                            NOT FOR PUBLICATION WITHOUT THE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-1157-18T2

IN THE MATTER OF BERGEN
COUNTY SHERIFF'S OFFICE,

      Petitioner-Appellant/
      Cross-Respondent,

and

POLICEMEN'S BENEVOLENT
ASSOCIATION LOCAL 49,

     Respondent-Respondent/
     Cross-Appellant.
_______________________________

                Argued November 13, 2019 – Decided December 26, 2019

                Before Judges Fisher, Accurso and Gilson.

                On appeal from the New Jersey Public Employment
                Relations Commission, Docket No. SN-2018-033.

                Eric Martin Bernstein argued the cause for
                appellant/cross-respondent Bergen County Sheriff's
                Office (Eric M. Bernstein & Associates, LLC,
                attorneys; Eric Martin Bernstein, Brian M. Hak,
                Catherine M. Elston and Cathlene Y. Banker, on the
                briefs).
             Michael A. Bukosky argued the cause for respondent/
             cross-appellant Policemen's Benevolent Association
             Local 49 (Loccke, Correia & Bukosky, attorneys;
             Michael A. Bukosky, of counsel and on the brief).

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

PER CURIAM

      This is the second time we address whether a collective bargaining

agreement (CBA) requires an arbitrator to decide if Bergen County police

officers are entitled to a retroactive pay increase because the County Police were

integrated into the Bergen County Sheriff's Office (Sheriff's Office). In our first

opinion, we held that the CBA delegated that question to an arbitrator. Bergen

Cty. Sheriff's Office v. Police Benevolent Ass'n, Local 49, Nos. A-0485-16 and

A-0486-16 (App. Div. Oct. 31, 2017). In this opinion, we hold that the Public

Employment Relations Commission (PERC) properly denied the Sheriff's Office

request to restrain arbitration.

      The Sheriff's Office appeals from a September 27, 2018 final agency

decision by PERC, which denied the Sheriff's Office request to restrain binding

arbitration of a grievance filed by the Police Benevolent Association, Local 49

(PBA 49). PBA 49 cross-appeals from the portion of the PERC decision that

                                                                           A-1157-18T2
                                        2
found that the Sheriff's Office had standing to file the scope petition. We reje ct

the arguments put forward in the appeal and cross-appeal and affirm.

                                        I.

      This appeal arises out of an ongoing dispute among the Sheriff's Office,

Bergen County, and PBA 49 concerning the reorganization of the Bergen

County Police Department. In our prior opinion, we detailed the history of that

dispute and, therefore, in this opinion we only summarize that history.

      Bergen County historically has had a police department and a sheriff's

office. In January 2015, the Bergen County Executive, Sheriff, and Prosecutor

entered into a Memorandum of Agreement that addressed the organization of

the County Police Department (the 2015 MOA). The 2015 MOA stated that the

Bergen County Police Department was to be realigned with the Sheriff's Office.

The MOA went on to provide that the Bergen County Police Department would

be a separate unit overseen by the Sheriff's Office and that there would be no

changes required to any existing labor contracts. Shortly after the 2015 MOA

was signed, the county freeholders adopted a resolution approving the 2015

MOA.

      Before the 2015 MOA was implemented, the County and PBA 49 were

parties to a CBA for several decades. PBA 49 represented the county police


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                                        3
officers, except the chief and deputy chief. The basic terms of the CBA were

agreed to in 2001, and the CBA has been extended and modified by agreements.

The most recent relevant extension was executed in January 2014 (the 2014

CBA Extension). The 2014 CBA Extension addressed the salaries of county

police officers and provided that those officers would receive certain salaries,

but if the county police were "merged/consolidated" into the Sheriff's Office,

then the officers would receive different salaries.

      In February 2016, PBA 49 filed a grievance alleging that the county police

had merged into the Sheriff's Office and, therefore, the officers were entitled to

a retroactive salary increase under the 2014 CBA Extension. The chief of the

Sheriff's Office denied the grievance. Thereafter, in accordance with the CBA,

PBA 49 submitted a request to PERC for appointment of an arbitrator.

