By Ira W. Mintz, Esq.
A Third Opportunity to Prove Employees are Managerial Executives
County of Hunterdon and AFSCME COUNCIL 73
In P.E.R.C. No. 2012-29, the Commission gave the County a third opportunity to prove that certain petitioned-for employees are managerial executives and therefore not eligible for representation. In 2009, the Director of Representation certified units of primary level executives and secondary level executives. In P.E.R.C. No. 2010-36, the Commission remanded the matter to the Director and outlined the types of information the employer would need to produce to prove that the petitioned-for employees are managerial executives. The Commission was concerned that the employer had not been notified by the Director of what information it needed to produce. The County then submitted an 11-page supplemental certification and relied on its prior submissions. The Deputy Director of Representation then issued another decision certifying the units. Despite the prior Commission decision that explained the types of information the employer would need to produce to substantiate its claims, this Commission decision found that the County had not been informed of what it needed to produce to substantiate its claims. The Commission remanded the matter to the Director a second time to conduct a hearing more than three years after the initial representation petitions were filed. If an employer does not produce evidence of managerial executive duties during an administrative investigation after being given more than one opportunity to do so, it appears that the Commission will order a hearing to elicit that information.
Change in Complaint Issuance Standard
Township of Edison and IAFF Local 1197
In D.U.P. No. 2012-9, the Director of Unfair Practices refused to issue a complaint based on an unfair practice charge filed by IAFF Local 1197. Commission rules require that an unfair practice charge contain a “clear and concise statement of the facts constituting the alleged unfair practice.” In this case, among other things, the charge alleged that the Township unlawfully instituted a policy of home visitation of firefighters on sick leave because of their membership in and activities on behalf of Local 1197. In a letter to the parties, the Director wrote that Local 1197 had alleged no facts describing the unit employees’ activities that had motivated the implementation of the home visitation. Local 1197 responded that the union engages in the aggressive defense of its membership “in both the collective negotiations and political arenas,” including filing unfair practice charges, claims in state and federal court, and grievances challenging the Township’s conduct regarding firefighter safety and working conditions. In addition, the union alleged that its President was quoted extensively in the press as opposing the Township’s cuts in the fire department’s staffing levels “during the period leading up to the changes instituted by the Township.” The union also alleged that the Township’s interim Business Administrator had threatened to retaliate against Local 1197 for opposing his campaign for mayor in 2005. Despite statements of the facts outlining the union activities causing the alleged retaliation, the Director found that the charge did not meet the specificity requirements of Commission rules. For example, as for the Union President’s being quoted extensively in the press, the Director stated that Local 1197 had not included any quotations, media sources or dates. As for the interim Business Administrator’s alleged threat, the Director stated that she was not persuaded that an alleged threat to retaliate against Local 1197 for opposing his campaign met the specificity required by the rule. As for a claim of disparate treatment in that this is the only group of Township employees subject to home visits, the Director states that the charge alleges no facts regarding disparate treatment. This charge would have met the specificity requirements of past Directors of Unfair Practices. The rules require the issuance of a complaint when the allegations of the charge, if true, might constitute an unfair practice. The rules have not been interpreted to require that an initial charge include the level of proofs required by this decision.
Restraining Arbitration Over Arbitrable Grievance
Nutley Tp. and Nutley PBA Local #33
In P.E.R.C. No. 2012-25, among other things, the PBA sought to arbitrate a claim that the Township had violated the contract when it continued to require superior officers to drop down to cover for road sergeant vacancies and denied officers’ requests for contractual leave time. The Commission had previously found that the issue was mandatorily negotiable and legally arbitrable. It should have done so again and permitted arbitration to go forward. Instead, the Commission restrained arbitration because “the remaining negotiable issues are already pending before a grievance arbitrator. To permit arbitration again could lead to inconsistent results.” The Commission’s scope of negotiations jurisdiction is narrow. Its sole role is to determine if a claim sought to be arbitrated is negotiable and therefore legally arbitrable. Whether there are two, three, four or ten similar grievances pending is not relevant to the legal question of whether a particular grievance is negotiable and arbitrable. It is for the parties and the arbitrators, not the Commission, to manage the possibility of multiple arbitration awards from multiple grievances.
Failure to Enjoin Contract Repudiation
Town of West New York and CWA Local
In I.R. No. 2012-11, a newly-hired Commission staff member, acting as a Commission Designee, departed from Commission and Court precedent in denying interim relief after the Town of West New York repudiated the clear and unambiguous compensation provision of a collective negotiations agreement (CNA), as modified by a Memorandum of Agreement (MOA). The MOA was entered into after the parties reopened their CNA to address the employer’s economic concerns. In a two-paragraph legal analysis without citation to legal authority, the Designee disregarded the facts of the case and long-standing legal precedent to find that the employer’s future economic concerns about a future budget outweighed the irreparable impact on employees and the collective negotiations process.
