P.E.R.C. No. 2013-7, Hudson Cty

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of COUNTY OF HUDSON, Respondent, -and- Docket No. IA-2012-046 POLICEMEN’S BENEVOLENT ASSOCIATION LOCAL 109, Appellant. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission denies a partial appeal, filed by Policemen’s Benevolent Association Local 109, of an interest arbitration award setting the terms of an agreement between the County of Hudson and County Corrections Officers represented by the PBA for the period January 1, 2010 through December 31, 2012. The PBA appealed from the arbitrator’s award of an agreement terminating at the end of 2012, asserting that the arbitrator erred by not accepting the PBA’s proposal for an agreement that would continue until December 31, 2014. The PBA also challenges the arbitrator’s award of language providing that, unless otherwise agreed by the parties, when the agreement expires, there will be no automatic advancement on the salary step guide for corrections officers not yet at the top step. Neither the PBA nor the County challenged any other portions of the interest arbitration 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 HUDSON, Respondent, -and- Docket No. IA-2012-046 POLICEMEN’S BENEVOLENT ASSOCIATION LOCAL 109, Appellant. ¶

AppearancesAppearances: ¶

For Appellant, Mets, Schiro & McGovern, attorneys, (James M. Mets of counsel and on the brief; Brian J. Manetta, on the brief) ¶

For Respondent, Scarinci Hollenbeck, attorneys, (Sean D. Dias, of counsel) ¶

DECISION ¶

On July 23, 2012, the arbitrator issued an interest arbitration award to resolve a negotiations impasse between the County of Hudson and Policemen’s Benevolent Association Local 109, the representative of the County’s correction officers ranked below sergeant, over the terms of a collective negotiations agreement to succeed the one that had expired on December 31, 2009.1/ ¶

On August 1, 2012, the PBA filed a Notice of Appeal and supporting brief seeking to overturn two aspects of the Award: ¶

That the successor agreement would terminate on December 31, 2012; ¶

That the successor agreement would contain language specifically stating that the obligation to pay any step increments would not go beyond December 31, 2012, absent an agreement to the contrary. ¶

On August 8, 2012, the County filed a response in opposition to the PBA’s appeal. We affirm the award. ¶

The arbitrator issued a 139-page Opinion and Award. ¶

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 . . .; ¶

(2) Comparison of the wages, salaries, hours, and conditions of employment of the employees 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 . . . ; ¶

(b) in public employment in general . . . ; ¶

(c) in public employment in the same or comparable jurisdictions; ¶

(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 . . .; ¶

(6) The financial impact on the governing unit, its residents and taxpayers ¶

. . .; ¶

(7) The cost of living; ¶

(8) The continuity and stability of employment including seniority rights ¶

. . .; and ¶

(9) Statutory restrictions imposed on the employer. . . . ¶

[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). Because the Legislature entrusted arbitrators with weighing the evidence, we will not disturb an arbitrator’s exercise of discretion unless an appellant demonstrates that the arbitrator did not adhere to these standards. Teaneck, 353 N.J. Super. at 308-309; Cherry Hill. The PBA bears the burden of specifically showing how the arbitrator misapplied the statutory factors. City of Newark, P.E.R.C. No. 99-97, 25 NJPER 242, 243 (¶30103 1999) (appellant must demonstrate arbitrator failed to apply statutory factors).2/ ¶

The PBA proposed a term of January 1, 2010 through December 31, 2014. It argues that a longer agreement is appropriate, because: ¶

[T]he public interest is clearly fostered by awarding its proposal because it promotes labor stability and peace. Conversely, the public’s interest is harmed by parties that are continually engaging in contentious and costly negotiations. ¶

The County asserts that in awarding a three-year agreement, the arbitrator correctly awarded due weight to the statutory criteria and the interests and welfare of the public. The County argues that the standard for vacating an award contained in N.J.S.A. 2A:24-8 must be met and that the appellant must demonstrate that the arbitrator failed to give due weight to the relevant statutory factors. ¶

The award expires on December 31, 2012 as urged by the County. The arbitrator reasoned: ¶

There are several competing concerns to be considered in deciding the contract term. On the one hand, the parties have been in negotiations for this agreement for two and a half years. If I award the County’s proposal for a three-year contract, the parties will be returning to the bargaining table almost immediately for a successor agreement. On the other hand, the economic future of the State and more particularly, the County’s financial conditions, including its ability to fund future salary increases, is uncertain. I give greater weight to the County’s goal of having all of its law enforcement units’ contracts expire at the same time. The pattern is now firmly established that all law enforcement contracts in Hudson County will be expiring simultaneously at the end of 2012. This contract will not be the lead contract to set the standards going into 2013 and beyond. I believe it is in the interest of the public to award a contract for this unit that will expire concurrently with other County law enforcement units. This will provide the Employer with an opportunity to assess its financial resources and negotiate with most if not all units within the same time. All units will have a level playing field and the same opportunity to compete. I believe that this furthers public policy to a greater extent than the stability of a longer contract would provide. ¶

