P.E.R.C. No. 2010-7, Ocean Cty Util Auth

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of OCEAN COUNTY UTILITIES AUTHORITY, Petitioner, -and- Docket No. SN-2009-069 PAPER, ALLIED-INDUSTRIAL, CHEMICAL AND ENERGY WORKERS INTERNATIONAL UNION, AFL-CIO LOCAL 1-149, A/K/A UNITED STEELWORKERS, LOCAL 4-149, Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission finds a grievance to not be legally arbitrable. An arbitrator sustained a grievance filed by Paper, Allied-Industrial, Chemical and Energy Workers International Union, AFL-CIO Local 1-149, a/k/a United Steelworkers, Local 4-149. A Superior Court Judge issued an Order remanding the dispute to the Commission for a scope of negotiations determination. The grievance challenges a promotion denial. The Commission holds that challenges to the exercise of the prerogative to promote are not legally arbitrable. A claim that a promotion decision was unconstitutionally motivated does not transform a non-negotiable promotion decision into a negotiable and arbitrable one. ¶

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 OCEAN COUNTY UTILITIES AUTHORITY, Petitioner, -and- Docket No. SN-2009-069 PAPER, ALLIED-INDUSTRIAL, CHEMICAL AND ENERGY WORKERS INTERNATIONAL UNION, AFL-CIO LOCAL 1-149, A/K/A UNITED STEELWORKERS, LOCAL 4-149, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, Haines & Yost, attorneys (Richard S. Haines, on the brief) ¶

For the Respondent, Kiernan & Campbell, attorneys (Kevin M. Kiernan, on the brief) ¶

DECISION ¶

On April 2, 2009, the Ocean County Utilities Authority petitioned for a scope of negotiations determination. Pursuant to a Superior Court Judge’s order of remand, the Authority seeks a determination that a grievance arbitration award is outside the scope of negotiations. The award sustained a grievance filed by Paper, Allied-Industrial, Chemical and Energy Workers International Union, AFL-CIO Local 1-149, a/k/a United Steelworkers, Local 4-149. According to the arbitrator, the issue to be decided was whether the employer had just cause to deny Steven Menzies the position of mason/carpenter. The arbitrator sustained the grievance. We conclude that the subject of the parties’ dispute is not legally arbitrable. ¶

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

The Union represents the Authority’s craft employees. The parties entered into a collective negotiations agreement effective from January 1, 2003 through December 31, 2007. The grievance procedure provides for the appointment of a mediator from the New Jersey State Board of Mediation, who will attempt to resolve the grievance informally. If an informal resolution cannot be reached, the mediator is to issue a formal decision. If the mediator rules in favor of the Authority, the Union is bound by the decision. If the mediator rules in favor of the Union, the Authority may accept or reject the mediator’s decision. If the Authority rejects the mediator’s decision, the Union may submit the grievance to binding arbitration. ¶

In 2001, a mason/carpenter position was advertised. Steven Menzies competed and was identified as the third best qualified person applying for the position. There were two openings and both were initially offered to two other candidates. One applicant declined the promotion and Menzies accepted the promotion. The vacancy Menzies filled was created when the Authority terminated another employee. That employee grieved his termination through arbitration and was reinstated. He bumped Menzies, who was returned to his prior position after about six months. ¶

Almost five years later, the reinstated employee retired and his position was again open. The Authority posted the position and took applications from three employees, including Menzies. One applicant withdrew and Menzies and another employee were interviewed. The director of the Central Services Division and his subordinate, who supervised the mason/carpenter position, conducted the interviews. The supervisor deemed Menzies to be better qualified and the director deemed the other employee to be better qualified. The Authority promoted the other employee. Menzies then filed his grievance. ¶

Menzies claimed a seniority right that should have returned him to the mason/carpenter position he held in 2001. He also claimed seniority for the position as a re-hire under a layoff provision. ¶

The grievance went to mediation. The Authority claims that it never rejected the mediator’s decision so the case should not have gone to arbitration. Nevertheless, it did and the arbitrator sustained the grievance. ¶

The Authority then filed a Superior Court action to vacate the arbitration award. On March 30, 2009, Superior Court Judge Frank A. Buczynski Jr. P.J. Ch. issued an order remanding the dispute to us for the limited purpose of exercising our initial jurisdiction over a scope of negotiations and arbitrability determination of the grievance filed by Menzies and the Union. ¶

Because it is not clear to us on what basis the arbitrator sustained the grievance, we will base our scope of negotiations determination on the issues raised in the parties’ briefs.1/ ¶

The Authority argues that the mediator exceeded his authority by directing the Union into arbitration; the contract’s Management Rights clause provides that the grievance is not subject to arbitration; and the Posting of Job Vacancies clause provides that the best qualified person will be selected. It further argues that the determination of the best qualified candidate is a management prerogative. Finally, the Authority argues that allegations of discrimination or arbitrary conduct cannot transform a non-negotiable promotion decision into a negotiable or arbitrable one. ¶

