Rachel Collins, CSC Docket No. 2022-1726

BackgroundRachel Collins, a former Technical Assistant, Department of Human Services, appeals her removal, effective December 23, 2021.

As background, Collins received an amended Preliminary Notice of Disciplinary Action (PNDA) on December 23, 2021, charging her with conduct unbecoming a public employee, violation of a rule, regulation, policy, procedure, order or administrative decision and other sufficient cause.1 On January 10, 2022, Collins had a departmental-level hearing where she represented herself. On January 20, 2022, the appointing authority served Collins with a Final Notice of Disciplinary Action (FNDA) upholding the charges and her removal.2 Subsequently, Collins sent numerous and various emails to Civil Service Commission (Commission) staff regarding her receipt of the FNDA3. She indicated, inter alia, that she wished to appeal her removal to the Commission. Several staff, including the Director and Deputy Director of DARA responded to her emails indicating their opinion that she could not appeal to the Commission. Regardless, upon Collins’ insistence, staff indicated that her appeal would be accepted for the limited purpose to allow the Commission to decide whether she had the right under Civil Service law and rules to appeal her discipline to the Commission. Staff further stated that should the Commission determine that she did have such a right, the matter would then be transmitted to the Office of Administrative Law for a hearing on the merits of her removal from employment.

1 As the specifications underlying the charges are not germane to this decision, they will not be presented. 2 Both the PNDA and the FNDA were specific to employees who are members of the Communications Workers of America (CWA) union. In this regard, both designate “CWA” at the top and in the “Appeal Procedure” section of the FNDA, it indicates that the appropriate CWA Local “may appeal this action . . . to the Governor’s Office of Employee Relations (OER) within thirty (30) calendar days of your receipt” (emphasis in original) of the FNDA. 3 The record is not clear as to how many Commission staff received emails from Collins. However, most, if not all were staff in the Division of Appeals and Regulatory Affairs (DARA).

In her submissions, Collins argues that per N.J.A.C. 4A:2-2.1, as a permanent career service employee, she may appeal major disciplinary action to the Commission. She also argues that her title is not listed under the CWA contract and, therefore, she is not a member of the union. She finally contends that she is not being treated fairly in this process.

CONCLUSION

RuleThe Civil Service Act, under N.J.S.A. 11A:2-6a(1) indicates, in pertinent part, that the Commission shall “[a]fter a hearing, render the final administrative decision on appeals concerning permanent career service employees” who are disciplinarily removed from their position. This provision is codified under N.J.A.C. 4A:2-2.1(a).

N.J.S.A. 11A:2-14 outlines a permanent career service employee’s disciplinary appeal rights to the Commission. Specifically, that section states, in pertinent part:

Except as otherwise provided herein, within 20 days of the hearing provided in N.J.S. 11A:2-13, the appointing authority shall make a final disposition of the charges against the employee and shall furnish the employee with written notice. If the appointing authority determines that the employee is to be removed, demoted or receive a suspension or a fine greater than five days, the employee shall have a right to appeal to the Civil Service Commission . . . .

AnalysisWhen the State of New Jersey and the majority representative have agreed pursuant to the New Jersey Employer-Employee

Relations Act, section 7 of P.L.1968, c.303 (C.34:13A-5.3), to a disciplinary review procedure that provides for binding arbitration of disputes involving disciplinary action in subsection a.(1), (2) and (3) of

N.J.S. 11A:2-6, which would be otherwise appealable to the Civil

Service Commission under N.J.S. 11A:2-14, being taken against a permanent employee in the career service or a person serving a working test period, such procedure shall be the exclusive procedure for any appeal of such disciplinary action (emphasis added).

The provision of N.J.S.A. 11A:2-14 referring to the alternative disciplinary review procedure is codified under N.J.A.C. 4A:2-2.1(c).

The current CWA contract with the State of New Jersey4 contains the following provisions. Under Article 1A, paragraph 1.a., it indicates that the CWA is the “exclusive representative for collective negotiations” for all its employees in, among others, Administrative and Clerical Services units. Further, Article 1A, paragraph 2.a. states that included in the above unit are “full-time permanent career service” employees whose titles are listed in Appendix 4 of the contract. Moreover, Article 5, which deals with discipline, under paragraph F states “[t]his article is the exclusive procedure for the processing of disciplinary actions for employees covered by this Agreement.” Finally, and importantly, under paragraph I.1., the contract states, in pertinent part:

Within thirty (30) days of receipt of the Final Notice of Discipline, the

Union may file an appeal of . . . terminations to arbitration . . . by submitting a written request for arbitration or binding mediation to the Governor’s Office of Employee Relations.

It is noted that substantially similar provisions have been contained in all previous contracts between the CWA and the State of New Jersey dating back to 2007.

Collins’ contention that her status as a permanent career service employee entitles her to appeal her removal to the Commission is misplaced. As clearly laid out above, the statutory provisions governing the appeal rights of permanent career service employees allows for an alternative appeal process via the collective negotiations process. In this matter, the record is clear that the CWA and the State of New Jersey have utilized the provisions of N.J.S.A. 11A:2-14 to “contract” out of the major disciplinary appeal process to the Commission and afford CWA employees an appeal process via arbitration outside of the Commission’s purview. Moreover, the Commission has no jurisdiction or authority to question the legislature’s passage of these provisions. Further, the Commission has no authority or jurisdiction to interfere with duly executed contractual provisions between the CWA and the State of New Jersey effectuated via the implementation of such statutory provisions.

Collins also argues that her title is not covered by the CWA contract. If that were true, she would, indeed, have the right to appeal her removal to the Commission. However, that is not the case. Collins’ permanent title at the time of her removal was Technical Assistant, title code 51329. A review of Appendix 4 of the current CWA contract lists the title “Technical Assistant 3” under title code 51329. However, effective March 3, 2018,5 the Commission removed the numerical designation from that title as permitted under N.J.A.C. 4A:3-3.2 and 4A:3-3.3. No other changes were made. As such, the Commission need not reconcile this typographical error in the contract as Collins’ title of Technical Assistant, title code 51329, is in fact a covered title under that contract.

4 This contract runs from July 1, 2019 through June 20, 2023. 5 State appointing authorities were notified of this change on February 12, 2018, and CWA was notified of this change on February 22, 2018.

Regarding Collins’ argument that she is not being treated fairly in this process, the Commission notes that there is a viable avenue for Collins to challenge the merits of her removal from employment. While that avenue is not to the Commission, the alternative process outlined in the contract between the CWA and the State of New Jersey has been in effect for many years, and the Commission can only assume that the process is fair to all parties involved. In this regard, if Collins is still interested in pursuing her removal, if she has not already done so, she should communicate such interest to her union to ascertain whether it will pursue an appeal of that action as outlined in the applicable contractual provisions.6

ORDER

Therefore, it is ordered that the appeal be denied for lack of jurisdiction.

ClosingThis is the final administrative determination in this matter. Any further review should be pursued in a judicial forum.