12 COLLECTIVE BARGAINING REPORT
NEW JERSEY COPS ■ DECEMBER 2014
PERC….A Retrospective
P Kelly Hatfield, a microbiologist by trade,
.
assumed the position of PERC Commission
Chair, having been appointed by Gov. Christie.
Ms. Hatfield, a political failure having run and
lost for State Assembly as well as Congress, eventually found a home on the public dole. Hatfield,
however, has no background in labor law. She is
a former Summit Councilwomen and a former
school board member. As reported by the Star
Ledger Editorial Board on March 4, 2011, “She
has questionable qualifications for running an
important state agency, but, hey, anybody can be a hatchet
(wo)man.”
What follows is a reflection of the thinking of the PERC, the
new philosophy it has and how it impacts on our everyday lives.
What appears below was generated by Ira Mintz who was staff
attorney and General Counsel to PERC and worked 25 years for
the commission. Mr. Mintz, who was told “it’s time to retire,”
reports, “I would have been an obstacle because I’m a professional and decide cases on their facts.”
Reversals of Long-Standing Precedent
Commission reversed 30 years of precedent and eliminated
employers’ obligation to pay automatic increments after contract
expiration
In County of Atlantic and PBA Local 243, FOP Lodge 34 and
PBA Local 77, PERC No. 2014-40, 40 NJPER 285 (¶109 2013), the
Commission reversed more than 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. He had found that the county never claimed
an inability to pay increments, and, in fact, had kept its budget
growth under the 2-percent tax levy cap and had retroactively
paid increments after the issuance of an interest arbitration
award involving Atlantic County Sheriff’s Department 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 3-1, with one public and no employee representative
member of the Commission not present. The unions have
appealed.
Payment of Longevity Increases and Educational Payments no
longer required after contract expiration
In Paterson State Operated School District and Paterson Education Association, PERC No. 2014-46, 40 NJPER __ (¶122 2014),
the Commission extended the holding of its decision in County of Atlantic, PERC. No. 2014-40 (see above), to dismiss an
unfair practice charge filed after the school district refused to
pay automatic salary increments, longevity increases and educational payment for acquisition of an advanced degree, in
accordance with a schedule in the parties’ expired contract.
Abandoning decades of precedent, the Commission stated that
requiring the payment of increments serves as a disincentive to
the prompt settlement of labor disputes. The Commission did
not provide the basis for its conclusion that settlements have
been longer or harder to achieve. The union has appealed.
Layoffs By seniority no longer mandatorily negotiable
In State of New Jersey and New Jersey Division of Criminal Justice Non-Commissioned Officers Association and New Jersey
Division of Criminal Justice Superior Officers Association and
Fraternal Order of Police, Lodge 91, PERC. No. 2014-50, 40 NJPER
(¶146 2014), the Commission reaffirmed its 2011 reversal of
long-standing precedent and held that a proposal that employees be laid off in reverse order of seniority is not mandatorily
negotiable. In Union Cty. Prosecutor’s Office and PBA Local 250,
PERC. No. 2011-74, 37 NJPER 166 (¶53 2011), the Commission
had deviated from long-standing precedent and held not
mandatorily negotiable a union proposal to have detectives and
investigators laid off by inverse departmental seniority.
First, the Commission incorrectly cited Council of N.J. State
College Locals, NJSFT-AFT/AFL-CIO v. State Bd. Of Higher Ed.,
181 NJPER 179, 187 (App. Div.), mod. On other grounds 91 N.J.
18 (1982), for the proposition that a public employer has a managerial prerogative to determine that a less-senior employee
with particular skills shou ld be retained. The passage from
council quoted by the Commission states that a public employer has a managerial prerogative to reduce staff. Layoff by
inverse order of seniority does not challenge the prerogative to
reduce staff.
The Commission next incorrectly stated that State v. State
Supervisory Employees Ass’n, 78 N.J. 54, 89-90 (1978), held that
a public employer cannot negotiate an agreement binding it to
make layoffs strictly by seniority when other factors such as special skills may be relevant. The cited passage concerned the
negotiability of a proposal that “employees in variant titles shall
be considered to be in the title appropriate to the variation for
purposes of layoff actions.” Although the court expressed some
concern about having persons not qualified for a more specialized job bumping workers who are qualified, the court’s holding was that the Civil Service Commission gets to decide which
jobs should be in the same pool for layoff purposes.
The Commission then cited a case that explicitly held that
seniority as it relates to layoff is mandatorily negotiable. Lyndhurst Bd. Of Ed., PERC. No. 87-111, 13 NJPER 271 (¶18112 1987),
aff’d NJPER Supp.2d 194 (¶171 App. Div. 1988) (Court affirms
Commission’s determination permitting arbitration under contract provision providing for layoffs by seniority.) The Commission did not explain how Lyndhurst is supportive of its
holding that a layoff by seniority provision was not negotiable.
The Commission then cited another case that had found