P.E.R.C. No. 2013-3, Morris Cty Sheriff's Office

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of COUNTY OF MORRIS, MORRIS COUNTY SHERIFF’S OFFICE, Appellant, -and- Docket No. IA-2012-035 PBA LOCAL NO. 298, Respondent. PBA LOCAL NO. 298, Appellant, -and- Docket No. IA-2012-035 COUNTY OF MORRIS, MORRIS COUNTY SHERIFF’S OFFICE. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission remands an interest arbitration award to the arbitrator. The County of Morris, Morris County Sheriff’s Office and PBA Local No. 298 cross-appealed from the award. On remand, the arbitrator shall more thoroughly address the statutory factors he considered in rendering 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 COUNTY OF MORRIS, MORRIS COUNTY SHERIFF’S OFFICE, Appellant, -and- Docket No. IA-2012-035 PBA LOCAL NO. 298, Respondent. PBA LOCAL NO. 298, Appellant, -and- Docket No. IA-2012-035 COUNTY OF MORRIS, MORRIS COUNTY SHERIFF’S OFFICE, Respondent. ¶

AppearancesAppearances: ¶

For County of Morris, Morris County Sheriff’s Office, Knapp, Trimboli & Prusinowski (Stephen Trimboli, of Counsel and on the brief) ¶

For PBA Local No. 298, Lindabury, McCormick, Estabrook & Cooper, P.C. (Donald B. Ross, Jr, of counsel and on the brief) ¶

DECISION ¶

This is an appeal by the County of Morris, Morris County Sheriff's office and a cross-appeal by PBA Local 298 from an interest arbitration award. ¶

The PBA is the majority representative of all Corrections Officers employed at the Morris County jail. The arbitrator issued a conventional award as he was required to do pursuant to P.L. 2010, c. 105, effective January 1, 2011. A conventional award is crafted by an arbitrator after considering the parties’ final offers in light of statutory factors. ¶

The parties proposals were as follows: ¶

-The County proposed a term of 3 years while the PBA proposed a term of 4 years; ¶

-The PBA proposed salary increases of 2.5% across the board retroactive to January 1, 2011 and the payment of step movement pursuant to expired contract. The County proposed no step movement for the duration of the contract, 0% increase in 2011 and a 2% increase in 2012 and 2013; ¶

-The County proposed the discontinuance of County-paid dependent health coverage for new employees upon retirement; ¶

-The County proposed that all employees currently enrolled in the Medallion medical plan shall have the option to transfer to the PPO plan and the elimination of the Wrap-Around plan. The County proposed changes to the premium structure for the Medallion Plan and to co-payments for prescriptions. The PBA proposed that all officers enrolled in the Medallion or the Wrap- Around Plan would be required to enroll in the PPO plan, and officers enrolled in the HMO plan would be permitted to change to the PPO plan, provided that these officers pay 30% of the difference between the HMO and PPO premium; and ¶

-The PBA proposed that if an officer is working on a holiday and is required to work mandatory overtime on that day, the officer would be paid double time and one-half. ¶

On June 18, 2012, the arbitrator issued a six page opinion and award in which he awarded the following: ¶

-A three-year contract with a term of January 1, 2011 through December 31, 2013. ¶

-0% salary increase for 2011, but step movement as per the expired contract, 2% increase for 2012 with no step movement, and a 2% increase for 2013 with no step movement. ¶

-All employees enrolled in the Medallion or Wrap-Around plan will be required to enroll in the PPO plan. Other officers enrolled in the HMO plan shall be permitted to change to the PPO plan, provided these officers pay 30% of the difference between the premium of the HMO and PPO plan. ¶

-The County’s proposal regarding prescription co-payments. ¶

-The County’s proposal to discontinue County-paid dependent coverage for new employees upon retirement. ¶

