Commission Restrains Arbitration Over Alleged Termination Without Proper Notice

Essex County Sheriff’s Office and PBA Local 183

In P.E.R.C. No. 2017-50, the Commission restrained arbitration over a claim that a Sheriff’s Investigator was terminated without a departmental hearing in accordance with the collective bargaining agreement.  The Commission found that Sheriff’s Investigators “serve at the pleasure of the sheriff” and are unclassified civil service employees.  The Commission stated that the PBA did not point to any language in the contract that mentions pre-termination procedures applicable to Sheriff’s Officers.

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Commission Restrains Arbitration Over Unit Work Claim

Ocean Township Board of Education and Waretown Education Association

In P.E.R.C. No. 2017-45, the Commission restrained arbitration of a grievance challenging the transfer of two stipended positions to a non-unit confidential secretary.  The Commission found that the Board had a managerial prerogative to assign the duties to the non-unit confidential secretary because the Board had deemed her the most qualified for the positions.  The Commission issued its decision almost one year after an arbitrator issued an award sustaining the grievance.

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Commission Restrains Arbitration Over Memoradum Placed in Nurse’s Personnel File

Delaware Valley Regional Board of Education and Delaware Valley Regional Education Association

In P.E.R.C. No. 2017-39, the Commission restrained arbitration over an “evaluative memorandum” placed in a nurse’s personnel file that stated that a corrective action plan would be imposed to address the nurse’s “unacceptable conduct.”   The Commission ruled that the memorandum was not cast in punitive language  and could be fairly classified as a subjective evaluation of the grievant’s performance.  The Commission restrained arbitration over another memorandum that “determined that your actions constitute violations of State statutes and Board Policy.  Such conduct shall not be tolerated in the future and will be met with appropriate consequences.”

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Commission Finds No Refusal To Execute Contract Despite Unambiguous MOA

Township of Nutley and PBA Local 33 (Superiors) and PBA Local 33

In P.E.R.C. No. 2017-38, the Commission denied motions for summary judgment filed by two unions alleging the employer violated the Act by refusing to execute draft collective negotiations agreement consistent with the parties’ memorandum of agreement (MOA).  The Commission found that although the MOA “is clear and unambiguous on its face,” final resolution requires a thorough consideration of other evidence.

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Commission Restrains Arbitration Over Termination of Teaching Staff Member

West Orange Board of Education and West Orange Education Association

In P.E.R.C. No. 2017-37, the Commission restrained arbitration over the termination of a an employee who alleged did not possess a required license to be employed as an occupational therapist.  The Commission stated that it was deciding only the abstract negotiability and arbitrability question, and that the merits of the grievance as well as the employers’ contractual defenses are matters for the arbitrator.  The Commission then rejected the grievant’s factual claim that she was hired as an occupational therapist assistant and found, as a fact, that she was hired as an occupational therapist who could not arbitrate her termination because she did not possess the requisite occupational therapist license/certification.

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Commission Permits Arbitration Over Use of Compensatory Time

Township of Howell and PBA Local 228

In P.E.R.C. No. 2017-31, the Commission denied a request for a restraint of binding arbitration of a grievance alleging that the employer violated the parties’ contract when it unilaterally changed its policy to ban the use of compensatory time off it if resulted in the payment of overtime.  The Commission stated that the subject is negotiable as long as it would not prevent the employer from fulfilling its staffing requirements.  The Commission also appears to hold that if an employer is not obligated to grant compensatory time under the federal Fair Labor Standards Act (FLSA) because it would unduly disrupt the agency’s operations, then the subject would no longer be subject to arbitration.

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Commission Restrains Arbitration Over Electronic Performance Notice Issued for Violating Sick Leave Policy

Atlantic County Sheriff’s Office and PBA Local 243

In P.E.R.C. No. 2017-26, the Commission restrained arbitration of a grievance challenging, among other things, an electronic performance notice.  The Commission held that the notice was not a disciplinary reprimand because it specified the violation of sick leave protocols but would be deleted after six months and a written copy would not be placed in the grievant’s personnel file.  The notice specified the rules allegedly violated and stated that future violations would result in progressive discipline.

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