By Ira W. Mintz, Esq.
Township of West Caldwell and West Essex PBA Local 81 (West Caldwell Unit)
In P.E.R.C. No. 2012-54, the Commission decided to consider the employer’s scope of negotiations petition even though it was filed outside the 14-day time frame required by Commission rules.
A scope petition can challenge the negotiability of an issue before an interest arbitrator. If a subject is not negotiable, the arbitrator cannot include it in a successor agreement. After the Legislature amended the interest arbitration statute to require that interest arbitration awards be issued within 45 days of the appointment of the arbitrator, the Commission posted an FAQ on its web site that suspended application of a Commission rule that prohibited the arbitrator from rendering a decision on any issue that was the subject of a scope of negotiations petition that had previously been filed with the Commission. The requirement that the arbitrator issue an award within 45 days of assignment precluded application of that rule. In its FAQ, the Commission announced that any scope of negotiations dispute would be decided by the Commission as part of any appeal to the Commission of an arbitration award. However, the FAQ did not suspend the requirement under a separate Commission rule that a scope petition be filed within 14 days of the filing of an initial interest arbitration petition.
In West Caldwell, the Commission held that where the language of its FAQ could have been more precise with regard to the “new procedures for the filing of a scope petition” as part of an interest arbitration appeal, it was “compelled” to consider the Township’s scope petition. However, there are no new procedures for the filing of a scope petition in an interest arbitration case. In August 2011, the Commission amended its scope of negotiations and those amendments specifically reference the longstanding requirement that a scope petition in an interest arbitration case be filed within 14 days of the filing of the initial interest arbitration petition. The Commission is also currently proposing amendments to its interest arbitration rules, but the Commission is not proposing to eliminate the requirement that a scope petition in an interest arbitration case be filed within 14 days of the filing of the interest arbitration petition. In West Caldwell, the employer did not file its scope petition within 14 days of the filing of the interest arbitration petition on January 23, 2012. The employer waited to file its scope petition until after the arbitrator issued his award on March 12, 2012, well outside the 14-day time limit. Yet the Commission will consider the untimely petition and allow the employer to argue that an out-of-title pay provision interferes with its managerial prerogative to set staffing levels and assign the number and type of officers to a particular shift.
Contrast this decision with a 2010 Commission decision that was just affirmed by the Appellate Division of the Superior Court. In the Matter of New Jersey Institute of Technology and FOP Lodge No. 93, P.E.R.C. No. 2011-16, 36 NJPER 322 (¶125 2010), aff’d App. Div. Dkt. No. A-6247-09T3 (4/23/12). In that case, the Commission denied the FOP’s appeal from a decision of the Director of Arbitration that had refused to process the FOP’s request to appoint an arbitrator from the Special Disciplinary Arbitration Panel. The request was due on December 28 but filed on December 31.