                             NOT FOR PUBLICATION WITHOUT THE
                            APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court ." Although 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. R. 1:36-3.




                                                     SUPERIOR COURT OF NEW JERSEY
                                                     APPELLATE DIVISION
                                                     DOCKET NO. A-3625-18T2

IN THE MATTER OF
UNION COUNTY COLLEGE,

       Respondent-Appellant,

and

UNION COUNTY COLLEGE
CHAPTER OF THE AMERICAN
ASSOCIATION OF UNIVERSITY
PROFESSORS,

     Petitioner-Respondent.
____________________________

                Argued telephonically March 23, 2020 –
                Decided July 28, 2020

                Before Judges Ostrer, Vernoia and Susswein.

                On appeal from the New Jersey Public Employment
                Relations Commission, P.E.R.C. No. 2018-011.

                Matthew Joseph Giacobbe argued the cause for
                appellant (Cleary Giacobbe Alfieri Jacobs LLC,
                attorneys; Matthew Joseph Giacobbe, of counsel and on
                the briefs; Victoria A. Leblein, on the briefs).
            Carl J. Levine argued the cause for respondent Union
            County College Chapter of the American Association
            of University Professors (Levy Ratner PC, attorneys;
            Carl J. Levine and Dana Lossia, on the brief).

            Frank C. Kanther, Deputy General Counsel, argued the
            cause for respondent Public Employment Relations
            Commission (Christine R. Lucarelli, General Counsel,
            attorney; Frank C. Kanther, Deputy General Counsel,
            on the statement in lieu of brief).

PER CURIAM

      Appellant Union County College (College) appeals from a Public

Employment Relations Commission (Commission) order denying review of a

"clarification of unit" decision of the Director of Representation (Director). The

Director determined that the College's newly created "academic specialist"

position shall be included in the collective negotiations unit of instructional and

professional library staff (the Unit) represented by the College's Chapter of the

American Association of University Professors (Chapter). The Director found

that academic specialists are not supervisors under N.J.S.A. 34:13A-5.3, and

share a community of interest with existing Unit members. Renewing the

arguments it presented to the Commission, the College argues the agency's

decision was arbitrary and capricious, violated the terms of the parties' collective

negotiations agreement (CNA), and contravened the College's constitutional



                                                                            A-3625-18T2
                                         2
rights. Having considered these arguments in light of the applicable principles

of law and the record, we affirm.

                                        I.

         Subject to exceptions, the New Jersey Employer-Employee Relations Act

(EERA or Act), N.J.S.A. 34:13A-1 to -44, generally grants public employees the

right to join "employee organizations" to represent them in "collective

negotiations." N.J.S.A. 34:13A-5.3. Under one such exception, "any supervisor

having the power to hire, discharge, discipline or to effectively recommend the

same" shall not "have the right to be represented in collective negotiations by an

employee organization that admits nonsupervisory personnel to membership."

Ibid.;1 see also N.J.S.A. 34:13A-6(d) (stating "no unit shall be appropriate which

includes . . . both supervisors and nonsupervisors"). Whether the academic

specialists are supervisors is one of the determinative issues in this case.

         In 2016, while the College and the Chapter were still negotiating their

CNA for the 2015-2018 period, the College created the academic specialist

position, whose duties would include instruction and various administrative

tasks.     This development followed the College's abolition in 2015 of the


1
   An exception to the exception is made "where established practice, prior
agreement or special circumstances dictate the contrary." Ibid. That provision
is not implicated in this appeal.
                                                                           A-3625-18T2
                                         3
departmental chairpersons' position and the reorganization of the academic

departments into divisions.

      The College maintained that academic specialists did not belong in the

Unit. The Chapter took the opposite view. Unable to agree, the parties entered

into a non-waiver agreement, under which the Chapter preserved its "right to

assert, through an appropriate action before the [Commission], that this

classification [of academic specialists] should properly be included in the

Union's negotiations unit."