[Award at 63-64] ¶

The arbitrator’s reasoning supports her award of an agreement that will expire at the same time as agreements covering other County law enforcement units. ¶

The arbitrator awarded a modified restriction on salary guide advancement that had been proposed by the County. The language, challenged by the PBA’s appeal, reads: ¶

The salary schedule shall, unless agreed to otherwise, remain without change upon the expiration of the agreement. There will be no automatic step movement, beyond the expiration of this collective negotiations agreement on December 31, 2012. ¶

[Award at 80] ¶

The PBA argues that the above language nullifies a 2001 interest arbitration award that provided for salary step movement on contract expiration. It also asserts that, with the exception of one unit, all other Hudson County law enforcement units do not have agreements with the same or similar restrictive language.3/ It notes that Hunterdon Cty. and FOP Lodge No. 94, aff’ g P.E.R.C. No. 2011-75, 37 NJPER 169 (¶55 2011), and P.E.R.C. No. 2011-80, 37 NJPER 205 (¶65 2011) recently upheld our ruling approving interest arbitration awards that had restored annual step increments to two law enforcement units. Finally, the PBA contends that the arbitrator improperly based her award on conditions that will be present in 2013, even though the award does not extend into that year and is not subject to the 2% salary cap imposed by P.L. 2010, c. 105 for agreements expiring after December 31, 2010. It argues that, in considering the potential financial effects of the payment of increments after contract expiration, the arbitrator exceeded her authority, given that the award did not extend beyond December 31, 2012. ¶

The County asserts that the award properly took into account the limitations contained in N.J.S.A. 34:13A-16.7. It maintains that the arbitrator’s reasoning fully supports the award. ¶

The arbitrator reasoned: ¶

I am inclined to award this proposal that automatic step increases will not continue beyond the life of this contract.4/ I recognize the merits of the Union's argument that this was a recently awarded benefit and should not be taken away without substantial justification. However, following this award, the parties will be subject to the provisions of N.J.S.A. 34:13A-16 which limits an arbitration award to 2% of the aggregate salary costs of the prior year, inclusive of both salary increases and increments. It is readily conceivable going forward into 2013 and beyond, that the cost of the increments alone will approach the 2% cap and possibly exceed it, thus leaving little room to negotiate salary increases if increments have already been paid. Therefore, I find it necessary to suspend the automatic salary increments upon the expiration of this 2010-2012 contract.5/ ¶

[Award at 79-80] ¶

We find the arbitrator’s reasoning to be sound and her ruling to be within her statutory authority.6/ The PBA has not shown that it undermines the public interest and welfare or the stability and continuity of employment of the members of the negotiating unit. ¶

OrderORDER ¶

The interest arbitration award is affirmed. ¶

BY ORDER OF THE COMMISSION ¶

Chair Hatfield, Commissioners Bonanni and Boudreau voted in favor of this decision. Commissioners Jones and Voos voted against this decision. Commissioners Eskilson and Wall recused themselves. ¶

ISSUED: August 23, 2012 ¶

Trenton, New Jersey ¶

Note1/ As the petition was filed on May 30, 2012, the procedures and time limits mandated by P.L. 2010, c. 105 apply. ¶

2/ That portion of our review standard relating to 2% base salary cap is not applicable since the appeal does not challenge the economic aspects of the award. ¶

3/ The PBA asserts that the members of the other law enforcement unit, where step increments will not be paid on contract expiration, received better economic increases than those awarded in this arbitration. However, the PBA does not appeal the across-the-board raises awarded by the arbitrator. ¶

4/ The arbitrator noted that increments had been paid at the end of calendar years 2009, 2010 and 2011 [Award at 7, n.1]. The arbitrator recited that many unit members were, or would be at the top step on December 31, 2012 [Award at 40]. ¶

5/ The salary guides awarded for both existing employees, and new hires each contain 12 steps. [Award at 133]. For current officers the Step 9 salary is $57,536.16 and advances, at Step 12, to $86,446.16. Each step contains double digit percentage raises. Accordingly, the arbitrator’s reasoning that payment of salary increments at the expiration of the 2010-2012 agreement would likely exceed the statutory limitations is reasonable. ¶

6/ Hunterdon County, cited by the PBA, does not deal with the precise issue challenged in this appeal. Hunterdon involved the re-establishment of a salary guide containing step increments, and does not address whether those increments must be paid when the agreement expires. ¶