER (HVACR LICENSE HOLDERS).

______________________________ _ __

Argued March 10, 2020

– Decided June 2 , 2020 Before Judges Messano, Ostrer and Susswein. On appeal from the New Jersey Department of Law and Public Safety, Division of Consumer Affairs. Mark E dward Belland argued the cause for appellants Smart New Jersey State Council, David Castner and Jam es Harper (O'Br ien Belland & Bushinsky, LLC, attorneys; Robert F. O'Brien and David F ra ncis Watkins, on the briefs). Joseph Andrew Donofrio, Deputy Attorney General, argued the cause for respondents State Board of Heating, Ventilating , Air Conditioning an d

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough 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

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PER CURIAM This appeal requires us to consider a decision mad e by the New Jersey
State Board of Examiners of Heating, Ventilating, Air Conditioning and Refrigeration (HVACR) Contractors (the Board) that " commercial installation of . . . laboratory fume hoods is not w ithin the exclusive and sole scope of practice of [a] licensed master HVACR contractor

. " T he Board is charged with administering t he State Heating, Ventilating, Air Conditioning and Refrigeration Contracting License Law , N.J.S.A. 45:16A

- 1 to

- 28 (the Law) , including the examination and licensing of HVACR professionals and the
pr omulgation o f appropriate regulations. N.J.S.A. 45:16A

- 4. Among other things, t he Law defines HVACR as " the installation, servicing, connecting, maintenance or repair of " literall y dozens of items and apparat us . N.J.S.A. 45:16A

- 2. " [V] entilation and ex haust systems " appear on the list , but fume hoods do not

. T he Law also defines a " [m]aster [HVACR]3 A

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contractor " as a person or legal entity that " advertises, undertakes or offers to undertake for another the planning, laying out, s upervising, installing, s ervicing or repairing of HVACR systems, apparatus or equipment. " Ibid. The Law prohibits any unlicensed " person, firm, partnership, corporation or other legal entity

. . . [from] engag[ing] in the business of HVACR contracting or advertis [ing] in any man ner as a Master HVACR contractor or use the title or designation of ' licensed Master HVACR contractor ' or ' Master HVACR
contractor [ , ] ' " and subject s violators to financial penalties and criminal prosecution. N.J.S.A. 45:16A

- 7(b) a nd (c). The Law specific ally does not

" prevent any person licensed by the State, including, but not limited to, architects, professional engineers, electrical contractors, master plumbers, or
any chimney service professional registered as a home improveme nt contractor with the Di vision of Consumer Affairs, from acting within the scope of practice of his profession or occupation [

. ] " N.J.S.A. 45:16A

- 8. Another section of the
Law provides specific exemptions to licensed master plumbers and electrical
contra ctors for the installatio n, maintenance and repair of a long list of specific items. N.J.S.A. 45:16A

- 27. The dispute between appellant, the New Jersey State Council of the Sh eet Metal Workers International Association (the Sheet Metal Workers) , and the4 A

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carpenters ' trade (the Ca rpenters) , represented in this appeal by respondent, the Keystone Mountain Lakes Regional Council of Carpenters, formerly the Northeast Regional Council of Carpenters, as to whether the installation of fume hoods is exclusively wit hin the licensure of the HVACR trade has gone on for
years. Appellant David Castner is a licensed master HVACR contractor and marketing representative and organizer for the She et Metal Workers Local 22. In January 2016, Castner sent an email to the Board inquiring about the scop e of o ne of its regulations , N.J.A.C. 13:32A

- 1.2 , which sets forth definitions that track those contained in the Law itself

. Castner posited his interp retation of the regulation as meaning " a contractor that is installing a fume h ood as part of casework .

. . should also have to be a licensed HVACR contractor. " The Board considered this email and on March 30, 2016, sent Castner a letter (the 2016 decisi on) stating " this work remains within the scope of practice for the Licensed
Ma ster HVACR Contractors

. " Appellant James Harper is a licensed master HVACR contractor and financial secretary

- treasurer and business agent for the Sheet Metal Workers Local 25. On May 2, 2017, Harper emailed the Board and asked it to investigate

" a [ n ] un licensed HVACR contractor [ScientifiX] installing fume hoods at [a5 A

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laboratory ] construction site [

. ] " Harper said he had " notified ScientifiX of the HVACR license requi rement " by referencing the Board's 2016 d ecision. Apparently, the Board's Executive Dir ector contacted the compa ny, which responded in May 2017

. 1 ScientifiX asserted a " serious misunderstanding " about fume hoods and included a copy of a preexisting labo r agreement between the Carpenters and other trade associations that defined the Carpente rs' " work jurisdiction " t o include " [t]he installation of laboratory equipment including . . . fume hoods [

