Commission Issues Conflicting Decisions on Binding Nature of Past Practices

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.”

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