In the Matter of State of New Jersey and Council of New Jersey State College Locals, Aft

NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-2515-24

IN THE MATTER OF STATE
OF NEW JERSEY,
                                         APPROVED FOR PUBLICATION
      Respondent-Appellant,
                                                 April 17, 2026

and                                          APPELLATE DIVISION


COUNCIL OF NEW JERSEY
STATE COLLEGE LOCALS, AFT,

      Petitioner-Respondent,

and

COMMUNICATIONS WORKERS
OF AMERICA, AFL-CIO,

     Intervenor-Respondent.
_________________________________

           Submitted March 10, 2026 – Decided April 17, 2026

           Before Judges Sumners, Susswein and Augostini.

           On appeal from the New Jersey Public Employment
           Relations Commission, PERC Nos. 2012-017, 2016-
           029, 2016-031, 2019-018, 2019-024, and 2020-003.

           Jennifer Davenport, Attorney General, attorney for
           appellant (Donna Arons, Assistant Attorney General, of
           counsel; Kevin K.O. Sangster, Deputy Attorney
           General, on the briefs).
            Weissman & Mintz LLC, attorneys for respondent
            Council of New Jersey State College Locals, AFT
            (Kevin McGovern, of counsel and on the brief).

            Weissman & Mintz LLC, attorneys for respondent
            Communications Workers of America, AFL-CIO
            (Patricia A. Villanueva, of counsel and on the brief).

            Christine Lucarelli-Carneiro, General Counsel,
            attorney for respondent New Jersey Public
            Employment Relations Commission (Frank C. Kanther,
            Deputy General Counsel, on the brief).

      The opinion of the court was delivered by

SUMNERS, JR., C.J.A.D.

      The State of New Jersey challenges the final agency decision of the Public

Employment Relations Commission (PERC) that twenty-eight employees

working in eleven positions at Kean University, Montclair State University, and

The College of New Jersey (TCNJ), can be members of collective bargaining

units –– The Council of New Jersey State College Locals (AFT) or the

Communications Workers of America (CWA) (collectively unions). In deciding

the unions' clarification of unit petitions, PERC determined the employees can

be union members because their job duties do not satisfy the managerial

executive exception which precludes union membership for "persons who

formulate management policies and practices" and have "the responsibility of



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directing the effectuation of such management policies and practices." N.J.S.A.

34:13A-3.

      We reject the State's contentions that PERC erred in: (1) determining the

job titles do not satisfy the managerial executive exception because they "are

[not] charged with the responsibility of directing the effectuation of such

management policies and practices"; and (2) interpreting the Employer-

Employee Relations Act (EERA), N.J.S.A. 34:13A-1 to -64, to require that

managerial executives who formulate policies without independent review from

others can join the unions.     We conclude PERC's ruling is not arbitrary,

capricious, or unreasonable because it is consistent with the record and the

applicable law.

                                        I.

      A. THE DISPUTE

      The genesis of this dispute began in 2012, when the AFT, which represents

collective bargaining units in New Jersey state colleges and universities, filed a

clarification of unit petition with PERC seeking to include various job titles in

their union. See N.J.A.C. 19:11-1.5. The petition followed a 2010 amendment

to N.J.S.A. 34:13A-3, which narrowed the definition of "managerial executive"




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                                        3
for non-State public employers. 1 State v. Council of N.J. State Coll. Locals,

AFT, No. A-2987-12 (App. Div. Feb. 20, 2015) (slip op. at 2). CWA, which


1
    Prior to the 2010 amendment, N.J.S.A. 34:13A-3 read:

             "Managerial executives" of a public employer means
             persons who formulate management policies and
             practices, and persons who are charged with the
             responsibility of directing the effectuation of such
             management policies and practices, except that in any
             school district this term shall include only the
             superintendent or other chief administrator, and the
             assistant superintendent of the district.

             [N.J.S.A. 34:13A-3(f) (1974) (amended 2010).]

The 2010 amendment stated:

             "Managerial executives" of a public employer, in the
             case of the State of New Jersey, means persons who
             formulate management policies and practices, but shall
             not mean persons who are charged with the
             responsibility of directing the effectuation of such
             management policies and practices, except that, in the
             case of the Executive Branch of the State of New
             Jersey, "managerial executive" shall include only
             personnel at or above the level of assistant
             commissioner.

