IN THE MATTER OF BOROUGH OF CARTERET (PUBLIC EMPLOYMENT RELATIONS COMMISSION)

I
                             NOT FOR PUBLICATION WITHOUT THE
                            APPROVAL OF THE APPELLATE DIVISION
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                                                     SUPERIOR COURT OF NEW JERSEY
                                                     APPELLATE DIVISION
                                                     DOCKET NO. A-1845-19

IN THE MATTER OF BOROUGH
OF CARTERET,

       Petitioner-Appellant,

and

FMBA LOCAL 67,

       Respondent-Respondent.


                Argued February 22, 2021 – Decided April 22, 2021

                Before Judges Sabatino, Currier and DeAlmeida.

                On appeal from the New Jersey Public Employment
                Relations Commission, PERC No. 2020-23.

                Gregory J. Hazley argued the cause for appellant
                Borough of Carteret (Decotiis, Fitzpatrick, Cole &
                Giblin, LLP, attorneys; Gregory J. Hazley and Susan E.
                Volkert, of counsel and on the briefs; Ashanti M. Bess,
                on the briefs).

                Raymond G. Heineman argued the cause for respondent
                FMBA Local 67 (Kroll Heineman Carton, LLC,
                attorneys; Raymond G. Heineman, of counsel and on
                the brief).
            John A. Boppert, Deputy General Counsel, argued the
            cause for respondent New Jersey Public Employment
            Relations Commission (Christine Lucarelli, General
            Counsel, attorney; John A. Boppert, on the statement in
            lieu of brief).

PER CURIAM

      In this matter arising out of a labor relations dispute, the Fireman's Mutual

Benevolent Association, Local 67 (FMBA) sought arbitration of a grievance

contesting the failure of the Borough of Carteret Fire Department (Borough) to

reschedule two probationary firefighters from a daytime, weekly work schedule

to twenty-four hour shifts following the completion of their fire fighter training.

The Borough filed a scope of negotiations petition with the Public Employment

Relations Commission (PERC), seeking an order restraining arbitration. After

reviewing briefs, exhibits, and certifications from FMBA's president and the

Borough fire chief, PERC concluded the grievance was mandatorily negotiable

and denied the Borough's petition. We affirm.

                                            I.

      The Borough is a public employer under the New Jersey Public Employer-

Employee Relations Act, N.J.S.A. 34:13A-1 to -49. FMBA is the "exclusive

representative and bargaining agent" for "all fire personnel . . . excluding the

Fire Chief." The Borough and FMBA are parties to a collective negotiation

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                                        2
agreement (CNA).1 Under the CNA, FMBA has the "right to negotiate as to

rates of pay, hours of work, fringe benefits, working conditions, safety of

equipment, procedures for adjustments of disputes and grievances and all other

related matters."

      The CNA states "[t]he work week for all employees of the Fire

Department who perform firefighting duties shall be what is commonly known

as the '24-72 system.'" (emphasis added). Under this schedule, firefighters work

twenty-four consecutive hours, followed by seventy-two consecutive hours off-

duty. Employees can also be assigned to a relief shift, and these employees

"shall not work more than [forty-eight] hours or less than [twenty-four] hours in

any week." The CNA also provides that department employees can be assigned

to the Bureau of Fire Safety (Bureau) and work "four days a week, nine hours a

day, on a Monday through Friday basis."

      The CNA mandates that rookie firefighters complete a twelve-month term

of probationary service. No firefighting position is deemed final or permanent

until a firefighter completes the probationary term. The Borough may terminate




1
  During oral argument, counsel advised the CNA at issue has since expired and
the parties were in current negotiations regarding a new agreement.
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                                       3
the employment of a probationary firefighter if the Borough deems the employee

unfit for permanent employment.

      After graduating from the Fire Academy, the two probationary firefighters

were assigned to the Bureau shift by the Fire Chief. FMBA grieved the

assignment, contending the probationary firefighters should be assigned to the

24-72 schedule followed by all the other firefighters. FMBA sought binding

arbitration of the issue.

      In seeking a restraint of arbitration, the Borough argued that the

"assignment of probationary firefighters to the daytime, weekly work schedule

is not mandatorily negotiable . . . ." The Fire Chief contended it was his

managerial prerogative, not a negotiable term, to determine a probationary

firefighter's shift, as public safety was the most important factor in his decision-

making process.

