Fraternal Order of Police v. Del. River Port Auth.

• Decision Date: 22 July 1999
• Citation: 323 N.J. Super. 444,733 A.2d 545
• Court: New Jersey Superior Court
• Parties: FRATERNAL ORDER OF POLICE, Penn-Jersey Lodge 30 and Joseph Vena, Plaintiffs-Respondents, v. The DELAWARE RIVER PORT AUTHORITY, Defendant-Appellant.

733 A.2d 545

323 N.J. Super. 444

FRATERNAL ORDER OF POLICE, Penn-Jersey Lodge 30 and Joseph Vena, Plaintiffs-Respondents, v. The DELAWARE RIVER PORT AUTHORITY, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Argued March 29, 1999.

Decided July 22, 1999.

Peter A. Gold, Cherry Hill, for defendant-appellant (Blank, Rome, Comisky & McCauley and Samuel M. First, attorneys; Mr. Gold, on the brief).

Charles T. Joyce (Spear, Wilderman, Borish, Endy, Spear & Runckel) of the Pennsylvania bar, admitted pro hac vice, for plaintiffs-respondents (Benjamin Eisner and Mr. Joyce, on the brief).

Karen L. Jordan, Deputy Attorney General, for amicus curiae State of New Jersey (Peter Verniero, Attorney General, attorney; Joseph L. Yannotti, Assistant Attorney General, of counsel and on the brief; Ms. Jordan, on the brief).

Before Judges D'ANNUNZIO, CUFF and COLLESTER.

The opinion of the court was delivered by CUFF, J.A.D.

In this appeal, we must decide whether the Delaware River Port Authority (DRPA) is required to submit to mediation or public interest arbitration in accordance with the labor laws of this State governing collective bargaining for public employees. We hold that it does and affirm the order requiring the DRPA to mediate and, if necessary, submit to public interest arbitration its contract dispute with its police officers.

The DRPA is a bi-state agency created by a Compact between New Jersey, N.J.S.A. 32:3-1 to -18, and Pennsylvania, Pa. Stat. Ann. tit. 36, §§ 3503 to 3510.7 (West 1999), and approved by Congress, Res. 26, 47 Stat. 308 (1932).¹ The Compact declares that the interests of both states will be best served by consolidating two existing commissions and granting to the combined authority additional powers and authority regarding an existing bridge across the Delaware River and additional transportation facilities between the two states. N.J.S.A. 32:3-1. Its mission is to develop, operate and maintain transportation facilities between the two states. N.J.S.A. 32:3-1, -2. It operates and maintains the Betsy Ross, Benjamin Franklin, Walt Whitman and Commodore Barry Bridges which span the Delaware River and the PATCO high-speed rail line between Philadelphia and suburban Lindenwold, New Jersey. It is a "body corporate and politic," constituting "the public corporate instrumentality" of the two states and "exercising an essential governmental function." N.J.S.A. 32:3-2.

The DRPA is authorized to appoint, hire or employ "such agents and employees as it may require for the performance of its duties, ... and fix and determine their qualifications, duties and compensation." N.J.S.A. 32:3-5(e). To that end, the DRPA employs seventy-eight police officers. The DRPA voluntarily recognized plaintiff, Fraternal Order of Police, Penn-Jersey Lodge 30 (Lodge 30), as the representative of these officers, and the parties have negotiated and executed collective bargaining agreements for over twenty years.

The parties' most recent agreement expired in 1996 and they commenced negotiations regarding a new agreement. When their negotiations reached an impasse, the DRPA imposed its final offer on Lodge 30. Plaintiffs² sought to enjoin the DRPA from implementing its terms and conditions of employment, to require the continuation of good faith bargaining, to appoint a mediator to assist the process, and for "such further relief that this Court deems necessary."

The DRPA moved for summary judgment arguing that, despite public employees' right to organize and negotiate collectively in both New Jersey and Pennsylvania, there was no governmental agency to regulate the parties' negotiations. Therefore, the DRPA inferred that neither mediation nor public interest arbitration was available to resolve this dispute. Moreover, the DRPA contended that judicial oversight would be unworkable and New Jersey and Pennsylvania had not agreed to that procedure.

The DRPA also argued that, despite its recognition of Lodge 30 as the collective bargaining agent for the police officers, it was under no legal duty or obligation to negotiate with Lodge 30. Therefore, when the parties failed to reach an accord on a new contract, it was free to implement the terms and conditions of employment which it deemed suitable. The DRPA noted that it submitted its minutes to Governor Whitman and the resolution became effective when she declined to veto the resolution.

