Monthly Archives: January 2013

Commission Rejects Draft Decision That Would Have Found a Managerial Prerogative to Furlough School Employees

By Ira W. Mintz, Esq.

Robbinsville Township Board of Education and Washington Township Education Asssociation

On November 19, 2012, by a vote of 3-4, the Commission rejected a draft decision that would have held that the Robbinsville Township Board of Education had a managerial prerogative to impose three furlough days without negotiations. Chair Hatfield and Commissioners Boudreau and Eskilson voted in favor of the draft decision. Commissioners Bonanni, Jones, Voos and Wall voted no. The draft decision distinguished case law finding a negotiations obligation before instituting reductions in employees’ work weeks. It analogized this case to the only case in over 20 years in which the Commission found a managerial prerogative to impose furloughs and where the alternative to furloughs would have resulted in gutting the operations of the State Department of Personnel.

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Stipend for Waiver of Health Benefits Not Negotiable

By Ira W. Mintz, Esq.

Township of Clinton and FOP Lodge No. 182 (SOA)

In P.E.R.C. No. 2013-33, the Commission reaffirmed that under N.J.S.A. 52:14-17.31a, the decision of an employer not participating in the State Health Benefits Program to allow its employees to waive health benefits coverage and the amount of the stipend to be paid are not subject to collective bargaining.

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Commission Dismisses Untimely Scope of Negotiations Petition

By Ira W. Mintz, Esq.

City of Plainfield and Plainfield Fire Officers Ass’n, Local No. 207 and FMBA Local 7

In P.E.R.C. No. 2013-24, the Commission dismissed the City’s untimely scope of negotiations petition.  For police officers and firefighters, a scope of negotiations petition must be filed within five days of receipt of a notice of filing of an interest arbitration petition; or within five days of receipt of the response to an interest arbitration petition.

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Commission Restricts Arbitration Over Alleged Unreasonable Application of Sick Leave Verification Policy

By Ira W. Mintz, Esq.

Township of South Brunswick and AFSCME Council 73, Local 2242

In  P.E.R.C. No. 2013-23, the Commission restrained binding arbitration of a grievance that claimed that sending two police officers to verify the illness of a clerical employee was unreasonable.  In past decisions, the Commission had let the arbitrator determine whether a home visit was conducted for reasons other than implementing a sick leave verification policy or constituted an “egregious or unjustificable violation” of the employee’s privacy.  See, e.g., Borough of Dumont, P.E.R.C. No. 2003-7.  Whether a single home visit met that standard was for the arbitrator to decide.  In this decision, although the Commission questioned the reasoning of the Township’s decision to send two police officers from South Brunswick to West Windsor to verify the employee’s sick leave, the Commission  nonetheless would not permit an arbitrator to determine whether the Township’s action was unreasonable.

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Commission Limits Negotiability of Severance Pay

By Ira W. Mintz, Esq.

County of Camden and Camden County Park Police, New Jersey Fraternal Order of Police, Lodge #76

In P.E.R.C. No. 2013-21, the Commission held that a provision entitled “Severance Pay based on Service Longevity” was mandatorily negotiable and could remain in a successor collective negotiations agreement only to the extent it applies to situations where unit employees are permanently separated from their job.  The Commission noted there are economic benefits that can be negotiated for employees when they are transferred or reassigned even though they still perform the same duties for the same employer.  However, the Commission found that this provision for up to three years compensation imposes a financial obligation on the employer that would inhibit the County from exercising its managerial  rerogative to determine staffing levels and the manner and means by which it will provide law enforcement services.

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Commission Succeeds in Second Attempt to Limit Recall Rights

By Ira W. Mintz, Esq.

Township of South Brunswick and AFSCME Council 73, Local 2242

In P.E.R.C. No. 2013-20, the Commission found that although a layoff and recall contract provision was mandatorily negotiable, the Township had a managerial prerogative to ignore that provision and appoint a non-unit employee to a vacant position.  The contract provides that laid 0ff employees will be entitled to be recalled into positions for which they are qualified.  The Commission decision deviates from prior case law by limiting recall rights to positions previously held.  See, e.g., Middlesex Cty. Bd. of Social Services, P.E.R.C. No. 92-93, 18 NJPER 137 (¶23065 1992) (right of qualified laid off employee to have priority in rehiring outweighs employer’s interest in determining which employee will fill a vacant position).  This case also has an interesting procedural history.  The motion to adopt the draft decision restraining arbitration received a tie vote at the Commission’s June 28, 2012 meeting and was therefore defeated.  Yet the matter was re-listed on the Commission’s September 27, 2012 agenda after one Commissioner who had voted against the draft decision in June had been replaced and when another Commissioner who was absent from the June meeting was present to vote for the draft decision.  The two Commissioners who voted against the draft decision at the September meeting questioned the propriety of bringing the case back for a second vote.

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Commission Permits Arbitration Over Failure to Pay Salary Increments

By Ira W. Mintz, Esq.

County of Morris and Morris County Sheriff’s and PBA Local 198

In P.E.R.C. No. 2013-19, the Commission denied the request of the County of Morris and Morris County Sheriff’s Office for a restraint of binding arbitration of a grievance filed by PBA Local 298. The grievance asserts that the employer violated the parties’ collective negotiations agreement when it did not pay salary increments to several correction officers at the commencement of the next salary year.  Consistent with well-established case law, the Commission held that a grievance asserting that an employee is entitled to advancement on a salary guide is mandatorily negotiable and therefore legally arbitrable.  Although declining to restrain arbitration, the Commission noted that allowing the grievance to proceed to arbitration simply permitted the PBA to make its argument to an arbitrator and did not guarantee that its claim would be upheld. The Commission also noted that it did not deprive the employer from availing itself of post-arbitration challenges if the grievance were upheld.

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