SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0446-19T2

IN THE MATTER OF OCEAN 

COUNTY COLLEGE,

Petitioner-Appellant,

v.

OCEAN COUNTY COLLEGE

FACULTY ASSOCIATION,

Respondent-Respondent.

Submitted September 16, 2020 – Decided

Before Judges Alvarez and Mitterhoff.

On appeal from the New Jersey Public Employment 

Relations Commission, P.E.R.C. No. SN-2019-034.

Cleary Giacobbe Alfieri Jacobs, LLC, attorneys for 

appellant (Matthew J. Giacobbe, of counsel and on the 

briefs; Victoria A. Leblein, on the briefs).

NOT FOR PUBLICATION WITHOUT THE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.

October 13, 2020
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Dezky, Hunter & DeFillippo, LLC, attorneys for 

respondent (Stephen B. Hunter, of counsel and on the 

brief).

Christine Lucarelli, General Counsel, attorney for 

respondent New Jersey Public Employment Relations 

Commission (Ramiro Perez, Deputy General Counsel, 

on the statement in lieu of brief).

PER CURIAM

Petitioner Ocean County College (OCC) appeals from the August 15, 2019 

New Jersey Public Employment Commission (PERC) final decision denying 

reconsideration of a May 30, 2019 adjudication concluding that two provisions 

in a Collective Negotiations Agreement (CNA) were mandatorily negotiable. 

We affirm.

The dispute centers over language included in the prior CNA, effective 

from September 1, 2014, through August 31, 2019. OCC contends the clauses 

should be excluded. They are: 

Article III, Section J

Preference – [Faculty Association of Ocean County 

College] Members shall be given preference to Faculty 

duties within their discipline, for which they are 

qualified.

Additionally, this paragraph is at issue: 
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Article V, Section B (5) (in pertinent part)

Extra Pay Assignment Priority -

Full-Time Faculty Members shall have preference, 

according to qualifications, as determined by the 

Department Dean or Vice President of Academic 

Affairs, to teach courses involving extra pay.

Respondent Ocean County College Faculty Association (Association) represents 

full-time OCC faculty members. 

In its initial decision on the merits, PERC observed that Article III, 

Section J "is phrased as a unit work preservation provision that Association 

faculty, if qualified (as determined by [OCC]), are given preference for faculty 

duties within their discipline over individuals not represented by the 

Association." As to Article V, Section B(5), PERC noted that it "is similarly 

[preconditioned] on the faculty being qualified for the duties at issue[.]" PERC 

concluded that since the disputed language allows OCC to initially determine

which faculty within their discipline had the appropriate qualifications, there 

was no infringement on OCC's "managerial prerogative to make staffing 

assignments." 

In the reconsideration decision, PERC did not consider those arguments 

OCC had not previously raised, which lacked supporting certifications based on 
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personal knowledge. As they reiterated, "the clauses at issue are unit work 

preservation provisions because they provide preference to Association unit 

members over non-unit members."

Now on appeal, OCC raises the following issues for our consideration:

POINT I

THE COMMISSION’S CONCLUSION THAT THE 

PROVISIONS OF THE AGREEMENT WERE 

NEGOTIABLE AND DID NOT INFRINGE ON THE

COLLEGE’S NON-NEGOTIABLE MANAGERIAL 

PREROGATIVE WAS ARBITRARY, CAPRICIOUS 

AND UNREASONABLE.

A. Well established case law. 

B. Inclusion of Article III, Section J, in the 

Agreement Infringes on the College’s NonNegotiable Managerial Prerogative in 

Violation of the Well-Established Case 

Law and Legislative Policy.

C. Inclusion of Article V, Section B(5), in 

the Agreement Infringes on the College’s 

Non-Negotiable Managerial Prerogative in 

Violation of the Well-Established Case 

Law and Legislative Policy.

POINT II

THE COMMISSION’S RECONSIDERATION 

DECISION, AFFIRMING ITS SCOPE DECISION, 

FINDING THAT THE PROVISIONS OF THE 
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AGREEMENT WERE NEGOTIABLE AND DID NOT 

INFRINGE ON THE COLLEGE’S NONNEGOTIABLE MANAGERIAL PREROGATIVE 

WAS AGAINST THE SUBSTANTIAL EVIDENCE 

IN THE RECORD. 

POINT III

THE COMMISSION’S CONCLUSION THAT THE 

PROVISIONS OF THE AGREEMENT WERE 

NEGOTIABLE AND DID NOT INFRINGE ON THE

COLLEGE’S NON-NEGOTIABLE MANAGERIAL 

PREROGATIVE WAS ARBITRARY, CAPRICIOUS 

AND UNREASONABLE AS IT WAS 

INCONSISTENT WITH ITS MANDATE.

