                     NOT FOR PUBLICATION WITHOUT THE
                   APPROVAL OF THE APPELLATE DIVISION
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                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-3817-14T2

IN THE MATTER OF

CITY OF ATLANTIC CITY,

      Petitioner-Respondent/
      Cross-Appellant,

and

ATLANTIC CITY PROFESSIONAL
FIREFIGHTERS INTERNATIONAL
ASSOCIATION OF FIREFIGHTERS,
LOCAL NO. 198,

     Respondent-Appellant/
     Cross-Respondent.
_________________________________

           Submitted October 25, 2016 – Decided September 20, 2017

           Before Judges Messano and Espinosa.

           On appeal from the Public Employment Relations
           Commission, Docket No. 2015-051.

           O'Brien, Belland & Bushinsky, LLC, attorneys
           for   appellant/cross-respondent  (Mark   E.
           Belland and David F. Watkins, Jr., on the
           briefs).

           Cleary, Giacobbe, Alfieri & Jacobs, LLC,
           attorneys for respondent/cross-appellant City
           of Atlantic City (Matthew J. Giacobbe and
           Gregory J. Franklin, of counsel and on the
           briefs).
           Robin T. McMahon, General Counsel, attorney
           for respondent New Jersey Public Employment
           Relations Commission (David N. Gambert, Deputy
           General Counsel, on the brief).

PER CURIAM

     Atlantic City Professional Fire Fighters IAFF Local 198 (the

Union) and the City of Atlantic City (the City) were parties to a

collective negotiations agreement (CNA) that expired on December

31, 2014. After the parties reached an impasse during negotiations

for a successor contract, the City filed a petition with the Public

Employment Relations Commission (PERC) to initiate compulsory

interest arbitration and later amended that petition to seek a

scope of negotiations determination.

     The petition targeted thirty-five provisions under seven

articles   of   the   expired   CNA,       asking   PERC    to    determine   the

provisions were non-negotiable matters that could not be submitted

to interest arbitration.        Following PERC's final decision, the

Union appeals, challenging PERC's determination that fourteen

provisions were not mandatorily negotiable.                  The City cross-

appeals,   challenging    PERC's   determination           that   four   of   the

provisions were mandatorily negotiable.              We affirm in part and

reverse in part.




                                       2                                 A-3817-14T2
                                    I.

     "[T]he scope of public employment negotiation is divided,

for purposes of analysis, into two categories of subject matter

comprised of mandatorily negotiable subjects and nonnegotiable

matters of governmental policy."         Robbinsville Twp. Bd. of Educ.

v. Washington Twp. Educ. Ass'n, 227 N.J. 192, 198 (2016).

N.J.S.A. 34:13A-5.4(d) vests PERC with "primary jurisdiction"

for the determination "of whether the subject matter of a

particular dispute is within the scope of collective

negotiations." Ridgefield Park Educ. Ass'n. v. Ridgefield Park

Bd. of Educ., 78 N.J. 144, 154 (1978).         If PERC determines that

a disputed subject matter is negotiable, "the matter may proceed

to arbitration."    Ibid.   In contrast, a matter will not be

arbitrable where PERC concludes the "particular dispute is not

within the scope of collective negotiations."          Ibid.    A party

that disagrees with PERC's decision regarding the scope of

negotiations may appeal to this court.         N.J.S.A. 34:13A-5.4(d);

see Ridgefield, supra, 78 N.J. at 155.

     A three-part test is employed to determine when a subject is

negotiable between public employers and employees: "(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

                                    3                                 A-3817-14T2
would   not   significantly    interfere   with     the   determination    of

governmental policy."       City of Jersey City v. Jersey City Police

Officers Benevolent Ass'n, 154 N.J. 555, 568 (1998) (quoting In

re Local 195, IFPTE, 88 N.J. 393, 404-05 (1982).            As to the last

of these criteria, "it is necessary to balance the interests of

the public employees and the public employer. 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. (quoting IFPTE, supra, 88 N.J. at 404-05).

This test must be applied on a "case-by-case basis."               Troy v.

Rutgers, 168 N.J. 354, 383 (2001).

