N.J. Inst. of Tech. v. NJIT Patrol Officers' Ass'n

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NEW JERSEY INSTITUTE OF TECHNOLOGY, Plaintiff-Appellant, v. NJIT PATROL OFFICERS' ASSOCIATION, FRATERNAL ORDER OF POLICE LODGE 93, and NJIT SUPERIOR OFFICERS' ASSOCIATION, FRATERNAL ORDER OF POLICE LODGE 93, Defendants-Respondents.

No. A-0741-21

Superior Court of New Jersey, Appellate Division

April 4, 2023

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.

Submitted January 31, 2023

On appeal from the Superior Court of New Jersey, Chancery Division, Essex County, Docket No. C-000123-21.

Genova Burns LLC, attorneys for appellant (Leonard S. Spinelli and James M. Burns, of counsel and on the briefs; David P Cerqueira and Christopher J. Manley, on the briefs).

Markowitz &Richman, attorneys for respondents (Matthew D. Areman, on the briefs).

Before Judges Gilson and Gummer.

PER CURIAM.

Plaintiff New Jersey Institute of Technology (NJIT or the University) appeals from the dismissal of its complaint seeking to enjoin arbitration of grievances brought by unions representing NJIT's campus police officers. The unions allege that NJIT failed to comply with its Emergency Closing Policy (Closing Policy) by refusing to pay campus police officers double-time while the University was operating in reduced capacity during the Covid-19 pandemic.

The chancery court held that the dispute concerning compensation was an issue subject to arbitration under collective negotiation agreements (CNAs) between NJIT and the unions. We agree and affirm.

I.

NJIT is a public employer, see N.J.S.A. 34:13A-3(c), and has CNAs with the NJIT Patrol Officers' Association, FOP Lodge 93 (POA) and the NJIT Superior Officers' Association, FOP Lodge 93 (SOA) (collectively, the Unions). The POA is the exclusive bargaining representative for NJIT police officers. The SOA is the exclusive bargaining representative for NJIT police sergeants.

The CNAs have substantially identical language providing for arbitration of grievances. Those provisions state that any union member may file a grievance concerning:

A claimed violation or other improper application by the University of the terms of this Agreement, University rules regulations or governing policy specifically affecting the grieving Officer's [or Sergeant's] negotiable terms and conditions of employment.

Grievances under the CNAs are to be addressed in three steps. In "Step One," the grievance is submitted in writing to NJIT's Director of Public Safety or Chief of Police. If the grievant or Union is "dissatisfied with the decision at Step One," the grievant or Union can file a written grievance with NJIT's Vice President of Real Estate Development and Capital Operations (Vice President of Development), and a hearing will be conducted. If the Union is dissatisfied with the decision at Step Two, it can demand arbitration "in accordance with the rules and regulations of" the Public Employment Relations Commission (PERC). In that regard, both CNAs state:

If the [Union] is dissatisfied with the decision at Step Two, and the alleged grievance involves a specific violation of this locally negotiated [CNA], as described in the definition of a grievance in E.1. [or, F., Grievance Procedure, 1. (a.)], and the [Union] desires and is authorized by law to institute arbitration or other appeal proceedings, it must . . . give proper notice to either [PERC], or to the Board of Trustees ....

The CNAs also state that the arbitrator's recommendation or decision cannot modify the CNA or any policy of NJIT. In that regard, the CNAs provide:

The recommendation or decision of the reviewing individual or body shall not in any manner modify or cause anything to be added to or subtracted from this [CNA] or any policy of the University.

NJIT has an Emergency and Continuity of Operations Plan (E&C Plan), which was updated and reissued in September 2019. The E&C Plan addresses how NJIT will operate during "short-term" and "long-term" emergencies or disasters, including a "pandemic." The E&C Plan includes an Emergency Closing Policy (Closing Policy), which addresses when NJIT may close or limit its operations and how employees will be compensated when the Closing Policy is in effect. In relevant part, the Closing Policy states:

A. The [U]niversity may, from time to time, officially close its operations in whole or in part following procedures outlined in the Contingency Plans for Emergency Closing, in response to unusual conditions such as inclement weather or unanticipated occurrences emanating from internal or external factors and rendering the [U]niversity, or any part thereof, unfit for regular operations. The authority to close operations is vested in and restricted to the President and, as permanent designee, the Senior Vice President for Administration and Treasurer.

