Commission Reverses Precedent and Restrains Arbitration Over Legally Arbitrable Grievance

By Ira W. Mintz, Esq.

City of Trenton and Trenton Fire Officers Association

In P.E.R.C. No. 2012-39, the Commission restrained arbitration over an issue the Commission acknowledged is legally arbitrable.  The Commission relied on a 1985 decision that had held that an issue not raised in a grievance or demand for arbitration cannot proceed to arbitration even if raised by the union in its brief in opposition to the employer’s request for a restraint of arbitration.  But that 1985 decision was overruled by the Commission in 1988 because the question of whether a grievance or demand for arbitration properly raises a particular contractual claim presents a contractual arbitrability question for the arbitrator to consider, rather than a legal arbitrability question for the Commission to consider.  See City of Camden, P.E.R.C. No. 89-4, 14 NJPER 504 (¶19212 1988); Neptune Tp. Bd. of Ed., P.E.R.C. No. 93-36, 19 NJPER 2 (¶24001 1992).  The Commission did not acknowledge that it was overruling decades of precedent, and in so doing, cites to online versions of past Commission decisions rather than the published versions normally cited by the Commission.  The decision has the appearance of being written by someone outside the agency. [After this post, PERC’s new General Counsel explained why the decision cited to online versions of past Commission decisions]

The Commission followed this new approach in Howell Tp. Bd. of Ed. and Howell Tp. Ed.  Ass’n, P.E.R.C. No. 2012-40, restraining arbitration over a claim for increased compensation for an increase in class size, relying on another 1985 decision whose requirement that initial grievance documents properly frame a negotiable issue had long since been abandoned by the Commission.

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