State v. State Troopers Fraternal Ass'n

• Citation: 260 N.J.Super. 270,615 A.2d 1286
• Parties: STATE of New Jersey, Petitioner-Appellant, v. STATE TROOPERS FRATERNAL ASSOCIATION, Respondent-Respondent.
• Decision Date: 12 November 1992
• Court: New Jersey Superior Court — Appellate Division

Page 270

260 N.J.Super. 270

615 A.2d 1286

STATE of New Jersey, Petitioner-Appellant, v. STATE TROOPERS FRATERNAL ASSOCIATION, Respondent-Respondent.

Superior Court of New Jersey Appellate Division.

Argued Sept. 23, 1992.

Decided Nov. 12, 1992.

Melvin E. Mounts, Deputy Atty. Gen., argued for petitioner-appellant (Robert J. Del Tufo, Atty. Gen. of New Jersey, attorney; Mary C. Jacobson, Deputy Atty Gen., and Mary L. Cupo-Cruz, Sr. Deputy Atty. Gen., of counsel; Melvin E. Mounts, on the brief).

Michael J. Rappa, Hackensack, argued for respondent-respondent (Loccke & Correia, attorneys; Michael J. Rappa, on the brief).

Robert E. Anderson, Gen. Counsel, argued for Public Employment Relations Com'n (Robert E. Anderson, on the brief).

Before Judges KING, BRODY and THOMAS.

The opinion of the court was delivered by

KING, P.J.A.D.

The issue on appeal is whether this public employer, the State of New Jersey, Division of State Police, may agree in a collective bargaining agreement to allow an arbitrator at a grievance procedure to review minor disciplinary determinations made by the Superintendent or his designated subordinate. We conclude that this subject matter, minor discipline, is legally arbitrable. We thus agree with the Public Employment Relations Commission (PERC) and affirm. We reject the Attorney General's position that review of minor discipline of the State Police must remain exclusively within the State Police command structure under our statutory scheme.

On December 17, 1990, appellant, the State of New Jersey, as employer, petitioned for a scope of negotiations determination pursuant to N.J.S.A. 34:13A-5.4(d) of the Employer-Employee Relations Act, N.J.S.A. 34:13A-1 to -21 (the Act). The State sought to prevent binding arbitration of grievances filed by the State Troopers Fraternal Association. The particular grievances asserted that the employer had circumvented the parties' negotiated grievance procedure by departing from the practice of punishing certain minor offenses by reprimands and brief suspensions and instead subjected four State Troopers to summary disciplinary hearings, outside the scope of the grievance procedure.

PERC, a tripartite body of seven members--composed of public employer, public employee, and public interest representatives N.J.S.A. 34:13A-5.2--unanimously declined to restrain arbitration of these grievances. PERC's holding was very narrow. PERC simply held that the public employer could legally have agreed under the so-called 1982 "discipline amendment" to N.J.S.A. 34:13A-5.3; L.1982, c. 103, § 1, to arbitrate these minor disciplinary determinations. PERC did not hold that this "discipline amendment" repealed or diminished the employer's statutory power to make rules and regulations concerning discipline of the State Police. Nor did PERC even consider the issue of whether the grievances, in fact, were contractually arbitrable, or whether the grievances had substantive merit.

PERC made these undisputed factual findings. The grievants had asserted that the Superintendent of the State Police had violated the collective negotiations agreement when he held summary disciplinary hearings and suspended troopers for short periods rather than issuing written reprimands without hearings. The parties had entered into a collective negotiations agreement effective from July 1, 1987 to June 30, 1990. The grievance procedure in Article XII in that agreement covered grievances over written reprimands. The grievance procedure excluded matters relating to removals or disciplinary actions resulting from actual hearings held pursuant to State Police Rules and Regulations. Specifically, Article XII(D)(3) of the agreement stated: "These [grievance] procedures are not applicable to matters relating to removal or disciplinary action resulting from hearings pursuant to the Rules and Regulations."

Article I of the State Police rules and regulations provides for three categories of disciplinary proceedings:

1. a general disciplinary hearing which may result in a dismissal, a reduction in rank or grade, or an unpaid suspension,

2. a summary disciplinary hearing which may result in an unpaid suspension of a month or less,

3. a written reprimand and accompanying unpaid suspension of five days or less.

Under the third category, three written reprimands within two years could subject an employee to such disciplinary hearing as the Superintendent may order. This third category of disciplinary proceedings was the one allegedly contemplated by the grievance procedure set out in the agreement.

On February 9, 1989 Trooper Christman was ordered to appear at a summary disciplinary hearing. The charge alleged that he had violated regulations by not carrying his weapon while on duty. He did not contest the factual basis for the charge but claimed that in the past only written reprimands had been issued for such offenses. The charge was sustained and he was suspended without pay for four days.