             In the case of any public employer other than the State
             of New Jersey, "managerial executives" of a public
             employer means persons who formulate management
             policies and practices, and persons who are charged
             with the responsibility of directing the effectuation of
             such management policies and practices, except that in


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represents "the administrative and clerical, professional, primary level

supervisory, and higher-level supervisory units" in New Jersey state colleges

and universities, intervened to include additional employees in its union based

on the definition of non-State public employers.

      In a January 31, 2013 decision dismissing the unions' petition, PERC,

citing N.J.S.A. 18A:64-20 and 18A:64-21.1, determined: (1) college staff and

professionals were not State employees, but rather "employees of the respective

boards of trustees of the various state colleges"; (2) the amended definition of

"managerial executives" did not apply to those employees who held positions in

the submitted job titles; and (3) the amendment did not alter the status of these

employees who previously had been excluded as managerial executives. The

unions appealed.

      We held the 2010 amendment's definition of managerial executives of

State public employers did not apply to state college and university employees.

Ibid. Concluding that the statute was unambiguous, we reasoned that a college




            any school district this term shall include only the
            superintendent or other chief administrator, and the
            assistant superintendent of the district.

            [N.J.S.A. 34:13A-3.]


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or university's board of trustees employs its faculty and staff, whereas the

Governor employs our state public employees per the EERA, such as for

negotiations. Ibid. Because the unions' clarification of unit petitions did not

involve negotiations, we applied the definition of managerial executives for non-

State public employers. Ibid. As to whether the employees were managerial

executives, we remanded for PERC to determine if their job titles could be

represented by the unions after "conduct[ing] a thorough fact-finding

investigation, with a hearing, in accordance with its regulations." Id. at 8.

      B. PERC DIRECTOR OF REPRESENTATION'S DECISION

      On remand, after PERC staff conducted numerous conferences and

hearings over several years to determine the job titles that can be represented by

the unions, the PERC Director of Representation (Director) selected a group of

employees from Kean University, Montclair State University, and TCNJ for his

first-round decision. After reviewing the parties' submissions, the Director

reasoned that there were no substantial disputed material facts warranting an

evidentiary hearing and conducted an administrative investigation. N.J.A.C.

19:11-2.2 and -2.6.

      On April 30, 2024, the Director issued a ninety-nine-page decision finding

that twenty-eight employees, with seventeen job titles, should be included in the


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unions because the job duties do not qualify for the managerial executive

exception, and that one job title––Executive Director of Residence Life at

Montclair State University––is a managerial executive position and excluded

from union membership.

      For the sake of brevity, we highlight the Director's relevant findings

regarding the applicability of the managerial executive exception to the

following job titles2 which are in dispute:

      a. Kean University

      1. Associate Director for Student Research & Innovation (Director III)

               • Ensures that student research complies with
                 relevant university, state, and federal regulations
                 and provides resources for students.

               • This includes managing all student research
                 award programs; creating and managing summer
                 research programs; and educating faculty on
                 engaging with students in their research.

               • As part of the Kean University Institutional
                 Review Board (IRB), reviews and approves IRB
                 applications; makes "recommendations on
                 human subject protection policies"; and engages
                 in "research integrity reviews."

               • Reviews faculty/student research; researches
                 proposals and awards funds; and drafts

2
  The Director identified the individuals employed in the job titles. We do not
do so as we focus only on the job titles and their duties.
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                                        7
           department    procedures    for   "industry   best
           practices."

        • Recommends the creation and implementation of
          policies to the Vice President of Research and the
          Provost.

        • The Director determined the State failed to show
          that job duties were "not subject to further
          independent review." The Director found that the
          position's involvement with employee grievances
          was "informal at a low level" and did not carry
          significant discretion. The Director further noted
          that the State did not provide "sufficient detail of
          any specific instances of [the Director III's]
          recommendations for personnel actions."

2. Managing Assistant Director

        • Duties include creating and overseeing the
          implementation of strategic marketing plans for
          performing arts programs; supervising marketing
          support staff; managing audience cultivation;
          increasing visibility for arts programming;
          overseeing safety protocols for the "safety rider"
          program (which escorts students who feel unsafe
          on campus); and overseeing COVID protocols.

