P.E.R.C. No. 2006-3, Gloucester City

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of GLOUCESTER CITY, Petitioner, -and- Docket No. SN-2005-047 UNITED STEELWORKERS OF AMERICA, LOCAL 8228, Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission grants the request of Gloucester City for a restraint of binding arbitration of a grievance filed by the United Steelworkers of America, Local 8228. The grievance contests the permanent appointment of an employee with less seniority than Stephen Cianchetti as a Senior Sewer Repairer/Senior Water Repairer. The Commission concludes that this grievance is preempted by the civil service “rule of three.” Any appeal of a promotional decision must be made to the Merit System Board. ¶

This synopsis is not part of the Commission decision. It has been prepared for the convenience of the reader. It has been neither reviewed nor approved by the Commission. ¶

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of GLOUCESTER CITY, Petitioner, -and- Docket No. SN-2005-047 UNITED STEELWORKERS OF AMERICA, LOCAL 8228, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, Parker McCay, attorneys ¶

(Elizabeth M. Garcia, on the brief) ¶

For the Respondent, Oxfeld Cohen, P.C., attorneys ¶

(Arnold S. Cohen, on the brief) ¶

DECISION ¶

On January 26, 2005, Gloucester City petitioned for a scope of negotiations determination. The City seeks a restraint of binding arbitration of a grievance filed by the United Steelworkers of America, Local 8228. The grievance contests the permanent appointment of an employee with less seniority than Stephen Cianchetti as a Senior Sewer Repairer/Senior Water Repairer. ¶

The parties have filed briefs, exhibits and affidavits. These facts appear. ¶

Local 8228 represents certain public works positions, including Senior Sewer Repairer/Senior Water Repairer. The parties’ collective negotiations agreement is effective from January 1, 2003 to December 31, 2007. The grievance procedure ends in binding arbitration. The City is a civil service jurisdiction. ¶

In 2003, the City requested a civil service examination for Senior Sewer Repairer/Senior Water Repairer. Three employees took the test, including Cianchetti and Steven J. Harris. On April 16, 2003, the Department of Personnel (DOP) issued an Eligible/Failure Roster. All three applicants passed with the same final average and the same ranking. Cianchetti has 19 years’ seniority, Harris 10 years, and the other candidate about 13 years. The list is effective from April 24, 2003 through April 23, 2006, On April 28, 2003, the City provisionally appointed Harris as a Senior Sewer Repairer/Senior Water Repairer. That same day, the City also asked DOP to certify the list of eligibles for permanent appointment. After receiving the certified list from DOP, the City had until May 5 to ask the candidates of their interest in a permanent appointment. All three candidates expressed interest. ¶

On June 25, 2003, the Public Works Committee recommended the permanent appointment of Harris. In his initial affidavit, Fred Schindler, the Assistant Director of Public Works and a member of the committee, stated that Harris was recommended for permanent appointment as he had worked in the job for two months and “I, and the rest of the Committee, were satisfied with the work he had accomplished while on provisional appointment.” In a second affidavit filed with the City’s reply brief, Schindler stated that Harris was promoted based on his overall experience and qualifications for the position, including the fact that he holds DEP licenses and has completed advanced training whereas Cianchetti does not have such licenses or training. ¶

On May 25, 2004, the Union filed a grievance asserting that the City violated the contract’s discrimination clause and that the Senior Sewer Repairer/Senior Water Repairer position should have been awarded to Cianchetti as the senior employee. ¶

On June 17, 2004, the City denied the grievance stating that Local 8228 failed to follow the grievance procedure and that the grievance was not subject to arbitration because the promotion was based on an active DOP list. ¶

On October 19, 2004, Local 8228 demanded arbitration. This petition ensued. ¶

Our jurisdiction is narrow. Ridgefield Park Ed. Ass’n v. Ridgefield Park Bd. of Ed., 78 N.J. 144, 154 (l978), states: ¶

The Commission is addressing the abstract issue: is the subject matter in dispute within the scope of collective negotiations. Whether that subject is within the arbitration clause of the agreement, whether the facts are as alleged by the grievant, whether the contract provides a defense for the employer’s alleged action, or even whether there is a valid arbitration clause in the agreement or any other question which might be raised is not to be determined by the Commission in a scope proceeding. Those are questions appropriate for determination by an arbitrator and/or the courts. ¶

Thus, we do not consider the merits of the grievance or any contractual defenses the employer may have. We specifically do not address the parties’ arguments about whether the grievance was timely filed and any representations that were allegedly made about relaxing the contractual time limits. ¶

