Court Restores the Status Quo Regarding Payment of Increments

Atlantic County and PBA Local 243 and FOP Lodge 34 and PBA Local 77

Bridgewater Township and PBA Local 174

The courts issued a stunning rebuke to the Public Employment Relations Commission for its reversal of over 30 years of labor relations policy in two decisions that had no longer required or even permitted employers to pay automatic increments after the expiration of a contract.  Appellate Division Decision.  In a decision involving Atlantic County, PERC disavowed what is called the “dynamic status quo” doctrine and ruled that the County’s decision not to pay salary/step increments was not an unfair practice.  P.E.R.C. No. 2014-40.  In a related decision involving Bridgewater Township, PERC ruled that payment of salary/step increments after contract expiration is no longer subject to negotiations and that an agreement to pay those increments is not enforceable in arbitration.  P.E.R.C. No. 2015-11. 
The appellate court reversed PERC on both counts.  The court ruled that PERC’s two decisions were outside it legislative mandate.  The court noted that the 2% tax levy cap and the 2% interest arbitration award cap did not extend to increments and that PERC did not have the authority to do what the Legislature chose not to do.  Finally, the court stated that PERC undermined the parties’ legitimate expectations based on their negotiations and their contracts.
Atlantic County, Bridgewater and PERC have filed petitions asking the New Jersey Supreme Court to review the cases.

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Filed under 2015

Commission Permits Arbitration Over Non-Renewal of Security Aide

Passaic Board of Education and Passaic Education Association

In P.E.R.C. No. 2016-37, the Commission denied a request for a restraint of binding arbitration of a grievance challenging the non-renewal of a security aide as violating a contractual just cause provision.  The Commission found that whether the Board agreed to provide contractual tenure/job security and whether, if so, it had just cause to dismiss are legally arbitrable issues.  The court decisions that the Board relied on held that parties had not contractually agreed to arbitrate non-renewals, but did not preclude the parties from agreeing to do so.

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Filed under 2016

Commission Finds that Borough Violated the Act by Disciplining Police Officer for Comments to Mayor at Public Meeting

Borough of Carteret and Police Benevolent Association Local 47

In P.E.R.C. No. 2016-28, the Commission found that the Borough violated the Act by disciplining a police officer after he made comments at a public meeting concerning union-related issues.  The Commission found that the comments were protected given the totality of the exchange, which concerned union-related issues discussed off-duty in a public meeting in the officer’s capacity as a union representative.  The Commission characterized two of the officer’s comments as inappropriate and disrespectful, but found that those comments were made as part of an overall heated exchange with the Mayor and could not be viewed in a vacuum.

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Filed under 2016

Commission Denies Request for Restraint of Arbitration Over Paraprofessional Increment Withholding

Edison Township Board of Education and Edison Township Education Association

In P.E.R.C. No. 2016-33, the Commission denied a request for a restraint of binding arbitration over an increment withholding from a paraprofessional.  The alternate statutory review procedure for teaching staff member increment withholdings does not govern paraprofessionals.  See N.J.S.A 18A:29-14.

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Filed under 2016

Commission Restrains Arbitration Over Refusal to Fill Vacant Position With Senior Qualified Officer

Somerset County Sheriff’s Office and Police Benevolent Association, Local 177

In P.E.R.C. No. 2016-23, the Commission restrained arbitration over a grievance challenging the employer’s refusal to appoint a senior qualified correction officer to a vacant position.  The Union argued that the grievant and the officer selected had been splitting time in the position for over one year.  The decision states that the County argued that it had a managerial prerogative to select the most qualified officer and indicates that the County did not file a supporting certification.  In fact, the decision does not state that the County provided any facts to the Commission to show that the selected officer was more qualified than the senior officer.  The PBA has appealed.

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Filed under 2016

Commission Rules That Negotiations Over Health Benefits Cannot Begin Until Contract After Full Implementation of Chapter 78

Clementon Board of Education and Clementon Education Association

In P.E.R.C. No. 2016-10, the Commission ruled that negotiations over health benefit contribution levels cannot begin until the successor contract negotiations that begin after completion of the four-year tiered implementation set by Chapter 78.  The Commission also ruled that a preexisting contract provision was preempted to the extent it set out 1.5% of base salary as the status quo for negotiations once employee contribution levels become negotiable.  The Association has appealed.

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Filed under 2016

Commission Restrains Arbitration Over Termination of Physician Resident

State of New Jersey, Rowan University and Committee of Interns and Residents SEIU Healthcare

In P.E.R.C. No. 2016-6, the Commission restrained arbitration over the decision of Rowan University to terminate a resident for allegedly intentionally misplacing or “floating” a stent during a surgical procedure.  The resident denied the allegation and the Commission departed from the analysis of a Commission Designee who had denied an interim restraint of arbitration.  The Designee had found that, based on the factual dispute, it would require a fact-intensive exploration to determine what actually occurred.  The Designee further stated that the actual facts would first need to be gleaned by the arbitrator so that a determination could be made by the Commission whether the termination was a disciplinary matter (mandatorily negotiable) or based on an academic and medical judgment (non-negotiable prerogative).  For some reason, the Designee’s decision does not have an Interim Relief Number and is not reported on the Commission’s web site.  In rejecting the Designee’s approach, the Commission declared that it would not allow an arbitrator to second-guess the University’s medical and academic judgment of the performance of a resident physician and his suitability for continuing in the program.

The Union moved for reconsideration, noting that the parties had completed four days of arbitration and arguing that the Commission appeared to misunderstand the reason for the resident’s termination, improperly placed the burden of proof on the Union, and improperly resolved a factual dispute without the benefit of an evidentiary hearing.  The Union offered portions of the arbitration testimony in which University officials acknowledged that they did not know for sure whether the resident actually malpositioned a stent.  The Union asked that the Commission permit the arbitrator to complete the hearing and resolve the factual dispute as to whether the resident performed the unauthorized procedure as the University had found.  The Commission denied reconsideration stating that it was satisfied that the University’s decision implicated its academic freedom.  P.E.R.C. No. 2016-38.  The Union has appealed.

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Filed under 2016