       Substantial deference is accorded to PERC's exercise of its

authority in making a scope of negotiations determination.              Twp.

of Franklin v. Franklin Twp. PBA Local 154, 424 N.J. Super. 369,

377 (App. Div. 2012); see City of Jersey City, supra, 154 N.J. at

567.    PERC's decision regarding negotiability is to be upheld

unless "it was arbitrary, capricious or unreasonable"; "lacked

fair support in the evidence"; or "violated a legislative policy

expressed or implicit in the governing statute." Twp. of Franklin,

424 N.J. Super. at 377 (quoting Commc'ns Workers of Am., Local

1034 v. N.J. State Policemen's Benev. Ass'n, Local 203, 412 N.J.

Super. 286, 291 (App. Div. 2010)).

                                    4                               A-3817-14T2
                                  II.

       We first address the Union's challenges to PERCs findings

that   certain   provisions   could       not   be   submitted   to   interest

arbitration because they were not mandatorily negotiable.

                                  A.

       Article 2.C, "Interpretation," provides a general statement

of what categories of issues the City agrees the Union has the

right to negotiate:

           The City agrees that the Union has the right
           to negotiate as to rates of pay, hours of work,
           fringe benefits, working conditions, safety or
           personnel and equipment, procedures for
           adjustment of disputes and grievances and all
           other related matters.

       PERC found "personnel and equipment" was not mandatorily

negotiable "because these provisions refer to manning and staffing

levels of personnel as well as the purchase and use of equipment."

The Union argues that PERC erred in finding the disputed language

was not mandatorily negotiable because it "directly implicates

matters of employee safety."

       The Union's argument fails because the disputed language

concerns issues separate from "safety."              When that language is

deleted from the text, PERC's decision leaves the following intact:

"The City agrees that the Union has the right to negotiate as to

. . . safety . . . ."


                                      5                                A-3817-14T2
     PERC interpreted the disputed language as concerning only

manning and staffing levels of personnel, issues that fall within

the inherent power and authority of public employers.          See Jersey

City, supra, 154 N.J. at 571-73; Paterson Police PBA Local No. 1

v. City of Paterson, 87 N.J. 78, 97(1981); see also In re North

Hudson Reg'l Fire and Rescue, P.E.R.C No. 2000-78, 26 NJPER 31,075

(2000) (a public employer is "not required to negotiate about

overall staffing levels . . . even when staffing decisions may

affect employee safety").

     Similarly,    an   employer   may   make    unilateral    decisions

regarding the purchase of equipment unless it directly relates to

employee safety.    See In re Twp. of Union, P.E.R.C. No. 87-119,

13 NJPER P18,121 (1987) ("The negotiability of a demand for

equipment turns upon whether the item is predominately concerned

with employee safety or comfort rather than the method and means

of delivering police services to the community which is a non-

negotiable governmental policy determination."); see, e.g., In re

Borough of Ringwood, P.E.R.C. No. 87-118, 13 NJPER P18,120 (1987)

(holding a contract proposal that pertained to type and quantity

of ammunition to be supplied to police officers was not mandatorily

negotiable,   because   it   pertained   to   matters   of   governmental

policy); In re Twp. of South Brunswick, P.E.R.C. No. 86-115, 12

NJPER P17,138 (1986) (finding that employer's decision "to equip

                                   6                              A-3817-14T2
police vehicles or officers with certain specified guns, other

weapons   and   quantities   of    ammunition"   was     not    mandatorily

negotiable because it was "more closely related to matters of

governmental policy than employee safety").

    In sum, PERC's decision that "personnel and equipment" in 2.C

pertains to the managerial prerogatives of manning and staffing

levels,   and   the   purchasing   of   equipment   is    not   arbitrary,

capricious or unreasonable.

                                   B.

    The next provisions at issue are Article 16, "Leaves," and

Article 17, "Vacations."

    Article 16.C.1 states:

           In the event that an employee suffers an
           illness or injury in the line of duty, in the
           course of employment, or as a result of
           his/her   employment,    he/she    shall   be
           compensated at full pay for a period not to
           exceed one (1) year. A Medical Review Board
           shall be created for the purpose of examining
           all matters pertaining to sick and/or injured
           members of the Atlantic City Fire Department.
           Any employee may be required to present to
           this Board a doctor's certificate to the
           effect that the illness or injury specified
           above required extended convalescence.

           [(Emphasis added).]