      The 2015-2018 CNA modified the previous CNA by removing references

to departments and department chairpersons.          It retained a "Recognition"

provision that acknowledged that the Chapter represented "all full-time

instructional and professional library staff" but not, among others, "managerial

executives, confidential employees, . . . [and] supervisors . . . ." The Recognition

provision also authorized the Chapter to represent persons holding newly created

instructional positions, by stating, "[s]ubject to governing law," the CNA

applied "to any and all accretions of the unit and specifically to all full-time

instructional and professional library staff who perform duties which are the

same as or are similar to the duties performed by full-time instructional and

professional library staff currently employed by the [College's] Board."


                                                                            A-3625-18T2
                                         4
      The Chapter filed its Clarification of Unit petition in 2018, seeking to

include academic specialists in the Unit. See N.J.A.C. 19:11-1.5. The Chapter

contended academic specialists belonged in the Unit because they were full-time

members of the instructional staff and did not fall under any excluded categories

of employees. In support of its petition, the Chapter provided certifications from

six current and recently retired faculty members who had decades of experience

at the College and worked with newly appointed academic specialists.

      The College contended the academic specialist title should not be included

in the Unit because: it is a supervisory position; its inclusion in the Unit would

present conflicts of interest; academic specialists lack a community of interest

with other Unit members; and the CNA excluded academic specialists by

excluding supervisors and covering full-time faculty who teach fifteen hours.

The College relied on a certification from its human resources director who had

worked at the college since 2015. 2


2
  We note that the human resources director provided information "to the best
of [her] knowledge and belief." See Jacobs v. Walt Disney World, Co., 309 N.J.
Super. 443, 454 (App. Div. 1998) (stating that "factual assertions based merely
upon 'information and belief' are patently inadequate" under Rule 1:6-6);
Lippmann v. Hydro-Space Tech, Inc., 77 N.J. Super. 497, 504 (App. Div. 1962)
(verification "to the best of the knowledge and belief of [the] deponent" is
defective). Although Rule 1:6-6 does not govern, the human resources director's
certification reflects a lack of personal knowledge about the matters she
addressed.
                                                                          A-3625-18T2
                                        5
      The Chapter's witnesses maintained that academic specialists did not act

as supervisors. Although academic specialists worked a full year in a non-tenure

track position, compared to full-time faculty who generally worked ten months

a year, the academic specialists were generally paid less than full-time faculty.

The Chapter's witnesses stated that many of the administrative tasks assigned to

academic specialists had previously been performed by full-time faculty,

including departmental chairpersons, who were included in the Unit.          The

witnesses noted that faculty typically served on search committees,

recommended hires, and evaluated their peers.         The witnesses also cited

instances in which academic specialists shared offices with full-time faculty,

although the human resources director stated academic specialists generally

shared offices with each other.

      The human resources director cited the job description that stated

academic specialists would provide up to nine hours of classroom instruction a

week; by contrast, full-time faculty generally provided fifteen hours of

instruction.   However, the Chapter provided a job announcement stating

academic specialists provided up to twelve hours of weekly instruction. The

Chapter's witnesses also noted that full-time faculty often provided less than




                                                                         A-3625-18T2
                                       6
fifteen hours, because they spent time on administrative duties, which was

especially true of departmental chairpersons before the position was abolished.

      Although the academic specialists' stated job duties included "using data

and analytics to interview, observe, and evaluate adjunct and full-time faculty,"

the College presented no particularized evidence that academic specialists had

played any role in the hiring, firing, or discipline of faculty. That authority res ts

with the division deans and the College's board. One Chapter witness stated she

was unaware of academic specialists playing any role in hiring or evaluating

faculty.

      The human resources director stated that academic specialists had "input"

into the College's budget and could be asked to make suggestions when items

are needed for a specific activity. On the other hand, the Chapter presented

evidence that former department chairpersons were actively involved in

preparing budgets for their departments.

      In a comprehensive written opinion, the Director found academic

specialists should be included in the Unit. He rejected the College's contention

that academic specialists were supervisors and their inclusion in the Unit would

generate a conflict of interest. He concluded that academic specialists lacked

the authority to hire, discharge, or discipline employees, particularly any Unit


                                                                              A-3625-18T2
                                          7
members. Although academic specialists can recommend such actions, their

recommendations are subject to review by supervisors.         The Director also

determined that academic specialists do not perform duties that create a

substantial conflict of interest with other members of the Unit. He noted that all

personnel decisions are made by others in the College's administration; and that

the College failed to provide specific examples of evaluations or observations

made by academic specialists that demonstrated a conflict of interest.

