By Ira W. Mintz, Esq.
Cumberland Cty. and UAW, Local 2327
In P.E.R.C. No. 2012-47, the Commission restrained arbitration over the County’s refusal to place a building service worker who became qualified as an LPN into an open LPN position. The County is a Civil Service jurisdiction and the position is subject to a 90-day working test period. The Commission had long held that senior qualified employees have a mandatorily negotiable interest in seeking a trial period to demonstrate that the employer, in its discretion, should permanently promote them. The Commission distinguished only two trial period cases, one on the ground that the trial period applied to a temporary promotion and the other on the ground that the employer did not contest the qualifications of the grievant. However, the Commission had also applied its trial period case law to permanent promotions, not just temporary ones, and the County in this case did not claim that the grievant was not qualified for the LPN position. The County simply asserted that another candidate was more qualified. Thus, the Commission deviated from prior case law without either distinguishing that case law or overruling it.
By Ira W. Mintz, Esq.
Franklin Tp. v. Franklin Tp. PBA Local 154, __ N.J. Super. __ (App. Div. 2012).
The Appellate Division has affirmed a November 2010 Commission decision that had held that the implementation of shift changes that directly alter work hours and rates of compensation requires negotiations. The Court reaffirmed that a public employer’s desire to “achieve thrift cannot sustain the adoption of a policy abrogating the Township’s binding contractual obligations.” The Court characterized the employer’s proposed work schedule modifications as striking at the heart of negotiated contracts because they attempt to alter compensation and work hours without negotiations. The Court rejected the employer’s reliance on In re Morris County Sheriff’s Office, 418 N.J. Super. 64 (App. Div. 2011), which had described a governmental policy role “to provide efficient and effective services in the police department in the face of burgeoning fiscal crises,” maintaining the essential role of government “to spend public funds wisely.” The Court stated that Morris involved the elimination of an unnecessary abusive overtime practice, not an action that adversely affected the contractual rate of pay or diminished annual weekly work hours. The decision will be published.