NEW JERSEY COPS ■ FEBRUARY 2014
that the longstanding past practice and contract language
required the County to pay the increments on the officers’
anniversary dates after the contracts expired. He rejected the
County’s arguments that P 2010, c. 105, which imposed the 2.L.
percent hard cap on arbitration awards, and P 2010, c. 44,
.L.
which reduced the tax levy cap from 4 percent to 2 percent, provided the basis for the County to refuse to pay the increments.
He also noted that the county never claimed an inability to pay
the increments.
The County filed exceptions to the hearing examiner’s report.
In reversing the hearing examiner’s recommended decision
and its own long-standing precedent, PERC relied upon what
it claimed was a change in the labor relations climate based in
significant part upon the tax levy cap law and Chapter 105.
PERC also rejected the hearing examiner’s conclusion that the
parties had expressly agreed to continue the automatic payment of step increases after expiration of the contract. In refusing to follow precedent and instead dismissing the PBA and
FOP’s unfair practice charges, PERC has significantly narrowed
the scope of bargaining in much the same way that the Governor and Legislature did when Chapter 105 was enacted.
The change caused by this decision cannot be overstated.
From 1978 up to its decision in the Atlantic County case, PERC
had consistently issued injunctive relief and required employers to maintain the status quo by paying automatic salary increments upon the expiration of collective negotiations
agreements. PERC’s decisions were based on a 1978 decision of
the New Jersey Supreme Court in a case arising under the education laws in Galloway Township. In that case, the Supreme
Court concluded that the public employer, a board of education, was required to pay automatic salary increments upon the
expiration of the collective negotiations agreement. In its
Atlantic County decision, PERC seeks to justify its refusal to follow this precedent by claiming that the practice serves as a “disincentive to the prime settlement of labor disputes and
disserves rather than promotes the prompt resolution of labor
disputes.” It completely ignored the impact on collective bargaining, and provides another tool for employers to hold over
PBAs and employees in negotiations. This decision may also
have an impact on other benefits, such as longevity, which may
increase after an agreement has expired.
As a result of this decision, it is unlikely that PBAs will be able
to rely upon a past practice by which employers paid salary
increments once the collective negotiations agreement expired
and before a new one is negotiated. However, PBA locals which
have negotiated specific language requiring an employer to pay
salary increments upon the expiration of an agreement may
not be affected by PERC’s decision. PERC pointed out that there
was not “one word” in any of the collective negotiations agreements referencing an obligation to pay salary increments
beyond the expiration date. PBA locals should examine their
agreements to determine whether there is any language about
the payment of salary increments after the agreement expires.
PERC’s decision has been appealed to the courts. The State
PBA, along with other unions, will participate in the appeal as
amici curiae. Any appeal of PERC’s decision faces difficult
obstacles which must be overcome because the courts will generally defer to a final agency decision. PBA Locals with questions about the impact of this decision should consult with the
State PBA or with their local PBA counsel. We will keep the State
PBA advised of developments in