P.E.R.C. No. 2000-2, Springfield Tp

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of TOWNSHIP OF SPRINGFIELD, Petitioner, -and- Docket No. SN-99-75 P.B.A. LOCAL 76, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, Ruderman & Glickmam, P.C., attorneys ¶

(Joel G. Scharff, on the brief) ¶

For the Respondent, Balk, Oxfeld, Mandell & Cohen, P.C., attorneys (Sanford R. Oxfeld, on the brief) ¶

DECISION ¶

On April 8, 1999, the Township of Springfield filed a scope of negotiations petition. The Township sought a restraint of binding arbitration of a grievance filed by P.B.A. Local 76. The grievance contested the reassignment of two DARE officers to the day shift. 1/ On April 13, a Commission designee denied the Township's application for an interim stay of arbitration. ¶

On April 22, 1999, an arbitration award was issued denying the grievance. The arbitrator found that the employer did not violate an interest arbitration award by deviating from seniority selections for steady tours when it ordered two DARE officers to work steady day tours. ¶

Note1/ DARE provides drug awareness programs to school children. ¶

On June 9, 1999, the Township filed its brief in support of its petition. Its Statement of Procedure states: ¶

The PBA, it is anticipated, may object to the within Petition claiming it is moot given the arbitrator's award. However, as long as the language appears in the PBA contract, other arbitration demands will arise. The Township seeks permanent restraints of arbitration. ¶

On June 11, 1999, the PBA sent a letter stating that it wondered why the matter was being pursued since the Township had received a favorable arbitration decision and indicating that the PBA would not be filing an additional brief. ¶

The Township is seeking a determination that it had a managerial prerogative to reassign two DARE officers to the day shift and it seeks to have us permanently restrain the PBA from arbitrating disputes relating to the shift assignments of DARE officers. ¶

N.J.S.A . 34:13A-5.4(d) empowers us, upon the request of any public employer or exclusive representative, to determine whether a matter in dispute is within the scope of negotiations. N.J.A.C . 19:13-2.2(a)(4) requires that a petition specify that the dispute has arisen: ¶

i. During the course of collective negotiations, and that one party seeks to negotiate with respect to a matter or matters which the other party contends is not a required subject for collective negotiations; or ii. With respect to the negotiability of a matter or matters sought to be processed pursuant to a collectively negotiated grievance procedure; or iii. Other than in subparagraphs i and ii above, with an explanation of the circumstances. ¶

In Cinnaminson Tp. Bd. of Ed., P.E.R.C. No. 78-11, 3 NJPER 323 (1977), we articulated the boundaries of our scope of negotiations jurisdiction. We stated: ¶

The Commission concurs with the Association that its authority under 5.4(d) does not extend to the issuance of advisory opinions in scope of negotiations matters in the absence of an actual, as opposed to potential, controversy. The Commission recognizes that negotiability disputes requiring a Commission scope determination will normally arise in two ways. Perhaps the most common arena is at the negotiations table, where, typically the public employer will resist negotiating with respect to a given subject matter on the theory that it relates to managerial prerogatives and not terms and conditions of employment. Secondly, disputes have arisen in the context of a negotiated grievance procedure. Typically the employee representative will seek to grieve the matter, and ultimately to have the matter arbitrated, which the public employer contends is a matter of managerial prerogative and not a term and condition of employment. In this context, the public employer will claim that the matter at issue may thus not legally be included in a contract and otherwise may not legally be submitted to an arbitrator, as the public employer's statutory management responsibilities may not be abdicated or delegated. ¶

The Commission however concludes that in addition there are "special circumstances" that require that the Commission issue scope of negotiations determinations relating to provisions of an existing contractual agreement that may not be presently the subject of negotiations for a successor contract or the subject of an arbitration request. Where a petition has made a prima facie showing that (l) a particular clause in a contract has been declared to be an illegal, as opposed to a mandatory or permissive, subject of collective negotiations by an intervening Commission or judicial decision or (2) specific legislation mandates the conclusion that a particular contractual provision is an illegal subject for collective negotiations, the Commission will assert jurisdiction over that matter and will render, where appropriate, a scope of negotiations determination on the issues in dispute.... [ Id. at 324-325; footnote omitted] ¶

The employer has prevailed in the arbitration which gave rise to this scope of negotiations petition and it does not appear that the PBA has appealed that award. The arbitrator found that the employer had a contractual right to deviate from seniority in tour selection "for assignments requiring special skills or needs, or for good cause." He further found that contractual language applied to this case because DARE officers are specially skilled and there is good cause to provide continuity in DARE instruction. The grievance was therefore denied. ¶

The parties are not involved in negotiations for a successor contract and the Township has not indicated that there are any other pending demands for arbitration concerning this matter. Absent any special circumstances warranting the exercise of our scope of negotiations jurisdiction, we dismiss the petition. See Hamilton Tp. Bd. of Ed., P.E.R.C. No. 97-69, 23 NJPER 50 (¶28034 1996); Rutgers, the State Univ ., P.E.R.C. No. 92-107, 18 NJPER 264 (¶23110 1992); New Jersey Highway Auth ., P.E.R.C. No. 92-73, 18 NJPER 67 (¶23029 1991); Livingston Tp. Bd. of Ed ., P.E.R.C. No. 86-135, 12 NJPER 451 (¶17170 1986); Bethlehem Tp. Bd. of Ed ., P.E.R.C. No. 85-9, 10 NJPER 499 (¶15227 1984). ¶

OrderORDER ¶

The petition is dismissed. ¶

BY ORDER OF THE COMMISSION ¶

Millicent A. Wasell ¶

Chair ¶

Chair Wasell, Commissioners Buchanan, McGlynn, Muscato and Ricci voted in favor of this decision. Commissioner Madonna abstained from consideration. Commissioner Boose was not present. ¶

DATED: July 29, 1999 ¶

Trenton, New Jersey ¶

ISSUED: July 30, 1999 ¶