Most New Jersey State Police Captains Are Not ‘Managerial Executives’

Under New Jersey law, employees with duties qualifying as “managerial executives” have no collective bargaining rights. The pertinent state statute states that the term “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.”

The New Jersey State Troopers Captains Association filed a petition with New Jersey’s PERC in which it sought to represent a bargaining unit of captains employed by the New Jersey State Police. The State opposed the petition, and after 18 days of hearing, PERC ruled that most captains were eligible for representation because their responsibilities and their role in creating policy for the State placed them at a level below that of an “assistant commissioner.”

The New Jersey Court of Appeals upheld PERC’s decision. The State argued that PERC’s decision required “managerial executives in the Executive Branch both to formulate policies and practices and to serve at or above the level of assistant commissioner,” and “would result in holding many Executive Branch employees to a higher standard than” assistant commissioner.

The Court’s decision was pithy: “That is not how we read the PERC decision. PERC did not require captains to demonstrate they did not create policy; rather, it treated the non-participation of captains in policy matters as simply a factor for consideration in making the difficult decision about whether captains are excluded from collective negotiations under the statutory definition of ‘managerial executive.’ In our view, the PERC decision does not stand as precedent for the proposition that an executive branch employee holding the title of assistant commissioner who does not formulate policy is not a managerial executive. The core holding in the PERC analysis is that Division captains did not serve at or above the level of an assistant commissioner.

“Simply because some captains and assistant commissioners in other executive branch departments share some similar duties does not mandate a different result here. PERC identified a number of differences between assistant commissioners and captains in matters such as the means through which they obtained their positions, their compensation, the discretion they exercised, and the frequency and quality of their interactions with the departmental head. These facts provide ample support for PERC’s determination.

“The State further argues that PERC’s evaluation of the duties and functions of captains on a case-by-case basis creates uncertainty because captains often change assignments within the ranks. This argument is unpersuasive, however, given the legislative intent to expand the participation of public employees in collective negotiations. PERC’s individualized assessment of public employees advances that goal. Categorically excluding an entire group of employees, without regard to the variations that exist among the positions, would most often reduce the number of public employees eligible to participate in collective negotiations.”

New Jersey v. New Jersey State Trooper Captains Association, 2015 WL 9868608 (N.J. App. Div. 2015).