P.E.R.C. No. 2013-78, Hudson Cty

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of COUNTY OF HUDSON, Petitioner, -and- Docket No. SN-2012-069 HUDSON COUNTY CORRECTIONS PBA LOCAL 109A, Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission dismisses the County of Hudson’s scope of negotiations petition. The County disputes the negotiability of certain provisions that the Hudson County Corrections PBA Local 109A submitted to binding interest arbitration for inclusion in the parties’ successor collective negotiations agreement. The Commission finds that pursuant to N.J.A.C. 19:13-3.2, no issues remain in dispute because the County has not appealed the interest arbitration award, the award does not include the issue asserted to be non-negotiable, and no special circumstances under N.J.A.C. 19:13-2.2(a)4iv have been asserted that would require processing of the scope petition. ¶

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, Petitioner, -and- Docket No. SN-2012-069 HUDSON COUNTY CORRECTIONS PBA LOCAL 109A, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, Scarinci & Hollenbeck, LLC, attorneys (Christina M. Michelson, of counsel) ¶

For the Respondent, Klatsky Sciarrabone & DeFillippo, attorneys (David J. DeFillippo, of counsel) ¶

DECISION ¶

On May 21, 2012, the County of Hudson petitioned for a scope of negotiations determination. The County disputes the negotiability of certain provisions that the Hudson County Corrections PBA Local 109A (PBA) submitted to binding interest arbitration for inclusion in the parties’ collective negotiations agreement (CNA). The parties have filed briefs and exhibits. The County submitted the certification of Oscar Aviles, Director of Corrections. The PBA has not submitted a certification.1/ These facts appear. ¶

The PBA represents all sergeants and lieutenants employed by the County’s Department of Corrections. The County and PBA were parties to a CNA effective from January 1, 1994 through December 31, 1998. A December 24, 2002 Litigation Alternative Procedure (LAP) award modified the CNA’s shift bidding procedures. A January 27, 2003 Interest Arbitration (IA) award set the terms between the parties for the period of January 1, 1999 through December 31, 2003. The parties subsequently executed a Memorandum of Understanding (MOU) covering the six-year term from January 1, 2004 through December 31, 2009. ¶

On April 20, 2012, after unsuccessful negotiations for a successor agreement, the PBA filed a petition with the Commission to initiate interest arbitration (Docket No. IA-2012-043).2/ The County filed this scope petition on May 21, 2012. The parties submitted their Final Offers by May 29, 2012, and the IA hearing was held on June 13, 2012. On July 2, 2012, the interest arbitrator issued the interest arbitration award. ¶

The County disputes the negotiability of the following proposed change to the parties’ contract that the PBA submitted as part of its Final Offer for interest arbitration: ¶

Article XVII - Shift Bidding. ¶

Sections 17.1 and 17.2 shall be deleted and replaced with the following clause: ¶

All shift assignments, except for those requiring special skills, training or qualifications, shall be determined annually pursuant to a seniority-based shift bidding process, rank-for-rank and seniority within rank. Pursuant to this annual shift-bidding process, all officers shall submit their top three preferences no later than October 15th of the preceding year. The new shift assignments shall take effect on January 1st of each calendar year. ¶

The interest arbitrator did not award the PBA’s proposal. After considering the parties’ arguments regarding the PBA’s Shift Bidding proposal, she found, in pertinent part: ¶

However, I share the Employer’s concerns that newer superiors, those with the least seniority in rank, could all be outbidded by more senior officers for the preferential shifts, leaving the least preferred shift staffed with rookie supervisors...Without a proffered solution to this concern, I cannot award the PBA’s proposal. The parties should explore this proposal in the next round of negotiations. ¶

The PBA argues that the County’s scope of negotiations petition on the Shift Bidding proposal is moot because it was not awarded in interest arbitration. The County responds that the scope petition is not moot as the interest arbitrator only analyzed the merits of the PBA’s proposal, and not the negotiability of the proposal. ¶

Commission rule N.J.A.C. 19:13-3.2 governs the processing of scope of negotiations petitions that involve issues in dispute in an interest arbitration proceeding. Such scope petitions are not processed after the issuance of an interest arbitration award unless the following situations apply: ¶

N.J.A.C. 19:13-3.2 ¶

(c) The Commission will resume processing of a scope of negotiations petition: ¶

1. As part of an appeal from an interest arbitration award, provided that the award includes issue(s) that were asserted to be non-negotiable in the scope of negotiations petition; ¶

* * * ¶

(d) Unless the conditions described in (c)1 . . . are present, after the issuance of an interest arbitration award . . . the Commission will not, absent special circumstances as contemplated by N.J.A.C. 19:13- 2.2(a)4iv, determine the negotiability of any issue raised in any scope of negotiations petition filed in accordance with (b) above. ¶

In County of Cumberland, Cumberland County Prosecutor and PBA Locals 396 and 396A, P.E.R.C. No. 2012-66, 39 NJPER 32 (¶10 2012), cited by the County in its brief, the Commission dismissed several negotiability issues as moot. Citing N.J.A.C. 19:13-3.2, we stated: ¶

We rule only upon the negotiability of those issues that remain in dispute after the interest arbitration award. [39 NJPER at 33] ¶

N.J.A.C. 3.2(c)-(d) is likewise applicable in the instant case. The County has not appealed the interest arbitration award, and even it had, the award does not include the issue asserted to be non-negotiable. Furthermore, the County has not explained any special circumstances, under N.J.A.C. 19:13-2.2(a)4iv, that warrant the exercise of our scope of negotiations jurisdiction. See Cinnaminson Tp. Bd. of Ed., P.E.R.C. No. 78-11, 3 NJPER 323 (1977). Accordingly, we will not process the County’s scope of negotiations petition. If the PBA proposes the same language in the next round of negotiations, the County may re-file its petition. ¶

OrderORDER ¶

The County of Hudson’s scope of negotiations petition is dismissed. ¶

BY ORDER OF THE COMMISSION ¶

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

ISSUED: April 25, 2013 ¶

Trenton, New Jersey ¶

Note1/ N.J.A.C. 19:13-3.6(f) requires that all pertinent facts be supported by certifications based upon personal knowledge. ¶

2/ On April 26, 2012, the Commission appointed Susan W. Osborn as interest arbitrator. ¶