The PBA raises a generalized appeal to the award, asserting that it was not based on substantial credible evidence in the record and does not comply with the analysis required by the statutory factors. The County’s appeal is limited to the arbitrator’s award of step movement from the expired contract, which it contends is not based on substantial evidence in the record. On all other issues, the County asserts the Award is based on substantial credible evidence in the record and appropriate application of the statutory factors. ¶

N.J.S.A. 34:13A-16g requires that an arbitrator shall state in the award which of the factors are deemed relevant, satisfactorily explain why the others are not relevant, and provide an analysis of the evidence on each relevant factor. The statutory factors are as follows: ¶

(1) The interests and welfare of the public. Among the items the arbitrator or panel of arbitrators shall assess when considering this factor are the limitations imposed upon the employer by P.L. 1976, c. 68 (C.40A:4-45.1 et seq.). ¶

(2) Comparison of the wages, salaries, hours, and conditions of employment of the employees involved in the arbitration proceedings with the wages, hours, and conditions of employment of other employees performing the same or similar services and with other employees generally: ¶

(a) In private employment in general; provided, however, each party shall have the right to submit additional evidence for the arbitrator’s consideration. ¶

(b) In public employment in general; provided, however, each party shall have the right to submit additional evidence for the arbitrator’s consideration. ¶

(c) In public employment in the same or similar comparable jurisdictions, as determined in accordance with section 5 of P.L. 1995, c. 425 (C.34:13A-16.2); provided, however, that each party shall have the right to submit additional evidence concerning the comparability of jurisdictions for the arbitrator’s consideration. ¶

(3) The overall compensation presently received by the employees, inclusive of direct wages, salary, vacations, holidays, excused leaves, insurance and pensions, medical and hospitalization benefits, and all other economic benefits received. ¶

(4) Stipulations of the parties. ¶

(5) The lawful authority of the employer. Among the items the arbitrator or panel of arbitrators shall assess when considering this factor are the limitations imposed upon the employer by P.L. 1976, c. 68 (C.40A:4-45.1 et seq.). ¶

(6) The financial impact on the governing unit, its residents, the limitations imposed upon the local unit’s property tax levy pursuant to section 10 of P.L. 2007, c. 62 (C.40A:4-45.45), and taxpayers. When considering this factor in a dispute in which the public employer is a county or a municipality, the arbitrator or panel of arbitrators shall take into account, to the extent that evidence is introduced, how the award will affect the municipal or county purposes element, as the case may be, of the local property tax; a comparison of the percentage of the municipal purposes element or, in the case of a county, the county purposes element, required to fund the employees’ contract in the preceding local budget year with that required under the award for the current local budget year; the impact of the award for each income sector of the property taxpayers of the local unit; the impact of the award on the ability of the governing body to (a) maintain existing local programs and services, (b) expand existing local programs and services for which public moneys have been designated by the governing body in a proposed local budget, or (c) initiate any new programs and services for which public moneys have been designated by the governing body in a proposed local budget. ¶

(7) The cost of living. ¶

(8) The continuity and stability of employment including seniority rights and such other factors not confined to the foregoing which are ordinarily or traditionally considered in the determination of wages, hours, and conditions of employment through collective negotiations and collective bargaining between the parties in the public service and in private employment. ¶

(9) Statutory restrictions imposed on the employer. Among the items the arbitrator or panel of arbitrators shall assess when considering this factor are the limitations imposed upon the employer by section 10 of P.L. 2007, c. 62 (C.40A:4-45.45). ¶

