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.