Category Archives: 2012

Commission Bends Interim Relief Standards On Behalf of Public Employer

By Ira W. Mintz, Esq.

PBA Local 134 and County of Bergen and Bergen County Sheriff’s Office

In P.E.R.C. No. 2013-8, the Commission granted reconsideration and vacated the decision of a Commission designee issued 14 months earlier that had denied the County of Bergen’s request for interim relief in an unfair practice case it filed against the PBA.  The Commission did not, however, order the relief it appears to have intended.

To obtain interim relief, a charging party must demonstrate both that it has a substantial likelihood of success on the merits of its unfair practice claims and that irreparable harm will occur if the requested relief is not granted.  Further, the public interest must not be injured by an interim relief order and the relative hardship to the parties in granting or denying relief must be considered.

The County had argued to the Commission designee that the PBA was violating the Employer-Employee Relations Act by refusing to negotiate economic terms of a successor collective negotiations agreement with the County Executive.  The PBA maintained that the Sheriff is the employer.  The designee found that the County had not met its burden of demonstrating that it had a substantial likelihood of success on the merits of its claim that it was a joint employer with the Sheriff of the sheriff’s and corrections officers represented by the PBA.  The designee relied on a 1984 statutory amendment that grants sheriffs enhanced authority over economic matters and a 2008 Commission decision that acknowledged that increased authority.

In reversing the Commission designee, the Commission stated that this was a “case of first impression regarding the [statutory] amendment and that “it cannot be said that the County does not have a substantial likelihood of success in its position.”  That turns the interim relief standards on their head.  To obtain interim relief, the charging party, in this case the County, has the burden of establishing a substantial likelihood of success on the merits.  Most interim relief applications are filed by unions and those unions must meet that burden.  In this interim relief proceeding filed by an employer, the Commission reversed the burden of proof and essentially found that the union had to disprove the employer’s case rather than that the employer had to prove its case.

In addition, the Commission omitted language from a post-amendment precedent cited by the designee that had characterized a transfer of work from a county to a sheriff as “more akin to one involving the transfer of work to another public employer than a transfer of work between employees of the same employer.”  Hudson Cty. P.E.R.C. No. 2008-43, 34 NJPER 13 (¶6 2008).

The Commission also ignored the requirement that a party seeking interim relief demonstrate that it will suffer irreparable harm if relief is not granted.  The designee found no irreparable harm.  The Commission did not address that requirement in its decision.

Finally, the Commission states that “the restraint of interim relief should be vacated,” although it is not clear what the Commission meant by a “restraint of interim relief.”  The designee denied the County’s request for interim relief and did not issue any restraints.  The Commission decision ends with an Order granting reconsideration and vacating the Commission designee’s order.  It thus appears that despite its decision, the Commission did not order that interim relief be granted or that the PBA must negotiate with the County Executive.

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Appellate Court Affirms Unions’ Right to Arbitrate on Behalf of Retired Members

By Ira W. Mintz, Esq.

Township of Voorhees v. Voorhees Police Officers Ass’n et al., App. Div. Dkt. No. A-1742-11T2 (8/28/12).

The Appellate Division of the Superior Court has affirmed a September 2011 Commission decision (P.E.R.C. No. 2012-13), which held that that a union may seek to enforce a contract on behalf of retired employees in arbitration because the union has a cognizable interest in ensuring that retired employees receive whatever retirement benefits were contracted for in the last agreement before retirement.  The Township of Voorhees had announced that, due to budgetary constraints, it would no longer be reimbursing retirees for prescription co-payments in excess of the co-payments provided through the State Health Benefits Program.  The unions filed grievances and the Commission rejected the Township’s request for a restraint of binding arbitration.  In affirming the Commission decision, the Court recognized that the unions have a strong interest in vindicating the rights of its retired members.  PERC distinguished its case law which holds that an employer is not under an obligation to negotiate over benefits of already retired employees.  The Court expressed no view on the question of whether the Township is required to bargain on the issue in the future.  The Court simply held that whether the prior and current contracts require the Township to continue the supplemental prescription reimbursement program could be decided by the arbitrator.  The Court also stated that the Township’s claim that it did not have the authority to enter into the reimbursement agreements was a matter for determination through the arbitration process.

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Commission Designee Accepts Employer’s Argument That Oral Agreement Can Waive Right to Contractual Salary Increase

By Ira W. Mintz, Esq.

County of Hudson and PBA Local 109A

In I.R. No. 2013-1, a Commission designee denied the PBA’s application for interim relief in an unfair practice case.  One reason to deny interim relief is when there is a dispute over material facts.  The designee found that there was a dispute over material facts about whether there was an oral agreement between the County of Hudson and PBA Local 109A that the County would make promotions and the PBA would waive promotional salary increases for a year.  However, the parties’ collective negotiations agreement explicitly provides that any modification to the agreement must be reduced to writing and agreed to by both sides.  There was no allegation by the County that the parties had agreed in writing to a waiver of promotional salary increases.  While there may be a disagreement over whether the parties had an oral understanding, PERC would not normally have found that dispute to be over a material fact given the agreement’s requirement that any modification be in writing.  See, e.g., Borough of Morris Plains, I.R. No. 89-15, 15 NJPER 216 (¶20090 1989) (parties’ past practice cannot supersede clear terms of contract).

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Commission Finds Aspects of Out-of-Title Pay Provision to be Non-Negotiable

By Ira W. Mintz, Esq.

