P.E.R.C. No. 2015-19, Newark

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of CITY OF NEWARK, Petitioner, -and- Docket No. SN-2014-060 SEIU LOCAL 617, 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 SEIU Local 617. The grievance asserts that the City violated the parties’ collective negotiations agreement when it failed to pay a unit member a higher wage rate for working in a higher title. The Commission finds that compensation is a mandatorily negotiable subject, and that the Civil Service Commission rules cited by the City address reclassification issues but do not preempt the issue of back pay for alleged out of title work. ¶

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-2014-060 SEIU LOCAL 617, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, Anna P. Pereira, Corporation Counsel (Michael A. Oppici, on the brief) ¶

For the Respondent, Oxfeld Cohen, P.C., attorneys (Arnold S. Cohen, of counsel) ¶

DECISION ¶

On January 28, 2014, the City of Newark petitioned for a scope of negotiations determination. The City seeks a restraint of binding arbitration of a grievance filed by SEIU Local 617. The grievance asserts that the City violated the parties’ collective negotiations agreement (CNA) by failing to pay a unit member a higher wage rate for working in a higher title. ¶

The City filed a brief and exhibits. The SEIU filed a brief. In the absence of certifications, we glean the following facts from the record.1/ ¶

The SEIU represents all regularly employed, non-supervisory blue collar employees of the City of Newark. The City and SEIU are parties to a CNA with a term of January 1, 2008 through December 11, 2011. The grievance procedure ends in binding arbitration. ¶

Article XXVI of the CNA, entitled “Wages” , states in Section B: ¶

Once an employee has served in a higher title, as defined by the New Jersey Department of Personnel, or its successor, for one pay period, his/her rate of pay shall be at the rate of the higher title. Payment shall be calculated from the first day of service in the higher title. ¶

The grievant began working for the City on April 26, 2006 as a Laborer in the Water Unit of the Water and Sewer Utilities Department. After a long-time Water System Distribution Technician (WSD Tech) who trained the grievant retired in early 2007, the grievant was given some WSD Tech responsibilities. In recognition of his work beyond the Laborer classification, the City paid the grievant at the Senior Repairer rate from February- October 2008. In late 2008, Assistant Business Administrator Michael Greene suggested to the Department’s Acting Manager that the grievant receive a title change, but no change was made. From October 2008 to June 2009, the City paid the grievant a higher differential based on the Principal Engineer Aide rate. In 2009, the grievant received a W1 Distribution License (a required license for the WSD Tech position). The grievant’s pay rate was reduced back to the Laborer rate from June 2009 until February 2010 when his pay was increased to the Water Inspector rate. In August 2010, the grievant passed a Civil Service test and was provisionally appointed to Senior Repairer. The promotion paid more than Laborer, but less than the Water Inspector differential. The grievant and Mr. Greene continued to state that the grievant was performing the duties of a WSD Tech. ¶

On July 22, 2011, the SEIU filed a grievance asserting that the grievant had been working as a WSD Tech since 2006 and according to the CNA should be paid the rate of the higher title. While the grievance was pending, the Civil Service Commission (CSC) conducted a Desk Audit of the grievant’s duties, and November 2, 2011, concluded that his job duties are commensurate with the job specification for WSD Tech. On November 19, 2011, the grievant was provisionally transferred from Senior Repairer to WSD Tech, and the CSC made him “permanent” in the WSD Tech title on December 27, 2011. ¶

The SEIU filed for binding arbitration of the grievance with the New Jersey State Board of Mediation.2/ This petition ensued. ¶

Our jurisdiction does not include reviewing the merits of a grievance or an arbitration award. See Ridgefield Park Ed. Ass’n v. Ridgefield Park Bd. of Ed., 78 N.J. 144, 154 (1978). In a post-arbitration award setting, we decide only whether the arbitration award involved a subject that is legally arbitrable. ¶

Local 195, IFPTE v. State, 88 N.J. 393 (1982), articulates the standards for determining whether a subject is mandatorily negotiable: ¶

[A] subject is negotiable between public employers and employees when (1) the item intimately and directly affects the work and welfare of public employees; (2) the subject has not been fully or partially preempted by statute or regulation; and (3) a negotiated agreement would not significantly interfere with the determination of governmental policy. To decide whether a negotiated agreement would significantly interfere with the determination of governmental policy, it is necessary to balance the interests of the public employees and the public employer. When the dominant concern is the government’s managerial prerogative to determine policy, a subject may not be included in collective negotiations even though it may intimately affect employees’ working conditions. [Id. at 404-405] ¶

The City asserts that arbitration of the grievance is preempted by Civil Service law because the CSC did not make the grievant’s WSD Tech title effective until December 2011. It argues that N.J.A.C. 4A:3-3.9 states that the CSC’s decision is a final administrative decision, so the City cannot negotiate about the grievant’s pay differential for any period prior to December 2011. The City acknowledges that the grievant sometimes worked out of title prior to 2011, but asserts that he received the appropriate pay differentials at those times. The SEIU responds that the issue of backpay for the grievant’s out of title work prior to his official CSC title reclassification is legally arbitrable because it is a contractual compensation issue that is not preempted by CSC regulations. ¶

Where a statute or regulation is alleged to preempt an otherwise negotiable term or condition of employment, it must do so expressly, specifically and comprehensively. Bethlehem Tp. Bd. of Ed. v. Bethlehem Tp. Ed. Ass'n, 91 N.J. 38, 44-45 (1982). N.J.A.C. 4A:3-3.5 sets out the CSC’s reclassification procedures, while N.J.A.C. 4A:3-3.9 sets out the procedures for appealing a CSC reclassification decision. N.J.A.C. 4A:3-3.5 relates only to the CSC’s reclassification decision and makes no mention of backpay. N.J.A.C. 4A:3-3.5(c)1 indicates the prospective nature of the reclassification determination and gives the employer 30 days to implement its decision. The CSC regulations do not address alleged out-of-title work prior to the reclassification, nor do they address appropriate compensation for the reclassified position or for prior out-of-title work. The CSC appeal procedures outlined in N.J.A.C. 4A:3-3.9 are likewise not preemptive of the issue in this case, as a CSC appeal challenges only the reclassification decision and does not involve any issue of compensation. Therefore, nothing in the CSC regulations expressly, specifically and comprehensively preempts the issue in this case which relates to the question of backpay for previous out-of-title work. Bethlehem. It is well settled that absent preemption, compensation is a mandatorily negotiable term and condition of employment. City of Bridgeton, P.E.R.C. No. 2011-24, 36 NJPER 353 (¶137 2010); Englewood Bd. of Ed. v. Englewood Teachers Ass’n, 64 N.J. 1, 7 (1973). ¶

OrderORDER ¶

The arbitration award is within the scope of negotiations. The request of the City of Newark for a restraint of binding arbitration is denied. ¶

BY ORDER OF THE COMMISSION ¶

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

ISSUED: September 18, 2014 ¶

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/ An arbitration award issued on March 26, 2014. The award partially sustained and partially denied the grievance. The arbitrator found that the grievant began working out of title as a WSD Tech in 2009 after earning a W1 Distribution License. The arbitrator ordered back pay from the 2009 date the grievant obtained the W1 License. The arbitrator denied the grievance for the period prior to obtaining the license. ¶