      As stated, the parties provided certifications supporting their positions and

presenting reasons for the assignments. The Fire Chief asserted the assignment

to the Bureau shift allowed the probationary firefighters to complete their

training at the Fire Academy and "work during daytime hours where they receive

additional training, both in-house and other outside day-time schooling, and,

importantly, are available for observation and evaluation by management . . .


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                                         4
[,]" including himself. He stated: "I will not re-assign probationary firefighters

from the [Bureau] until I am certain they are not a danger to themselves or

others."

      FMBA's President, in response, argued that traditionally, probationary

firefighters would complete their fire academy training and then receive six

weeks of in-house training, where they would learn how to drive the department

vehicles, use equipment on fire apparatus, and set up at an emergency scene.

After six weeks, the Training Captain would evaluate the probationary

firefighters over two twenty-four-hour shifts and give a recommendation as to

the probationary firefighter's readiness to work on the 24-72 schedule.

      However, here, since graduating the academy, the two probationary

firefighters worked only on the Bureau schedule and were assigned as additional

staffing on the fire apparatus, complementing firefighters working twenty -four-

hour shifts. They had not been evaluated for or assigned to the 24-72 shift.

      PERC issued its decision on November 26, 2020, finding "the grievance

is mandatorily negotiable and legally arbitrable. The FMBA's claim relates to

the determination of work schedules, which is a mandatorily negotiable issue

absent evidence that such negotiations would substantively interfere with

governmental policy making."


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                                        5
      In support of its decision, PERC reasoned that "[e]ach of the firefighters

at issue successfully completed basic firefighter training at the Fire Academy.

The Chief certified that this qualified them to perform the duties of a firefighter.

The phrase 'firefighting duties' appears only in Section 1 of Article III of the

CNA, which establishes the 24[-]72 schedule." It concluded that "the Borough

has not shown that negotiation over their work schedules would substantially

interfere with government policy." PERC advised the Borough to raise its

concerns about the probationary firefighters' readiness for the 24-72 schedule to

the arbitrator.

                                        II.

      The Borough raises the following issues on appeal:

             POINT I: PERC'S   DECISION     VIOLATES
             EXPRESS AND IMPLIED LEGISLATIVE POLICIES
             AND OTHERWISE FAILS TO FOLLOW THE LAW

             A.    PERC Failed to Follow the Law as its Decision
             Violates Express and Implied Legislative Policies

             POINT II: PERC'S DETERMINATION TO DENY
             THE BOROUGH'S SCOPE OF NEGOTIATIONS
             PETITION WAS ARBITRARY, CAPRICIOUS,
             UNREASONABLE, AND UNSUPPORTED BY
             SUBSTANTIAL CREDIBLE EVIDENCE IN THE
             RECORD

             A.   Policy and Managerial Prerogative Precludes
             Negotiation

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                                         6
             B.    The Record Shows Negotiation Would
             Substantially Interfere with the Borough's Policy and
             Managerial Prerogative

             C.    PERC's Findings are Not Supported by
             Substantial Evidence and the Facts Were Misapplied
             and Misstated

      The scope of our review is limited. "PERC has primary jurisdiction to

determine in the first instance whether a matter in dispute is within the scope of

collective negotiations." In re New Brunswick Mun. Emps. Ass'n, 453 N.J.

Super. 408, 413 (App. Div. 2018) (citing N.J.S.A. 34:13A-5.4(d)). The review

of an administrative action is restricted to three inquiries:

             (1) whether the agency's action violates express or
             implied legislative policies, that is, did the agency
             follow the law; (2) whether the record contains
             substantial evidence to support the findings on which
             the agency bases its action; and (3) whether, in applying
             the legislative policies to the facts, the agency erred in
             reaching a conclusion that could not reasonably have
             been made on a showing of the relevant factors.

             [Twp. of Franklin v. Franklin Twp. PBA Local 154, 

424
N.J. Super. 369

, 377 (App. Div. 2012) (citation
             omitted).]

