P.E.R.C. No. 2014-3, Atlantic City

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of CITY OF ATLANTIC CITY, Appellant, -and- Docket No. IA-2013-016 ATLANTIC CITY POLICE BENEVOLENT ASSOCIATION LOCAL 24, Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission affirms a supplemental interest arbitration award establishing the terms of a successor agreement between the City of Atlantic City and the Atlantic City Police Benevolent Association Local 24. The City appealed the award, asserting that the arbitrator erred by accepting the PBA's scattergram, that the City consistently objected to the PBA's figures, and that the arbitrator directed the City to use its prior submission. The Commission finds that the arbitrator complied with the remand order, and that the City was given the opportunity to provide the arbitrator with documentation to support its argument that the PBA's figures were inaccurate. The Commission notes that the City did not provide the Commission with evidence of inaccurate numbers or miscalculations to establish that the award violates the statutory salary cap, and therefore the interest arbitration review standard has not been met. ¶

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 ATLANTIC CITY, Appellant, -and- Docket No. IA-2013-016 ATLANTIC CITY POLICE BENEVOLENT ASSOCIATION LOCAL 24, Respondent. ¶

AppearancesAppearances: ¶

For the Appellant, Ruderman & Glickman, attorneys (Steven S. Glickman, of counsel) ¶

For the Respondent, O’ Brien, Belland & Bushinsky, attorneys (Mark Belland, of counsel; David F. Watkins, on the brief) ¶

DECISION ¶

On July 10, 2013, the City of Atlantic City appealed an interest arbitration award involving a unit of approximately 330 sworn police officers represented by the Atlantic City Police Benevolent Association, PBA Local 24.1/ The award was issued by an interest arbitrator after a remand of the initial award. ( “Atlantic City I” ). P.E.R.C. No. 2013-82, 39 NJPER 505 (¶161 2013). We affirm the second award. ¶

The initial award is a 145-page opinion issued on April 11, 2013 wherein the arbitrator summarized the parties’ offers and and reviewed in detail their respective arguments supporting their proposals.2/ He awarded a three-year agreement with a 1.59% wage increase retroactive to January 1, 2013 and 0% wage increases in 2014 and 2015. He also awarded a new salary guide for officers hired after January 1, 2013. ¶

On April 19, 2013, the City appealed the initial award challenging the 1.59% salary increase effective January 1, 2013. Specifically, the City objected to the arbitrator’s use of the PBA’s incremental, longevity, and educational costs to make his calculations rather than the City’s calculations. ¶

On May 12, 2013, we issued Atlantic City I. In that decision, we granted the City’s appeal and remanded the case to the arbitrator finding that the arbitrator did not prorate the incremental costs, and that his explanation for his calculations did not meet the standards of the amended interest arbitration law. We remanded the award for re-calculation and specifically directed the City, and all public employers, to provide interest arbitrators with the following information: ¶

1. A list of all unit members, their base salary step in the last year of the expired agreement, and their anniversary date of hire; ¶

2. Costs of increments and the specific date on which they are paid; ¶

3. Costs of any other base salary items (longevity, educational costs etc.) and the specific date on which they are paid; and ¶

4. The total cost of all base salary items for the last year of the expired agreement.3/ ¶

On July 2, 2013, the arbitrator issued a supplemental award on remand. The arbitrator outlined the procedural history of his attempts to achieve the required information from the City. Concluding that the City was unable to provide him with the evidence required to make his calculations, the arbitrator rejected the City’s evidence again noting it was not different from the prior submissions and crediting the PBA’s arguments as to errors contained therein - including the inclusion of employees separated from the City. The arbitrator then re- affirmed his award and directed the parties to pro-rate the incremental, longevity and education costs. ¶

The City again appeals the salary award alleging that the arbitrator erred by accepting the PBA’s scattergram; that the City has consistently objected to the PBA’s figures; that the arbitrator directed the City to utilize its prior submission; and generally questioning the arbitrator’s judgment. ¶

The PBA responds that the City has not provided a meaningful analysis to support its assertions and the PBA’s scattergram is consistent with our decision in Borough of New Millford, P.E.R.C. No. 2012-53, 38 NJPER 340 (¶116 2012). ¶

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). 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). ¶