. ] " In its letter, the company noted that laboratory fume hoods are not included within N.J.A.C. 13:32A

- 1.2's definition of HVACR, and that a fume hood is " nothing m ore than a box " without a n " integral fan or blower attached [.] " ScientifiX emphasized that in installing the fume hoods, it made no

" mechanical connections [ , ] " which would be made only by " [t]he HVACR
contractor . . . the plumbers . . . and the VAV cont ro ls contractor [.] " Also, i n May 2017, the p resident of the Carpenters notified the Board that there was an ongoing " [

j ] urisdictional [ d ] ispute " with the Sheet Metal Workers

" over [i]nstallation of [f]ume [h]oods

. " He claimed that Scientif i X and another

c ompany were targeted by the Sheet Metal Workers, and, for more than fifty

1 According to its letterhead, Scien tifiX deals in "laboratory furniture & equipment."6 A

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years, it was understood that the Carpenters attached the fume hoods to the accompanying laboratory furniture, and the Sheet Metal Workers, pursuant to
agree ments with HVACR contract ors, connected the fume hoods to a commercial HVACR system s . He cautioned the Board not to intervene, based on the exclusive authority of the National Labor Relations Board (NLRB) to decide trade union jurisdictional disputes.
As disclosed by t he Board 's October 2017 minutes, it had considered Harper’s complaint during an executive session in June and voted unanimously that fume hood installation " remains within the scope of practice of the Master
HVACR Contractor [] but is not exc lusive to the HVACR licen se. " The Sheet Metal Workers sought further review, submitting a " full position statement " and exhibits for the Board ' s consideration. The Carpenters did likewise.
On January 2018, after a review of the materials submitted , the Board unanimously decided that " ' fume hoods ' are not explicitly stated in the definition of HVACR found at N.J.S.A. 45:16A

- 2[,] " and it declined to determine " whether the sheet metal workers should be the only ones performing the installation of

' fume hood s ' bas ed on the U.S. Supr eme Court d ecision in N orth Carolina State7 A

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B oard of Dental Examiners v. Federal Trade Commission [ , ] " 574 U.S. 494 (2015). 2
T he Sheet Metal Workers sought reconsideration of the decision , and, in response, t he Board formed a committ ee to determine " which tr ade, (or trades) should be allowed to install fume hoods. " In December, the committee made its final recommendations to the Board , which are reflected in the minutes of the Board's meeting

. The committee found " commercial installa tion of laboratory fume h oods is not within the sole and exclusive jurisdiction of the New Jersey licensed
master HVACR contractor

. " It concluded that " the installation of the fume hoods simply involves attaching them to laboratory counters and bases [ , ] " which

" does not implicate or otherwise affect the mechanical processes of the ventilation system [ , ] " or involve " tools [or] skill set [ s ] . . . exclusive to the licensed master HVACR contractor, as . . . evidenced by the historical and current installation o f these [] fume hoods by t he carpenters. " The committee also found the attachment itself is not integral to " ventilation and exhaust

2 In B oard of Dental Examiners , the United States Supreme Court held " that a state board on which a controlling number of decision makers are active market participants in the o ccupation the board regul ates . . . [may not] invoke state

action antitrust immunity []" unless the board is u nder the "active supervision" of the state. 574 U.S. at 511

– 12.8 A

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systems " delineated in N.J.S.A. 45:16A

- 2. The committee found " the exclusive jurisdiction of the l icensed master HVACR con tractor concerning these ventilation systems begins with necessary connection of the ventilation lines to the hoods, as well as all of the other mechanical processes thereafter. " The Board formally adopted the committee’s recommenda tion on January 8, 2019 (the 2019 Decision) , and this appeal followed.
II. Appellants contend the 2019 decision was premised on " significant legal and factual errors , " the Board's factual findings were " not supported by substantial evidence [ , ] " and an evidentiary hearing was requ ired to resolve disputed facts. They also argue the 2019 decision created a statutory exception to the Act that had general application and, therefore, the Board violated the Administrative Procedures Act (APA), N.J.S.A

. 52:14B

- 1 to

- 15 , by not engaging i n formal rulemaking. Las tly, appellants contend the Board improperly decided a labor dispute pre

- empted by federal law. Appellants urge us to vacate the 2019 decision and " order that [the Board's] 2016 [decision] requi ring an HVACR license for fume [hood ] installation be enforce d. " Our review is informed by well

- known standards

. " J udicial review of agency determinations is limited. " Allstars Auto Grp. v. N.J. Motor Vehicle9 A

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Comm'n , 234 N.J. 150, 157 (2018) (citing Ru sso v. Bd. of Trs., P olice & Firemen 's Ret. Sys

. , 206 N.J. 14 , 27 (2011)). " Courts generally afford substantial deference to the actions of administrative agencies such as the Board. " In re License Issued to Zahl , 186 N.J. 341, 353 (2006) (citing Matturi v. Bd. of Trs. , Judicial Ret. Sys. , 173 N.J. 368, 381 (2002) )

. We only consider whether the Board's decision was " 'arbitrary, capricious, or unreasonable, '

. . .

