Category Archives: 2015

Commission Rules That Employees May Not Sell Back Sick Days EachYear

Township of Little Falls and Teamsters Local 97

In P.E.R.C. No. 2016-42, citing N.J.S.A. 40A:9-10.4, the Commission held that employees hired May 21, 2010 or later cannot negotiate to sell back sick days each year.  The statute states that accumulated sick leave “shall be payable only at the time of retirement.”

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Court Restores the Status Quo Regarding Payment of Increments

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

Bridgewater Township and PBA Local 174

The courts issued a stunning rebuke to the Public Employment Relations Commission for its reversal of over 30 years of labor relations policy in two decisions that had no longer required or even permitted employers to pay automatic increments after the expiration of a contract.  Appellate Division Decision.  In a decision involving Atlantic County, PERC disavowed what is called the “dynamic status quo” doctrine and ruled that the County’s decision not to pay salary/step increments was not an unfair practice.  P.E.R.C. No. 2014-40.  In a related decision involving Bridgewater Township, PERC ruled that payment of salary/step increments after contract expiration is no longer subject to negotiations and that an agreement to pay those increments is not enforceable in arbitration.  P.E.R.C. No. 2015-11. 
The appellate court reversed PERC on both counts.  The court ruled that PERC’s two decisions were outside it legislative mandate.  The court noted that the 2% tax levy cap and the 2% interest arbitration award cap did not extend to increments and that PERC did not have the authority to do what the Legislature chose not to do.  Finally, the court stated that PERC undermined the parties’ legitimate expectations based on their negotiations and their contracts.
Atlantic County, Bridgewater and PERC have filed petitions asking the New Jersey Supreme Court to review the cases.

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Commission Finds Refusal to Negotiate Over Certain Issues But Does Not Order Negotiations

Bellville Education Association and Bellville Board of Education

In P.E.R.C. No. 2015-79, after finding that the Board had a managerial prerogative to install security cameras and require staff to wear radio frequency identification cards, the Commission ordered the Board to cease and desist from refusing to negotiate over the severable impact on the staff from the implementation of security cameras and the use of the radio frequency identification cards.  The Commission’s order is unusual in that it did not order the Board to negotiate.  Both parties have appealed.

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Commission Finds Illegal Retaliation Against Association President

Central Regional Board of Education and Central Regional

In P.E.R.C. No. 2015-77,  the Commission adopted a Hearing Examiner’s recommendation that the Board used criticism and adverse evaluations to illegally retaliate against the Association President for her exercise of protected conduct.

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Furlough Negotiability Update

Borough of Keyport v. International Union of Operating Engineers

Borough of Belmar v. Communications Workers of America, AFL-CIO

Borough of Keyport v. AFSMCE Council 71

Robbinsville Township Board of Education v. Washington Township Education Association

On July 14, 2015, the New Jersey Supreme Court affirmed, with a modification, the decision of the Appellate Division that had reversed three Commission decisions that had held that the employers were required to negotiate before implementing furloughs/layoffs and work hour reductions pursuant to an emergency Civil Service regulation.  That regulation has since been repealed.  The Supreme Court reversed the Appellate Division’s holding that the regulation preempted negotiations, but then held that the three municipalities acted for reasons of economy based on municipal fiscal distress existing at the time, rendering the management choice to use a temporary or permanent layoff solution a managerial prerogative not subject to negotiations.  Justice Albin dissented, writing that “[c]ollective negotiations mean nothing if wages and hours are not on the table for discussion. One can only hope that the damage the majority inflicts on the collective negotiations process will be limited to the period the emergency civil service regulation was in effect.”

While the case was pending before the Supreme Court, the Commission applied the Appellate Division decision to the Robbinsville School Board’s plan to furlough teachers for three days.  P.E.R.C. No. 2014-30.   On August 7, 2015, the Appellate Division affirmed the Commission’s decision, rejecting the Association’s argument that the Civil Service regulation permitting furloughs in Keyport meant that the Supreme Court’s decision was inapplicable in this non-Civil Service school case.  The Supreme Court has granted certification in the Robbinsville case.

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Commission Permits Arbitration of Grievance Challenging Elimination of Engineer’s Accumulated Vacation Leave

City of Millville and Millville Administrators Association

In P.E.R.C. No. 2015-62, the Commission declined to restrain binding arbitration of a grievance challenging the City of Millville’s unilateral elimination of vacation time that the City considered to be in excess of the statutory maximum.  A Civil Service statute and regulation provide that vacation leave not taken in the year earned because of business necessity must be used in the following year.  The Commission found that those limits applied only to employees in the classified service.  The grievant was in the unclassified service and not subject to the limits on the accrual and use of vacation leave.

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Commission Reaffirms Arbitrability of References to Reprimands in Evaluations

North Haledon Board of Education and North Haledon Education Association

Consistent with prior Commission decisions, in P.E.R.C. No. 2015-56, the Commission declined to restrain binding arbitration of a grievance seeking the removal of references on formal evaluations to previously issued disciplinary reprimands.

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