      The Director also rejected the College's contention that academic

specialists lacked a community of interest with the Unit members.               He

considered the factors comprising a community of interest, such as a common

employer, shared goals, common supervision, location of employment, job

duties, and similarity in wages, hours, and terms and conditions of employment.

He also considered the history of the Unit, noting that before 2015, instructional

staff performed many of the administrative duties currently assigned to

academic specialists in exchange for reduction in course load or extra pay. He

further noted that the Recognition provision did not prohibit the inclusion of

academic specialists, and he cited to the Workplace Democracy Enhancement

Act (WDEA), N.J.S.A. 34:13A-5.11 to -5.15, as additional support for the

decision.


                                                                          A-3625-18T2
                                        8
      The College requested the Commission review the Director's decision.

See N.J.A.C. 19:11-8.1. The College contended the Director erred because

academic specialists are supervisors; they would present conflicts of interest

within the Unit; and they lacked a community of interest with other members of

the Unit. The College also contended the Director mistakenly relied on the

2012-2015 CNA, instead of the 2015-2018 CNA; the Director's decision

violated the contract clause of the New Jersey and United States Constitutions;

and the WDEA is unconstitutional. The College also asserted that the Director

did not fairly consider materials the College submitted shortly before the

Director issued his decision.

      The Commission rejected these arguments and denied review.            See

N.J.A.C. 19:11-8.2(a).    The Commission found the Director appropriately

referred to the 2012-2015 CNA, noting that the College had not submitted the

2015-2018 CNA for the Director's consideration, and the unchanged

Recognition clause authorized adding newly created positions. The Commission

stated the Director's decision conformed to the Commission's preference for

broad-based negotiation units.

      The Commission also found no error in the Director's findings that

similarities in the instructional duties of full-time faculty and academic


                                                                       A-3625-18T2
                                      9
specialists predominated over their differences, noting that not all full-time

faculty taught fifteen hours; and academic specialists could teach as many as

twelve hours. Furthermore, although the departmental chairperson position was

abolished, the Director appropriately considered the similarity between the

administrative tasks they used to perform and the tasks now assigned to

academic specialists. The Commission also found no error in the Director's

analysis of the various community of interest factors.

      The Commission rejected the College's complaint that the Director did not

consider its pre-decision submission. The Commission reviewed the material

and found it contained nothing that would justify a different outcome. The

Commission also declined to reach the issue of the WDEA's constitutionality,

but noted the Director's reliance on the WDEA was not material to his decision.

      In its appeal of the Commission's decision, the College reprises the

arguments it made before the agency.

                                       II.

      We begin by noting our limited standard of review. The Commission's

interpretation of the EERA is entitled to "substantial deference," and we will

"yield to [the Commission] unless its interpretations are plainly unrea sonable,

contrary to the language of the Act, or subversive of the Legislature's intent."


                                                                        A-3625-18T2
                                       10
N.J. Tpk. Auth. v. AFSCME, Council 73, 150 N.J. 331, 352 (1997). As for

administrative determinations, such as those pertaining to the scope of

negotiation or disputes involving the representation of public employees, we

will not disturb the Commission's decision "unless it is clearly demonstrated to

be arbitrary or capricious." In re Hunterdon Cty. Bd. of Chosen Freeholders,

116 N.J. 322, 329 (1989) (citing State v. Prof'l Ass'n of N.J. Dep't of Educ., 64

N.J. 231, 258 (1974)). We apply the same standard to a clarification of unit

determination. Prof'l Ass'n of N.J. Dep't of Educ., 64 N.J. at 259 (applying

arbitrary and capricious standard to challenge of Commission decision on

community of interest and negotiating unit); Bd. of Educ. of W. Orange v.

Wilton, 57 N.J. 404, 427-28 (1971) (applying "arbitrary or unreasonable"

standard to Commission's determination whether conflict of interest existed that

destroyed requisite community of interest of negotiating unit).

