Monthly Archives: May 2013

Commission Declines to Restrain Advisory Arbitration Over Increment Withholding

By Ira W. Mintz, Esq.

Millburn Township Board of Education and Communications Workers of America, AFL-CIO, Local 1031

In P.E.R.C. No. 2013-54, the Commission denied a request for a restraint of advisory arbitration of a grievance challenging a failure to pay a contractually negotiated across-the-board salary increase.  The Board argued that arbitration should be restrained because it was a withholding based on employee performance.  The Commission correctly held that it does not restrain advisory arbitration.  However, the Commission also stated that “non-disciplinary increment withholdings of non-teaching staff are not subject to binding arbitration, but parties may agree to arbitrate them pursuant to their grievance procedure.”  What the case law actually holds is that binding arbitration for performance-based increment withholdings of non-teaching staff is not mandated by statute, but parties may agree to binding arbitration of those withholdings.  See Flemington-Raritan Bd. of Ed., P.E.R.C. No. 2003-64.

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Commission Rules That State College and University Employees Are Not Employees of the State of New Jersey

By Ira W. Mintz, Esq.

State of New Jersey and Council of New Jersey State College Locals, AFT and Communications Workers of America, AFL-CIO

In P.E.R.C. No. 2013-52, the Commission ruled that despite statutory language that defines “civilian employees of the Executive Branch of State government” to include employees of the “State college and universities,” and despite State-wide negotiations units of State employees that include employees of the State colleges and universities, employees of the State colleges and universities are not employees of the State of New Jersey.  The case arose in the context of a clarification of unit petition filed by the Council of New Jersey State College Locals, AFT that seeks to add employees to existing units based on a narrowing of the scope of the managerial executive exclusion from collective negotiations for employees of the State of New Jersey.  The unions have filed appeals to the Appellate Division of the Superior Court.

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Commission Reaffirms Right to Union Representation During an Investigatory Interview

By Ira W. Mintz, Esq.

New Jersey Transit and Amalgamated Tranportation Union, Local 822

In P.E.R.C. No. 2013-45, the Commission reaffirmed the right of a New Jersey transit employee to a union representative during an investigatory interview being conducted by two New Jersey Transit Police Department officers.  The Commission applied established precedent holding that an investigatory interview conducted by the police arm of a public employer is not, standing alone, a ground to render Weingarten protections inapplicable.

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Commission Limits Negotiability of Overtime Assignments

By Ira W. Mintz, Esq.

City of Vineland and PBA Local 266

In P.E.R.C. No. 2013-37, the Commission restrained arbitration over a grievance challenging the police chief’s decision to limit certain overtime assignments to detectives in the juvenile bureau.  In prior and subsequent decisions, the Commission recognized the right of unions to negotiate rotation of overtime assignments among qualified individuals.  See, e.g., Borough of Clayton, P.E.R.C. No. 2013-47 (allocation of overtime among qualified individuals is negotiable and arbitrable).  In this case, the Commission expanded the scope of the employer’s managerial prerogative to permit the employer to limit overtime to those employees whom the employer deemed most qualified.

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