The Union argues that the Authority’s promotion decision violated the First Amendment to the United States Constitution and was therefore not controlled by the concept of managerial prerogative. The Union contends that Menzies was denied the promotion because of the other employee’s personal and political relationship with the Chairman of the Authority’s Board of Commissioners. The Chairman is allegedly a powerful political official and the promoted employee is allegedly a supporter of the Chairman. The Union also argues that it is fundamentally unfair for the Authority to seek a scope of negotiations determination after it lost the case in arbitration. ¶

The Authority replies that the political patronage claim is both unsubstantiated by the facts and unendorsed by the arbitrator. It further replies that Menzies and the Union must make a constitutional claim in a State or federal court, not in arbitration. ¶

We begin with the procedural issue. While we will not ordinarily entertain post-award scope petitions, we will do so when, as here, a court determines that a party is not estopped from filing a petition belatedly and transfers the negotiability issue to us. Ocean Tp. Bd. of Ed., P.E.R.C. No. 83-164, 9 NJPER 397 (¶4181 1983). ¶

As for the merits of the scope petition, our jurisdiction is narrow. Ridgefield Park Ed. Ass’n v. Ridgefield Park Bd. of Ed., 78 N.J. 144 (1978), 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. ¶

[Id. at 154] ¶

Thus, we do not consider the merits of the grievance or any contractual defenses the employer may have. ¶

Local 195, IFPTE v. State, 88 N.J. 393 (1982), articulates the standards for determining whether a subject is mandatorily negotiable: ¶

[A] subject is negotiable between public employers and employees when (1) the item intimately and directly affects the work and welfare of public employees; (2) the subject has not been fully or partially preempted by statute or regulation; and (3) a negotiated agreement would not significantly interfere with the determination of governmental policy. To decide whether a negotiated agreement would significantly interfere with the determination of governmental policy, it is necessary to balance the interests of the public employees and the public employer. When the dominant concern is the government's managerial prerogative to determine policy, a subject may not be included in collective negotiations even though it may intimately affect employees' working conditions. [Id. at 404-405] ¶

The Authority’s first three arguments - that the mediator exceeded his authority, that the Management Rights clause makes the grievance non-arbitrable, and that the Posting of Job Vacancies clause provides that the best qualified person will be selected - are contractual arguments outside our scope of negotiations jurisdiction. The Authority’s fourth argument and the argument made by the Union in its brief raise a negotiability question: can a union arbitrate a claim that a promotion was unconstitutionally denied on the basis of political patronage. The answer is no. ¶

The Authority has a managerial prerogative to promote the candidate it believes is best qualified for a promotional position. Morris Cty. (Morris View Nursing Home), P.E.R.C. No. 2002-11, 27 NJPER 369 (¶32134 2001). Challenges to the exercise of that prerogative are not legally arbitrable. Nor does a claim that a promotion decision was unconstitutionally motivated transform a non-negotiable promotion decision into a negotiable and arbitrable one. See Teaneck Bd. of Ed. v. Teaneck Teachers Ass’n, 94 N.J. 9 (1983). A claim that the decision to deny the promotion was politically motivated must be litigated in a court of competent jurisdiction, not arbitration. We are not at liberty to carve out the exception to the Supreme Court’s decision in Teaneck that the Union seeks. ¶

The Union’s reliance on Delran Ed. Ass’n v. Delran Bd. of Ed., 277 N.J. Super. 538 (App. Div. 1994), is misplaced. In that case, the Court affirmed a trial court decision confirming an arbitration award that had found no just cause for a teacher’s increment withholding. That dispute was legally arbitrable because it involved discipline, a legally negotiable and arbitrable subject. N.J.S.A. 34:13A-5.3; -26; -29. A grievance involving a negotiable and arbitrable term and condition of employment such as discipline is not rendered non-arbitrable by a claim that employer acted out of a discriminatory motive. Compare Manville Bd. of Ed., P.E.R.C. No. 94-58, 19 NJPER 605, 608-609 (¶24288 1993). But a discriminatory motive does not render a non-negotiable and non-arbitrable promotion dispute arbitrable. Teaneck. ¶

OrderORDER ¶

The subject of the parties’ dispute is not legally arbitrable. ¶

BY ORDER OF THE COMMISSION ¶

Chairman Henderson, Commissioners Colligan, Joanis and Watkins voted in favor of this decision. None opposed. Commissioner Fuller abstained. Commissioners Branigan and Buchanan were not present. ¶

ISSUED: August 13, 2009 ¶

Trenton, New Jersey ¶

Note1/ Although the arbitrator framed the issue as whether the Authority had just cause to deny Menzies the mason/carpenter position, there is nothing in the award suggesting that the case involved a disciplinary determination. ¶