      In response, the County and Sheriff's Office asked PERC to hold the

arbitration in abeyance. PERC denied that request. The County and Sheriff's

Office then filed a declaratory judgment action in the Law Division. The trial

court denied the County and Sheriff's Office request for an injunction and

dismissed the complaint for declaratory relief.

      We affirmed that decision. Specifically, we held that the governing CBA

required an arbitrator to decide if a merger or realignment had occurred and


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                                        4
whether the county police were entitled to a retroactive increase in salaries.

Bergen Cty. Sheriff's Office, slip op. at 9, 13-14.

      Thereafter, in February 2018, the Sheriff's Office filed a scope of

negotiations petition with PERC seeking to restrain binding arbitration of the

grievance filed by PBA 49. The Sheriff's Office argued that the provision

covering the Bergen County police officers' salaries (Article VIII of the CBA)

was not enforceable because it (1) infringed on managerial prerogatives, and (2)

was an illegal parity clause.

      PERC denied the Sheriff's Office petition in a written decision and order

entered on September 27, 2018. Initially, PERC rejected a threshold argument

made by PBA 49 that the Sheriff's Office was not authorized to file the scope

petition. PERC found that, following the implementation of the 2015 MOA, the

Sheriff's Office was the employer of the county police officers and, therefore,

had the authority to file the scope petition.

      Turning to the Sheriff's Office contentions, PERC found that the Sheriff's

Office had failed to make any showing that the salary provision found in Article

VIII would interfere with the managerial prerogatives of the Sheriff. PERC

noted that the salary clause addressed compensation, and "it is well-settled that

compensation is generally mandatorily negotiable." PERC then found that the


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                                         5
"Sheriff's Office had failed to provide any evidence demonstrating how

compensating PBA members in accordance with Article VIII would constitute

significant interference with its managerial prerogative to reorganize or would

result in a significant financial burden."

      PERC also rejected the Sheriff's Office argument that the CBA salary

clause was an illegal parity clause. In that regard, PERC found that the "formula

established by Article VIII uses a combination of salaries from agreements of

other employers to determine salaries for PBA members. Article VIII does not

automatically match salaries of PBA members to other Sheriff's Office

employees, and, therefore, does not trigger the same concerns as an illegal parity

clause."

                                        II.

      As noted, the Sheriff's Office now appeals from PERC's decision and PBA

49 cross-appeals. The Sheriff's Office makes three arguments, contending that

the salary clause in the CBA is unenforceable because it (1) significantly

interferes with managerial prerogatives; (2) violates public policy; and (3) is an

illegal parity clause. PBA 49 cross-appeals contending that PERC erred by

determining that the Sheriff's Office had standing to file the scope petition.




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                                         6
      We are not persuaded by any of the arguments presented on the appeal or

cross-appeal. We initially address our scope of review. Thereafter we analyze

the cross-appeal and appeal.

      A.    Our Scope of Review

      The scope of our review of a final agency determination by PERC is

limited. City of Jersey City v. Jersey City Police Officers' Benevolent Ass'n,

154 N.J. 555, 567 (1998).       "In the absence of constitutional concerns or

countervailing expressions of legislative intent, we apply a deferential standard

of review to determinations made by PERC." Ibid. (citing In re Hunterdon Cty.

Bd. of Chosen Freeholders, 116 N.J. 322, 329 (1989)). When a party appeals a

scope-of-negotiation determination, we will not reverse PERC's determination

unless it was arbitrary, capricious, or unreasonable, the findings lacked support

in the evidence, or there was a violation of PERC's legislative grant of authority.

In re Herrmann, 192 N.J. 19, 27-28 (2007).

      The Legislature has expressly authorized PERC to determine whether a

"matter in dispute is within the scope of collective negotiations." N.J.S.A.

34:13A-5.4(d). Accordingly, we give appropriate deference to PERC's expertise

in public sector employer-employee relations. In re Hunterdon Cty. Bd. of

Chosen Freeholders, 116 N.J. at 328.