        • Reports to the Executive Director of the Office of
          Theatre Management and Programming on all
          marketing and public relations matters
          concerning the school's performing arts. The
          Executive Director approves the Managing
          Assistant Director's decisions to form and
          implement procedures.

        • The Director determined the Managing Assistant
          Director's decisions were subject to further

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           independent review. For instance, the position's
           supervisory duties were "limited to scheduling
           and directing work" and were unable to make
           personnel decisions "without the independent
           review of co-managers, higher-level managers,
           or committees." Finally, the involvement with
           grievances was "informal at a low level."

3. Managing Assistant Director II (Production Supervisor)

        • Duties include managing the recruitment and
          training of all staff in safely using equipment and
          audio, video, and lighting systems; supervising
          stage management's work; and supervising
          performances and troubleshooting issues. In
          addition, duties include "primary oversight of
          technical aspects of each event hosted by the
          [Executive Director of the Office of Theatre
          Management and Programming]"; "budgetary
          responsibilit[ies]" for each event; negotiating
          requirements for "technical riders"; negotiating
          prices for rentals of additional equipment; budget
          planning; and managing production codes.

        • Prepares employee corrective action memos,
          performance improvement plans, and formal
          referrals for disciplinary action to human
          resources but may not unilaterally discharge AFT
          unit members.

        • Reports to the Executive Director of the Office of
          Theatre Management and Programming on
          budgeting issues, venue requests, staffing or
          production      issues.           Reappointment
          recommendations of staff are subject to the
          Executive Director's review.



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                                9
          • The Director noted that although the State
            initially raised the managerial executive
            exception before the cases were consolidated, it
            did not raise this issue before the Director
            finalized the list of selected employees. Even if
            considered on the merits, the Director determined
            that a "substantial supervisory conflict of
            interest" did not exist and that the State waived
            its managerial executive argument by not raising
            the issue before the Director when the lists were
            finalized. Even if the issue was not waived, the
            Director noted that the Managing Assistant
            Director II was not a managerial executive
            position because its formulation of policies
            "w[as] subject to further independent review and
            approval by others."

b. TCNJ

1. Director of Development and Planned Giving

          • Duties include identifying and soliciting "major
            and planned gifts"; creating research strategies;
            developing and maintaining a planned giving
            program; supervising Annual Fund staff
            members; and coordinating with financial
            institution representatives.

          • Does not evaluate AFT or CWA unit staff
            members' performance and is not involved in the
            grievance process; reports issues to supervisor.

          • The Director found that the State failed to show
            the position had the discretion to decide or
            recommend personnel actions or provide
            examples of directing policy without independent
            review from others.


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2. Leadership Gift Officer and Major Gift Officer

         • Duties include "developing and implementing
           strategies to identify and solicit potential
           leadership gift donors[;] drafting and negotiating
           gift agreements[;]" "providing appropriate
           recognition and stewardship of the donor/gift[;]"
           and complying with TCNJ gift policies.

         • The Director found the position did not include
           managerial executive duties because it did not
           authorize implementation of policy without
           independent review from others.

c. Montclair State University

1. Assistant Director for Residence Life and Facilities

         • Duties include coordinating and maintaining
           repair of residential facilities; proposing long-
           term improvements; troubleshooting issues with
           the administration; developing the budget; and
           recommending policy changes. Formulation of
           policies is subject to review and approval by
           Associate Director of Housing Services and
           Executive Director of Residence Life.

         • The Director found the State waived its argument
           regarding the managerial executive exception
           and even if not waived, the position did not
           include managerial executive duties because it
           did not authorize implementation of policy
           without independent review from others.

2. Assistant Director of Residence Life

         • Duties include supervising community directors
           in the AFT's unit, senior clerk transcribers in the

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                                11
   CWA unit, and indirectly supervising graduate
   student assistant community directors and
   undergraduate student staff members. Reports to
   the Associate Director of Residence Life.

• Serves on an emergency response rotation to
  provide guidance on university guidelines and
  protocols, and as a conduct and appeal officer for
  violations of student conduct. Develops student
  staff evaluation systems; reviews policies and
  ensures that staff are properly implementing
  policies; oversees the budget for training,
  development, and recruitment. While on call,
  exercises "a high degree of independent
  discretion to adjust responses in real time
  depending on the facts of each incident, although
  they can call up the chain of command for
  guidance." Has the authority to hire, discipline,
  and fire employees after consulting with Human
  Resources and the Vice President/Unit head.

