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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