    Article 17.D states:

           A maximum of four (4) vacation days may be
           converted to sick days per week with approval
           of the Medical Review Board.    All personnel

                                    7                               A-3817-14T2
          who are in the negative shall be docked pay
          for sick time unless they are convalescing
          from a sickness approved by the Medical Review
          Board.

          [(Emphasis added).]

     The City argued the first sentence of Article 17.D was not

negotiable because it was preempted by N.J.S.A. 11A:6-3(e).         It

has not appealed, however, from PERC's determination that the

issue may be submitted to interest arbitration.

     PERC determined the underlined portions of 16.C.1 and 17.D

were not mandatorily negotiable because "[s]ick leave verification

sis a managerial prerogative."   The Union acknowledges that sick

leave verification is a non-negotiable managerial prerogative but

contends it is only a "narrow managerial prerogative."     The Union

casts 16C.1 and 17D as involving the "application of a verification

policy [which] is subject to negotiation" and does not involve the

City's abdication of any managerial rights.

     PERC noted the distinction between the establishment of a

verification policy, which is the prerogative of the employer, In

re Piscataway Twp. Bd. of Educ. & Piscataway Twp. Educ. Ass'n,

P.E.R.C. No. 82-64, 8 NJPER 95 (1982), and issues involving the

application of those policies, which may be subject to contractual

grievance policies.   Ibid.




                                 8                           A-3817-14T2
         PERC   concluded     the    underlined       portion       of    Article      16.C.1

impinged        on   the   City's     managerial         prerogative       regarding     the

verification of sick leave because "it delegates that authority

to   a    joint      employer/employee         committee,"         and     concluded      the

underlined       language     in     Article    17D       was    also    not   mandatorily

negotiable because it had a similar impact on the City's managerial

prerogative to verify sick leave.

         By its plain language, Article 16.C.1 "create[s]" a Medical

Review Board "for the purpose of examining all matters pertaining

to   sick       and/or     injured    members       of     the    Atlantic      City    Fire

Department." It was, therefore, not arbitrary or unreasonable for

PERC to conclude that the breadth of this delegation "impinge[d]

on the City's managerial prerogative to verify sick leave since

it   delegates        that    authority        to     a    joint        employer/employee

committee."

         The following sentence of Article 16.C.1, which states an

employee "may be required" to present a doctor's certificate to

the Board to justify "extended convalescence" further supports the

conclusion that the Medical Review Board would play a role in

verifying sick leave that lies within the employer's prerogative.

The methods the City can utilize to implement its policy are also

non-negotiable.            See e.g., Piscataway Twp. Bd. of Educ., supra

(ruling that public employer "has a managerial right to utilize

                                           9                                        A-3817-14T2
reasonable means to verify employee illness or disability").     The

fact that there is an existing procedure with the stated purpose

to regulate and monitor the use of sick leave does not, as the

Union contends, render PERC's conclusion unreasonable.

     Moreover, the disputed language does not concern issues that

would be subject to interest arbitration such as the allocation

of the cost for providing necessary documentation, see Elizabeth

v. Elizabeth Fire Officers Assn., Local 2040, etc., 198 N.J. Super.

382, 386-87 (App. Div. 1985), or a grievance and disciplinary

procedure related to the use of sick leave.

     The disputed language in 17.D conditions a determination

regarding sick leave upon approval by the Medical Review Board.

Accordingly, PERC's determination that the language "impact[s] on

the City's managerial prerogative to verify sick leave" is not

arbitrary, capricious or unreasonable.

                                C.

     Article 16.F, "Terminal Leave Options," states in pertinent

part:

          Terminal leave shall be amended to provide for
          a maximum monetary payment as follows:

               . . . .

          (d) Employees hired after October 16, 2006,
          but before January 1, 2012, shall have maximum
          accumulation time of six (6) months;


                               10                           A-3817-14T2
              (e) Employees hired after January 1, 2012
              will receive a maximum payout cap of
              $15,000.00.

              [(Emphasis added).]

       The issue regarding this provision is whether it is preempted

by N.J.S.A. 11A:6-19.2, which establishes a cap on compensation

for unused sick leave under Title 11A.

       Unless preempted by a statute or regulation, vacation and

sick leave are mandatorily negotiable subjects.                   In re Howell Twp.

Bd.    of    Educ.,      P.E.R.C    No.       2015-58,    41   NJPER   P131   (2015).