• The Director noted that the State waived its
  arguments regarding the managerial executive
  exception. Even if considering the merits, the
  Director determined that as to one of the three
  individuals working in the position, the State
  failed to produce evidence establishing that they
  created policy. As to the two others, the Director
  found there was "no indication that the Assistant
  Directors alone determined the plan without
  independent judgement from others." He also
  noted the position had no independent discretion
  over any policy and did not involve "the
  thoughtful consideration and forward-planning
  of longer-term policy to be followed by others
  that will not simply be adjusted with discretion
  by another employee of the same level the next


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           day" that would fall under the managerial
           executive exception.

3. Associate Director of Residence Life

        • Duties include overseeing departmental training
          programs; implementing departmental hiring;
          reviewing residential conduct incident reports;
          drafting departmental policies; and serving on the
          "manager after-hours emergency on-call
          rotation" to provide guidance on serious incidents
          and emergencies.

        • Reports to the Executive Director of Residence
          Life, Associate Dean of Students, and Director of
          Student Conduct on "high-level conduct cases,"
          suspensions expulsions, policy updates, and
          conducts related trainings.

        • Supervises and evaluates three managers and a
          CWA unit member and indirectly supervises
          eight AFT unit members and one CWA unit
          member.

        • The Director found that the State waived its
          arguments regarding the managerial executive
          exception. Even if considered on the merits, the
          Director determined the position did not decide
          or recommend actions "without independent
          review and judgment from others" and
          formulation of policies was limited to
          "implement[ing] the general strategies and
          directives of higher-level supervisors," which did
          "not constitute directing the effectuation of
          policy."




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4. Associate Director of the Center for Research and Evaluation on
Education and Human Services (CREEHS)

        • Duties include communicating current research
          and evaluation trends to other staff members and
          presenting research results to staff members.

        • Not involved in the grievance process and does
          not have the power to review and submit
          evaluations of staff members; participates in
          search committees to fill positions; and advises
          supervisory staff who are facing discipline.

        • The Director found that the State waived its
          arguments regarding the managerial executive
          exception. Even if considered on the merits, the
          Director determined that the State's certifications
          established that the position's formulation of
          policies was subject to approval by the CREEHS
          Director and the CREEHS leadership team
          thereby disqualifying it from the managerial
          executive exception.

5. CREEHS Director

        • Duties include responsibility for CREEHS' day-
          to-day operations; securing funding; drafting
          research; writing reports; "leading the staff of
          researchers and evaluators in procuring
          contracted work;" engaging with stakeholders
          across the state; hiring and evaluating staff; and
          representing CREEHS.

        • The Director found there was no evidence the
          position "made a recommendation for a personnel
          action, let alone that such a recommendation
          would have been effective without independent
          review and judgement from others" and had

                                                                A-2515-24
                               14
        informal involvement in employee grievances.
        Further, the position did not include managerial
        executive duties because it did not independently
        recommend policies or personnel actions without
        independent review from others.

6. Senior Research Associates at CREEHS

     • Duties include designing and overseeing research
       studies and working with graduate students and
       research assistants on their research.

     • No power to review or submit evaluations for
       employees.

     • The Director found that the State waived its
       arguments regarding the managerial executive
       exception. Even if considered on the merits, the
       managerial executive exception was inapplicable
       as the position did not have the discretion to
       formulate policy on its own.

7. Director of Red Hawk Central, the Financial Aid Center

     • Duties include creating policies regarding
       financial services and retention of students;
       overseeing the phone and live chat system that
       allows the Center to communicate with students;
       and working with managers in effective
       implementation of policies.

     • Reports to the Vice President of Enrollment
       Management to develop policies regarding
       enrollment and registration and has implemented
       policies ranging from how the Office of the
       Registrar receives forms to students' compliance
       with immunization requirements.


                                                            A-2515-24
                           15
                   • The Director reasoned that the managerial
                     executive exception does not apply because the
                     position does not formulate policy without
                     independent review from others.

       C. APPEAL OF THE DIRECTOR'S DECISION

       On July 11, 2024, PERC denied the State's request to stay the Director's

decision, reasoning the State failed to analyze the Crowe3 factors and thus did

not show how a stay would prevent irreparable harm.

