SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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IN THE MATTER OF OCEAN CO UNTY 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

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- 03 4. Cle ary Giacobbe Alfieri Jacobs, LLC, attorneys for appella nt (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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding up on an y court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

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October 13 , 20202 A

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- 19T2 Dezky, Hunter & DeFillippo, LLC, at torneys for respondent (Stephen B. Hunter, of counsel and on the brief). Christine Lucarelli, Genera l Counsel, at torne y for respondent New Jersey Publi c Employment Relations Commission (Ramiro Perez, Deputy Gener al Counsel, on the st atement in lieu of b rief )

. PER CURIAM Petitioner Oc ean 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 d ispute centers over language included in the prior CN A , effective from September 1, 2014 , through August 3 1 , 2019

. O CC contends the clauses should be excluded. The y are:

Article III, Section J Preference

– [Fac ulty Association of Ocean County College] M embers shall be given preference to Faculty d uties within their discipline, for which they are qualified. Additi onally, this paragraph is at issue:3 A

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- 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 involvi ng extra pay. Respondent Ocean County College Faculty Associ ation (Association) represents full

- time OC C faculty members. In its initial decision on the merits, PERC observed that Article III,
Sect ion J "is phrased as a unit work preservation provision that A ssociation faculty, if qualified (as determined by [OC C]), are given preference for faculty dutie s within their discipline over individuals not represented by the
A ssociation." As to Article V , Section B(5), PERC noted that it " is similarly [ preconditioned ] on the faculty being qualified for the duties at i ssue[.]" PERC concluded that since the dis puted language allows OCC to initial ly determin e which faculty within their discipline had the ap propriate qualifications, there was no infringement on OCC's "managerial prerogative to make staffing assignments." In the reconsideration decision, PERC di d not consider those arguments OCC had not previously raised, which lacked supporting certificati ons based on4 A

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personal knowledge. As they reiterated, "the clauses at issue are unit work preservation provisions be cause they provide preference to A ssociatio n unit members over non

- unit members." Now on appeal, OCC raises the following issues for our co nsideration:
POINT I THE COMMISSION’S CONCLUSION THAT THE PROVISIONS OF THE AGREEMENT WERE NEGOTIABLE AND DID NOT IN FRINGE ON THE COLLEGE’S NON

- NEGOTIABLE MANA GERIAL 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 Non

Negotiable Managerial Preroga tive in Violation of the Well

- Established C ase Law and Legislative Policy. C. Inclusion of Article V, Sect ion B(5), in the Agreement Infringes on the College’s Non

- Negotiable Managerial Prerogative in Violation of the Well

- Established Case Law and Legisla tive Policy.
POINT II THE COMMISSION’S REC ONSIDERATION DECISION, AFFIRMING ITS SCOPE DECISION, FINDING THA T THE PROVISIONS OF THE5 A

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NEGOTIABLE MANAGERIAL PREROGATIVE WAS AGAINST THE SUBSTAN TIAL EVIDENCE IN THE RECORD. POINT III T HE 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 INCO NSISTENT WITH ITS MANDATE. POINT IV THE CO MMISSION’S CONCLUSION THAT THE PROVISIONS OF THE AGREEMENT CONST ITUTED UNIT WORK PRESERVATION CLAUSES WAS ARBITRARY, CAPRICIOUS, UNREASONABLE AND CONTRARY TO PRIOR COMMISSION DECISIONS. "The standard of review o f a PERC decision concerning the scope of

n egotiations 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 a r e upheld unless "arbitrary, capricious or unreasonable,

. . . lack[ing] fair support in the evidence," or in "violat[ion] of a legislative policy6 A

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expressed or implicit in the governing statute." Twp. of Franklin v. Franklin Twp. PBA Loc

. 154 , 424 N.J. Su p er. 369, 377 (App. Div. 2012) (quoting
Comm c '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 pa r ty challenging it. In re Adoption of Amend s. to N .E. Upper Ra ritan, Sussex Cty. , 435 N.J. Super. 571, 582 (App. Div. 2014). In reviewing PERC decisions, our role is "sensitive and circumspect."
H unterdon Cty. , 116 N.J. at 328. PERC's decisions are " r egulatory 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 th erefore accorded to PERC's scope of negoti a tions determination s . Twp. of Franklin , 424 N.J. Super. at 37 7. A three

- part test is employed to determine when a subject is negotiable between public employers and employees: " (1) the item intimately and direct ly affects the work and welfare of public e mployees; (2) the subject has not been fully or partially pree mpted by statute or regulation; and (3) a negotiated7 A

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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) (quot i ng In re
Loc

. 195 IFPTE , 88 N.J. 393, 404

- 05 (1982)). As to t he 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 pol i cy, a subject may not be included in collective negotiations e ven 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 b asis. Troy v. Rutgers , 168 N.J. 354, 383 ( 2001). The unit work rule prohibits the "shifting of work f rom employees within a negotiations unit to other employees outside the unit." City of Jersey City , 154 N.J. at 565. It "require[s] collective bargai ning before workers in the bargaining unit are replaced by non

- unit workers, the object ive being to provi de the union with at least an opportunity to negotiate an acceptable alter n ative [

. ] " Id. at 576. It protects the unit from loss of jobs and the cons equent 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 that8 A

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PERC's decision was arbitrary, unreasonable, capricious or contrary to well

established p recedent. Article III, Section J simpl y see ks to protect A ssociation 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 doe s not interfere with managerial authority ; it s tates preference is to be given to faculty where such responsibilities fall "within their discipline, for which they are qualified." Thus, th e clause preserved work traditionally performed by unit employees w ithin their discipline while balancing OCC ' s in terest 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

o f the CNA accords extra pay assignment priority to full

- time faculty members only where the Dean of Vice

- President of academic affairs has determin ed that he or she is qualified. Again, managerial authority and pre rogative s re main with OCC. Association m em bers are given preference over non

- members when both9 A

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are equally qualified . T he language balance s the need to preserv e opportunities for A ssociation members with OCC's need to determine which candidates are
most qualified for extra pay opportunities.
T hus, 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, n or unreasonable, and is in ac cord with the legislative mandate

. Affirm e d

.