Commission Further Erodes Protections of the Unit Work Doctrine

By Ira W. Mintz, Esq.

Township of Plainsboro and Teamsters Local 701

In P.E.R.C. No. 2012-64, the Commission restrained arbitration over a grievance challenging the assignment of a non-negotiations unit assistant foreman to perform overtime work customarily performed by members of the negotiations unit represented by Local 701.  The Township assigned three Local 701 unit employees to cut grass to prepare an athletic field for a 7:00 p.m. baseball game.  The task was not completed at the end of the employees’ shift so the crew remained for one hour of overtime and the non-unit assistant foreman assisted.  Local 701 filed a grievance challenging the foreman’s participation in the grass cutting and seeking one hour of overtime compensation for the next senior unit member who was not called in to the field to complete the task.  A prior grievance settlement included this statement from a former Superintendent of Public Works:  “Going forward the Assistant Foreman will not work independently unless an active emergency is present.”  Relying, in part, on a 2011 Commission decision that had limited the protections of the unit work doctrine, the Commission held that “to require the Township to call another employee to the field where they were not assigned during their normal day for overtime to have the assistant foreman watch the crew in a time-sensitive operation would significantly interfere with the Township’s prerogative to complete this task in an efficient and timely manner.”  See Ocean Tp., P.E.R.C. No. 2011-90, __ NJPER __ (¶__ 2011).  In Ocean Tp., non-unit sanitation workers were temporarily assigned to assist Road and Buildings and Grounds employees represented by Teamsters Local 701.  After reciting case law that had held that an employer has a right to assign unit work to non-unit employees in an emergency, the Commission in Ocean Tp. went on to find that although the assignments in that case were not prompted by an emergency, the employer had a managerial prerogative to make them because they were temporary.  However, many unit work disputes involve temporary assignments and Ocean Tp. signaled a weakening of the doctrine’s protection against temporary assignments of unit work to non-unit employees.  Now, in Township of Plainsboro, the Commission has further eroded the protections of the unit work doctrine by finding that the Township had a prerogative to use a non-unit foreman so that it could complete the task in “an efficient and timely manner.”  There were no facts recited in the decision to suggest that the work could not have been completed in a timely manner by unit employees.  Thus, it appears that an employer’s long-standing right to make emergency assignments to protect the public interest has been expanded to permit temporary violations of unit work protections (Ocean Tp.) or ones where the Commission finds that the employer needed to use non-unit personnel to complete unit work in an efficient and timely manner. (Plainsboro Tp.).

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