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.