P.E.R.C. No. 2023-47, Millville

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of CITY OF MILLVILLE, Petitioner. -and- Docket No. SN-2023-022 NEW JERSEY CIVIL SERVICE ASSOCIATION CUMBERLAND COUNTY COUNCIL 18, Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission partially grants, and partially denies, the City’s request for restraint of binding arbitration of Council 18's grievance challenging the City’s failure to appoint the grievant to the Secretarial Assistant title, and to provide her with back pay, following the Civil Service Commission’s (CSC) April 7, 2022 determination to provisionally appoint her to Secretarial Assistant retroactive to October 10, 2021. Finding that CSC laws and regulations do not preempt arbitration over the issue of back pay following a reclassification decision, the Commission declines to restrain arbitration over the issue of back pay from the date the CSC provisionally appointed the grievant until the date the City adjusted her job duties to conform back to the Clerk 2 title. However, to the extent the grievance contests the City’s decision not to appoint the grievant to the Secretarial Assistant title and to instead adjust her job duties to conform with the Clerk 2 title, it is preempted by CSC regulations and is not arbitrable. ¶

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 MILLVILLE, Petitioner, -and- Docket No. SN-2023-022 NEW JERSEY CIVIL SERVICE ASSOCIATION CUMBERLAND COUNTY COUNCIL 18, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, Blaney Donohue & Weinberg, P.C., attorneys (William G. Blaney, of counsel; John R. Dominy, on the brief) ¶

For the Respondent, O’ Brien, Belland & Bushinsky, LLC, attorneys (Matthew B. Madsen, of counsel) ¶

DECISION ¶

On December 9, 2022, the City of Millville (City) filed a scope of negotiations petition seeking a restraint of binding arbitration of a grievance filed by the New Jersey Civil Service Association Cumberland County Council 18 (Council 18). The grievance asserts that the City violated the parties’ collective negotiations agreement (CNA) when it refused to provisionally appoint the grievant to the title of Secretarial Assistant, retroactive to October 10, 2021, and failed to make the grievant whole for lost wages and benefits. ¶

The City filed briefs, exhibits, and the certifications of its Human Resources Manager, Pamela Shapiro, and its counsel, Kyle D. Weinberg. Council 18 filed a brief and the certification of its counsel, Matthew B. Madsen. These facts appear. ¶

Council 18 represents all full-time Millville City employees, excluding policemen, firemen, confidential employees, managerial executives, and supervisors within the meaning of the Act. The City and Council 18 are parties to a CNA in effect from January 1, 2020 through December 31, 2023. The grievance procedure ends in binding arbitration. ¶

The grievant is a City employee who has been employed with the City for approximately 21 years. The grievant has been a Clerk 2 since about August 18, 2018, a position which is classified by the Civil Service Commission (CSC). In October 2021, the grievant filed a classification appeal with the CSC alleging she has been working out of title and should have the title of Secretarial Assistant. On April 7, 2022, the CSC gave the grievant the title of Secretarial Assistant on a provisional basis effective October 10, 2021 unless, in part, the duties assigned to the grievant were altered to comply with the specifications of a Clerk 2. The City did not appeal the CSC’s April 7 determination. ¶

Shapiro certifies that on April 13, 2022 the City informed the CSC “that the City was not moving forward with placing [the grievant] into the Secretarial Assistant title.” On August 25, Shapiro advised the CSC as follows: ¶

The City has reviewed [the grievant’s] job duties that she listed in her desk audit of Secretarial Assistant and we have made the following determination on the following. ¶

• Registered Facility Security Administrator with the NJDEP for electronic and submittal and certifying entering monthly semi annual, annual sludge reports as well as Physical condition reports/permits for the wastewater treatment Plant. Under the supervision of Sal Gioia, Sewer Superintendent, [Grievant] may at times perform this function however, please note our changes we made. This task is certified by Sal Gioia. ¶

• Schedule and maintain Keeps track of calendar for all safety classes and training for Superintendent/Supervisor and 17 employees. Under the supervision of Sal Giola, Sewer Superintendent, [Grievant] performs this function in assisting Sal. ¶

• Email City Personnel Officer confidential correspondence regarding Safety and Personnel matters and maintain their files. Communication of this kind is only conducted by Sal Gioia, Sewer Superintendent, all files are maintained in the HR office. ¶

• Payroll for Prepares timesheets for 18+ employees bi-weekly, and record employee overtime hours. [Grievant] only prepares the timesheets. Payroll is performed by our Payroll Supervisor who also prepares employee overtime hours. ¶

• Keep monthly time books for each employee. These functions are performed by our Payroll Supervisor. ¶

• Enter requisitions. and provide 1st approval for Superintendent. 1st approval is only performed by Sal Gioia, Sewer Superintendent. ¶