Inclusion of “Dissenting” Opinion in Appendix
City of Camden and IAFF, Local 788
In P.E.R.C. No. 2012-18, the Commission affirmed an interest arbitration in an unprecedented manner. Among other things, the arbitrator awarded wage increases of 2.5% as of January 1, 2009, and 2.0% increases as of January 1, 2010, 2011 and 2012. Retroactive wage payments are made to January 1, 2011 based on modifications to the salary guide. At the Commission’s September 2011 meeting, the Chair presented a draft decision vacating the award and a motion to adopt that draft decision was seconded and discussed, but was rejected by a majority of Commissioners. The majority sent the case back for the staff to write a draft decision affirming the award. At the Commission’s October meeting, a draft was presented and motion to adopt the draft was seconded and adopted by a vote of 3-2, with one recusal and one Commissioner not present. Unprecedented was the fact that the draft decision from the September meeting that had been rejected by a majority of Commissioners was attached as the appendix to the final October decision. The analysis in the rejected draft that would have vacated the award covered five pages. The analysis in the decision affirming the award was two sentences. In addition, the Commission indicated that “[g]iven the arbitrator’s naming the State as a party to the Award and his finding that the State should participate in funding the Award, we find it necessary to put the Attorney General’s Office on notice of the Award and this decision.” The arbitrator did not name the State as a party.
Failure to Restrain Health Benefits Change
Newton Bd. of Ed. and Newton Ed. Ass’n and Newton Staff Ass’n
In I.R. No. 2012-7, the Commission’s new Director of Unfair Practices, acting as a Commission Designee, departed from precedent by denying interim relief after the Board changed to the School Employees Health Benefits Program, which eliminated the Traditional Plan and established new co-pays. The contract permitted changes in health plans if the new plan was “substantially similar” or “equal or better.” The Designee denied interim relief and deferred the dispute to binding arbitration based on three older cases where it was too close to call whether the changes violated the contractual level of benefits. This was not a close call on the substantive contract issue and could represent a new trend away from the Commission’s restraining repudiations of major contract terms.
Failure to Restrain Health Benefits Change
Millburn Tp. Bd. of Ed. and Millburn Ed. Ass’n
In I.R. No. 2012-1, the Commission’s new Director of Unfair Practices, acting as a Commission Designee, ordered the creation of a fund to reimburse employees for losses resulting from an unilateral change in health benefits. Case law holds that a change in plans that changes benefits is a mandatorily negotiable change that can be restrained. Since the unfair practice charge and application for interim relief were filed before the employer implemented the change in benefits, an order restraining the employer from going forward could have been issued.
Layoffs by Seniority Found Non-Negotiable
Union Cty. Prosecutor’s Office and PBA Local 250
In P.E.R.C. No. 2011-74, the Commission deviated from long-standing precedent and held not mandatorily negotiable a union proposal to have detectives and investigators laid off by inverse departmental seniority.
First, the Commission incorrectly cited Council of N.J. State College Locals, NJSFT-AFT/AFL-CIO v. State Bd. of Higher Ed., 181 NJPER 179, 187 (App. Div.), mod. on other grounds 91 N.J. 18 (1982), for the proposition that a public employer has a managerial prerogative to determine that a less senior employee with particular skills should be retained. The passage from Council quoted by the Commission stated that a public employer has a managerial prerogative to reduce staff. Layoff by inverse order of seniority does not challenge the prerogative to reduce staff.
The Commission next incorrectly stated that State v. State Supervisory Employees Ass’n, 78 N.J. 54, 89-90 (1978), held that a public employer cannot negotiate an agreement binding it to make layoffs strictly by seniority when other factors such as special skills may be relevant. The cited passage concerned the negotiability of a proposal that “employees in variant titles shall be considered to be in the title appropriate to the variation for purposes of layoff actions.” Although the Court expressed some concern about having persons not qualified for a more specialized job bumping workers who are qualified, the Court’s holding was that the Civil Service Commission gets to decide which jobs should be in the same pool for layoff purposes.
The Commission then cited a case that explicitly held that seniority as it relates to layoff is mandatorily negotiable. Lyndhurst Bd. of Ed., P.E.R.C. No. 87-111, 13 NJPER 271 (¶18112 1987), aff’d NJPER Supp.2d 194 (¶171 App. Div. 1988) (Court affirms Commission’s determination permitting arbitration under contract provision providing for layoffs by seniority). The Commission did not explain how Lyndhurst is supportive of its holding that a layoff by seniority provision was not negotiable. The Commission then cited another case that had found mandatorily negotiable a provision providing that layoffs be accomplished by seniority and performance criteria. South Orange-Maplewood Bd. of Ed., P.E.R.C. No. 97-54, 22 NJPER 411, 413 (¶27225 1996). Again, the Commission did not explain how that case supported its holding.
