State v. State Supervisory Emp. Ass'n

• Decision Date: 02 August 1978
• Citation: 78 N.J. 54,393 A.2d 233
• Parties: , 98 L.R.R.M. (BNA) 3267 STATE of New Jersey, Appellant, v. STATE SUPERVISORY EMPLOYEES ASSOCIATION, Respondent. STATE of New Jersey, Appellant, v. LOCAL 195, IFPTE AND LOCAL 518, SEIU, Respondents and Cross-Appellants.
• Court: New Jersey Supreme Court

Page 54

78 N.J. 54

393 A.2d 233, 98 L.R.R.M. (BNA) 3267

STATE of New Jersey, Appellant, v. STATE SUPERVISORY EMPLOYEES ASSOCIATION, Respondent.

STATE of New Jersey, Appellant, v. LOCAL 195, IFPTE AND LOCAL 518, SEIU, Respondents and Cross-Appellants.

Supreme Court of New Jersey.

Argued May 8, 1978.

Decided Aug. 2, 1978.

Erminie L. Conley, Deputy Atty. Gen., for appellant (John J. Degnan, Atty. Gen., attorney); Stephen Skillman, Asst. Atty. Gen., of counsel; Erminie L. Conley, on the brief.

Sidney H. Lehmann, Gen. Counsel, Trenton, for respondent Public Employment Relations Com'n (Sidney H. Lehmann and Stephen B. Hunter, Trenton, on the brief).

David I. Fox, Newark, for respondent State Supervisory Emp. Ass'n (Fox & Fox, Newark, attorneys).

Sanford R. Oxfeld, Newark, for respondents Local 195, etc. (Rothbard, Harris & Oxfeld, Newark, attorneys).

The opinion of the court was delivered by

PASHMAN, J.

These cases involve the question of the permissible scope of collective negotiations concerning the terms and conditions of public employment in this State. At issue is the correctness of the decisions of the Public Employment Relations Commission (PERC) in two scope-of-negotiations determinations rendered pursuant to the New Jersey Employer-Employee Relations Act, L.1968, C. 303, as amended by L.1974, C. 123, N.J.S.A. 34:13A-1 Et seq. (the Act). Because of the public importance of these questions, both appeals were directly certified by this Court and have also been consolidated. The real point of dispute is the question of the extent, if any, to which the 1974 amendment to N.J.S.A. 34:13A-8.1, L.1974, C. 123, § 6, expanded the scope of collective negotiation. In short, we must determine whether the amendment signaled an intent by the Legislature to permit negotiation and agreement to supplant Civil Service statutes and regulations. N.J.S.A. 11:1-1 Et seq.; N.J.A.C. 4:1-1 Et seq. We must also determine whether negotiation of any of the proposals made by the employee organizations is precluded by N.J.Const. (1947), Art. VII, § 1, par. 2, as being inimical to the merit and fitness principles which govern the hiring and promotion of public employees pursuant to that constitutional provision.

State v. Local 195, IFPTE and Local 518 SEIU

The collective negotiations agreements between the State of New Jersey and Local 195 of the International Federation of Professional and Technical Engineers (IFPTE) and Local 518 of the Service Employees International Union (SEIU) were scheduled to expire on June 30, 1975. During the term of these agreements, large-scale layoffs of employees represented by the Locals had taken place in the Department of Transportation. The Locals were concerned at the lack of job security for the employees and thus sought to negotiate their seniority rights with regard to layoffs, recall, bumping and reemployment rights. The State refused to negotiate on these matters, contending that they involved managerial policies and were controlled by the Civil Service statutes.

On October 28, 1975 the parties filed a joint petition for a scope-of-negotiations determination with PERC pursuant to N.J.S.A. 34:13A-5.4(d). See N.J.A.C. 19:13-1.1 Et seq. The Locals and the State were in general agreement that seniority rights as they related to layoff, recall, bumping and reemployment, constituted terms and conditions of employment. The State argued, however, that regardless of whether the Locals' proposals concerned terms and conditions of employment, they were not subject to negotiation since they concerned managerial responsibilities delineated in the Civil Service statutes, which enactments were said to implement the constitutional "merit and fitness" system embodied in N.J.Const. (1947), Art. VII, § 1, par. 2:

Appointments and promotions in Civil Service of the State, and of such political subdivisions as may be provided by law, shall be made according to merit and fitness to be ascertained, as far as practicable by examination, which as far as practicable, shall be competitive.

The State argued in the alternative that even if not preempted by statute, negotiability of the proposals was still precluded since they concerned "managerial prerogatives" on matters of basic personnel policy.

