P.E.R.C. No. 2011-3, Passaic Cty Prosecutor's Office

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of PASSAIC COUNTY PROSECUTOR’S OFFICE, Respondent, -and- Docket No. CO-2009-240 PASSAIC COUNTY ASSISTANT PROSECUTORS ASSOCIATION, Charging Party. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission denies the request of the Passaic County Assistant Prosecutors Association for special permission to appeal a Hearing Examiner’s ruling deferring an unfair practice charge it filed against the Passaic County Prosecutor’s Office to binding arbitration. The charge alleges the Prosecutor violated the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-5.4a(1) and (5), by repudiating the parties’ agreement when the Prosecutor laid off two employees inconsistent with the employee manual, County manual and the parties’ agreement. The Commission holds that extraordinary circumstances are not present to warrant granting special permission to appeal when binding arbitration is the preferred mechanism for resolving a dispute when an unfair practice charge essentially alleges a violation of the obligation to negotiate in good faith interrelated with a breach of contract claim. ¶

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 PASSAIC COUNTY PROSECUTOR’S OFFICE, Respondent, -and- Docket No. CO-2009-240 PASSAIC COUNTY ASSISTANT PROSECUTORS ASSOCIATION, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, Genova, Burns & Giantomasi, attorneys (Brian W. Kronick, of counsel) ¶

For the Charging Party, Loccke, Correia, Schlager, Limsky & Bukosky, attorneys (Michael A. Bukosky, of counsel) ¶

DECISION ¶

On February 8, 2010, the Passaic County Assistant Prosecutors Association sought special permission to appeal a ruling of Hearing Examiner Wendy Young deferring an unfair practice charge the Association filed against the Passaic County Prosecutor’s Office to binding arbitration. The charge involves allegations that the Prosecutor violated the New Jersey Employer- Employee Relations Act, N.J.S.A. 34:13A-5.4a(1) and (5)1/ by repudiating the parties’ collective negotiations agreement when the Prosecutor laid off two employees inconsistent with the order of layoff contained in the Prosecutor’s Office Employee Manual, County Personnel Manual and the parties’ agreement. We deny special permission to appeal. ¶

In P.E.R.C. No. 2009-33, 34 NJPER 440 (¶138 2008), we denied the Prosecutor’s request for a restraint of binding arbitration of the grievance filed in connection with the Association’s unfair practice charge. After we issued our scope of negotiations determination, the Prosecutor advised the Hearing Examiner that he would waive procedural defenses to arbitration of the grievance and is willing to negotiate over the layoffs of Assistant Prosecutors. Finding that the portion of the charge relating to the Prosecutor’s alleged failure to negotiate was moot, the Hearing Examiner deferred the remaining aspect of the charge to arbitration. ¶

The Association contends that deferral is not appropriate because it permits the Prosecutor to avoid his negotiations obligation; deferral glosses over the Prosecutor’s position that the parties’ agreement does not cover layoffs by seniority; and the grievance does not assert claims for impact negotiations leaving that issue outstanding. ¶

The Prosecutor responds that deferral is the preferred mechanism when there is a breach of contract allegation and no procedural barriers to arbitration. It further asserts that it has agreed to negotiate severable impact issues. ¶

The Association replies that since the Prosecutor maintains that the collective negotiations agreement does not address layoffs, deferral is inappropriate since that is an issue of substantive arbitrability. ¶

Special permission to appeal will be granted only in extraordinary circumstances not present here. Binding arbitration is the preferred mechanism for resolving a dispute when an unfair practice charge essentially alleges a violation of the obligation to negotiate in good faith interrelated with a breach of contract claim. Pennsauken Tp., P.E.R.C. No. 88-53, 14 NJPER 61 (¶19020 1987). The Prosecutor has waived procedural defenses to arbitration, making deferral appropriate. And the Prosecutor has agreed to negotiate any impact issues related to the layoff, rendering that issue moot. The Prosecutor is not challenging substantive arbitrability, but is asserting a contractual defense to the grievance. Should the arbitrator reach a result that is repugnant to the Act, the Association may seek to reopen the unfair practice charge. Hillsborough Tp. Bd. of Ed., P.E.R.C. No. 2005-1, 30 NJPER 293 (¶101 2004). ¶

OrderORDER ¶

The request of the Passaic County Assistant Prosecutors Association for special permission to appeal is denied. ¶

BY ORDER OF THE COMMISSION ¶

Commissioners Colligan, Eaton, Fuller, Krengel, Voos and Watkins voted in favor of this decision. None opposed. ¶

ISSUED: August 12, 2010 ¶

Trenton, New Jersey ¶

Note1/ These provisions prohibit public employers, their representatives or agents from: “(1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act . . . (5) Refusing to negotiate in good faith with a majority representative of employees in an appropriate unit concerning terms and conditions of employment of employees in that unit, or refusing to process grievances presented by the majority representative.” ¶