Finally, the Commission cited Passaic Cty. Prosecutor’s Office, P.E.R.C. No. 2009-34, 34 NJPER 444 (¶139 2008), another case that had upheld the negotiability of a decision to use seniority and performance as factors in determining which employees would be laid off. The case is different in that performance was a factor to be used in determining who would be laid off. But the case does not hold that performance must be a factor in layoff decisions.
The Commission cited no case that has held that in a non-Civil Service jurisdiction, an employer and a union could not lawfully agree to lay off by inverse order of seniority. The Commission reversed long-standing precedent without announcing that it was doing so.
Work Hours and Furloughs
In September 2010, the six members of the Commission unanimously followed over three decades of precedent and issued a decision finding that a local Civil Service employer could not reduce work hours unilaterally by labeling the reduction a layoff and having its layoff plan approved by the Civil Service Commission. Borough of Keyport, P.E.R.C. No. 2011-20, 36 NJPER 343 (¶133 2010). Thus, the Commission concluded that the Borough violated the Act when it unilaterally reduced the work hours of three employees. The Borough has filed an appeal that is still pending.
In October 2010, the Commission issued unanimous decisions in Borough of Belmar, P.E.R.C. No. 2011-34, 36 NJPER 405 (¶157 2010), and Township of Mt. Laurel, P.E.R.C. No. 2011-35, 36 NJPER 409 (¶158 2010). These decisions held that the furlough or temporary layoff of employees in a Civil Service jurisdiction is generally mandatorily negotiable, Civil Service regulations do not preempt negotiations, and the employers in these cases did not establish a governmental policy interest in the furloughs that outweighed the employees’ interest in negotiations. The Commission then deferred the unfair practice charges to arbitration and the employers appealed.
Health Insurance Contributions
A Commission meeting was held on November 23, 2010, the day after P. Kelly Hatfield’s nomination as Commission Chair was confirmed by the Senate. She attended the meeting, but abstained on all cases because she did not have time to review the materials in advance of the meeting. One of the cases involved an issue of significance to the administration.
P.L. 2010, c. 2 requires all public employees to contribute an amount equal to 1.5% of base salary towards the cost of medical insurance benefits. The law went into effect on May 21, 2010 and applies to contracts that expire after that date. In Edison Tp., P.E.R.C. No. 2011-49, 36 NJPER 462 (¶180 2010), the Commission held that the IAFF could arbitrate its claim that its contract had not yet expired and therefore the statute did not apply. Consistent with its limited role in scope of negotiations cases, the Commission stated that the grievance concerned a negotiable subject and was therefore legally arbitrable. The parties’ dispute over the meaning of the contract’s duration clause was outside the Commission’s scope of negotiations jurisdiction, but if the arbitrator found that the contract had expired, the new statute would apply. The Township then appealed.
The Commission Stays Its Own Decision
At its February 3, 2011 meeting, the Commission took the unprecedented step of issuing a stay pending appeal of its own decision in Edison Tp. P.E.R.C. No. 2011-60. The Commission stated that its prior scope decision was “erroneous,” but it did so based on the merits of the grievance. That, however, is not a proper role for the Commission. Many non-meritorious grievances are legally arbitrable, go to arbitration, and are denied by the arbitrator. Why a reversal of a prior meeting’s decision? By February 2011, there was a new Chair and two new public employer Commissioners. The original vote to permit arbitration was 4-2. At the next meeting, there were only two votes to deny a stay because one public employee organization member of the Commission had to recuse himself due to a conflict, and one public member had to leave the meeting early to testify at a legislative hearing in Trenton. The new Chair voted for a stay and so the Commission took the extraordinary step of staying its own 4-2 decision by a vote of 3-2.
Chair Changes Law on Increment Payments
An unprecedented event occurred in cases involving Atlantic County, two PBA locals and the FOP. The contracts expired on December 31, 2006 and, in accordance with case law dating back to 1978, the County paid automatic increments. Effective January 1, 2011, the County discontinued those payments. The unions filed unfair practice charges and applications for interim relief. The case was assigned to a Commission designee who considered the parties’ briefs and heard oral argument. Chair Hatfield then took the unprecedented step of transferring the matter to herself for what she stated were “important public policy implications.” She then ignored legal precedent and denied interim relief under a novel standard finding that payment of increments would be “inefficient” and “inexpedient.” Atlantic Cty. and FOP Lodge #34, I.R. No. 2011-36. The FOP moved for reconsideration by the full Commission and requested that the Chair recuse herself, arguing that it would be inappropriate for her to sit in appellate review of her own decision. In September 2011, the Commission split 3-3 on a draft decision that would have denied reconsideration. The Commissioners voting against the draft asked that the minutes reflect that they favored granting the motion for reconsideration and ordering that the increments be paid.
The new Chair has also decided that the Commission would not be filing an Appellate Division brief to defend the Commission’s furlough decision in Belmar (discussed above).