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mandatorily negotiable a provision providing that layoffs be
accomplished by seniority and performance criteria (South
Orange-Maplewood Bd. Of Ed., PERC No. 97-54, 22 NJPER 411,
413 (¶27225 1996). Again, the Commission did not explain how
that case supported its holding.
Finally, the Commission cited Passaic Cty. Prosecutor’s Office,
PERC. No. 2009-34, 34 NJPER 444 (¶139 2008), another case that
had upheld the negotiability of a decision to use seniority and
performance as factors in determining which employees would
be laid off. The case is different in that performance was a factor to be used in determining who would be laid off. But the
case does not hold that performance must be a factor in layoff
decisions.
The Commission cited no case that has held that in a nonCivil Service jurisdiction, an employer and a union could not
lawfully agree to lay off by inverse order of seniority. The Commission reversed long-standing precedent without announcing that it was doing so.
Commission ignored its own precedent and restrained arbitration
over overtime allocation
In Rutgers, The State University of New Jersey and Union of
Rutgers Administrators-American Federation of Teachers, Local
1766, AFL-CIO, PERC. No. 2014-41, 40 NJPER 289 (¶110 2013),
the Commission restrained binding arbitration over the assignment of non-unit members to perform boiler checks in Rutgers’s heating and cooling plants when negotiations unit
members are on vacation. Ignoring precedent cited by the
Union, including a 1980 Appellate Division decision that also
involved Rutgers, the Commission found that this case primarily involves the non-arbitratible issue of staffing levels rather
than the arbitratable issue of which Rutgers employees will perform boiler checks when unit employees are out. The union has
appealed.
Commission found managerial prerogative under anti-nepotism
policy without required supporting certification from employer
In New Jersey Turnpike Authority and International Federation of Professional and Technical Engineers, Local 200/200A,
PERC No. 2014-27, 40 NJPER 236 (¶90 2013), the Commission
restrained arbitration over a grievance that alleged that the
employer violated the parties’ collective negotiations agreement when it transferred an employee from the Tolls Department to the Operations Department and changed her title. The
employer argued that it transferred the employee because she
was in a “reporting relationship” with her husband and that its
anti-nepotism policy forbids such reporting relationships
between relatives. Contrary to Commission rules, the Authority did not support its factual assertions with a certification
based upon personal knowledge. The union, however, did file a
certification of the employee who stated that she and her husband had worked in the same department for many years, her
husband did not directly supervise her, there were two levels
of supervision separating him from her, and he did not have
authority over her personnel matters. Absent any facts from the
Authority, the Commission nevertheless found that the Authority had deemed it best that the employee no longer work in the
same department as her husband and that the decision to
transfer the grievant stemmed from the Authority’s managerial
prerogative to determine its anti-nepotism policy.
By contrast, Commission tightened specificity requirements
that unions must meet when filling unfair practice charges
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In Township of Edison and International Association of Firefighters, Local 1197, PERC No. 2013-84, 40 NJPER 35 (¶14 2013),
the Commission denied the appeal of a decision of the Director
of Unfair Practices that had refused to issue a complaint based
on an unfair practice charge. N.J.A.C. 19:14-1.3 requires that an
unfair practice charge contain a “clear and concise statement of
the facts constituting the alleged unfair practice.” If the allegations in the charge “may constitute unfair practices,” the Director shall issue a complaint. N.J.A.C. 19:14-2.1(a). In this case, the
union alleged that the employer instituted a new sick leave policy, including home visits, because of the firefighters’ membership in and activities on behalf of Local 1197. In particular, Local
1197 alleged that it traditionally engaged in the aggressive
defense of its membership in both the collective negotiations