"Negotiation        on   terms     and    conditions      of   employment     will    be

preempted by a statute or regulation if the provision addresses

the particular term or condition 'in the imperative and leave[s]

nothing to the discretion of the public employer.'"                      Old Bridge

Bd. of Educ. v. Old Bridge Educ. Ass'n., 98 N.J. 523, 529 (1985)

(quoting IFPTE, supra, 88 N.J. at 403-04).

       The    cap    established         by    N.J.S.A.   11A:6-19.2     applies      to

employees who commence service on or after May 21, 2010.1                     N.J.S.A.


1
    N.J.S.A. 11A:6-19.2 states:

              Notwithstanding any law, rule or regulation
              to the contrary, a political subdivision of
              the State, or an agency, authority or
              instrumentality thereof, that has adopted the
              provisions of Title 11A of the New Jersey
              Statutes,   shall   not    pay   supplemental
              compensation to any officer or employee for


                                              11                               A-3817-14T2
11A:6-19.2 does not, however, "affect the terms in any collective

negotiations agreement with a relevant provision in force on that

effective date."

     PERC found Article 16.F.3(e) was preempted by N.J.S.A. 11A:6-

19.2 because it "effectively allows employees hired on or after

May 21, 2010 through January 1, 2012 to be paid for accumulated

sick leave in excess of $15,000 in contravention of N.J.S.A. 11A:6-

19.2."   This reasoning ignores the proviso that the statute is not

to affect the terms of a CNA in force on its effective date.

Because the CNA in force on May 21, 2010 did not expire until

December 31, 2012, the exclusion of employees who commenced service

during the interim period from May 21, 2010 through December 31,

2012 was sanctioned by N.J.S.A. 11A:6-19.2.    We therefore conclude


           accumulated unused sick leave in an amount in
           excess of $15,000. Supplemental compensation
           shall be payable only at the time of
           retirement from a State-administered or
           locally-administered retirement system based
           on the leave credited on the date of
           retirement. This provision shall apply only
           to officers and employees who commence service
           with the political subdivision of the State,
           or the agency, authority or instrumentality
           thereof, on or after the effective date [May
           21, 2010] of P.L.2010, c.3.      This section
           shall not be construed to affect the terms in
           any collective negotiations agreement with a
           relevant provision in force on that effective
           date.

     [N.J.S.A. 11A:6-19.2 (emphasis added).]

                                12                           A-3817-14T2
that PERC erred in its interpretation of the law and that Article

16.F(3)(e) is mandatorily negotiable.

                                D.

     Article 18, "Acting Out Of Title," includes the following:

          18.A.2(d) In the absence of an existing Civil
          Service list, the senior person who is
          qualified shall be placed in the vacancy for
          ninety (90) working days and receive the pay
          at the higher rank. After these ninety (90)
          working days, the next senior person with
          qualifications shall replace that person and
          the same conditions will prevail.     In the
          event of a two-part promotional examination,
          in which an interim list is issued, only
          personnel on the interim list will be deemed
          "qualified" to act out-of-title in the higher
          position. Aa9-13, 82.

          18.A.2(g) When a promotional vacancy is
          created due to the terminal leave provision,
          and where there is an existing promotional
          list, such promotion shall be made within
          fifteen (15) consecutive days of the vacancy.
          In the event there is no existing list,
          Section [A].2(d) will prevail. Aa83.

          [(Emphasis added).]

     PERC found the underlined sentences of 18.A.2(d) and all of

18.A.2(g) were not mandatorily negotiable because "both require

the City to fill a promotional vacancy," which is a managerial

prerogative.   The Union contends these provisions are mandatorily

negotiable because "nothing in the CNA infringes on the City's

right to determine when to fill a vacancy or select promotional



                                13                         A-3817-14T2
criteria," and the provisions at issue address procedural rather

than substantive matters. (emphasis in original).        We disagree.

     A   public   employer   has        a   non-negotiable,   managerial

prerogative to determine the manning levels necessary for the

efficient delivery of governmental services.        Irvington PBA Local

29 v. Town of Irvington, 170 N.J. Super. 539 (App. Div. 1979),

certif. den. 82 N.J. 296 (1982); see also, Jersey City, supra, 154

N.J. at 571-73; Paterson, supra, 87 N.J. at 97.         This managerial

prerogative includes the right to decide not to staff a position.