       On January 30, 2025, PERC affirmed the Director's decision. 4 PERC

initially noted:

             [T]he State has raised a substantial question of law
             concerning the interpretation of the [EERA] in terms of
             how to apply the [EERA's] managerial, supervisory,
             and confidential employee exemptions to titles that the
             majority representatives for certain statutorily defined
             statewide units seek to include in their respective units
             pursuant to N.J.S.A. 34:13A-5.10.

       PERC also rejected the State's contention that the clarification of unit

petitions was untimely and waived. PERC found that no law or regulations

prescribed a time limit to filing a clarification of unit petition and the unions did



3
    Crowe v. DeGioia, 90 N.J. 126, 132-34 (1982).
4
  We omit any reasoning that the confidential employee exception applied to
certain positions because the State does not challenge this issue on appeal.


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                                        16
not waive their claims to represent the job titles. As for the managerial executive

exception, PERC maintained it "strictly construes [the] asserted exclusions to

an employee's eligibility for representation by a majority representative"

because the EERA's public policy favors including all employees interested in

collective negotiations. See State of N.J. and CWA, P.E.R.C. No. 86-18, 11

N.J.P.E.R. ¶ 16179, 1985 WL 1145539 (1985).

      PERC determined the Director "thoroughly considered" the State's

evidence regarding the employees' job duties and properly determined the

employees did "not exercise sufficient levels of independence in formulating or

directing the effectuation of management policies and practices" to be

considered managerial executives. 5 PERC found the Director did not apply an

unduly restrictive definition of managerial executive but correctly applied

N.J.S.A. 34:13A-3(f) and the three-factor analysis pronounced in N.J. Tpk.

Auth. v AFSCME, Council 73, 150 N.J. 331, 356 (1997), in considering "(1) the

relative position of that employee in [the] employer's hierarchy; (2) [the

employee's] functions and responsibilities; and (3) the extent of discretion [the



5
  PERC disagreed with the Director's inclusion of the Director III position in
the AFT negotiating unit, reasoning it was confidential and should thus be
excluded from AFT membership.


                                                                             A-2515-24
                                       17
employee] exercises," when determining either the formulation policy or

directing the effectuation of policy. PERC found that the Director's findings

were supported by the agency's precedent that a managerial executive must

implement policies without independent review from others and that

"managerial authority that is circumscribed by existing policies or requires

deferral to a superior for non-routine matters may be insufficient for managerial

executive status."

                                        II.

      Our review of a final agency decision is well settled. We consider the

decision presumptively valid, Reilly v. AAA Mid-Atlantic Ins. Co. of N.J., 194

N.J. 474, 485 (2008), deferring to the "agency action that purports to effectuate

statutory and regulatory authority," Brady v. Dep't of Pers., 149 N.J. 244, 256

(1997).6 We will only reverse or modify the decision if it is arbitrary, capricious,


6
   Our Supreme Court has not yet decided whether our deference to agency
decisions should track Loper Bright Enters. v. Raimondo, 603 U.S. 369, 412-13
(2024). See In re P.T. Jibsail Fam. Ltd. P'ship, ___ N.J. ___ (2026) (slip op. at
6) (noting that New Jersey courts have "not always been consistent about what
standard of review applies to an agency's interpretation of a statute it is charged
with enforcing" and explaining that it would not attempt to reconcile New Jersey
case law with Loper Bright because the case could be decided on other grounds).
There, the United States Supreme Court overruled Chevron deference and
required that courts exercise "independent judgment" in assessing whether to
defer to agency interpretations of law. Loper Bright, 603 U.S. at 412-13.


                                                                              A-2515-24
                                        18
or unreasonable, or violates legislative policies expressed or implied in the

statutory scheme administered by the agency. In re Musick, 143 N.J. 206, 216

(1996). Our deference is grounded in recognizing the "agency's expertise and

superior knowledge of a particular field." In re Carter, 191 N.J. 474, 483 (2007)

(quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)).

Deference does not apply to the agency's interpretations of questions of law, and

"if substantial evidence supports the agency's decision, 'a court may not

substitute its own judgment for the agency's even though the court might have

reached a different result.'" Ibid. (quoting Greenwood, 127 N.J. at 513).

                                        III.