• Assist in assigning Communicates the assignments of jobs to employees for Sewer Calls, RV Dumps and Janitorial needs. [Grievant] communicates the assignments to the employees she does not assign the jobs to the employees of the sewer plant. ¶

• Yearly DOH Right to Know survey completion for Sewage Plant and 21 pump stations. This is being conducted by Sal Gioia, Sewer Superintendent. ¶

Madsen certifies that the City has not paid the grievant any wages, benefits, or other compensation commensurate with the Secretarial Assistant title between October 10, 2021 and the present. Madsen certifies that During Madsen’s e-mails and phone calls with CSC representatives between July 6, 2022 and August 16, 2022, they informed him that any pursuit of back pay should be pursued outside of the CSC procedures. ¶

On October 6, 2022, Council 18 filed a grievance alleging that the City violated the CNA and the CSC’s April 7, 2022 determination by refusing to appoint the grievant to the Secretarial Assistant title. The grievance seeks that the grievant be retroactively appointed to the Secretarial Assistant title, effective October 10, 2021, and be made whole for all owed wages and benefits relating to such appointment. The City denied the grievance1/, stating: ¶

The completion of a desk audit requires your employer to either remove duties beyond your current classification or change your classification. We have decided to remove the job duties beyond your current classification. In that regard, [the] City has reviewed your current job duties and your current classification. In the near future, you can expect to receive limiting instructions regarding your job duties. We will meet with you next week to discuss the job duties/responsibilities you believe are beyond your current job classification and will try to resolve the same. ¶

Shapiro certifies that on October 18, 2022, the City met with Council 18 and the grievant “to clarify her duties.” On October 20, Council 18 filed a request for binding arbitration of the grievance. This petition ensued. ¶

Our jurisdiction is narrow. Ridgefield Park Ed. Ass’n v. Ridgefield Park Bd. of Ed., 78 N.J. 144, 154 (1978) states: ¶

The Commission is addressing the abstract issue: is the subject matter in dispute within the scope of collective negotiations. Whether that subject is within the arbitration clause of the agreement, whether the facts are as alleged by the grievant, whether the contract provides a defense for the employer’s alleged action, or even whether there is a valid arbitration clause in the agreement or any other question which might be raised is not to be determined by the Commission in a scope proceeding. Those are questions appropriate for determination by an arbitrator and/or the courts. ¶

Thus, we do not consider the contractual merits of the grievance or any contractual defenses the employer may have. ¶

The Supreme Court of New Jersey articulated the standards for determining whether a subject is mandatorily negotiable in Local 195, IFPTE v. State, 88 N.J. 393, 404-405 (1982): ¶

[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. ¶

We must balance the parties’ interests in light of the particular facts and arguments presented. City of Jersey City v. Jersey City POBA, 154 N.J. 555, 574-575 (1998). ¶

The City asserts that arbitration should be restrained because the CSC has exclusive authority to render a decision regarding a desk audit of the grievant’s job duties and CSC title. The City contends that, pursuant to N.J.A.C. 4A:3- 3.5(c)1, it had the authority to clarify and adjust the grievant’s job duties following a desk audit to conform to the Clerk 2 title. Citing N.J.S.A. 11A:2-11(h), the City argues that the CSC has exclusive authority to enforce its findings and Council 18 cannot obtain a remedy through arbitration. ¶

Council 18 asserts that arbitration should not restrained because Civil Service regulations do not preempt the arbitrator from determining whether the City violated the CNA by refusing to honor the CSC’s decision provisionally appointing the grievant to the Secretarial Assistant title. Council 18 contends that, even if it is found that the City readjusted the grievant’s job duties back to reflect those of the Clerk 2 title, the issue of back pay and benefits owed to the grievant from her October 10, 2021 date of retroactive appointment remains fully arbitrable. ¶

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). The legislative provision must “speak in the imperative and leave nothing to the discretion of the public employer.” State v. State Supervisory Employees Ass’n, 78 N.J. 54, 80-82 (1978). ¶

N.J.A.C. 4A:3-3.5 and N.J.A.C. 4A:3-3.9 set forth the CSC’s authority to make classification determinations upon application by either the appointing authority, employee, or a union representative. Once a CSC representative has issued a determination that an employee’s position should be reclassified to a different Civil Service job title, N.J.A.C. 4A:3-3.5(c)1 provides that the employer has 30 days to: “either effect the required change in the classification of an employees position; assign duties and responsibilities commensurate with the employees current title; or reassign the employee to the duties and responsibilities to which the employee has permanent rights.” A party may appeal a classification decision to the full CSC within 60 days. N.J.A.C. 4A:3-3.9(e). Therefore, to the extent that Council 18’s grievance seeks for an arbitrator to appoint the grievant to the title of Secretarial Assistant because the City has allegedly not complied with the CSC’s reclassification determination, that classification authority is within the CSC’s exclusive jurisdiction and is not legally arbitrable. ¶