See, e.g., In re City of Long Branch, P.E.R.C No. 83-15, 8 NJPER

P13,211 (1982).   PERC's conclusion that these provisions tread

upon the City's managerial prerogative is reasonable and will not

be disturbed.

                                   E.

     The Union challenges PERC's determinations regarding several

provisions of Article 23, "Transfers and Assignments."

          23.A. Transfers and assignments shall provide
          the highest degree of efficiency in every unit
          of the Fire Department by assigning a
          combination    of   experienced    and    less
          experienced personnel.     Whenever possible,
          each unit shall consist of the following
          balance:
               One (1) Company Officer
               One (1) Senior Firefighter
               Two (2) Journeymen Firefighters
               One (1) Apprentice Firefighter.

          [(Emphasis added).]

                                   14                            A-3817-14T2
     PERC determined 23.A was not mandatorily negotiable based on

the principle that "staffing and manning levels are a managerial

prerogative."      The   Union   contends   that     as    a    result     of   the

qualifying language "whenever possible," the provision does "not

restrict the City's ability to direct staffing in any way."                       In

addition, the Union asserts "[t]his clause speaks to the safety

goals . . . and operations of the department."

     In short, the provision states "each unit shall consist of"

a specific balance "whenever possible."               It sets a specific

standard that would deprive the City of its discretion to direct

staffing, allowing for the limited exception when to do so is not

possible.    The provision thus establishes a presumptive staffing

level, which conflicts with the City's managerial prerogative.

The exception affords no remedy for this because the presumptive

requirement remains.     Even if "whenever possible" were considered

to have some ameliorative effect, it ultimately fails to do so

because that question is not left to the sole discretion of the

City.

        "Public   employers   are   not   required    to       negotiate     about

overall staffing levels or how many firefighters or fire officers

will be on duty at a particular time, even where staffing decisions

may effect [sic] employee safety."           In re City of Plainfield,


                                    15                                     A-3817-14T2
P.E.R.C No. 2015-40, 41 NJPER P91 (2014).                  Therefore, the argument

that this provision "speaks to . . . safety goals" fails to remove

this provision from the City's prerogative to determine its minimum

staffing levels.         PERC correctly determined that Article 23.A is

not mandatorily negotiable.

            23.C. A higher seniority vacancy may be
            covered by a firefighter with a lower service
            time. However, a lower seniority vacancy may
            not be covered by a firefighter with a higher
            service    time.      Exception:   Journeyman
            firefighters may cover when no apprentice is
            available.

       In determining that 23.C was also not mandatorily negotiable,

PERC reasoned that "the filling of vacancies," "[t]ransfers and

reassignments" are all non-negotiable managerial prerogatives.

Aa8.      The    Union    argues     23.C    pertains      to   the    procedures    for

transfers and reassignments, and thus is a negotiable matter.

       Contrary     to     the      Union's       argument,     23.C     pertains     to

substantive policy determinations rather than mere procedures.

The consideration of seniority in making temporary assignments has

been     found    to     "relate[]     to        the    substantive     criteria     for

reassignment."          IFPTE, supra, 88 N.J. at 418.                  This provision

limits    the    City    in   its    decision      to    transfer     and   assign   its

employees by restricting what firefighter can provide coverage for

another firefighter based on seniority.                  Therefore, PERC correctly

found that 23.C was not mandatorily negotiable.

                                            16                                 A-3817-14T2
    Paragraph 23.J addresses "Posting Procedure and Selection

Criteria."

         23.J.1. When a vacancy or new position occurs
         within the bargaining unit, it shall be filled
         temporarily by the Chief of the Department.
         The City shall immediately post notices on the
         bulletin boards in all fire stations setting
         forth the classification, job duties and
         requirements, hours and days of work, starting
         time and wage rate of the job to be filled
         permanently. Employees desiring to apply for
         the job shall make application to the Chief
         of   the  Department   setting   forth   their
         qualifications, seniority, etc.     Copies of
         these applications and of the notices are to
         be filed with the Secretary of the Union.
         Notices shall remain posted for ten (10) days.
         Employees who do not make application within
         the period of the posting shall have no right
         to consideration for the job, with the
         exception that employees (who) are not at work
         during the entire posting period and who have
         sufficient qualifications and seniority shall
         be considered for the job. Aa95-96; Aa4-5.

