Monthly Archives: November 2013

Commission Makes It More Difficult for Unions to Arbitrate Workload and Safety Concerns

By Ira W. Mintz, Esq.

Borough of Wallington and PBA Local 321

In P.E.R.C. No. 2013-80, the Commission restrained arbitration finding that the union was challenging the employer’s staffing decision.  However, the Commission also restrained arbitration over the union’s concerns that the decision to operate below minimum staffing levels impacted employee workload and safety.  The Commission stated that the PBA had not submitted a certification containing facts to support its argument that the workload of police officers had increased or that their safety was impacted.  In the past, the Commission would not restrain binding arbitration over a negotiable issue absent a finding that the subject matter of the grievance was not legally arbitrable.  See, e.g., Township of Livingston, P.E.R.C. No. 2008-14, 33 NJPER 229 (¶87 2007).  Now, at least where staffing levels are involved, the Commission requires a union to produce facts up front to the Commission before it will permit the union to proceed to arbitration on the traditionally arbitrable issues of workload and safety.


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Commission Reaffirms Unions’ Right to Potentially Relevant Information

By Ira W. Mintz, Esq.

City of Newark and Fraternal Order of Police, Newark Lodge No. 12

In P.E.R.C. No. 2013-73, the Commission reaffirmed a union’s right to information that is potentially relevant to the processing of grievances and useful to the union in carrying out its statutory duties.  In this case, the union sought sick leave records of non-unit superior officers in grievances alleging disparate treatment of officers who received sick leave counseling.  The Commission rejected the argument that the union had to meet a higher standard of producing substantial evidence showing why superior officer sick leave records were particularly necessary to process the grievances.


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Commission Modifies Interest Arbitration Award to Favor Management

By Ira W. Mintz, Esq.

Township of Byram and Sussex County PBA Local No. 138

Interest arbitration is the statutory process to resolve negotiations impasses between public employers and police and fire unions.  The arbitrator receives a final offer from both parties and then, after weighing nine statutory factors, packages an arbitration award, granting and/or denying proposals from both sides.  Removal of any one piece of that package shifts the overall economic cost or benefit to either labor or management.  In P.E.R.C. No. 2013-72, the Commission modified an interest arbitration award in favor of the employer to eliminate payment for unused sick leave to officers who remain on active duty and then affirmed the remainder of the award.  Traditionally, if the Commission found that an arbitrator had erred in some portion of his or her award, the Commission would have remanded the case to the arbitrator to issue a revised award.  That remand would give the arbitrator the opportunity to offset any change required by the Commission by increasing or decreasing some other benefit, thereby retaining the overall integrity of the package.  Prior to 2011, the Commission had understood that its authority to modify awards was limited to correcting “simple arithmetical errors or obvious mistakes in identification.”  See, e.g., FMBA Local No. 23 and City of East Orange, P.E.R.C. No. 2003-39.

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