The City argues that it had the option to promote any of the top three scorers under the DOP “rule of three.” The City also argues that the Commission is not the appropriate agency to decide a discrimination claim. ¶

Local 8228 argues that the City violated its own internal promotional procedures when it failed to promote the senior candidate to the permanent position. In support of that argument, it asserts that the City violated DOP regulations by appointing Harris to a provisional position the same day it asked DOP to certify the list of eligibles when there was no urgent need to make a provisional appointment 1/ and that the provisional appointment was made to cover the decision to violate the past practice of appointing the senior candidate. Finally, Local 8228 argues that under In re Hruska, 375 N.J. Super . 202 (App. Div. 2005), the City could not add a new, unannounced qualification for the permanent position, i.e. experience in the post as a provisional employee. ¶

In reply, the City argues that Hruska is inapplicable because the provisional appointment was not the exclusive reason for bypassing Cianchetti. The City argues that it did not add a new eligibility requirement. ¶

State v. State Supervisory Employees’ Ass’n, 78 N.J . 54, 92 (1978), held that a proposal to promote the top three eligible employees in the order they were ranked on a civil service list was procedural in nature and did not bear on the non-negotiable criteria for promotion. The Court, however, found that civil service statutes and regulations were preemptive and concluded that an appointing authority could not negotiate away its right under the civil service scheme to choose from among the top three candidates on an eligibility list. 2/ Accordingly, in City of Elizabeth , P.E.R.C. No. 2004-34, 29 NJPER 515 (¶165 2003), we restrained arbitration of a grievance seeking to enforce contractual language requiring that candidates for promotion be appointed in the order they appeared on the civil service eligibility list. See also Riverside Tp., P.E.R.C. No. 97-56, 23 NJPER 9 (¶28009 1996). We apply that case law and restrain arbitration over the claim that Cianchetti should have been appointed because he had the most seniority. ¶

The initial grievance claims that the failure to appoint the senior candidate violated the contract’s discrimination clause. However, a claim that a promotion was discriminatory does not transform a non-negotiable promotion decision into a negotiable or arbitrable subject. Teaneck Bd. of Ed. v. Teaneck Teachers Ass’n, 94 N.J. 9 (1983). ¶

We finally consider Local 8228’s contention under Hruska that the City improperly added an unannounced promotional qualification. An employer may, in general, legally agree to let its employees know in advance the criteria on which they will be evaluated when applying for a promotional position. State v. State Troopers NCO Ass’n, 179 N.J. Super . 80, 91 (App. Div. 1981). Where a non-civil service employer allegedly changed the promotional criteria without notice to the candidates, we found that a grievance raised a legally arbitrable procedural issue. Matawan-Aberdeen Reg. Sch. Dist. Bd. of Ed., P.E.R.C. No. 97-113, 23 NJPER 230 (¶28110 1997). However, in a civil service jurisdiction, qualifications for promotional positions are announced through DOP notices, N.J.A.C . 4A:4-2.1, and appeals of final promotion decisions must be made to DOP. See N.J.A.C. 4A:2-1.1(b). Any claim under Hruska that seeks to undo the permanent promotion on the grounds that the City unlawfully added a promotional qualification must be raised by an appeal to the Department of Personnel. Cf. Woodbridge Tp., P.E.R.C. No. 89-63, 15 NJPER 25 (¶20010 1988) (appeal of demotional rights under civil service must be made to DOP). ¶

OrderORDER ¶

The request of Gloucester City for a restraint of binding arbitration is granted. ¶

BY ORDER OF THE COMMISSION ¶

Lawrence Henderson ¶

Chairman ¶

Chairman Henderson, Commissioners Buchanan, DiNardo, Fuller and Watkins voted in favor of this decision. None opposed. Commissioners Katz and Mastriani were not present. ¶

DATED: July 28, 2005 ¶

Trenton, New Jersey ¶

ISSUED: July 28, 2005 ¶

Note1/ N.J.A.C . 4A:4-1.5(a) provides that a provisional appointment may be made only when there is no complete list of eligibles, no one remaining on an incomplete list will accept provisional appointment, and an appointing authority, among other things, certifies that failure to make the appointment will seriously impair its work. ¶

2/ Although the statutes reviewed in State Supervisory were repealed and replaced with laws containing different wording, court decisions recognize that the current laws still authorize use of the “rule of three.” See In re Hruska, 375 N.J. Super. at 209-210. ¶