         23.J.2. In filling vacancies by promotion or
         transfer,    where     ability    and    other
         qualifications are equal, seniority within the
         Fire Department shall control.        The term
         "ability and other qualifications" used herein
         shall   include   observing   the  rules   and
         regulations of the Fire Department. The Chief
         of the Department shall define and determine
         the   standards    of   "ability   and   other
         qualifications," which cannot be arbitrarily
         or selectively established. Aa96.

         23.J.4. The Chief of the Department may deny
         placement of an applicant possessing ability
         and other qualifications to the vacant or new
         position, should the Chief of the Department
         determine, exercise bona fide discretion, that


                              17                          A-3817-14T2
             such individual is needed more in the position
             already assigned.

             [(Emphasis added).]

       The Union argues that PERC erred in finding the underlined

sections     of    23.J.1,      23.J.2,    and    23.J.4       were     not       mandatorily

negotiable because they "relate to transfer procedures and do not

improperly        restrict      the    City's     ability        to     make        personnel

decisions."

       PERC determined that the first sentence of 23.J.1 was not

mandatorily negotiable because "[a]n employer cannot be required

to    fill   a    vacant   or    new   position        since     it    is     a    managerial

prerogative."           PERC    reasoned   the        language    "shall          be   filled"

requires the employer to make temporary appointments to fill

vacancies.        The Union contends this provision "does not restrict

the   ability      of   the    Fire    Chief     to    determine       when       to   fill    a

position."

       As previously discussed, "[t]he decision whether to fill a

vacant position is a governmental policy one.                         Thus, an agreement

that forces an employer to fill a vacant position substantially

limits that governmental policymaking determination."                              In re City

of Atlantic City, P.E.R.C No. 2001-56, 27 NJPER P32,061 (2001).

PERC has consistently held that a union is not permitted "to




                                           18                                          A-3817-14T2
enforce an agreement to fill a vacant position should the employer

decide not to do so."        Ibid.

      Contrary to the Union's argument, the first sentence of 23.J.1

requires that a vacancy or new position "shall" be filled "[w]hen"

it   occurs    without   any   limitation.        It    thus    encroaches    upon

managerial prerogatives not to fill such positions and is not

mandatorily negotiable.

      PERC determined the third sentence in 23.J.2 and all of 23.J.4

concerned      "criteria     for     selection"        that    were    managerial

prerogatives.     Specifically, PERC found the language "which cannot

be arbitrarily or selectively established" in 23.J.2 allowed the

criteria established by the employer to be second-guessed by an

arbitrator.     PERC found that 23.J.4 similarly "infringe[d] on the

managerial     prerogative     to    make   assignments        under   particular

circumstances by limiting them to situations in which the Chief

exercises 'bona fide discretion.'"

      PERC's reasoning and conclusions are sound and will not be

disturbed.

                                            F.

      The Union challenges PERC's determinations regarding three

provisions of Article 24, "Health and Safety."

              24.A. The general safety and health for
              members of the Atlantic City Fire Department
              is the responsibility of the Chief of the

                                       19                                 A-3817-14T2
           Department. The Joint Labor/Management Safety
           and Health Advisory Committee shall have the
           responsibility for making recommendations on
           safety and health matters impacting members
           of the Atlantic City Fire Department.    Such
           safety and health consideration shall include
           protective   equipment    and   technological
           innovations. The Committee shall meet at the
           call of the Chairman, or upon majority vote
           of its members, but at least quarterly.

     PERC determined the second sentence of 24.A was mandatorily

negotiable because it concerns recommendations regarding health

and safety and that the third sentence of 24.A was not mandatorily

negotiable because it "involves the potential purchase and use of

certain equipment."        The Union argues PERC erred because the

language only grants the Joint Labor/Management Safety and Health

Advisory Committee the responsibility to make recommendations; it

does not vest the Committee with binding authority regarding the

purchase and use of equipment.

     Provisions     regarding   specific      equipment    "predominantly

related to employee safety or comfort" are mandatorily negotiable.

In re Cty. of Union (Union County), P.E.R.C No. 84-23, 9 NJPER

P14,248   (1983).     In   finding    that   24.A   was   not   mandatorily

negotiable, PERC relied on its decision in Union County where it

found a proposed provision that established a "Police Department

Safety Committee," and vested it with binding authority on issues




                                     20                             A-3817-14T2
that   included   the    purchase     of    equipment     was    not    mandatorily

negotiable.