        The essence of the State's appeal is that PERC's decision is novel and

contrary to the definition of managerial executives set forth in Turnpike

Authority.7 Specifically, the State contends that PERC did not correctly apply

the Turnpike Authority factors, only focusing on whether the positions had the

discretion to decide policies without independent review from others. The State

maintains that, without statutory support, and contrary to Turnpike Authority –

– "the only judicial decision interpreting the . . . managerial executive

definition" –– PERC "required that to be a managerial executive the employee


7
    The State does not challenge the Director's decision to not conduct a hearing.
                                                                            A-2515-24
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'must independently decide or effectively recommend policies or procedures

without independent review from others.'" PERC failed to analyze how the

positions made recommendations that "effectively control[led]" the college or

universities' policies. The State asserts that collaboration with superiors should

not exclude these positions from the managerial executive exception to union

membership. We conclude that neither the record nor the law supports these

contentions.

      Managerial executives for public employers other than the State are

"persons who formulate management policies and practices, and persons who

are charged with the responsibility of directing the effectuation of such

management policies and practices."           N.J.S.A. 34:13A-3.    In the seminal

Turnpike Authority decision, which was based on PERC's ruling in Borough of

Montvale, P.E.R.C. No. 81–52, 6 N.J.P.E.R. ¶ 11259, 1980 WL 603380 (1980),

our Supreme Court defined a managerial executive as:

               A person formulates policies when he [or she] develops
               a particular set of objectives designed to further the
               mission of [a segment of] the governmental unit and
               when he [or she] selects a course of action from among
               available alternatives. A person directs the effectuation
               of policy when he [or she] is charged with developing
               the methods, means, and extent of reaching a policy
               objective and thus oversees or coordinates policy
               implementation by line supervisors. Whether or not an
               employee possesses this level of authority may

                                                                            A-2515-24
                                         20
            generally be determined by focusing on the interplay of
            three factors: (1) the relative position of that employee
            in his [or her] employer's hierarchy; (2) his [or her]
            functions and responsibilities; and (3) the extent of
            discretion he [or she] exercises.

            [150 N.J. at 356 (quoting Borough of Montvale, 1980
            WL 603380).]

      Our Court held PERC's prior definition—that a managerial executive

"possess and exercise a level of authority and independent judgment sufficient

to affect broadly the organization's purposes or its means of effectuation of these

purposes"—was "unduly restrictive" and noted managers may have significant

discretion within their departments and not broadly affect the organization's

purposes. Ibid. Thus, the Court reasoned that PERC's definition should serve

as an example of a managerial executive, not "a condition of exclusion." Ibid.

      After Turnpike Authority, PERC further clarified the managerial

executive exception. The agency held that an

            employee need not be at the top of an organization to
            be a managerial executive. But the higher an employee
            is in the hierarchy and the fewer levels of decisional
            review, the more likely it is that the employee has
            authority to formulate or direct the effectuation of
            management policies and practices.

            [In re State (State I), P.E.R.C. No. 99-59, 25 N.J.P.E.R.
            ¶ 30021, 1998 WL 35395858 (1998).]



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                                       21
Additionally, "[a] managerial executive need not have final responsibility for

signing off on policies, provided [their] recommendations effectively

[determine] what policies will be adopted by [setting] . . . key components."

Ibid.

        PERC has also applied the second and third Turnpike Authority factors to

different situations. As to the second factor of analyzing job duties, the agency

ruled a managerial executive must exercise a "greater degree of authority and

accountability" than a supervisor or professional employee. State I, 1998 WL

35395858. Supervisory duties such as planning, assigning work among staff,

and making "immediate judgment[s]" on an "individual day-by-day basis as to

whether or not a work product has been fulfilled" does not establish managerial

executive status. Ibid.     Additionally, the agency found that managerial

executives must have policy planning responsibilities that are long-term, rather

than short-term decisions, such as developing forms to address immediate

issues. See City of Newark, D.R. No. 2024-3, 50 N.J.P.E.R. ¶ 36, 2023 WL

6372713 (2023).      Finally, managerial executives must not defer to higher

authority on non-routine matters. See In re State (State II), P.E.R.C. No. 99-60,

25 N.J.P.E.R. ¶ 30022, 1998 WL 35395859 (1998) (finding that chief and

assistant investigators were not managerial executives because they were


                                                                           A-2515-24
                                       22
required to defer to the regional office deputy on non-routine matters such as

requesting experts, suspending investigations, and changing investigative

procedures).