' violate [ d ] express or implied legislative policies,' . . . ' offend[ ed] the United States Constitution or the State Constitutio n, ' or was based on findi ngs ' not supported by substantial, credible evidence in the record.' " In re Eastwick Coll

. LPN

- to

- RN Bridge Program , 225 N.J. 533, 541 (2016) (quoting Univ. Cottage Club o f Princeton N.J. Corp. v. N.J. Dep't of Envtl. Prot. , 191 N .J. 38, 48 (2007)).

" A reviewing court 'must be mindful of, and deferential to, the agency's

" expertise and superior knowledge of a particular field. " ' " Allstars Auto Grp. , 234 N.J. at 158 (quoting Circus Liquors, Inc. v. Governing Body of Middletown
Tw p. , 199 N.J. 1, 10 (2009) ). Furthermore, " we must give great deference to an agency's interpretation and implementation of its rules enforcing the statutes for which it is r esponsible. " In re Freshwater Wetlands Prot. Act Rules , 180 N.J. 478, 488

– 89 (200 4) (citing In re Distrib u tion of Liquid Assets , 168 N.J. 1, 10

–10 A

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11 (2001)). " However, a reviewing court is ' in no way bound by [an] agency's interpretation of a statute or it s determination of a strictly legal issue. ' " Allstars Auto Grp. , 234 N.J. at 158 (alteration in original) (quoting Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B. , 207 N.J. 294, 302 (2011) ).
A. Appellants argue the Board provided confl icting interpretations of the scope of the Act's licensure, namely, that fume hood installation requires an HVACR license ( purportedly, the 2016 Decision) but is not exclusive to that license (the 2019 Decision)

. They argue the 2019 decision improperly created

a " statutory exception " to the licensure requirement in favor o f other unspe cified trades. This, acc ording to appellants, renders the 2019 Decision vague , constitutionally un enforceable and contrary to the public safety concerns that

un dergird the Ac t. Appellants' argument rests on two premises : first, that installation of fume hoods is contained with in the statutory definition of HVACR in N.J.S.A. 45:16A

- 2 ; and second, that the 2016 Decision required HVACR

- license d master
contractors i nstall fume hoods. Both predicates are incorrect. The definition of " HVACR " makes no mention of fume hoods, although it includes , among other things, " the installation

. . . of . . . ventilation and11 A

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exhaust systems . . . and appurtenances [.] " N.J.S.A. 45:16A

- 2. The Deputy Attorney General acknowledged during argument before us that a fume hood is part of an " exhaust sy stem. " However, the 2019 Decision reflected the Board's considered judgment of substantial material furnished by the Sheet Metal Workers and the Carpenters, as well as the opinion of professionals who sat on the Board's designate d special committee. The Board furthermore considered " the issue of public safety " in determining whether the " simple attachment of the hoods to the counte rtops "

was " integral to the overall operation or safe functioning of a ventilation system. " The Boa rd concluded that the met hods or skill sets involved in the installation or attachment of fume hoods to furniture cabinets do not implicate

" ventilation and exhaust systems [ , ] " as those terms are used in N.J.S.A. 45:16A

2, and a HVACR license is required o nly when a fume hood must be connected to the ventilation lines . We will not substitute our judgment for that of the Board, whose decision was not arbitrar y, capricious or unreasonable, was based on considered evaluation of the substantial evidence before it and did not violate
t he statutory or regulatory scheme under the Act

. The second premise of appellants' argument results from a misreading of the 2016 d ecision. As noted above, the Board's communication to Castner only12 A

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said the installation of fume ho ods " remains within the s cope of practice for the Licensed Master HVACR Contractors. " The Board never said the work was exclusively within the HVACR licens ure. We find no reason to reverse the 2019 decision on these grounds.
B. Appellants argue the Board creat ed " an HVACR licens ing exception beyond its statutory mandate " that had general application , and, therefore, the Board violated the APA's requirement for formal rulemaking. They also contend that factual disputes presented by the Sheet Metal Workers ' and the Carpenters' sub missions required an evidentiary hearing. We again disagree.
I nformal agency action , as opposed to formal rulemaking, is " any determination that is taken without a trial

- type hearing, including investigating, publicizing, negotiat ing, settling, advising, planning, and supervising a regulated industry. " Nw. Covenant Med. Ctr. v. Fishman , 167 N.J. 123, 13 6