       The   provision   at   issue    here      does    not    endow    the     Joint

Labor/Management     Safety    and     Health      Advisory      Committee         with

authority to make the decision, let alone binding authority.                        The

responsibilities are clearly delineated.                The Committee is tasked

with "the responsibility for making recommendations on safety and

health matters," including "protective equipment and technological

innovations." But the authority to make decisions regarding the

"general safety and health for members of the Atlantic City Fire

Department" resides with the Chief of the Department. As a result,

we conclude PERC's reliance upon its decision in Union County is

misplaced and that it erred in finding this provision was not

mandatorily negotiable.

             24.F. The City pledges to do whatever is
             economically feasible regarding increased
             staffing levels to ensure continued safe fire
             protection of its citizens and a continued
             safe working environment for members of the
             bargaining unit.

       PERC found 24.F was not mandatorily negotiable because it

"refers to 'safety manning standards' and requires the City to

make a 'pledge' to do 'whatever is economically feasible regarding

increased staffing levels.'" The Union argues 24.F was mandatorily

negotiable    because    it   "concerns      a   non-binding      safety        pledge


                                       21                                      A-3817-14T2
undertaken by the City regarding increased staffing levels."                       It

asserts   a      "non-binding    pledge   does   not    impose   a   significant

limitation on the City's managerial prerogative to make staffing

decisions."

     The Union attempts to cast the pledge "to do whatever is

economically feasible" as merely aspirational.                We disagree.       The

statement establishes a presumptive standard "regarding increased

staffing" that is external to the City's exercise of its discretion

in staffing and therefore impinges upon the City's managerial

prerogative.          PERC's    conclusion     that    the   subject    was      not

mandatorily negotiable was, therefore, not arbitrary, capricious

or unreasonable.

              24.G. First level supervisors shall be trained
              by the Department at a level equal to or better
              than standards described in N.F.P.A. Standard
              No. 1021 Fire Officer.

     PERC found this provision improperly "mandates the level of

training the City must provide to its employees," because training

has long been recognized as a managerial prerogative.                           PERC

concluded      that    24.G    "improperly     infringes      upon   the     City's

managerial prerogative to set the training standards for its

employees."        The Union argues 24.G is mandatorily negotiable

because     it    "does    not    seek    to   set    the    baseline      training




                                         22                                 A-3817-14T2
requirement,"      and   instead    "seeks    greater        training   than   that

required."

       A public employer has the prerogative to require employee

training, In re Twp. of Lower, P.E.R.C No. 2014-74, 40 NJPER P167

(2014), and to "decide which employees will be trained, how they

will be trained, and how long they will be trained."                    In re City

of Orange Twp., P.E.R.C No. 2005-31, 30 NJPER P151 (2004).                        In

contrast, a matter is negotiable "to the extent it concerns course

work separate from and in addition to the employer's mandatory

training courses."        Ibid.     For example, "additional compensation

for    education   or    training    that    is   not    a   job    requirement   is

mandatorily negotiable."          In re Twp. of Teaneck, P.E.R.C No. 2000-

33, 25 NJPER P30,199 (1999).

       24.G sets forth      the basic standard for                 how first level

supervisors will be trained (i.e., at minimum, equal to the

identified standard).       It does not "address[] additional training

above the mandated requirement," as the Union contends.                    Because

24.G   infringes    upon   the     employer's     managerial        prerogative   to

decide how to train its employees, PERC correctly found that this

provision was not mandatorily negotiable.

                                      III.

       In    its    cross-appeal,       the       City       challenges     PERC's

determinations regarding several provisions of Article 18, "Acting

                                       23                                  A-3817-14T2
out of Title," contending PERC erred in finding that the following

provisions    were   mandatorily    negotiable:   18.A.2;   18.A.2(c);

18.A.2(d)     (underlined   sentence);   and   18.B.2(f)    (underlined

sentences).

            18.A.2.   Regulations for Class A: In the
            event an employee is assigned to act out-of-
            title, he/she shall be selected from an
            existing   promotional   list   of   eligible
            employees.   If no existing list is current,
            such employee shall be selected from the rank
            next preceding the vacated position. . . .