The fundamental dispute before PERC centered around the various interpretations to be given to the amendments to the Act contained in L.1974, C. 123, particularly N.J.S.A. 34:13A-8.1. In the original Act, L.1968, C. 303, this section effectively limited the scope of collective negotiations by clearly stating that no provision of the Act could "annul or modify any statute or statutes of this State." In Dunellen Bd. of Ed. v. Dunellen Ed. Ass'n, 64 N.J. 17, 31, 311 A.2d 737 (1973), we held that the Legislature's use of this strong qualifying language "clearly precluded any expansive approach" to the negotiability of the terms and conditions of public employment. The 1974 amendment to that section, L.1974, C. 123, § 6, changed the wording of N.J.S.A. 34:13A-8.1 to its present form, "nor shall any provision hereof annul or modify any pension statute or statutes of this State."

The Locals argued that the 1974 amendment was a legislative response to Dunellen, supra, and was intended to broaden the scope of mandatory negotiation to include all terms and conditions of public employment except those covered by pension statutes. The State contended that the amendment's only effect was to make the pension laws sacrosanct and fully immune from any negotiated modifications. The State did not believe that the amendments had any effect on the Dunellen rule, which precluded negotiation on matters of governmental policy or on those terms and conditions of employment covered by any statutory scheme.

PERC did not wholly accept either of these viewpoints. It held that the 1974 amendment to N.J.S.A. 34:13A-8.1 was not intended "to permit the parties, under any circumstances even by mutual agreement to annul or modify existing statutes relative to terms and conditions of employment." In re Local 195, IFPTE and Local 518, SEIU and State of New Jersey, PERC No. 77-57, 3 NJPER 118, 121 (1977). However, PERC found that the amendments did work a limited expansion of the scope of collective negotiations:

Thus, the change in N.J.S.A. 34:13A-8.1 means that general statutes giving authority to employers are not to be read as shields to the employer's obligation to negotiate regarding terms and conditions of employment, but specific statutes governing terms and conditions of employment cannot be abrogated by collective negotiations.

The parties herein therefore are required to negotiate seniority as it relates to layoffs, recall, bumping and reemployment but in doing so must not exceed maximums or fall below minimums provided by statute or in any other manner agree to contravene specific statutory requirements as provided for in Title 11 or any other Title. (3 NJPER at 121)

PERC also held that the constitutionally-required merit and fitness system, N.J.Const. (1947), Art. VII, § 1, para. 2, Supra, applies only to appointments and promotions. Thus, in its view, negotiations on layoffs and reemployment would not contravene the constitutional mandate. PERC further concluded that even if that constitutional provision was applicable, increased seniority rights would not be inconsistent with merit and fitness principles.

Finally, PERC held that N.J.S.A. 34:13A-5.3, which preserves the rights of public employees under the Civil Service laws and regulations, related solely to the employees' procedural rights of appeal to the Civil Service Commission. That section was not construed to be a bar to negotiations.

PERC's order required the State to negotiate in good faith concerning seniority as it relates to layoffs, recall, bumping and reemployment rights. Both the State and the Locals appealed this determination to the Appellate Division. Thereafter, the State filed a motion for direct certification and for consolidation with the then pending consolidated appeals in Englewood Teachers Ass'n v. Englewood Ed. Ass'n, 75 N.J. 525, 384 A.2d 505 (1978), and Ridgefield Park Ed. Ass'n v. Ridgefield Park Bd. of Ed., 78 N.J. 144, 393 A.2d 278 (1978). The motion for direct certification was granted and that for consolidation denied. 76 N.J. 231, 386 A.2d 856 (1978).

State v. State Supervisory Employees Association

The other appeal before this Court concerns many matters whose negotiability is in dispute. During collective negotiations between the State Supervisory Employees Association (the Association) and the State of New Jersey, the Association submitted the following negotiating proposals:

1. An employee be eligible for examinations to which he would otherwise be eligible had he not been demoted or involuntarily transferred during two years following the demotion or involuntary transfer.

2. The Department of Civil Service recognizes total State service as the single criteria for layoff.

3. Each employee to be affected by a layoff shall be given individually a forty-five day notice in advance of such action which notice shall specify the effective date of the layoff action.

4. The State negotiate in good faith on the elements of the Civil Service promotional and open competitive examination process:

a. Employees shall be appointed in the order in which they are listed on a promotional listing, veterans' preference excepted.

b. No listing of employees shall be considered incomplete by virtue of there being fewer than three employees on the list.

c. Provisional appointments shall be made from permanent employees in the next lower title in the class series or, if there is no eligible employee there, from the next lower title in the class series.

d. Promotional examinations must be administered within ninety (90) days of the provisional appointment of an employee.

e. The scope of eligibility for a promotional examination shall be extended by stages to the...