In cases where the 2% salary cap imposed by P.L. 2010, c. 105 applies, we must also determine whether the arbitrator established that the award will not increase base salary by more than 2% per contract year or 6% in the aggregate for a three-year contract award. ¶

The City objects to the salary award only. In Borough of New Milford, P.E.R.C. No. 2012-53, 38 NJPER 340, 344 (¶116 2012), we stated: ¶

[W]e must determine whether the arbitrator established that the award will not increase base salary by more than 2% per contract year or 6% in the aggregate for a three-year contract award. In order for us to make that determination, the arbitrator must state what the total base salary was for the last year of the expired contract and show the methodology as to how base salary was calculated. We understand that the parties may dispute the actual base salary amount and the arbitrator must make the determination and explain what was included based on the evidence submitted by the parties. Next, the arbitrator must calculate the costs of the award to establish that the award will not increase the employer’s base salary costs in excess of 6% in the aggregate. The statutory definition of base salary includes the costs of the salary increments of unit members as they move through the steps of the salary guide. Accordingly, the arbitrator must review the scattergram of the employees’ placement on the guide to determine the incremental costs in addition to the across- the-board raises awarded. The arbitrator must then determine the costs of any other economic benefit to the employees that was included in base salary, but at a minimum this calculation must include a determination of the employer’s cost of longevity. Once these calculations are made, the arbitrator must make a final calculation that the total economic award does not increase the employer’s costs for base salary by more than 2% per contract year or 6% in the aggregate. ¶

We have reviewed the City’s evidence and argument. The City does not assert that the award increases the employer’s costs for base salary by more than 2% per contract year or 6% in the aggregate. The City again appeals the salary award and objects to the figures used by the arbitrator. The interest arbitration appeal process is not a forum to re-litigate the case. Our interest arbitration review standard vests the arbitrator with the responsibility of weighing the evidence and arriving at an award. We do not perform a de novo review. ¶

The City was given the opportunity to provide the arbitrator with documentation to support its argument that the figures used by the PBA were not accurate. This task requires an effort to create a scattergram as we set forth in Atlantic City I. The City did not create an acceptable scattergram for the arbitrator. The City has also not provided this Commission with a chart, precise explanation, or calculation to prove the PBA’s figures are not accurate. Where a party has provided us with evidence of a mistake in the base salary calculation or scattergram analysis, we have remanded a case to the arbitrator for re-calculation. Borough of Ramsey,P.E.R.C. No. 20012-60, 30 NJPER 17 (¶3 2012). Where an appellant does not provide us with the evidence to see the errors alleged or with the calculations to establish the award violates the cap, we will defer to the arbitrator. Newark. ¶

The arbitrator complied with our directive on remand and the City has already been given a second chance to establish its case. Having not met our review standard, we dismiss the City’s appeal and affirm the award. ¶

OrderORDER ¶

The interest arbitration award is affirmed. ¶

BY ORDER OF THE COMMISSION ¶

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

ISSUED: August 8, 2013 ¶

Trenton, New Jersey ¶

Note1/ We deny the City’s request for oral argument. ¶

2/ The PBA proposed a three-year agreement with 2% wage increases effective January 1 of each year through step increments and a 1.72% across-the-board increase in 2012 and 0% across-the-board increases for 2013 and 2104 . The PBA further sought to include the investigative officer salary differential in the agreement; increase in vacation time from 24 to 25 days to have all officers at the same benefit level; and increase sick time to 120 hours annually for all members to have the same benefit level. ¶

The City proposed a three-year agreement with 0% across-the- board wage increases; a reduced salary and elimination of longevity for employees hired on or after January 1, 2013; freezing longevity for current employees; new education and training incentives; limiting terminal leave to $15,000; reducing sick leave at retirement; revising the call back procedure to require the officer to work the four-hour minimum; change the overtime eligibility calculation; reduce sick and injured leave time; reduction in vacation time for new hires; eliminating personal days; and eliminating the shift differential. ¶

3/ At the outset of being assigned to a case, the interest arbitrator should set a schedule for the public employer to provide the required base salary information and calculations, and another date for the union to respond to that information. The arbitrator should have the parties’ positions regarding the base salary information and calculations prior to the arbitration hearing date. The arbitration hearing is the proper forum to address any dispute and/or confusion over the base salary information and calculations. ¶