      Determining the appropriateness of a negotiation unit is largely a

discretionary decision.    As the Court has observed, "[T]he concepts of

appropriateness of unit and community of interest are necessarily very elastic "

and they rely on "subjective value judgments, frequently difficult to articulate

with precision, concerning the relative weight of various relevant criteria."

Prof'l Ass'n of N.J. Dep't of Educ., 64 N.J. at 252-53. Consequently, "a great


                                                                         A-3625-18T2
                                      11
degree of discretion must be reposed in the agency . . . ." Ibid. When an agency

is vested with discretion to make a decision, its exercise "will not be disturbed

absent a showing that the agency determination so departs from the record as to

become arbitrary, capricious or unreasonable." In re Applications of N. Jersey

Dist. Water Supply Comm'n, 175 N.J. Super. 167, 194 (App. Div. 1980).

      To establish that a decision is arbitrary or capricious, the appellant must

show the decision offends the Constitution; it violates legislative policies; the

agency's findings are unsupported by substantial evidence; or the agency clearly

erred by making a decision that could not reasonably be reached. Brady v. Bd.

of Review, 152 N.J. 197, 211 (1997). We shall not substitute our judgment for

an administrative agency's, where the result of its determination "is fairly

debatable and is based upon policy choices made by the Legislature and

committed for [the agency's] administration and enforcement." Caminiti v. Bd.

of Trs., Police & Firemen's Ret. Sys., 394 N.J. Super. 478, 482 (App. Div. 2007).

      We also exercise limited review of the Commission's factual findings, as

"the evaluation of evidence is the province of [the Commission] rather than of

the courts, and when these determinations fall within [the Commission's] special

sphere of expertise, we accord them due weight." Hunterdon Cty. Bd. of Chosen

Freeholders, 116 N.J. at 329.


                                                                         A-3625-18T2
                                      12
      Applying that standard of review, we shall not disturb the Commission's

decision. We reject the College's argument that the Commission was obliged to

find that academic specialists were supervisors, and therefore excluded from a

unit that included non-supervisory personnel. See N.J.S.A. 34:13A-5.3, - 6(d).

The statute defines a supervisor as someone who has "the power to hire,

discharge, discipline, or to effectively recommend the same." N.J.S.A. 34:13A-

5.3. There is no dispute that academic specialists lack the power to directly hire,

discharge or discipline anyone.      The question, then, is whether academic

specialists were empowered to "effectively recommend" such action.

      The Director found that the College's contention that the academic

specialists effectively recommended hiring, discharge or discipline was

unsupported by the record.        Citing Commission precedent, the Director

concluded that proof of a job description that includes supervisory functions is

not enough; proof of the actual exercise of the function is required. Nor does

the performance of observations and evaluations suffice where they are not

closely connected to personnel actions.       The Director noted that full-time

faculty, and departmental chairpersons in particular, exercised a similar

evaluative role without disqualification from inclusion in the Unit.           The




                                                                           A-3625-18T2
                                       13
Commission did not act arbitrarily in concluding that the Director applied "the

requisite legal analysis."

      Nor did the Commission err in leaving undisturbed the Director's finding

that there exists a community of interest among academic specialists and unit

members. N.J.S.A. 34:13A-5.3 directs the Commission to define a negotiations

unit "with due regard for the community of interest among the employees

concerned." The agency is required to evaluate the "particular facts" of each

case and the "specific nature of the authority delegated," not simply an

employee's classification, to determine whether the employee's duties create a

"substantial potential for conflict of interest" with others in the unit. Wilton, 57

N.J. at 427. "An important consideration is whether an employee sought to be

included in a unit is one from whom the other employees may need protection;

whether his inclusion will involve a potential conflict of interest." Id. at 421.

      The Director and the Commission complied with that guidance by looking

beyond the academic specialist job description in finding a community of

interest among existing Unit members and academic specialists.                  The

Commission also endorsed the Director's consideration of such factors as

"common employer, shared goals, common supervision, shared employment

location, similar/related job duties, similar wages, and similar hours and terms


                                                                            A-3625-18T2
                                        14
and conditions of employment." Those factors have been cited in numerous

decisions of the Director. All these factors weighed in favor of finding a

community of interest in this case.