      Regarding the third factor of analyzing the exercise of discretion, the

agency ruled:    (1) an employee is not a managerial executive without

"independent    decision-making    authority   over   the   formulation     and

implementation of employer policies," In re Camden Hous. Auth., D.R. No.

2014-7, 40 N.J.P.E.R. ¶ 84, 2013 WL 6157296 (2013), and (2) a municipal

housing liaison was not a managerial executive because although he made policy

recommendations to the township's affordable housing committee, the

recommendations were subject to review and approval by the township and were

not "rubber-stamped by management," In re Twp. of Hopewell, D.R. No. 2011-

14, 38 N.J.P.E.R. ¶ 48, 2011 WL 5176850 (2011).

      Furthermore, PERC has applied consistent reasoning when determining if

college and university employees are managerial executives.         See In re

Burlington Cnty. Coll., 31 N.J.P.E.R. ¶ 150, 2005 WL 6711499 (2005) (finding

that International Program Specialists were not managerial executives because

they ensured compliance with federal guidelines rather than effectuate policy);

In re State (Montclair State Univ.), D.R. No. 2018-15, 44 N.J.P.E.R. ¶ 70, 2018


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WL 774409 (2018) (finding that assistant and associate directors were not

managerial executives because they occupied "relatively low positions" within

the administrative hierarchy).

      PERC adopted the Director's findings that, based upon conferences,

hearings, and investigations, the managerial executive exception did not apply

to the disputed positions except for the Director III position at Kean University

which PERC determined was confidential. As noted, the Director found that the

jobs in question were relatively low positions in the administrative hierarchy,

the duties were centered on management and/or implementation of policies, and

the employees in those positions did not exercise significant discretion in

formulating policies.    The Director also found that the State waived its

arguments regarding the managerial executive exception for ten positions

because it failed to raise this claim before the Director finalized the lists of

selected positions.8 Even if not waived, the State did not present sufficient




8
   PERC did not address this issue in its decision. Instead, it addressed and
rejected the State's argument that the union waived its ability to challenge the
placements by filing untimely petitions.


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evidence showing that the ten positions created policy without independent

review.9

      Given our consideration of the governing law and the clarity of the record

before PERC, we see no basis to conclude that PERC's decision should be upset

because it is arbitrary, capricious, or unreasonable. The State has not shown

that PERC's reliance on the Director's findings regarding the scope of the job

duties is misplaced because they are inaccurate.          Applying the Turnpike

Authority factors and the agency's rulings interpreting that decision, PERC

properly determined the Director considered the positions' placement in the

hierarchy, job responsibilities, and "level[] of independent oversight and review

by superiors."   PERC correctly found that the positions do not qualify as

managerial executive because they do not formulate and effectuate their

employers' policies without independent review from superiors.




9
  Although the State did not challenge waiver in its initial merits brief, it argued
in its reply brief that since the Director considered its substantive arguments
regarding the Associate Director of Residence Life and Associate Director of
the CREEHS positions, those arguments were not waived. However, the State
did not address waiver regarding other positions at Montclair State University:
Assistant Director for Residence Life and Facilities at Montclair, Assistant
Directors of Residence Life, Senior Research Associates at CREEHS.


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      PERC's reasoning also aligns with the EERA's purpose that public policy

favors including public employees in collective negotiations and PERC should

therefore strictly construe purported exclusions to eligibility. See Tpk. Auth.,

150 N.J. at 352-55; State v. Pro. Ass'n of N.J. Dep't of Ed., 64 N.J. 231, 253

(1974). And contrary to the State's argument, PERC's ruling that a managerial

executive must exercise independent authority meaningfully distinguishes

between those positions that direct and formulate policy from those positions

that merely implement policies created by higher-level supervisors. This is

consistent with Turnpike Authority and PERC precedent and furthers New

Jersey's public policy that favors including public employees in collective

negotiations.   PERC's approach to determining whether a non-State public

employee qualifies as a managerial executive to preclude union membership is

far from novel as the State seeks to convince us. On the contrary, PERC’s final

agency decision is a logical if not inexorable application of well-settled

principles.

      Affirmed.




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