Category Archives: 2013

Commission Reverses 30 Years of Precedent and Eliminates Employers’ Obligation to Pay Automatic Increments After Contract Expiration

By Ira W. Mintz, Esq.

County of Atlantic and PBA Local 243, FOP Lodge 34 and PBA Local 77

In P.E.R.C. No. 2014-40, the Commission reversed over 30 years of court-approved Commission precedent and eliminated an employer’s obligation to pay automatic salary increments after the expiration of a collective negotiations agreement.  Citing a change in the labor relations climate, the Commission reversed the decision of the Hearing Examiner who had found that the County never claimed an inability to pay increments, and, in fact, had kept its budget growth under the 2% tax levy cap and had retroactively paid increments after the issuance of an interest arbitration award involving one of the unions, PBA Local 243.  The Commission also reversed the Hearing Examiner’s conclusion that the parties had expressly agreed to continue the automatic payment of step increments notwithstanding the expiration of the contracts and that the County therefore repudiated the express terms of the agreements.  The Commission vote was 3 to 1, with one public and one employee representative member of the Commission not present.  The Unions have filed appealed.

Advertisements

Comments Off on Commission Reverses 30 Years of Precedent and Eliminates Employers’ Obligation to Pay Automatic Increments After Contract Expiration

Filed under 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.

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

Filed under 2013

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.

 

Comments Off on Commission Reaffirms Unions’ Right to Potentially Relevant Information

Filed under 2013

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.

Comments Off on Commission Modifies Interest Arbitration Award to Favor Management

Filed under 2013

Commission Finds That Civil Service Regulation Does Not Prohibit Use of Credited, But Unearned Leave

By Ira W. Mintz, Esq.

State of New Jersey Judiciary and Judiciary Council of Affiliated Unions, Support Staff Unit and Support Staff Supervisory Unit

In P.E.R.C. No. 2013-70, the Commission refused to restrain binding arbitration of a grievance challenging a new leave policy at the New Jersey Judiciary.  The question in the case was whether a Civil Service regulation preempts a contractual agreement that provides that vacation leave and sick leave are credited to employees at the beginning of the calendar year and thus can be used by employees during the year, subject to recoupment should the employee take an unpaid leave of absence and use more than his or her allotment.  The Commission held that the Civil Service regulation, N.J.A.C. 4A:6-1.5(b), does not prohibit use of credited, unearned leave during leaves of absence and therefore the union could proceed to arbitrate its breach of contract claim.

Comments Off on Commission Finds That Civil Service Regulation Does Not Prohibit Use of Credited, But Unearned Leave

Filed under 2013

Commission Expands Definition of “Emergency” to Justify Denial of Overtime to Police Officers

By Ira W. Mintz, Esq.

Township of Howell and PBA Local 228

In P.E.R.C. No. 2013-68, the Commission restrained binding arbitration of a grievance challenging the Township’s decision to use special police officers rather than regular police officers on overtime during and after a snow event.  The Commission found that “[t]o require the Township to call in additional officers on overtime rather than respond to the emergency with SPOs it had available to supplement rather than supplant the normal staffing on the force, would substantially limit the Township’s power to respond to an emergency in the most expeditious and efficient manner.”  The Commission cites no facts to suggest that the Township could not have met its needs by bringing in regular police officers on overtime.  In the past, a desire to avoid overtime compensation was not a sufficient ground for an employer to obtain a restraint of binding arbitration.

Comments Off on Commission Expands Definition of “Emergency” to Justify Denial of Overtime to Police Officers

Filed under 2013

Commission Weakens Remedy for Unilateral Change in Terms and Condition of Employment

By Ira W. Mintz, Esq.

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

In P.E.R.C. No. 2013-64, the Commission found that Kean University violated the Employer-Employee Relations Act by unilaterally increasing office hours for faculty and department chairs.  The Commission then deviated from prior case law by failing to restore the status quo pending negotiations over office hours and compensation and by ordering prospective negotiations only.  The Union had argued that the appropriate remedy after a finding that an employer failed to negotiate a mid-contract change in terms and conditions of employment is to restore the status quo pending the required negotiations.  The Commission explained its deviation from that remedy by citing to a case that simply explained that an employer need not exhaust Commission impasse procedures after compling with its obligation to negotiate before changing a non-contractual past practice during the life of a contract.  See UMDNJ, P.E.R.C. No. 2010-98, 36 NJPER 245 (¶90 2010).  The UMDNJ case did not order restoration of the status quo because the employer had a more than two decade history of setting supplemental salaries unilaterally.  UMDNJ had nothing to do with the appropriateness of a remedy restoring the status quo in a case like this after an employer illegally changes a term and condition of employment and the union promptly files an unfair practice charge.  In fact, even UMDNJ required negotiations over back pay upon demand.  To order prospective negotiations without the restoration of the status quo dramatically undermines a union’s bargaining position during those negotiations and eliminates any remedy for the employer’s past wrongdoing.

Comments Off on Commission Weakens Remedy for Unilateral Change in Terms and Condition of Employment

Filed under 2013