      The Commission appropriately exercised its expertise and relied on its

own precedent in determining that "a community of interest exists among

virtually all non-supervisory educational employees and that a community of

interest can be found among professional educational personnel who instruct

students regardless of whether they are considered regular teachers or are

employed in special programs."        The Commission's adherence to its own

precedent tends to show the lack of arbitrariness and capriciousness. See Steven

L. Lefelt et al, 37 N.J. Prac., Administrative Law and Practice § 7.28 (2d ed.

2020).

      The Commission's decision was also consistent with the policy favoring

broad-based negotiation units, which the Supreme Court has found is implicit in

the EERA. See Prof'l Ass'n of N.J. Dep't of Educ., 64 N.J. at 250-52. We may

assume that, despite any differences in the duties of full-time faculty and

academic specialists, the Chapter, as the Unit's representative, will "perform its

duty fairly in respect of all within the unit and exercise its good judgment as to




                                                                          A-3625-18T2
                                       15
when or whether different characteristics within the group warrant different

demands." Id. at 258.

      We also reject the College's argument that by equating academic

specialists' job duties with those of former departmental chairpersons, the

Commission disregarded the parties' contractual obligations in their 2015 -2018

CNA, which abolished the departmental chairperson position. The Commission

did not revive departmental chairpersons in violation of the new CNA. Rather,

it appropriately considered the history of the parties' relationship in reaching the

reasonable conclusion that if the performance of administrative tasks in the past

by departmental chairpersons did not disqualify them from the Unit, then

performance of similar tasks by academic specialists should not disqualify them

either. Notably, the 2015-2018 CNA included a provision that if the College

reinstituted departmental chairpersons, the applicable provisions of the prior

CNA would govern, absent a subsequent agreement to the contrary.

      Also, the Commission's decision did not override the CNA provision that

full-time members of the instruction staff "shall be required to teach a maximum

of fifteen (15) credit or equivalent contact hours per semester."3 After the


3
   The College also contends that, in overriding the CNA's terms, the
Commission unconstitutionally "impair[ed] the obligation of contracts." N.J.


                                                                            A-3625-18T2
                                        16
College unilaterally created the position of academic specialists, the parties

negotiated the 2015-2018 CNA based on a specific side agreement to leave open

the issue of the representation of academic specialists. The two agreements must

be interpreted together. See Nester v. O'Donnell, 301 N.J. Super. 198, 210 (App.

Div. 1997) (stating that "'all writings forming part of the same transaction are

interpreted together'" (quoting Barco Urban Renewal Corp. v. Housing Auth. of

Atlantic City, 674 F.2d 1001, 1009 (3d Cir. 1982))). In essence, the parties

contemplated that academic specialists could, if the Commission so determined,

be included in the Unit, notwithstanding the later-agreed provisions of the CNA

regarding required instructional hours.    The Commission's decision simply

requires the parties to negotiate appropriate terms and conditions of academic

specialists' employment. Were one to accept the College's violation-of-contract

argument, the side agreement would have been a nullity.




Const. art. IV, § 7, ¶ 3; U.S. Const. art. I., § 10. The Chapter argues that the
College lacks standing to assert that the State, through the Commission, violated
its constitutional rights. We need not address the issue as the Commission did
not override or impair contractual rights. See Randolph Town Ctr., L.P. v. Cty.
of Morris, 186 N.J. 78, 80 (2006) (stating that "[c]ourts should not reach a
constitutional question unless its resolution is imperative to the disposition of
the litigation").
                                                                         A-3625-18T2
                                      17
      We need not address the College's contention that the WDEA is

unconstitutional, as the Commission did not rely on the WDEA. See Randolph

Town Ctr., L.P., 186 N.J. at 80.

      Nor shall we disturb the Commission's decision on the ground that the

Director did not fairly consider materials the College submitted shortly before

the Director issued his decision. The Commission reviewed those submissions

and found they contained "no new material information that would warrant a

substantive discussion about the possibility that any of the College's other

bargaining units would be more appropriate for academic specialists than the

AAUP."

      To the extent not addressed, the College's remaining arguments lack

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




                                                                         A-3625-18T2
                                      18