The DRPA's motion for summary judgment was denied. Judge Supnick determined that Pennsylvania and New Jersey had "parallel or complementary legislation of a different nature, but which ... nevertheless recognizes those same rights and clearly gives public employees a right to freely organize and designate representatives and also to negotiate in good faith." In response to the DRPA's contention that there was no public agency designated to oversee the negotiations, he held that the court had "the inherent power to deal with matters of that nature."

Six months later, plaintiffs filed a motion for summary judgment on count one of their amended complaint which sought a declaratory judgment that the DRPA had violated the New Jersey constitutional guarantee of public employees to organize and parallel legislation of both states recognizing and implementing this right. They requested an order requiring the parties to negotiate an impasse-resolution procedure featuring interest arbitration under court supervision. Plaintiffs contended this relief was appropriate because New Jersey and Pennsylvania have elected to resolve such impasses by public interest arbitration. In support of their motion, plaintiffs submitted a certification of Clyde W. Summers, the Jefferson B. Fordham Professor Emeritus at the Law School of the University of Pennsylvania, who opined that interest arbitration between public employees and public employers was appropriate and desirable. He also offered an analytical framework to determine whether two states have similar and complementary policies on collective bargaining by police officers and dealing with impasses. Finally, he offered the opinion that the New Jersey and Pennsylvania statutory schemes were "substantially the same."

Defendant responded with a cross-motion for summary judgment or, in the alternative, a motion to strike the Summers report. Substantively, the DRPA argued that not only the policies must be similar but also "the actual legislation" must be similar. The DRPA also contended that requiring it to submit to binding interest arbitration would interfere with the Compact's provision for the Governor's right to veto any action and thus would violate the Supremacy Clause of the United States Constitution.

Prior to ruling on the cross-motions, Judge Vogelson requested the parties "to make one additional attempt to resolve your dispute voluntarily" by reaching an agreement on the terms and conditions of an agreement or on the procedure to resolve an impasse. When the parties failed to reach any agreement, Judge Vogelson proceeded to grant plaintiffs' motion for summary judgment and deny the DRPA's cross-motion. At that time, Judge Vogelson rendered his opinion on the pending summary judgment motions.

Initially, he found that Professor Summers was "a highly qualified expert." He also accepted Professor Summers' opinion "as having credibility and substance."³ In addition, he stated that Judge Supnick's prior ruling concerning the complementary nature of the New Jersey and Pennsylvania laws governing public employer collective bargaining was the law of the case.

Judge Vogelson also relied on International Union of Operating Eng'rs, Local 68 v. Delaware River and Bay Auth. (Local 68), 147 N.J. 433, 688 A.2d 569, cert. denied, ___ U.S. ___, 118 S.Ct. 165, 139 L.Ed.2d 108 (1997), in which the Court required defendant, a bi-state agency of New Jersey and Delaware, to recognize and engage in collective negotiations with plaintiff union, since the statutes of the two states authorizing collective bargaining for public employees were substantially similar.

Judge Vogelson reasoned that the members of plaintiff Lodge 30 were police officers who patrolled in both New Jersey and Pennsylvania, enforced the laws of both states, and were subject to the same dangers as other police officers. Since both New Jersey and Pennsylvania "provide for a procedure in just this type of case," the DRPA should also. Judge Vogelson also concluded he had the authority to order interest arbitration. Nevertheless, he did not do so; he decided that the parties should select and meet with a mediator "from a list to be provided by the American Arbitration Association [AAA] in accordance with that Agency's rules and regulations," to develop "a procedure and mechanism by which they can resume good faith negotiations."

On November 21, 1997, an order was entered granting plaintiffs' motion for summary judgment on count one of their amended complaint, and denying defendant's cross-motion. The parties were ordered to select a mediator from an AAA list, and to report to the court on their progress; the order recited that "[i]f the [p]arties remain at impasse the Court can and will order binding interest arbitration."

Defendant filed a notice of motion for reconsideration dated December 5, 1997. In support of its motion, defendant submitted (1) a December 4, 1997 certification of Joy Faber, its assistant general counsel; (2) Summers' deposition of November 18, 1997; and (3) an undated opinion of its expert David Weinstein, Professor Emeritus at Temple University School of Law. Defendant's expert, Weinstein, had experience as a public interest arbitrator in Connecticut and Pennsylvania and had served as a fact finder in the 1970s for the Connecticut State Board of Mediation and Arbitration. Like Summers, Weinstein compared the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 to -29, with Pennsylvania Act 111, Pa. Stat. Ann. tit. 43, §§ 217.1 to .10 (West 1999)...