Commission Weakens Remedy for Unilateral Change in Terms and Condition of Employment

By Ira W. Mintz, Esq.

Kean University and Council of New Jersey State College Locals, AFT, AFL-CIO, Kean Federation of Teachers

In P.E.R.C. No. 2013-64, the Commission found that Kean University violated the Employer-Employee Relations Act by unilaterally increasing office hours for faculty and department chairs.  The Commission then deviated from prior case law by failing to restore the status quo pending negotiations over office hours and compensation and by ordering prospective negotiations only.  The Union had argued that the appropriate remedy after a finding that an employer failed to negotiate a mid-contract change in terms and conditions of employment is to restore the status quo pending the required negotiations.  The Commission explained its deviation from that remedy by citing to a case that simply explained that an employer need not exhaust Commission impasse procedures after compling with its obligation to negotiate before changing a non-contractual past practice during the life of a contract.  See UMDNJ, P.E.R.C. No. 2010-98, 36 NJPER 245 (¶90 2010).  The UMDNJ case did not order restoration of the status quo because the employer had a more than two decade history of setting supplemental salaries unilaterally.  UMDNJ had nothing to do with the appropriateness of a remedy restoring the status quo in a case like this after an employer illegally changes a term and condition of employment and the union promptly files an unfair practice charge.  In fact, even UMDNJ required negotiations over back pay upon demand.  To order prospective negotiations without the restoration of the status quo dramatically undermines a union’s bargaining position during those negotiations and eliminates any remedy for the employer’s past wrongdoing.

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