– 3 7 (2001 ) (citing In re Request for Solid Waste Util. Customer Lists , 106 N.J. 508, 519 (1987) )

. " [ I ] nformal action constitutes the bulk of the activity of most administrative agencies. " In re Request for Solid Waste Util. Customer Lis ts , 106 N.J. at 518. " An agency has discretion to choose between rulemaking, adjudication, or an informal disposition in discharging its statutory duty , "13 A

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Northwest Covenan t Medical Center

. , 167 N.J. at 137 , and generally, " courts defer to the procedure chosen by the agency in discharging its statutory duty

. " In re Request for Solid Waste Util. Customer Lists , 106 N.J. at 519

. As noted already, the Board did not create a st atutory exception to the licensure requirements. Instead, it interprete d the Act and the duly promulgated regulations thereunder that defined HVACR. It did so in the context of responding directly to a complaint brought by the Sh eet Metal Workers as to

s pecific construction projects. Again, contrary to appellants' assertion , the 2019 decision did not change existing guidance because the 2016 decision never stated that the installation of fume hoods was exclusively with in the HVAC R licensure. We also disa gree with appellants' assertion that the Board was required to conduct a n evidentiary hearing because the two trades presented disputed claims about the installation of fume hoods

. " An evidentiary hearing is mandated only when the proposed admin istrative action is based on disputed adjudicative facts. " In re Final Agency Dec ision of Bd. of Exam'rs of Elec. Contractors , 356 N.J. Super. 42, 49 (App. Div. 2002)

. Adjudicative facts " answer the questions of who did what, where, when, how, why, [and] with what motive or intent. " Ibid. (alteration in original) (quoting High Horizons Dev. Co. v. State, Dep’t of14 A

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Transp. , 120 N.J. 40, 49 (1990)). " They are the type of facts that go to a jury in a case tried before a jury. " Ibid. (quotin g High Horizons , 120 N.J. at 49

– 50). In this case, nei ther side disputed before the Board w hat fume hoods were , how they wer e installed, whether the Carpenters had been doing so for decades, or that HVACR

- licensed contractors were required to make the actu al ventilation connection s. Appellants' brief claims it was disputed whether fume hoods we re included within the definition of HVACR. However, that is purely an interpretive question addressed to the Board's own regulations and the Act

. The Legislature d elegated that responsibil ity to the Board , which, in the first instance, had authority to d ecide whether installing a fume hood was essentially

" the installation

. . . of

. . . ventilation and exhaust system s , " and to do so without an evidentiary hearing. N.J.S.A. 45:16A

- 2.
C. Appellants argue the minutes of the Board 's various meetings demonstrate it knowingly decided a jurisdictional dispute between two trades , and work jurisdiction disputes are preempted by the National Labor Relations Act ( NLRA )

. We are not persuaded by the argument. A jurisdictional dispute arises when " tw o or more groups of employees [compete] over which is entitled to do certain work for an employer. " NLRB v.15 A

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Radio & Television Broad

. Eng ' rs Union, Local 1212 , 364 U.S. 573, 579 (1961)

. A state agency 's regulatory power is subject to the preemption principles of the
NLRA. Chamber of Commerce of the U.S. v. Brown , 554 U.S. 60, 69

– 70 (2008). " States may not regulate activity that the NLRA protects, prohibits, or arguably protects or prohibits. " Wis. Dep’ t of Indus., Labor & Human Rel ation s v. Gould, Inc. , 475 U.S. 282 , 286 (1986) ( citing San Diego Bldg. Trades Council
v. Garmon , 35 U.S. 236, 244 (1959) ). However, we have previously considered decisions made by a State licensing b oard in the midst of a co ntested work jurisdiction dispute. For example, in In re Board of Examiners of Electrical Contractors , we reviewed the final decision of the Board of Examiners of Electrical Contractors, which " held that certain work performed by a contractor

. . . on a N ew Jersey Turnpike project was not electrical work and therefore, required no permit from the Board and need not have been supervised by a Board [

- ] licensed electrical contractor. " 356 N.J. Super. 42, 45 (App. Div. 2002)

. Although it is not apparent from our decision that NLRB preemption was raised as an issue, we recogniz ed that the work involved, " a public rather than a private project, and thus, require [d] heightened sensitivity to jurisdictional disputes between labor unions

. " Id. at 54. W e neverthel ess affirmed the board's decision. Ibid.16 A

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Here, the Board did not decide which group, the Sheet Metal Workers or the Carpenters , was " entitled to do certai n work for an employer

. " Radio & Television Broad

. Eng ' rs Union, Local 12 12 , 364 U.S. at 579

. We do not agree that the Board exceeded its authority by investigating and answering a complaint raised by appellants themselves as to the scope of the definit ion of HVACR and related licensure requirements

. Affirmed.