NJ Cops Aug2017 | Page 13

By way of background, this case began when Atlantic Coun- ty informed the PBA and FOP that officers’ movement in the salary guide would cease upon expiration of the then-cur- rent contract. Although, Atlantic County acknowledged that it was customary practice to continue with the salary guide, it claimed that it was “no longer efficacious or reasonable” to follow it. In support of its argument, the county argued that the property tax levy cap and the interest arbitration salary cap “preempt the previous standards of practice and render continued salary guide movement impractical and unduly burdensome.” In short, Atlantic County refused to pay salary steps after the contract expired. Thereafter, the PBA and FOP filed unfair practice charges with PERC and sought injunctive relief. The then-new PERC chair refused to follow more than 35 years of precedent and denied the unions’ request. Eventually, the case went before a PERC hearing examiner, who followed this precedent and determined that the public employer must follow the agree- ment and continue payment of the salary steps after the agreement’s expiration. It was not surprising that PERC re- jected the hearing examiner’s decision and dismissed the un- fair practice charges. After PERC issued its decision, Bridgewater Township noti- fied Local 174 that it would also refuse to pay the salary step increments once its agreement expired. Local 174 filed for grievance arbitration. An arbitrator agreed with the Local’s position, and the award was confirmed in Superior Court. While the issue was in arbitration, the township filed a scope of negotiations petition to block arbitration. PERC, again not surprisingly, found that the issue of payment of salary steps after expiration of a contract was not even a negotiable sub- ject based on its Atlantic County decision. Local 174 filed an appeal and the Appellate Division consolidated all three ap- peals and reversed PERC’s decision. As noted, we reported on this decision in an earlier issue of NJ COPS Magazine. In its decision, the Supreme Court had no trouble affirming the Appellate Division. The Court relied upon the clear lan- guage in the contracts of each Local. As it pertained to Local 174 and Local 77, the Supreme Court stated that the expired contracts “contain[ed] clear and explicit language that the re- spective salary guides – and all other terms and conditions set forth in those agreements – will continue until a successor agreement is reached.” The language in the Local 174 contract explicitly stated, “[t]his agreement shall remain in full force and effect during collective negotiations between the parties beyond the date of expiration set forth herein until the par- ties have mutually agreed on a new agreement.” Similarly, the contract language for Local 77 stated, “[a]ll provisions of this Agreement will continue in effect until a successor Agreement is negotiated.” The language in the contracts is clear, and as such, the Supreme Court found that “the salary increments systems remained in effect after the agreements’ expiration dates.” The Supreme Court reached the same result for FOP Lodge 34. The agreement for FOP Atlantic Lodge 34 provided, “[a]ll terms and conditions of employment, including any past or present benefits, practices of privileges which are enjoyed by the employees covered by this Agreement that have not been included in this Agreement shall not be reduced or eliminated and shall be continued in full force and effect.” In short, the Supreme Court very easily rejected the actions of the public employers and emphasized that the positions taken by Atlantic County and Bridgewater Township “direct- ly contradicted the parties’ binding written agreement” and, therefore, violated the agreements and the law when they re- fused to pay salary step increases after the expiration of the contracts. The Supreme Court noted that both Atlantic Coun- ty and Bridgewater could have negotiated different contract terms but did not. The court’s decision is a very welcome development when good news is sometimes scarce. It should be a lesson to PERC that the agency is supposed to protect, not reject, the public policy favoring negotiations over terms and conditions of em- ployment. The key takeaway from the Supreme Court’s deci- sion is that PBA Locals should review their collective bargain- ing agreements to determine if there is language similar to the language in the PBA and FOP agreements in this case. If the language is the same or similar, the public employer will have to continue with salary step increases until the execution of a new agreement. PBA Locals should also check for any other language which may affect whether salary steps are paid after contract expiration. If there is no similar contractual language, or if the language is unclear or ambiguous, the public employer may still be re- quired to pay salary step increases after the expiration of the agreements if there has been a consistent past practice. Each situation will depend on the language in the agreement and, perhaps, the extent of any past practices. PBA Locals should discuss the impact of this decision with their attorneys if there is any question about the provisions of their contracts. d We would like to thank Ashley E. Malandre, Esq., an associ- ate in our firm, for her assistance in preparing this article. www.njcopsmagazine.com ■ AUGUST 2017 13