2017 NJ STATE PBA Collective Bargaining Seminar
Understanding and navigating arbitration, PERC and Civil Service ROBERT A. FAGELLA- Zazzali, Fagella, Nowak, Kleinbaum & Friedman
As stressed by Bob Fagella,“ You can’ t understand your contract without understanding PERC.” The Public Employee Relations Commission( PERC) is a major reason why employers are required to collectively negotiate or have a discussion to negotiate contracts. It’ s the obligation of a fair representative to mesh the interest of the organization with the individual interests within it. Of course, this is not always easy to do, but there are pointers that can help navigate the system. The first step is having awareness and understanding what it’ s all about. Other points of interest included:
• Grievance arbitration is specific to one term in the contract that may not be applied in the proper manner. If a term is not included in a contract, then it can’ t be added or negotiated.
• When a contract expires, PERC decides whether members’ salaries follow a static or dynamic status quo while the new contract is under negotiation. This is the difference between a stationary or moving salary. PERC decided that the dynamic status quo will no longer be followed and members should
not expect salary movement while their contracts are under negotiation.
• Members should be aware of“ Weingarten Rights,” which means that if you are faced with an investigatory interview and do not ask for a union representative to be present, you will not have one. It is beneficial to have a representative who has a strong understanding of the individual’ s rights, which can allow the representative to manipulate the situation in favor of the member.
• Civil Service hears discipline appeals in excess of five days. PERC can hear discipline appeals if the primary issue involved the exercise of protected union activity. The courts can hear both types of cases. Recent court decisions require that public employees“ elect” the forum to litigate.
• If you win a disciplinary case for which you have been suspended without pay, back-pay calculations require mitigation. This means deducting other income earned during a wrongful suspension. To get back pay, an employee must prove an effort to mitigate was made. You have to at least make an effort to earn mitigating sums of money. This does not mean taking a job that is“ beneath you.” d
46 NEW JERSEY COPS ■ FEBRUARY 2017
Workers’ compensation law DANIEL GEDDES- Zazzali, Fagella, Nowak, Kleinbaum & Friedman
One of the biggest misconceptions about work-related injuries for law enforcement officers regards getting hurt at work. When people get hurt at work, it usually means on the premises. With an officer,“ the premises” is your entire jurisdiction.
Other workers’ compensation information pertinent to NJ State PBA members from this presentation included:
• Many people think the permanency award is a lawsuit. You are not suing for workers’ compensation. File a workers’ compensation claim petition for permanency and you will be entitled to a permanent disability award. That award is based on a functional loss, something you can’ t do that you used to do or can’ t do as well as you used to do it. Or some residual like having to ice your shoulder at night. There is some pain and discomfort.
• Occupational injuries can include being a range officer and you have hearing loss. You were exposed to lead and dust in the range area and developed tinnitus – hearing loss. That’ s an occupational claim. If you have a bad back because you are getting in and out of your patrol car 40 times during a tour and you are wearing your body armor and duty rig, which can be 40 pounds, the day-to-day stress and strain causing that pain is an occupational injury. Even if it’ s aggravating a pre-existing disability, it can be an occupational injury.
• If it’ s a cardiovascular incident, your attorney only has to show that something from your work effort caused that heart attack. You might have high blood pressure, but when you jumped out of that patrol car and ran up three flights of stairs carrying the oxygen tank, that work effort aggravated the pre-existing heart problem. That’ s compensable. Your employer would have to prove the cause was something else.
• When death is caused out of the course of your employment, your dependents – and in some instances even parents you live with – are entitled to dependency benefits.
• There’ s no reason to be silent on a pre-existing condition. In some instances, it can help your case.
• If there is a pending claim or the conditions of settlement lead to an arrangement to get light duty for 30 days, you have to go in if your employer agrees to provide light duty. The court says you have to go in. But have your doctor specify in writing what light duty is. If it’ s no prisoner contact, specify that. If you cannot drive, specify that. If you cannot do anything with your right arm, specify that.
• You have two years from the date of the accident to the last authorized medical visit to file the claim. Provided that the treatment is authorized by the department, when you finish up treatment, that’ s when that two-year period begins to run.
• Report every injury and include every body part. You may find out later that injury was worse than just an elbow injury.
• Regarding your personal physician: If your own doctor puts you out of work, you are not getting paid by your employer. Also in that case, your employer is not responsible for medical treatment bills. Authorized treatment means somebody from the department or human resources sends you to a doctor. Or the employer’ s insurance company sends you. They should take care of everything, including dealing with an adjuster.
• Emergency treatment is always authorized. d