P.E.R.C. No. 2012-7, Newark

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of CITY OF NEWARK, Petitioner, -and- Docket No. SN-2011-002 NEWARK FIREFIGHTERS UNION, Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission denies the request of the City of Newark for a restraint of binding arbitration of a grievance filed by the Newark Firefighters Union. The grievance contests the denial of additional paid sick leave benefits to a firefighter and the denial of light duty when he was cleared to return to work. The Commission holds that the City’s petition is moot as it only sought a restraint on the additional paid sick leave allegation in the grievance and the arbitrator denied that claim in his award. ¶

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 CITY OF NEWARK, Petitioner, -and- Docket No. SN-2011-002 NEWARK FIREFIGHTERS UNION, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, Julien X. Neals, Corporation Counsel (Mellissa L. Longo, Assistant Corporation Counsel, on the brief) ¶

For the Respondent, Fox and Fox, LLP, attorneys (Craig S. Gumpel, of counsel) ¶

DECISION ¶

On July 25, 2010, the City of Newark petitioned for a scope of negotiations determination. The City sought to restrain arbitration of a grievance contesting the denial of additional paid sick leave benefits to a firefighter after he exhausted his one-year allotment asserting that N.J.S.A. 40A:14-16 preempts arbitration.1/ The grievance also contests the denial of light duty for the firefighter when he was cleared to return to work by his personal physician and the City’s failure to send the firefighter to a fitness for duty evaluation by a City physician. On October 12, Arbitrator John F. Tesauro issued an arbitration award. ¶

The arbitrator framed the issue as follows, “Did the City of Newark violate Article XVII, Section 2 and Fire Department Policy when it changed Firefighter [name]’s medical leave status from paid to unpaid effective December 28, 2008? If so, what shall be the remedy?” The arbitrator denied the grievance to the extent it sought additional paid sick leave past the one-year entitlement rejecting the NFU’s argument that the parties’ contract provided for additional paid benefits for an overlapping injury2/. The arbitrator sustained the grievance to the extent it contested the City’s failure to schedule a fitness for duty examination to determine whether the grievant was able to perform light duty and ordered the City to schedule the grievant for a fitness for duty test with the City appointed Department Surgeon. If it is determined that the grievant is not fit for duty, the arbitrator ordered the City to pay the grievant lost wages from December 27, 2008 through June 1, 2009 (the effective date of the grievant’s retirement). ¶

The City’s sole argument seeking to restrain arbitration is that N.J.S.A. 40A:14-16 preempts arbitration over the NFU’s claim for additional paid sick leave beyond the one-year limitation for the grievant’s intervening injury. The arbitrator specifically rejected that allegation in the grievance finding the grievant was not entitled to additional paid sick leave for his intervening injury. Thus, the issue was decided in the City’s favor and is now moot. Tp. of Springfield, P.E.R.C. No. 2000-2, 25 NJPER 364 (¶30156 1999). ¶

OrderORDER ¶

The City of Newark’s request for a restraint of arbitration is denied. ¶

BY ORDER OF THE COMMISSION ¶

Chair Hatfield, Commissioners Eskilson, Jones, Krengel, Voos and Wall voted in favor of this decision. None opposed. Commissioner Bonanni recused himself. ¶

ISSUED: August 11, 2011 ¶

Trenton, New Jersey ¶

Note1/ N.J.S.A. 40A:14-16 provides: ¶

The governing body of any municipality, by ordinance, may provide for granting leaves of absence with pay not exceeding one year, to members and officers of its paid or part-paid fire department and force who shall be injured, ill or disabled from any cause, provided that the examining physician appointed by said governing body, shall certify to such injury, illness or disability. ¶

2/ The firefighter suffered a separate, second injury from car accident while out on sick leave. ¶