Township of West Caldwell and West Caldwell PBA, Local 81 (West Caldwell Unit)

In P.E.R.C. No. 2012-73, the Commission issued its follow-up to an earlier decision in which it decided to consider the Township’s scope of negotiations petition even though the petition was filed outside the 14-day time frame required by Commission rules.  See Blog Post below about P.E.R.C. No. 2012-54.  Now, the Commission has ruled that an out-of-title compensation provision is in part non-negotiable despite an earlier Commission decision permitting binding arbitration of a grievance seeking compensation for out-of-title work under that provision.  See P.E.R.C. No. 2011-63.  In 1999, a grievance was filed challenging an employer policy limiting the out-of-title work provision to patrol officers acting as sergeants and prohibiting higher rank pay for two employees on the same shift.  The grievance went to arbitration and the arbitrator found that the contract provision was violated when the Township failed to place sergeants in a vacant lieutenant slot and when it barred higher rank pay for two employees on the same shift. The grievance arbitration award was confirmed in the Superior Court.  In 2010, the union sought to arbitrate another grievance seeking out-of-title pay in a situation where the chief determined that out-of-title assignments were not made.  The Commission denied the employer’s request for a restraint of arbitration stating that employees have a strong interest in receiving additional pay for performing work of a higher level.  In this case, the Township sought a ruling that the out-of-title work provision was not negotiable and could not be included in a successor agreement.  Despite its earlier ruling, the Commission found that the provision was non-negotiable to the extent it significantly interferes with the Township’s non-negotiable managerial prerogative to set staffing levels and determine the number and types of officers assigned to be on duty, as well as when out-of-title work must be performed.  The Commission found that the provision is negotiable only to the extent it provides employees contractual protection against assuming duties outside of their regular job title.   It is not clear whether this decision permits the union to continue to arbitrate grievances claiming that employees are in fact working out of title and are therefore entitled to addition compensation for that out-of-title work.

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Commission Refuses to Issue Complaint on Charge of Bad Faith Negotiations

By Ira W. Mintz, Esq.

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

In P.E.R.C. No. 2012-69, the Commission affirmed a decision of the Deputy Director of Unfair Practices who had refused to issue a complaint based on an unfair practice charge filed by the Council of New Jersey State College Locals, AFT, AFL-CIO against the State of New Jersey Kean University.  The decision means that the AFT will not be able to try to prove its case in an unfair practice hearing.  Among other things, the charge alleges retrograde negotiations – that the University put an offer on the table and when, after trying to negotiate changes, the AFT agreed to the University’s proposal, the University then made substantive changes to its proposal.  All of the decisions cited by the Commission that found no bad faith negotiations were issued after the union had been given an opportunity to present its case at hearing.  In this case, the Commission stated that it made its decision “[c]onsidering the totality of the circumstances” and that AFT’s assertions with regard to the University’s bad faith are “unsupported.”  However, the Commission’s rules provide that a complaint will issue and a hearing will be conducted when the allegations, if true, may constitute unfair practices.  The rules contemplate that it is at a hearing that a union will get to support its allegations.

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Commission Interprets Change in Definition of Managerial Executives for State Executive Branch Employees

By Ira W. Mintz, Esq.

New Jersey State (Division of State Police) and New Jersey State Trooper Captains Association

In P.E.R.C. No. 2012-71, the Commission affirmed a Hearing Officer’s recommendation that a majority of the State Police captains are not managerial executives and are eligible for inclusion in a collective negotiations unit.  Managerial executives are excluded from the definition of public employees eligible for inclusion in collective negotiations units.  Before 2010, the managerial executive exclusion was the same for all public employees — persons who formulate management policies and practices, and persons who are charged with the responsibility of directing the effectuation of such management policies and practices.  In 2010, the Legislature amended the definition of managerial executives for employees of the Executive Branch of the State of New Jersey in two ways.  The definition no longer includes employees who simply direct the effectuation of management polices and practices.  In addition, the new definition specifies that managerial executives shall include only personnel at or above the level of assistant commissioner.

In this decision, the Commission made clear that the revised definition requires a determination that a managerial executive in the Executive Branch must formulate policy and be at or above the level of assistant commissioner, i.e. employees who do not formulate policy are not managerial executives even if they are at or above the level of assistant commissioner.  The Commission also found that assistant commissioners are at the third level of a State department and that most State Police captains are at least the fourth level and therefore can be included in a collective negotiationis unit.

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Senate Confirms New Public Member of the Commission

By Ira W. Mintz, Esq.

The Commission has seven members appointed by the Governor with the advice and consent of the Senate.  Two are representative of public employers, two are representative of public employee organizations, and three are representative of the public.  One of the public members is the Commission Chair.   On June 28, the Senate confirmed the nomination of Paul Boudreau as a public member.  Mr. Boudreau is the President of the Morris County Chamber of Commerce and replaces Sharon Krengel.

Commissioners are appointed for three-year terms.  The chart below shows the current Commissioners and when their terms expire.  Commissioners continue to serve until their successors are appointed and qualified.

P. Kelly Hatfield Chair – Public Member 6/3/2012
David Jones Employee Organization Member 3/13/2014
Richard Wall Employee Organization Member 2/10/2014
John Bonanni Public Employer Member 2/14/2011
Paul Boudreau Public Member 1/7/2015
Paula B. Voos Public Member 9/10/2012
John Eskilson Public Employer Member 2/10/2011

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