POINT IV

THE COMMISSION’S CONCLUSION THAT THE 

PROVISIONS OF THE AGREEMENT 

CONSTITUTED UNIT WORK PRESERVATION 

CLAUSES WAS ARBITRARY, CAPRICIOUS, 

UNREASONABLE AND CONTRARY TO PRIOR 

COMMISSION DECISIONS.

"The standard of review of a PERC decision concerning the scope of 

negotiations is 'thoroughly settled.'" City of Jersey v. Jersey City Police Officers 

Benevolent Ass'n, 154 N.J. 555, 568 (1998) (quoting In re Hunterdon Cnty. Bd. 

of Chosen Freeholders, 116 N.J. 322, 329 (1989)). PERC's decisions regarding 

negotiability are upheld unless "arbitrary, capricious or unreasonable, . . . 

lack[ing] fair support in the evidence," or in "violat[ion] of a legislative policy 
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expressed or implicit in the governing statute." Twp. of Franklin v. Franklin 

Twp. PBA Loc. 154, 424 N.J. Super. 369, 377 (App. Div. 2012) (quoting 

Commc'n 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)). The burden of 

establishing the improper nature of the agency action is upon the party 

challenging it. In re Adoption of Amends. to N.E. Upper Raritan, Sussex Cty., 

435 N.J. Super. 571, 582 (App. Div. 2014). 

In reviewing PERC decisions, our role is "sensitive and circumspect." 

Hunterdon Cty., 116 N.J. at 328. PERC's decisions are "regulatory 

determination[s] of an administrative agency that is invested by the legislature 

with broad authority and wide discretion in a highly specialized area of public 

life." Ibid. Substantial deference is therefore accorded to PERC's scope of 

negotiations determinations. Twp. of Franklin, 424 N.J. Super. at 377.

A three-part test is employed to determine when a subject is negotiable 

between public employers and employees: "(1) the item intimately and directly 

affects the work and welfare of public employees; (2) the subject has not been 

fully or partially preempted by statute or regulation; and (3) a negotiated 
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agreement would not significantly interfere with the determination of 

government policy." City of Jersey City, 154 N.J. at 568 (1998) (quoting In re 

Loc. 195 IFPTE, 88 N.J. 393, 404-05 (1982)). As to the third factor, "it is 

necessary to balance the interest of the public employees and the public 

employer. When the dominant concern is the government's managerial 

prerogative to determine policy, a subject may not be included in collective 

negotiations even though it may intimately affect employees' working 

conditions." Ibid. (quoting IFPTE, 88 N.J. at 404-05). The test is applied on a 

case-by-case basis. Troy v. Rutgers, 168 N.J. 354, 383 (2001). 

The unit work rule prohibits the "shifting of work from employees within 

a negotiations unit to other employees outside the unit." City of Jersey City, 

154 N.J. at 565. It "require[s] collective bargaining before workers in the 

bargaining unit are replaced by non-unit workers, the objective being to provide 

the union with at least an opportunity to negotiate an acceptable alternative[.]" 

Id. at 576. It protects the unit from loss of jobs and the consequent reduction 

in union membership. See Id. at 568-79. Having reviewed the record and 

applicable standards of review, we are satisfied that OCC has not shown that 
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PERC's decision was arbitrary, unreasonable, capricious or contrary to wellestablished precedent. 

Article III, Section J simply seeks to protect Association members from 

outside instructors and staff who could perform the same duties. The very 

concerns implicated by the unit work rule are present here. Consequentially, the 

provision does not interfere with managerial authority; it states preference is to 

be given to faculty where such responsibilities fall "within their discipline, for 

which they are qualified." Thus, the clause preserved work traditionally 

performed by unit employees within their discipline while balancing OCC's 

interest in ensuring that appointments are made to those who are qualified to 

perform the job.

Similarly, Article V, Section B (5) does not interfere with OCC's ability 

to select the most qualified individual to teach a specific course. That section 

of the CNA accords extra pay assignment priority to full-time faculty members 

only where the Dean of Vice-President of academic affairs has determined that 

he or she is qualified. Again, managerial authority and prerogatives remain with

OCC. Association members are given preference over non-members when both 
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are equally qualified. The language balances the need to preserve opportunities 

for Association members with OCC's need to determine which candidates are 

most qualified for extra pay opportunities. 

Thus, PERC's decision finding the relevant paragraphs to be mandatorily 

negotiable does not interfere with the employer's managerial prerogative. It is 

neither arbitrary, capricious, nor unreasonable, and is in accord with the 

legislative mandate.

Affirmed.