P.E.R.C. No. 2003-12, Roselle Boro

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of BOROUGH OF ROSELLE, Petitioner, -and- Docket No. SN-2002-57 OPEIU, LOCAL 32, Respondent. ¶

AppearancesAppearances: ¶

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

(Joel G. Scharff, on the brief) ¶

For the Respondent, Mark C. Rushfield, attorney, on the brief ¶

DECISION ¶

On May 13, 2002, the Borough of Roselle petitioned for a scope of negotiations determination. The Borough seeks a restraint of binding arbitration of a grievance challenging the discharge of an employee represented by OPEIU, Local 32. ¶

The Borough has filed a brief. Local 32 has not. These facts appear. ¶

The Borough is a civil service community. Terry Ann Fellner was employed as a recycling clerk in the department of public works. On September 20, 2001, Fellner was terminated after she failed to return to work after a medical leave of absence. ¶

On February 11, 2002, OPEIU demanded arbitration of the discharge based on the Borough's assertion that Fellner was not a permanent career employee under civil service laws. This petition ensued. ¶

The Borough filed a brief asserting that Fellner is a permanent career employee and that any appeal of her discharge must be made to the Merit System Board (MSB). Local 32 subsequently filed such an appeal. The appeal states that Fellner was not given a Preliminary or Final Notice of Disciplinary Action and did not have a hearing. ¶

On May 24, 2002, Local 32 submitted a letter to us stating that it will not proceed to arbitration on the discharge but "will proceed with arbitration concerning the procedures followed by the Borough in attempting to effectuate her discharge." On June 7, Local 32 was given ten days to file a brief addressing the procedural issues. None was submitted. ¶

Pursuant to N.J.S.A . 11A:2-14, the MSB reviews major disciplinary disputes, including terminations, arising in civil service jurisdictions. N.J.S.A . 34:13A-5.3 provides that binding arbitration may not replace any alternate statutory appeal procedure. Gloucester Tp. Municipal Utilities Auth., P.E.R.C. No. 97-135, 23 NJPER 341 (¶28156 1997). Accordingly, we restrain binding arbitration of Fellner's discharge. ¶

Even if the merits of a discharge cannot be arbitrated, severable procedural issues may be arbitrable. See, e.g., ¶

Woodbridge Tp ., P.E.R.C. No. 95-52, 21 NJPER 77 (¶26055 1995), aff'd sub nom Monmouth Cty. v. CWA, 300 N.J. Super. 272 (App. Div. 1997); Borough of Mt. Arlington, P.E.R.C. No. 95-46, 21 NJPER 69 (¶26049 1995). However, inasmuch as Local 32 has not identified the procedural issues it seeks to arbitrate, and the Borough has not addressed any procedural issues in its brief, we do not consider any possible procedural issues. ¶

OrderORDER ¶

The Borough of Roselle's request for a restraint of binding arbitration over the discharge of Terri Ann Fellner is granted. ¶

BY ORDER OF THE COMMISSION ¶

Millicent A. Wasell ¶

Chair ¶

Chair Wasell, Commissioners Buchanan, Katz, McGlynn, Muscato and Ricci voted in favor of this decisions. None opposed. Commissioner Sandman was not present. ¶

DATED: July 25, 2002 ¶

Trenton, New Jersey ¶

ISSUED: July 26, 2002 ¶