Monthly Archives: August 2012

Appellate Court Affirms Unions’ Right to Arbitrate on Behalf of Retired Members

By Ira W. Mintz, Esq.

Township of Voorhees v. Voorhees Police Officers Ass’n et al., App. Div. Dkt. No. A-1742-11T2 (8/28/12).

The Appellate Division of the Superior Court has affirmed a September 2011 Commission decision (P.E.R.C. No. 2012-13), which held that that a union may seek to enforce a contract on behalf of retired employees in arbitration because the union has a cognizable interest in ensuring that retired employees receive whatever retirement benefits were contracted for in the last agreement before retirement.  The Township of Voorhees had announced that, due to budgetary constraints, it would no longer be reimbursing retirees for prescription co-payments in excess of the co-payments provided through the State Health Benefits Program.  The unions filed grievances and the Commission rejected the Township’s request for a restraint of binding arbitration.  In affirming the Commission decision, the Court recognized that the unions have a strong interest in vindicating the rights of its retired members.  PERC distinguished its case law which holds that an employer is not under an obligation to negotiate over benefits of already retired employees.  The Court expressed no view on the question of whether the Township is required to bargain on the issue in the future.  The Court simply held that whether the prior and current contracts require the Township to continue the supplemental prescription reimbursement program could be decided by the arbitrator.  The Court also stated that the Township’s claim that it did not have the authority to enter into the reimbursement agreements was a matter for determination through the arbitration process.

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Commission Designee Accepts Employer’s Argument That Oral Agreement Can Waive Right to Contractual Salary Increase

By Ira W. Mintz, Esq.

County of Hudson and PBA Local 109A

In I.R. No. 2013-1, a Commission designee denied the PBA’s application for interim relief in an unfair practice case.  One reason to deny interim relief is when there is a dispute over material facts.  The designee found that there was a dispute over material facts about whether there was an oral agreement between the County of Hudson and PBA Local 109A that the County would make promotions and the PBA would waive promotional salary increases for a year.  However, the parties’ collective negotiations agreement explicitly provides that any modification to the agreement must be reduced to writing and agreed to by both sides.  There was no allegation by the County that the parties had agreed in writing to a waiver of promotional salary increases.  While there may be a disagreement over whether the parties had an oral understanding, PERC would not normally have found that dispute to be over a material fact given the agreement’s requirement that any modification be in writing.  See, e.g., Borough of Morris Plains, I.R. No. 89-15, 15 NJPER 216 (¶20090 1989) (parties’ past practice cannot supersede clear terms of contract).

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Commission Finds Aspects of Out-of-Title Pay Provision to be Non-Negotiable

By Ira W. Mintz, Esq.

Township of West Caldwell and West Caldwell PBA, Local 81 (West Caldwell Unit)

In P.E.R.C. No. 2012-73, the Commission issued its follow-up to an earlier decision in which it decided to consider the Township’s scope of negotiations petition even though the petition was filed outside the 14-day time frame required by Commission rules.  See Blog Post below about P.E.R.C. No. 2012-54.  Now, the Commission has ruled that an out-of-title compensation provision is in part non-negotiable despite an earlier Commission decision permitting binding arbitration of a grievance seeking compensation for out-of-title work under that provision.  See P.E.R.C. No. 2011-63.  In 1999, a grievance was filed challenging an employer policy limiting the out-of-title work provision to patrol officers acting as sergeants and prohibiting higher rank pay for two employees on the same shift.  The grievance went to arbitration and the arbitrator found that the contract provision was violated when the Township failed to place sergeants in a vacant lieutenant slot and when it barred higher rank pay for two employees on the same shift. The grievance arbitration award was confirmed in the Superior Court.  In 2010, the union sought to arbitrate another grievance seeking out-of-title pay in a situation where the chief determined that out-of-title assignments were not made.  The Commission denied the employer’s request for a restraint of arbitration stating that employees have a strong interest in receiving additional pay for performing work of a higher level.  In this case, the Township sought a ruling that the out-of-title work provision was not negotiable and could not be included in a successor agreement.  Despite its earlier ruling, the Commission found that the provision was non-negotiable to the extent it significantly interferes with the Township’s non-negotiable managerial prerogative to set staffing levels and determine the number and types of officers assigned to be on duty, as well as when out-of-title work must be performed.  The Commission found that the provision is negotiable only to the extent it provides employees contractual protection against assuming duties outside of their regular job title.   It is not clear whether this decision permits the union to continue to arbitrate grievances claiming that employees are in fact working out of title and are therefore entitled to addition compensation for that out-of-title work.

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