City of Elizabeth and Elizabeth Fire Officers Association, IAFF Local 2040
In P.E.R.C. No. 2016-34, the Commission restrained arbitration of a grievance challenging the City’s selection of an Acting Deputy Chief where both candidates for the position achieved the same score on the promotional examination. The Commission found that the City was seeking to accomplish the policy goal of training incoming firefighters. The Commission cited but did not distinguish Township of Plainsboro, P.E.R.C. No. 2001-36, which had upheld the use of seniority among equally qualified candidates to fill non-permanent promotional positions.
Washington Township Board of Education and Washington Township Education Association
In P.E.R.C. No. 2016-25, the Commission denied a request for a restraint of binding arbitration of a grievance challenging the Board’s denial of tuition reimbursement requests after using tuition reimbursement funds for another program. The Commission found the N.J.S.A. 18A:6-8.5(b), which provides an employee with the right to appeal to the Board, does not preclude an employee from challenging the decision through the grievance arbitration procedure.
County of Hudson and PBA Local 109A
In P.E.R.C. No. 2016-8, the Commission restrained binding arbitration over a shift-bidding by seniority dispute based on a prior Commission decision finding a shift-bidding clause to be not mandatorily negotiable. The Commission relied on a City of Newark case, P.E.R.C. No. 88-87, which had stated that once the negotiability of a proposal or provision has been determined, its negotiability may not be challenged each time the contract expires. City of Newark, however, was a contract negotiations case and it also stated that if a particular dispute arose, the issue could be examined in that context and the City could seek to block arbitration. In this case, a particular dispute arose and the Commission chose not to perform the requisite negotiability analysis based on the particular facts of the dispute.
Piscataway Township Board of Education and Piscataway Township Education Association
Rutgers, the State University and Fraternal Order of Police, Lodge No. 62
In P.E.R.C. No. 2016-3, the Commission found that the Board violated the Act by requiring Association unit members to use paid leave concurrently with unpaid Family and Medical Leave Act (FMLA) leave when unit members had previously for many years had consecutive leaves approved despite a written Board policy for concurrent use. The Commission ordered restoration of the status quo and a make whole remedy, but made clear that, unlike an arbitrator, the Commission cannot find that a past practice is binding against an employer for the life of a contract. The Commission’s jurisdiction is limited to enforcing the employers’ statutory obligation to negotiate before modifying existing employment conditions. Thus, an employer can change a non-contractual past practice mid-contract so long as it first complies with its obligation to negotiate in good faith.
By contrast, in P.E.R.C. No. 2016-31, the Commission held that a past practice was binding against FOP Lodge No. 62 for the life of a contract and that the FOP had to wait until negotiations for a successor contract before it could seek to negotiate the economic impact of Rutgers’ sick leave verification policy. Despite its holding in Piscataway, the Commission stated, “[g]enerally, past practices are binding for the life of a collective negotiations agreement. Therefore, a party who desires to modify a past practice must wait until negotiations for a successor agreement to begin discussions over changing the practice.”
State of New Jersey, Stockton State College and Council of New Jersey State College Locals, AFT, AFL-CIO
In P.E.R.C. No. 2016-5, the Commission found that whether the contractual recognition clause covered the job the grievant was performing is mandatorily negotiable and therefore legally arbitrable. Although not mentioned as an issue in the case, the Commission went on to restrain arbitration to the extent the grievance challenged the College’s managerial prerogative to create nonunit temporary or part-time seasonal lacrosse coaches.
By Ira W. Mintz, Esq.
Pascack Valley Regional Board of Education and Pascack Valley Regional Education Association
All increment withholdings of teaching staff members may be submitted to binding arbitration except those based predominately on the evaluation of teaching performance. N.J.S.A. 34:13A-26 et seq. If the reasons for a withholding is related predominately to the evaulation of teaching performance, any appeal shall be filed with the Commissioner of Education. If there is a dispute over the reason for a withholding, the school board may file a scope of negotiations petition with PERC. In P.E.R.C. No. 2015-45, in addition to withholding the employment and adjustment increments that a board may withhold pursuant to N.J.S.A. 18A:29-14, the board withheld the teacher’s longevity increment and education based guide movement. The Commission ruled that longevity payments are construed by the Commissioner of Education to constitute employment increments, but that the withholding of an economic benefit for academic achievement is not an authorized increment withholding under N.J.S.A. 18A:29-14. Thus, the grievance challenging that withholding could proceed to binding arbitration.
City of Newark and Superior Officers Association
In H.E. No. 2015-8, the Hearing Examiner found that the City violated the Act by repudiating a grievance decision issued by its Police Director. The decision settled and sustained grievances assering that the City violated its contract with the SOA concerning the amount and timing of lump sum payment due retiring officers. The City did not file exceptions to the Hearing Examiner’s recommendation and, pursuant to Commission rule, N.J.A.C. 19:14-8.1(b), the Hearing Examiner’s recommended decision became a final decision of the agency. The City appealed to the Appellate Division and the Commission is arguing that the appeal should be dismissed under Court Rule 2:2-3(a)(2), which provides that an appeal “shall not be maintainable so long as there is available a right of review before any administrative agency or officer, unless the interest of justice requires otherwise.”