            18.A.2(c) If there is an existing Civil
            Service list the higher rank, the number one
            person on the list shall be placed in the
            vacancy.

            18.A.2(d) In the absence of an existing Civil
            Service list, the senior person who is
            qualified shall be placed in the vacancy for
            ninety (90) working days and receive the pay
            at the higher rank. After these ninety (90)
            working days, the next senior person with
            qualifications shall replace that person and
            the same conditions will prevail.     In the
            event of a two-part promotional examination,
            in which an interim list is issued, only
            personnel on the interim list will be deemed
            "qualified" to act out-of-title in the higher
            position.

            18.B.2(f) In the event of a promotional list,
            only personnel on the list will act out-of-
            title in the higher position.    In the even
            [sic] there is no individual on the list
            permanently assigned to a Company, pursuant
            to Civil Service Commission Regulations,
            personnel on the list will be reassigned to
            perform the acting out-of-title work.      If
            there is no promotional list, then the acting
            out-of-title position will be performed by a

                                   24                           A-3817-14T2
          journeyman assigned by seniority.      At the
          company   level,   the   acting   out-of-title
          position will be rotated on a four (4) day
          working basis. In the even [sic] of a two-
          part promotional examination, in which an
          interim list is issued, only personnel on the
          interim list will be deemed "qualified" to act
          out-of-title in the higher position.

     The disputed provisions establish procedures for temporary

"out-of-title" assignments.     As PERC found, the provisions do not

require the City to make any out-of-title assignment; they identify

a procedure to be followed after the City has exercised its

prerogative to make such an assignment.       PERC reasoned, "Thus, the

language does not interfere with the decision whether to fill a

temporary vacancy and the fact that there is a civil service list

means that the employees eligible to be assigned to the temporary

vacancy are qualified."2

     Citing its prior decisions, PERC noted "it is mandatorily

negotiable    for   the   employer    to   agree   to   make   promotional

assignments based on an existing promotional list of eligible

employees."   In Township of Wall, PERC stated:

               Promotional criteria are not mandatorily
          negotiable while promotional procedures are.
          Absent preemption, an employer may normally

2
  Notably, PERC concluded the first two sentences in Article
18.A.2(d) and language in Article 18.A.2(g) were not mandatorily
negotiable because they would require the City to fill a
promotional vacancy, treading upon a managerial prerogative. The
Union appealed from those determinations and we have affirmed
PERC's rulings.

                                     25                            A-3817-14T2
           agree to promote employees in the order they
           are listed on a promotional list developed by
           applying its own unilaterally-set criteria to
           the eligible candidates. Unless an employer
           has announced a change in its promotional
           criteria, it may remain obligated to fill
           positions from that list.

           [In re Twp. of Wall, P.E.R.C No. 2002-22, 28
           NJPER P33,005 (2001), (citations omitted)
           aff'd, No. A-1640-01 (App. Div. Jan. 6,
           2003).]

      The City argues the authorities relied upon by PERC are

distinguishable   and   afford    no    support    for    PERC's   conclusion

because they concerned circumstances in which the public employer

had established its own promotional criteria for filling vacancies

and   making   personnel   assignments,     where    in    this    case,   the

promotional criteria is established by the fact the City is a

civil   service   jurisdiction.         However,    to    the   extent     that

promotional criteria are established by Title 11A, the City lacks

any managerial prerogative to deviate from mandated procedures.

We are therefore unpersuaded by this argument.

      In sum, on the Union's challenges to the following provisions

or portions thereof, 2.C, 16.C.1, 17.D, 18.A.2(d) and (g), 23.A,

23.C, 23.J.1, 23.J.2, 23.J.4, 24.F and 24.G, we affirm PERC's

determinations that the disputed language constitutes terms that

are not mandatorily negotiable.        We reverse PERC's determinations

that the disputed language in 16.F.3(e) and 24.A refers to terms


                                   26                                 A-3817-14T2
that are mandatorily negotiable.          On the City's appeal, we affirm

PERC's   determinations      that   the   disputed     language    in    18.A.2,

18.A.2(c), 18.A.2(d) and 18.B.2(f) refer to subjects that are

mandatorily negotiable.

    Affirmed    in   part,    reversed    in   part.     We   do   not    retain

jurisdiction.




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