On May 9, 1989 Trooper Ortiz was ordered to appear at a summary disciplinary hearing on charges that he had violated Division regulations: he had allegedly disobeyed a written order on search techniques on female suspects, spoke abusively to a female suspect, and carelessly searched a vehicle for drugs. The hearing officer found the first and third charges substantiated, not the second. Ortiz was suspended without pay for eight days.

On May 12, 1989 Trooper Karsevar was ordered to appear at a summary disciplinary hearing on the charge of a lost or stolen weapon. The charge was substantiated. He was suspended without pay for four days.

Christman, Ortiz and Karsevar all filed grievances asserting in part that their offenses should have been punished by written reprimands without disciplinary hearings. They claimed that these summary disciplinary hearings overrode or by-passed the grievance procedure and violated several contractual clauses. The troopers asked in their grievances that the suspensions issued at the summary disciplinary hearings be set aside and written reprimands issued instead. A State Police hearing officer denied the grievances as not proper subjects of negotiation and arbitration, finding that the Superintendent of the State Police had sole responsibility for troop discipline. PERC then reviewed the matter and ruled against the State, which now appeals.

PERC has "broad authority and wide discretion in a highly specialized area of public life." Matter of Hunterdon County Bd. of Chosen Freeholders, 116 N.J. 322, 328, 561 A.2d 597 (1989). The scope of our review is narrow. The administrative determination will stand unless clearly arbitrary or capricious. State v. Professional Ass'n, 64 N.J. 231, 258, 315 A.2d 1 (1974). That standard applies in scope-of-negotiations cases, like this one. Hunterdon, supra, 116 N.J. at 328-29, 561 A.2d 597. PERC's preemption rulings are entitled to particular and substantial deference. Ibid.; Department of Corrections v. Communications Workers, 240 N.J.Super. 26, 33, 572 A.2d 213 (App.Div.1990). So are the interpretations of the statute it administers. Board of Educ. v. Kramer, 99 N.J. 523, 534, 494 A.2d 279 (1985), cert. denied, 475 U.S. 1072, 106 S.Ct. 1388, 89 L.Ed.2d 613 (1986); In re Bridgewater Township, 95 N.J. 235, 244, 471 A.2d 1 (1984).

PERC decisions applying the 1982 discipline amendment to N.J.S.A. 34:13A-5.3 ¹ have received substantial deference. See Communications Workers v. PERC, 193 N.J.Super 658, 663, 475 A.2d 656 (App.Div.1984) (five consolidated appeals involving scope determinations in disciplinary cases). We hasten to observe that we see no basis to conclude that N.J.S.A. 34:13A-5.3 in any sense impliedly repealed or reduced the Superintendent's power to make disciplinary rules and regulations governing the State Troopers under N.J.S.A. 53:1-10. ² This power to make disciplinary rules and regulations can still be fully exercised, subject to the Superintendent's discretion under N.J.S.A. 34:13A-5.3 (as amended), if the Superintendent decides to agree with the Trooper's union and have a neutral arbitrator review determination of minor disciplinary violations.

Under the 1982 discipline amendment, an employer may agree to arbitrate disputes which cannot be contested through any other statutory appeal procedure. State troopers have no such statutory appeal procedure for contesting minor disciplinary determinations. For logical as well as practical reasons, we conclude that N.J.S.A. 53:1-10 does not prevent an agreement to arbitrate these relatively minor matters.

Since the Act's inception in 1968, N.J.S.A. 34:13A-5.3 has required negotiations over "terms and conditions of employment." Initially, PERC concluded that this phrase included disciplinary disputes and review procedures. Two appellate panels disagreed. See State v. Local 195, IFPTE, 179 N.J.Super. 146, 430 A.2d 966 (App.Div.1981), certif. denied, 89 N.J. 433, 446 A.2d 158 (1982); City of Jersey City v. Jersey City Police Officers' Benevolent Ass'n, 179 N.J.Super. 137, 430 A.2d 961 (App.Div.1981), certif. denied, 89 N.J. 433, 446 A.2d 158 (1982).

The legislative response was swift. Section 5.3 was amended in 1982 to require negotiations over "disciplinary disputes" and "disciplinary review procedures by which ... employees or representatives of employees may appeal ... disciplinary determinations." L.1982, c. 103, § 1, at 545-546. Procedures for reviewing questions such as guilt or innocence and the reasonableness of penalty could thus be negotiated. See the Sponsor's statement to the 1982 amendment. ³ These procedures could, as well, include concepts of progressive discipline, including reprimands for first offenses. See County College of Morris Staff Ass'n v. County College of Morris, 100 N.J. 383, 395, 495 A.2d 865 (1985). In contrast, under N.J.S.A. 34:13A-24, school boards may impose minor discipline on employees but must negotiate over a schedule of penalties.

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