C. When the closing is effected, all employees covered by the declaration shall be released from reporting at work and shall be compensated at their regular rate of pay for such released period. All employees directed to report or remain at work during an emergency closing, and only such employees, shall be considered essential services personnel for the period in question and, if of the legal category of personnel eligible for overtime, shall receive double their regular rate of pay for that period of actual work reporting during the [U]niversity declared emergency closing.

Beginning in early March 2020, Governor Philip D. Murphy issued a series of executive orders to address the Covid-19 pandemic. In Executive Order 103, issued on March 9, 2020, the Governor declared a public health emergency and state of emergency in New Jersey. Exec. Order No. 103 (Mar. 9, 2020), 52 N.J.R. 549(a) (Apr. 6, 2020). In Executive Order 104, issued on March 16, 2020, the Governor directed, among other things, the suspension of "in-person instruction" at institutions of higher education. Exec. Order No. 104 (Mar. 16, 2020), 52 N.J.R. 550(a) (Apr. 6, 2020). Thereafter, the Governor issued several executive orders extending and then reducing restrictions on in-person instruction at colleges and universities in New Jersey. See Exec. Order No. 107 (Mar. 21, 2020), 52 N.J.R. 554(a) (Apr. 6, 2020) (extending suspension of inperson instruction at institutions of higher education); Exec. Order No. 155 (June 18, 2020), 52 N.J.R. 1356(a) (July 20, 2020) (permitting limited in-person instruction at institutions of higher education); Exec. Order No. 175 (Aug. 13, 2020), 52 N.J.R. 1699(a) (Sept. 21, 2020) (permitting reopening of schools for in-person instruction).

NJIT responded to the pandemic and the Governor's executive orders by implementing a hybrid remote-learning operation. NJIT reduced certain operations at its campus, while continuing other operations to support remote learning. In that regard, the University limited on-campus building access and provided limited services.

Between May 2020 and June 2021, NJIT transitioned back to more on-campus operations. For example, in the fall of 2020, a larger number of students returned to residential dorms on campus, although dorm capacities were limited. In-person courses also resumed, but staff attendance on campus averaged between twenty-five and fifty percent per department.

During the reduced operations, NJIT employees either worked remotely or reported to work at the University's campus. Campus police officers were compensated at their regular rate of pay and sometimes worked on campus and at other times worked "from home." NJIT maintains that it coordinated with the Unions to set up schedules where campus police officers would work reduced on-campus hours with no loss of pay.

At some point in 2021, the Unions, on behalf of their members, raised the question of whether the police officers should have received double their regular rate of pay for the periods they had worked on campus while NJIT was operating at a reduced level. In April 2021, after the parties could not reach agreement on that issue through informal discussions, the Unions filed grievances under Step One. The Unions alleged that the CNAs and the Closing Policy required campus police officers to be paid double-time when they were working on campus between March 18, 2020, and June 4, 2021. NJIT rejected those grievances as seeking a "facially unreasonable outcome."

The Unions maintain that they submitted their grievances to the Vice President of Development on April 21, 2021, via an email. NJIT acknowledges that the Unions submitted their grievances in accordance with Step Two but contends the submission was untimely. Both parties agree that the procedural arbitrability issue of whether the Unions properly complied with Step Two is an issue to be addressed by the arbitrator and is not part of this appeal. In that regard, NJIT maintains that the grievances are not substantively arbitrable, but if we reject that position, it will raise the procedural issue with the arbitrator.

On April 28, 2021, the Unions filed separate requests with PERC for the appointment of arbitrators to adjudicate the grievances. In response, on July 16, 2021, NJIT filed a verified complaint and order to show cause in the Chancery Division. NJIT sought to restrain arbitration of the grievances, arguing that they were not substantively arbitrable.

On September 15, 2021, the Chancery Division denied NJIT's request for an injunction and issued a supporting written statement of reasons. The chancery court found that the grievances concerning...