                             NOT FOR PUBLICATION WITHOUT THE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-4334-18T1

IN THE MATTER OF RUTGERS,
THE STATE UNIVERSITY OF
NEW JERSEY,

       Petitioner-Respondent,

and

FOP LODGE 164, SUPERIOR
OFFICERS ASSOCIATION,

     Respondent-Appellant.
_______________________________

                Argued June 4, 2020 – Decided July 22, 2020

                Before Judges Suter and DeAlmeida.

                On appeal from the New Jersey Public Employment
                Relations Commission, PERC No. 2019-44.

                Catherine Mary Elston argued the cause for appellant
                (C. Elston & Associates, LLC, attorneys; Catherine
                Mary Elston, of counsel and on the briefs; Cathlene Y.
                Banker, on the briefs).

                James P. Lindon argued the cause for respondent
                Rutgers, The State University of New Jersey (McElroy,
                Deutsch, Mulvaney & Carpenter, LLP, attorneys;
              James P. Lidon, of counsel and on the brief; Kelly R.
              Anderson, on the brief).

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

PER CURIAM

        Lodge 164 of the Fraternal Order of Police, Superior Officers Association

(the FOP), appeals from a scope-of-negotiations determination by the Public

Employment Relations Commission (PERC). See N.J.S.A. 34:13A-5.4(d). We

affirm.

                                        I.

        In May 2018, Rutgers, the State University of New Jersey (Rutgers)

terminated Sergeant Michael Farella's employment as a member of the Rutgers

Police Department for disciplinary reasons. The FOP filed a grievance under

the collective negotiations agreement, challenging the termination decision

and—following appointment of an arbitrator, who scheduled an arbitration

proceeding—unsuccessfully pursued arbitration through three steps 1 of the

grievance procedure.



1
    The third step was waived by the parties.
                                                                         A-4334-18T1
                                         2
      In November 2018, Rutgers filed a petition with PERC for a scope-of-

negotiations determination, seeking to restrain binding arbitration. Rutgers

contended the termination action constituted major discipline, which was not

subject to binding arbitration.

            Under N.J.S.A. 34:13A-5.3, as construed by well-
            settled Commission and court precedent, the merits of
            major discipline imposed upon a police officer are non-
            negotiable and, thus, non-arbitrable matters of
            managerial prerogative. Consequently, the University
            seeks a determination by the Commission that the
            grievance seeks binding arbitration concerning a non-
            negotiable matter, and an order restraining arbitration.

      FOP opposed the scope petition, arguing that State v. State Troopers

Fraternal Association, 134 N.J. 393 (1993), relied on by Rutgers, was not the

"sweeping opinion" that Rutgers said it was. Because the statutes governing

operations of Rutgers' police do not provide for discipline, see N.J.S.A. 18A:6-

4.2 to -11, the FOP argued State Troopers did not preclude arbitration; rather, it

is the "statutory authority of the public employer to determine the discipline to

be imposed."

      On April 25, 2019, PERC granted Rutgers' request to restrain binding

arbitration. Citing State Troopers, PERC concluded "[p]olice officers may not

contest the merits of major disciplinary sanctions (suspension or fines of more

than five days, demotions, and terminations) through contractual binding

                                                                          A-4334-18T1
                                        3
arbitration." Although N.J.S.A. 34:13A-5.3 was amended after State Troopers

was decided, PERC found this did not "expand the right to binding arbitration

for police officers beyond review of minor disciplinary actions," citing

Monmouth County v. CWA, 300 N.J. Super. 272 (App. Div. 1997).                FOP

appealed PERC's decision.

      The arbitration hearing was scheduled for August 2019. The arbitrator

would not cancel the hearing at Rutgers' request because "[t]here is nothing in

the PERC ruling that mentions or precludes the arbitration of procedural issues

of disciplinary determinations, which will be the issue before the [a]rbitrator at

the August 20, 2019 hearing." Rutgers filed a motion with PERC seeking

compliance and enforcement of its earlier decision that the FOP opposed.

      In a letter dated August 7, 2019, PERC denied without prejudice Rutgers'

request to commence enforcement proceedings relief because it "believe[d]

Rutgers[] ha[d] the ability to cross-appeal [from the FOP's earlier appeal] and

apply to the Appellate Division for a stay of the arbitration." PERC also stood

by its April 25, 2019 decision "restraining arbitration without qualification,"

noting that "neither party raised procedural issues or presented documents

relating to procedural arguments addressed at earlier steps of the grievance

procedure." Rutgers sought emergent relief. On August 20, 2019, we granted


                                                                          A-4334-18T1
                                        4
Rutgers' request to stay the arbitration and to cross-appeal the April 25, 2019

order and August 7, 2019 letter, but we denied the cross-appeal as moot because

we stayed the arbitration. The FOP amended its notice of appeal to include the

August 7, 2019 letter.