      Thus, "[i]n the absence of constitutional concerns or countervailing

expressions of legislative intent, we apply a deferential standard of review to

determinations made by PERC." City of Jersey City v. Jersey City Police


                                                                            A-1845-19
                                         7
Officers Benev. Ass'n., 

154 N.J. 555

, 567 (1998). PERC's decision "will stand

unless it is clearly demonstrated to be arbitrary or capricious." In re Belleville

Educ. Ass'n., 

455 N.J. Super. 387

, 400 (App. Div. 2018) (quoting Jersey City

Police Officers Benev. 

Ass’n., 154 N.J. at 568

). The party challenging the

administrative action has the burden of demonstrating that it was arbitrary,

capricious, and unreasonable. Bueno v. Bd. of Trs., Tchrs.' Pension & Annuity

Fund, Div. of Pensions & Benefits, 

404 N.J. Super. 119

, 125 (App. Div. 2008).

      On appeal, the Borough contends the Civil Service Act (CSA), N.J.S.A.

11A:1-1 to -12-6, as well as the CNA "reflect a period under which the Borough

has the sole discretion to evaluate the readiness and competence of prospective

firefighters."   The Borough further asserts that PERC's decision "usurps

management's evaluation of probationary firefighters[,]"disregards the "[CSA],

is well beyond the scope of the [CNA][,] and [directly conflicts] with managerial

prerogative." It argues that PERC's decision "interferes with (1) the managerial

policy decision of qualification; (2) the particularized need to keep probationary

firefighters on their assigned schedule until they are capable of performing their

jobs with limited oversight; and (3) public safety. . . ." Thus, it contends PERC's

decision failed to follow the law and violates express and implied legislative

policies.


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                                        8
         In response, FMBA argues that PERC did not usurp the Borough's power

under the CNA, because arbitration "would not require the [a]rbitrator's

assessment of the actual readiness of probationary firefighters or . . . whether

they can satisfactorily perform the duties of a title."

         Probationary public employees are subject to a "working test period"

which allows an appointing authority "to determine whether an employee

satisfactorily performs the duties of a title." N.J.S.A. 11A:4-15. Entry level

firefighters are subject to a twelve-month working test period. N.J.S.A. 11A:4-

15(a).

         The Borough argues that the CNA and the working test period give it

discretion when scheduling probationary firefighters. We disagree.

         Although the working test period gives the Borough the discretion and

ability to evaluate a firefighter and terminate the firefighter if he or she is unfit

for appointment, it neither specifies on which shifts probationary firefighters

must be scheduled, nor prohibits probationary firefighters from working on the

24-72 shift. It is clear the working test period does not give the Fire Chief

discretion in scheduling probationary firefighters.

         In addition, the Borough has not explained how arbitration of the

scheduling dispute would frustrate the purpose of the working test period.


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                                         9
Although PERC's decision to arbitrate the dispute would give the arbitrator the

power to determine the issue regarding probationary firefighter scheduling, it

would not usurp the power of the Borough to terminate the probationary

firefighter during the first twelve months of their employment. The Borough

would continue to retain all of the power accorded it under the CNA.

      Although the Borough argues the probationary firefighters must receive

further training and instruction before they are assigned to the 24 -72 shift, the

probationary firefighters have completed the statutorily required training. When

a firefighter completes the required training program and receives Firefighter I

and Firefighter II certifications, that firefighter "may perform interior structural

firefighting under direct supervision." N.J.A.C. 5:73-4.2(a)(1). In addition,

"[f]ire departments shall be authorized to permit the firefighter . . . to respond

to fire alarms, and under direct supervision, assist in all exterior firefighting

operations." N.J.A.C. 5:73-4.2(c)(2)(ii).

      Therefore, if the arbitrator were to schedule the probationary firefighters

on the 24-72 shift, the firefighters would be legally qualified to perform the

functions of the job, as they have completed the necessary training.            See

N.J.A.C. 5:73-4.2. In addition, the Borough would still retain the power to

terminate the probationary firefighters.          Therefore, the arbitration of


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                                        10
probationary firefighters' individual work schedules neither undermines the Fire

Chief's power to evaluate probationary firefighters, nor violates express or

implied legislative policy.

      The Borough further asserts that PERC erred in denying its scope of

negotiations petition as negotiation would substantially interfere with its

managerial prerogative. It also argues that PERC's decision was arbitrary and

capricious.