                                                                           A-1157-18T2
                                        7
      B.    PBA 49's Cross-Appeal

      In determining that the Sheriff's Office had standing to file a scope

petition, PERC reviewed the relevant facts and applied its existing precedent.

We discern nothing arbitrary, capricious, or unreasonable in PERC's finding that

the Sheriff's Office is now the employer of county police officers. Indeed, we

note that the grievance filed by PBA 49 would not be ripe if the county police

officers had not been merged or consolidated into the Sheriff's Office. In other

words, PBA 49 cannot have it both ways; it cannot claim salary increases based

on its members being merged into the Sheriff's Office, but also simultaneously

claim that its members are not employees of the Sheriff's Office and are still

employees of the county.

      C.    The Sheriff's Office Appeal

      We also discern nothing arbitrary, capricious, or unreasonable about

PERC's denial of the Sheriff's Office petition to restrain arbitration. PERC

found that the salary clause was a compensation clause. It also found that the

Sheriff's Office had not made any showing that implementation of the salary

clause would impinge on the Sheriff's Office managerial prerogatives. In that

regard, PERC found that the merger or realignment had already taken place.

Thus, the Sheriff's Office had executed its managerial prerogatives.


                                                                        A-1157-18T2
                                       8
      All of those factual findings are supported by substantial credible

evidence in the record. Moreover, PERC's application of the well-established

law concerning managerial prerogatives was also reasonable. See Local 195,

IFPTE v. State, 88 N.J. 393, 404 (1982); Paterson Police PBA Local No. 1 v.

City of Paterson, 87 N.J. 78, 92-93 (1981); Twp. of Franklin v. Franklin Twp.

PBA Local 154, 424 N.J. Super. 369, 380-81 (App. Div. 2012).

      The questions at issue now are whether there was a realignment or merger

triggering the salary clause and, if so, what salary increases are due to the county

police officers. Consistent with our prior opinion, PERC determined that those

questions are to be answered by an arbitrator as called for in the governing CBA.

      Similarly, we discern no abuse of discretion in PERC's rejection of the

parity clause argument. PERC has long held that a clause is an illegal parity

clause if it automatically bestows benefits to one bargaining unit based on future

negotiations between the same employer and another bargaining unit. See In re

City of Plainfield, PERC No. 78-87, 4 NJPER 255 (1978).

      Here, Article VIII of the CBA has been in place since 2001. It originally

referenced salaries of police officers in thirty other towns in Bergen County.

The 2014 CBA Extension made certain provisions of the salary clause "no longer

operative, unless the county police are merged/consolidated into the Be rgen


                                                                            A-1157-18T2
                                         9
County Sheriff's Office or disbanded." In that situation, the CBA states that the

prior salary provisions "become retroactively operative effective January 1,

2014." Relying on its existing precedent, PERC found that the clause was not a

parity clause because it did not automatically match salaries of the county police

officers to other employees of the Sheriff's Office.        That is a reasonable

interpretation of the facts and applicable law. Consequently, we discern no basis

to disturb PERC's determinations.

      Before us, the Sheriff's Office also argues that enforcement of the salary

clause in the CBA would violate public policy. In that regard, the Sheriff's office

contends that the clause is an unlawful penalty clause and provides for a double

recovery. The Sheriff's Office did not raise those arguments before PERC, and

we decline to consider them now for the first time. See Nieder v. Royal Indem.

Ins. Co., 62 N.J. 229, 234 (1973) (holding that questions or issues not properly

presented to a trial court or agency will not be considered on appeal unless they

go to the jurisdiction of the court or concern matters of great public interest); In

re Frazier, 435 N.J. Super. 1, 7 (App. Div. 2014).

      Finally, we note that PBA 49 has been seeking to arbitrate this salary

grievance since February 2016. The Sheriff's Office has filed a declaratory

judgment action and various petitions to try to prevent that arbitration. As the


                                                                            A-1157-18T2
                                        10
governing CBA gives PBA 49 the right to an arbitration, we trust that the parties

will now proceed to and through the arbitration process without further delay.

      Affirmed.




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