[N.J.S.A. 34:13A-16g] ¶

The standard for reviewing interest arbitration awards is well established. We will not vacate an award unless the appellant demonstrates that: (1) the arbitrator failed to give “due weight” to the subsection 16g factors judged relevant to the resolution of the specific dispute; (2) the arbitrator violated the standards in N.J.S.A. 2A:24-8 and -9; or (3) the award is not supported by substantial credible evidence in the record as a whole. Teaneck Tp. v. Teaneck FMBA, Local No. 42, 353 N.J. Super. 298, 299 (App. Div. 2002), aff’d o.b. 177 N.J. 560 (2003), citing Cherry Hill Tp., P.E.R.C. No. 97-119, 23 NJPER 287 (¶28131 1997). An arbitrator must provide a reasoned explanation for an award and state what statutory factors he or she considered most important, explain why they were given significant weight, and explain how other evidence or factors were weighed and considered in arriving at the final award. N.J.S.A. 34:13A-16g; N.J.A.C. 19:16-5.9; Lodi. Within the parameters of our review standard, we will defer to the arbitrator’s judgment, discretion and labor relations expertise. City of Newark, P.E.R.C. No. 99-97, 26 NJPER 242 (¶30103 1999).1/ ¶

The arbitrator states that he relied primarily on the statutory factors addressing internal comparability and the interests and welfare of the public, however the Award does not contain adequate consideration of either of these factors. With regard to internal comparability, the arbitrator states that he was severely constrained by the agreements reached by the County with its other units, but the award provides no detail about the other units or agreements. The interests and welfare of the public is a factor which is directly related to several of the other statutory factors which were not addressed by the arbitrator. The award does not contain any discussion of the arbitrator’s analysis of the evidence regarding comparison of wages, salaries, hours and conditions of employment; overall compensation presently received; stipulations of the parties; lawful authority of the County; financial impact on the County, its residents and taxpayers; cost of living; and the statutory restrictions imposed on the County. N.J.S.A. 34:13A-16(g). The testimony and reports of the experts retained by the PBA and the County are not discussed in the Award and we do not know which information the arbitrator relied upon. The arbitrator stated that because he was constrained by the agreements reached by the County with other units, it was futile to discuss the other statutory factors. We do not agree. This award must be remanded to the arbitrator to provide an independent analysis of each of the statutory factors and to explain how the evidence and each relevant factor was considered in arriving at his award. N.J.S.A. 34:13A-16(g); Borough of Paramus, P.E.R.C. No. 2010-35, 35 NJPER 431 (~149 2009); County of Passaic, P.E.R.C. No. 2010-42, 35 NJPER 451 (~141 2009). If a particular factor is found to be irrelevant, rationale should be provided as to why that factor was irrelevant. If the parties failed to submit relevant evidence on a factor that also needs to be stated in the Award. The statutory factors should provide the analytical framework for the arbitrator’s Award on remand. ¶

Additionally, the Award contains detailed discussion of the County’s refusal to accept the PBA’s offer to eliminate the Medallion and Wrap-Around plans to generate savings which could be directed to base salary demands and the County’s refusal to implement step movement from the expired contract. It appears that the arbitrator supports his award of step movement from the expired contract based on his opinion on these issues. However, the Award is unclear as to which of the statutory factors are implicated by his discussion on these issues. Therefore, on remand, the arbitrator should identify and explain how the statutory factors are relevant to his discussion on these issues. ¶

Finally, we recently issued Cumberland Cty., P.E.R.C. No. 2012-66, ___ NJPER ___ (~_____ 2012). In that case, we found that because the terms and spirit of the 2010 amendments to the interest arbitration law are aimed at transparency and consistency, all interest arbitration awards should cost out both step movement and percentage increases for each year of the contract. Thus, on remand, the arbitrator should include this information as part of the Award. ¶

OrderORDER ¶

The award is remanded to the arbitrator for a supplemental award within 45 days of this decision. Any additional appeal by the parties must be filed within seven calendar days of service of the supplemental award. ¶

BY ORDER OF THE COMMISSION ¶

Chair Hatfield, Commissioners Boudreau, Bonanni, Eskilson and Voos voted in favor of this decision. None opposed. Commissioner Jones abstained. Commissioner Wall was not present. ¶

ISSUED: July 19, 2012 ¶

Trenton, New Jersey ¶

Note1/ The section of our review standard addressing whether the arbitrator established that the award will not exceed the statutorily mandated base salary cap of 2% per year or 6% in the aggregate for a three-year award is not applicable in this case. ¶