Monthly Archives: March 2014

Commission Restrains Arbitration Citing Anti-Nepotism Policy

By Ira W. Mintz, Esq.

New Jersey Turnpike Authority and International Federation of Professional and Technical Engineers, Local 200/200A

In P.E.R.C. No. 2014-27, the Commission restrained arbitration over a grievance that alleged that the employer violated the parties’ collective negotiations agreement when it transferred an employee from the Tolls Department to the Operations Department and changed her title.  The employer argued that it transferred the employee because she was in a “reporting relationship” with her husband and that its anti-nepotism policy forbids such reporting relationships between relatives.  Contrary to Commission rules, the Authority did not support its factual assertions with a certification based upon personal knowledge.  The union, however, did file a certification of the employee who stated that she and her husband had worked in the same department for many years, her husband did not directly supervise her, there were two levels of supervision separating him from her, and he did not have authority over her personnel matters.  Absent any facts from the Authority, the Commission nevertheless found that the Authority had deemed it best that the employee no longer work in the same department as her husband and that the decision to transfer the grievant stemmed from the Authority’s managerial prerogative to determine its anti-nepotism policy.

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Commission Takes 29 Months To Adopt Hearing Examiner’s Recommended Decision

By Ira W. Mintz, Esq.

Passaic County Superintendent of Elections and Communications Workers of America, AFL-CIO Local 1032

In June 2009, CWA filed an unfair practice charge alleging that the Passaic County Superintendent of Elections illegally terminated four voting machine technicians in retaliation for their filing grievances and pressing a claim for overtime pay.  The parties agreed to hold the charge in abeyance while they proceeded to binding arbitration.  CWA prevailed in arbitration; the employer appealed; and the court vacated the arbitration award finding that the Commission has primary jurisdiction over claims of retaliation for protected activity.  The case was then re-litigated at PERC and, in May 2011, the Hearing Examiner also found that the terminations were retaliatory.  Some 29 months later, the Commission adopted the Hearing Examiner’s recommendation to reinstating the four laid off employees with back pay.  P.E.R.C. No. 2014-1.

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Commission Lifts Commission Designee’s Restraint of Arbitration Over Compensation Claim

By Ira W. Mintz, Esq.

Township of Edison and International Association of Firefighters, Local 1197

In P.E.R.C. No. 2013-89, the Commission lifted a restraint of binding arbitration issued by a Commission Designee.  Local 1197 sought to arbitrate a grievance seeking a pay differential for firefighters performing EMS functions.  The Designee blocked arbitration finding that paying a differential would interfere with the Township’s prerogative to regularly assign EMS duties to EMTs rather than firefighters.  See I.R. No. 2012-14.  The Commission disagreed finding that whether firefighters performing EMS duties are entitled to additional compensation is a question for an arbitrator.

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Commission Reaffirms Arbitrability of Grievances Seeking a Hostile-Free Work Environment

By Ira W. Mintz, Esq.

Somerset County Sheriff’s Office and FOP Lodge 39

In P.E.R.C. No. 2013-86, the Commission reaffirmed that hostile-free work environment claims are legally arbitrable.  Accordingly, the Commission denied the employer’s request for a restraint of binding arbitration.

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Commission Tightens Specificity Requirements for Issuing Unfair Practice Complaints

By Ira W. Mintz, Esq.

Township of Edison and International Association of Firefighters, Local 1197

In P.E.R.C. No. 2013-84, the Commission denied the appeal of a decision of the Director of Unfair Practices that had refused to issue a complaint based on an unfair practice charge.  N.J.A.C. 19:14-1.3 requires that an unfair practice charge contain a “clear and concise statement of the facts constituting the alleged unfair practice.”  If the allegations in the charge “may constitute unfair practices,” the Director shall issue a complaint.  N.J.A.C. 19:14-2.1(a).  In this case, the union alleged that the employer instituted a new sick leave policy, including home visits, because of the firefighters’ membership in and activities on behalf of Local 1197.  In particular, Local 1197 alleged that it traditionally engaged in the aggressive defense of its membership in both the collective negotiations and political arenas; its President was quoted extensively in the press as opposing the Township’s cuts in fire department staffing levels; and the interim Business Administrator and Assistant to the Mayor had criticized the union and its leadership since their opposition to his candidacy for Township mayor.  Rather than issue a complaint and place the burden on the union to prove its allegations at hearing, the Director raised the initial bar and found that the allegations were not specific enough to support the issuance of a complaint.  Although the Commission’s rules require simply that an unfair practice charge contain a “concise statement of the facts constituting the alleged unfair practice,” the Commission required Local 1197 to support its allegations with detailed facts.  For example, the Commission deemed insufficient the allegation about Local 1197’s President’s statements to the press because it did not include quotations, media sources, or dates.

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Commission Orders Employer to Restore Practice of Affording Retirees Option of Receiving Terminal Leave in Lump Sum

By Ira W. Mintz, Esq.

North Hudson Regional Fire & Rescue and North Hudson Firefighters Association

In P.E.R.C. No. 2013-83, the Commission found that the employer violated its obligation to negotiate in good faith when it unilaterally terminated a practice of paying terminal leave in one lump sum.  Among other things, the Commission held that whether or not the employer could afford lump sum payments was not relevant to whether it violated its negotiations obligation, and deferral to arbitration was not appropriate since the dispute was over termination of a long-standing past practice, not a provision of the contract.  The employer’s motion for reconsideration was denied.  P.E.R.C. No. 2014-2.

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