However, none of the CSC statutes or regulations cited by the City preempt the issue of back pay. N.J.A.C. 4A:3-3.5 and N.J.A.C. 4A:3-3.9 relate only to the reclassification procedure and decision, and a CSC appeal pursuant to N.J.A.C. 4A:3-3.9 challenges only the reclassification decision and does not mention the issue of back pay. The Commission has found that Civil Service laws and regulations do not specifically preempt an arbitrator’s ability to award a remedy based on a CSC determination. In City of Newark, P.E.R.C. No. 2015-19, 41 NJPER 168 (¶59 2014), where a CSC desk audit determined the grievant was entitled to be reclassified to a higher title, the Commission held that Civil Service regulations do not preempt arbitration over compensation for the reclassified position or over back pay for out-of-title work performed prior to the CSC’s reclassification. Id. at 169. In City of Newark, P.E.R.C. No. 2013-77, 39 NJPER 493 (¶156 2013) and City of Newark, P.E.R.C. No. 2014-44, 40 NJPER 427 (¶145 2013), following CSC decisions finding that employees had been improperly laid off, the Commission held that Civil Service regulations did not preempt arbitration over whether the employees were entitled to back pay for the period they were laid off. See also City of Bridgeton, P.E.R.C. No. 2011-24, 36 NJPER 353 (¶137 2010) (issue of additional compensation following an employee’s CSC appointment to a higher title was not preempted). ¶

Thus, to the extent the grievance is seeking back pay from the date the CSC provisionally appointed the grievant to the Secretarial Assistant title (October 10, 2021) to the date her job duties were adjusted to conform back to the Clerk 2 title, it is legally arbitrable. The City does not dispute that it has not provided the grievant with back pay or other benefits she may have been entitled to under the CNA for that limited period of time. It is well settled that, absent preemption, compensation is a prime example of a mandatorily negotiable term and condition of employment. Atlantic Cty., 230 N.J. 237, 253 (2017); Robbinsville Twp. Bd. of Educ. v. Washington Twp. Educ. Ass’n, 227 N.J. 192, 199 (2016); and Local 195, 88 N.J. 393, 403, supra. ¶

However, the record is unclear as to when the City readjusted the grievant’s job duties to that of Clerk 2. Neither party certifies to a specific date, following the CSC’s April 7, 2022 determination, when the grievant’s duties were conformed back to those of the Clerk 2 title. The City’s August 25, 2022 letter to the CSC, as well as its later grievance response, are unclear as to what extent the grievant’s job duties had actually been adjusted at the time both responses were issued. Finally, the City and Council 18 both certify that they met on October 18, 2022 to clarify the grievant’s job duties. Given this record, there remains a factual issue concerning when the grievant’s job duties were adjusted to conform back to the Clerk 2 title, which would serve as the end date for any back pay the grievant may be due. That factual determination is appropriate for the arbitrator when evaluating Council 18’s grievance regarding back pay. See Borough of Carteret v. F.M.B.A., Local 67, 247 N.J. 202 (arbitrator could determine that lieutenants were working out-of- title and entitled to captain’s pay). ¶

In conclusion, Council 18’s grievance is legally arbitrable to the extent it seeks any back pay that may be due from the date that the CSC provisionally appointed the grievant to the Secretarial Assistant title (October 10, 2021) to the date that the grievant’s job duties were adjusted to conform back to the Clerk 2 title (date to be determined by the arbitrator). However, to the extent that Council 18’s grievance contests the City’s decision not to appoint the grievant to the title of Secretarial Assistant and to instead adjust her job duties to conform with the Clerk 2 title, it is preempted by Civil Service regulations and is not legally arbitrable. See N.J.A.C. 4A:3- 3.5(c)1. ¶

OrderORDER ¶

The request of the City of Millville for a restraint of binding arbitration is denied to the extent that Council 18’s grievance seeks any back pay that may be due from the date that the CSC provisionally appointed the grievant to the Secretarial Assistant title (October 10, 2021) to the date that the grievant’s job duties were adjusted to conform back to the Clerk 2 title. The City’s request for a restraint of binding arbitration is granted to the extent that Council 18’s grievance contests the City’s decision not to appoint the grievant to the title of Secretarial Assistant and to instead adjust her job duties to conform with the Clerk 2 title. ¶

BY ORDER OF THE COMMISSION ¶

Chair Weisblatt, Commissioners Bonanni, Ford, Papero and Voos voted in favor of this decision. None opposed. ¶

ISSUED: April 27, 2023 ¶

Trenton, New Jersey ¶

Note1/ The City’s response is not dated. ¶