      We will reverse the decision of an administrative agency "only upon a

finding that the decision is 'arbitrary, capricious or unreasonable,' or is

unsupported by 'substantial credible evidence in the record as a whole.'"

Blanchard v. N.J. Dep't of Corr., 

461 N.J. Super. 231

, 238 (App. Div. 2019)

(quoting Henry v. Rahway State Prison, 

81 N.J. 579-80

(1980)). "Substantial

evidence has been defined . . . as 'such evidence as a reasonable mind might

accept as adequate to support a conclusion,' and 'evidence furnishing a

reasonable basis for the agency's action.'"

Ibid. (quoting Figueroa v.

N.J. Dep't

of Corr., 

414 N.J. Super. 186

, 192 (App. Div. 2010)).

      "[P]ublic employees have a legitimate interest in engaging in collective

negotiations about issues that affect 'terms and conditions of employment.'"

Local 195, IFPTE, AFL-CIO v. State, 

88 N.J. 393

, 401 (1982) (citing N.J.S.A.


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                                      11
34:13A-5.3). "The central issue in a scope of negotiations determination is

whether or not a particular subject matter is negotiable."

Ibid.

Subjects of public

employment negotiation are separated into two distinct

categories: those that are "'mandatorily negotiable terms and conditions of

employment'" and those that are "'non-negotiable matters of governmental

policy.'" Borough of Keyport v. Int'l Union of Operating Eng'rs, 

222 N.J. 314

,

333 (2015) (citing Ridgefield Park Educ. Ass'n v. Ridgefield Park Bd. of Educ.,

78 N.J. 144

, 162 (1978)).          Disputes "concerning whether subjects are

mandatorily negotiable should be made on a case-by-case basis."             Troy v.

Rutgers, 

168 N.J. 354

, 383 (2001).

      In negotiations between public employers and employees, a subject is

negotiable when it satisfies a three-part test: "(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

agreement would not significantly interfere with the determination of

governmental policy." Robbinsville Twp. Bd. of Educ. v. Washington Twp.

Educ. Ass'n, 

227 N.J. 192

, 199 (2016) (quoting Local 

195, 88 N.J. at 403-04

).

      "PERC has primary jurisdiction to make a determination on the merits of

. . . whether the subject matter of a particular dispute is within the scope of


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                                        12
collective negotiations." Ridgefield Park Ed. 

Ass’n, 78 N.J. at 154

. "If PERC

concludes that the dispute is within the legal scope of negotiability and

agreement between the employer and employees, the matter may proceed to

arbitration."

Ibid.

“To decide whether

a negotiated agreement would significantly interfere

with the determination of governmental policy, it is necessary to balance the

interests of the public employees and the public employer." Local 

195, 88 N.J.

at 405

. "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.

Work schedules and

hours of work are "prime examples" of subjects that

"intimately and directly affect the work and welfare of public employees."

Id.

at 403-04

(citations omitted); see Twp. of Teaneck v. Teaneck Fireman's Mut.

Benev. Ass'n Local No. 42, 

353 N.J. Super. 289

, 305 (App. Div. 2002) (stating

that "work hours are a negotiable term and condition of employment for . . .

firefighters"). A public employer must place facts on the record "in support of

its need, from a policy making point of view," to "counterbalance the direct and

intimate effect" work schedules have on employees. Twp. of Mt. Laurel v. Mt.

Laurel Police Officers Ass'n., 

215 N.J. Super. 108

, 115 (App. Div. 1987).


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                                      13
      A review of the record reflects the Borough has failed to explain how

scheduling the probationary firefighters to the 24-72 shift would interfere with

governmental policy, since they are being trained and "mentored" by firefighters

working the 24-72 shift.

      In addition, the CNA states "[t]he work week for all employees of the Fire

Department who perform firefighting duties shall be what is commonly known

as the '24-72 system.'" The probationary firefighters are classified as firefighters

and therefore their proper work schedule is the 24-72 shift.

      Having considered the Borough's arguments under our deferential

standard of review, we affirm PERC's decision denying the Borough's petition.

See Twp. of 

Franklin, 424 N.J. Super. at 377

. The decision is supported by

sufficient credible evidence on the record, and is neither arbitrary nor capricious.

See Jersey City Police Officers Benev. 

Ass’n, 154 N.J. at 568

.

      Affirmed.




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