      On appeal, the FOP raises these issues:

            II.    PERC ACTED ARBITRARILY AND
            CAPRICIOUSLY IN REJECTING FOP 164'S
            CONTENTION    THAT    THE   PROHIBITION
            AGAINST CONTESTING THE MERITS OF MAJOR
            DISCIPLINARY     SANCTIONS     THROUGH
            CONTRACTUAL      BINDING   ARBITRATION
            ENUNCIATED IN [STATE TROOPERS] DOES NOT
            APPLY TO CAMPUS POLICE OFFICERS.

            III.   PERC ACTED ARBITRARILY AND
            CAPRICIOUSLY WHEN IN ITS AUGUST 7, 2019
            LETTER DECISION IT CONSTRUED ITS APRIL 25,
            2019 DECISION AND ORDER AS NOT BEING
            LIMITED TO THE RESTRAINT OF ARBITRATION
            AS TO THE MERITS OF THE DISCIPLINARY
            TERMINATION CHALLENGED BY FOP 164'S
            GRIEVANCE.

                                     II.

      "The Legislature has vested PERC with 'the power and duty, upon the

request of any public employer or majority representative, to make a

determination as to whether a matter in dispute is within the scope of collective

negotiations.'" In re Belleville Educ. Ass'n, 455 N.J. Super. 387, 400 (App. Div.


                                                                         A-4334-18T1
                                           5
2018) (quoting City of Jersey City v. Jersey City Police Officers Benevolent

Ass'n, 154 N.J. 555, 567-68 (1998)). "The standard of review of a PERC

decision concerning the scope of negotiations is thoroughly settled.          The

administrative determination will stand unless it is clearly demonstrated to be

arbitrary or capricious." Ibid. (quoting Jersey City, 154 N.J. at 568).

      The FOP does not present any argument that would permit this court to

reverse PERC’s decision on the grounds that: "(1) it was arbitrary, capricious,

or unreasonable; (2) it violated express or implied legislative policies; (3) it

offended the State or Federal Constitution; or (4) the findings on which it was

based were not supported by substantial, credible evidence in the record." Shim

v. Rutgers, 191 N.J. 374, 384 (2007). PERC's decision restrained binding

arbitration on the merits of a major discipline of a police officer—here a Rutgers

police officer. This has been PERC's position consistently since State Troopers

was decided.

      There is no indication PERC's decision violated express or implied

legislative policies. The FOP did not address that N.J.S.A. 34:13A-5.3 was

amended after State Troopers to refer expressly to major discipline. Only the

            State of New Jersey and the majority representative
            have agreed to a disciplinary review procedure that
            provides for binding arbitration of disputes involving
            the major discipline of any public employee protected

                                                                          A-4334-18T1
                                        6
            under the provisions of this section, other than public
            employees subject to discipline pursuant to R.S.53:1-
            10, the grievance and disciplinary review procedures
            established by agreement between the State of New
            Jersey and the majority representative shall be utilized
            for any dispute covered by the terms of such agreement.

            [N.J.S.A. 34:13A-5.3.]

      The Rutgers police are not the State of New Jersey as referenced in the

statute. See Fine v. Rutgers, 163 N.J. 464, 468 (2000) (providing that Rutgers

is a "hybrid institution—at one and the same time private and public, with the

State being granted a major voice in management, and the designation 'State

University'; and the institution being granted private autonomy and control of

physical properties and assets." (internal quotation mark omitted)) (quoting Trs.

of Rutgers Coll. in N.J. v. Richman, 41 N.J. Super. 259, 289-90 (Ch. Div. 1956)).

PERC's decision to restrain arbitration, therefore, did not violate any express or

implied legislative policy.

      There is no allegation, here, that the federal or state constitution was

offended by PERC's decision. And, no one questions that termination from

employment is major discipline.

      The FOP argues that PERC's decision was arbitrary and capricious

because PERC referenced its prior consistent decisions and decisions from our



                                                                          A-4334-18T1
                                        7
court that have affirmed the PERC decisions. It certainly is not arbitrary or

capricious for PERC to decide this case consistent with its past cases or ours.

      The FOP argues that State Troopers has been read too broadly by PERC.

We find no merit in that argument. "We first observe that 'the Legislature is

presumed to be aware of judicial construction of its enactments[.]'" DiProspero

v. Penn, 183 N.J. 477, 494 (2005) (quoting N.J. Democratic Party, Inc. v.

Samson, 175 N.J. 178, 195 n. 6 (2002)).          The Legislature amended the

underlying statute since State Troopers but not to address the issue the FOP

raises. The argument advanced by the FOP, therefore, does not provide us with

a basis to conclude that PERC's decision was inconsistent with this statute or

was arbitrary, capricious or unreasonable.

      The FOP contends that PERC erred by not addressing the arbitrability of

certain claimed procedural issues. However, the scope petition only raised an

issue about major discipline; it did not raise procedural issues. We decline to

address arguments that were not made to PERC in the scope petition. See Neider

v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

      Affirmed.




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