By Ira W. Mintz, Esq.
PBA Local 134 and County of Bergen and Bergen County Sheriff’s Office
In P.E.R.C. No. 2013-8, the Commission granted reconsideration and vacated the decision of a Commission designee issued 14 months earlier that had denied the County of Bergen’s request for interim relief in an unfair practice case it filed against the PBA. The Commission did not, however, order the relief it appears to have intended.
To obtain interim relief, a charging party must demonstrate both that it has a substantial likelihood of success on the merits of its unfair practice claims and that irreparable harm will occur if the requested relief is not granted. Further, the public interest must not be injured by an interim relief order and the relative hardship to the parties in granting or denying relief must be considered.
The County had argued to the Commission designee that the PBA was violating the Employer-Employee Relations Act by refusing to negotiate economic terms of a successor collective negotiations agreement with the County Executive. The PBA maintained that the Sheriff is the employer. The designee found that the County had not met its burden of demonstrating that it had a substantial likelihood of success on the merits of its claim that it was a joint employer with the Sheriff of the sheriff’s and corrections officers represented by the PBA. The designee relied on a 1984 statutory amendment that grants sheriffs enhanced authority over economic matters and a 2008 Commission decision that acknowledged that increased authority.
In reversing the Commission designee, the Commission stated that this was a “case of first impression regarding the [statutory] amendment and that “it cannot be said that the County does not have a substantial likelihood of success in its position.” That turns the interim relief standards on their head. To obtain interim relief, the charging party, in this case the County, has the burden of establishing a substantial likelihood of success on the merits. Most interim relief applications are filed by unions and those unions must meet that burden. In this interim relief proceeding filed by an employer, the Commission reversed the burden of proof and essentially found that the union had to disprove the employer’s case rather than that the employer had to prove its case.
In addition, the Commission omitted language from a post-amendment precedent cited by the designee that had characterized a transfer of work from a county to a sheriff as “more akin to one involving the transfer of work to another public employer than a transfer of work between employees of the same employer.” Hudson Cty. P.E.R.C. No. 2008-43, 34 NJPER 13 (¶6 2008).
The Commission also ignored the requirement that a party seeking interim relief demonstrate that it will suffer irreparable harm if relief is not granted. The designee found no irreparable harm. The Commission did not address that requirement in its decision.
Finally, the Commission states that “the restraint of interim relief should be vacated,” although it is not clear what the Commission meant by a “restraint of interim relief.” The designee denied the County’s request for interim relief and did not issue any restraints. The Commission decision ends with an Order granting reconsideration and vacating the Commission designee’s order. It thus appears that despite its decision, the Commission did not order that interim relief be granted or that the PBA must negotiate with the County Executive.