P.E.R.C. No. 2024-55, Essex Cty

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of COUNTY OF ESSEX, Petitioner, -and- Docket No. SN-2024-030 JNESO DISTRICT COUNCIL 1, IUOE, Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission grants the County’s request for a restraint of binding arbitration of JNESO’s grievance contesting the County’s failure to provisionally appoint the applicant with the most seniority to the Assistant Director of Nursing position. The Commission finds that the County retains the non-arbitrable right to determine, based on a comparison of applicant qualifications to the promotional criteria, that a less senior employee is the most qualified employee despite a seniority preference clause or practice. Accordingly, as the County certified to the specific qualifications of the selected employee that it determined were superior to the other applicants, the Commission restrains arbitration. ¶

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 ESSEX, Petitioner, -and- Docket No. SN-2024-030 JNESO DISTRICT COUNCIL 1, IUOE, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, Office of the Essex County Counsel (Sylvia Hall, of counsel) ¶

For the Respondent, Kroll, Heineman, Ptasiewicz & Parsons (Seth B. Kennedy, of counsel) ¶

DECISION ¶

On February 23, 2024, the County of Essex (County) filed a scope of negotiations petition seeking a restraint of binding arbitration of a grievance filed by JNESO District Council 1, IUOE (JNESO). The grievance asserts that the County violated the parties’ collective negotiations agreement (CNA) when it provisionally appointed a nurse to the position of Assistant Director of Nursing (ADON) who had less seniority than other JNESO unit employees who applied for the position. ¶

The County filed a brief, exhibits, and the certification of Frank J. Del Gaudio, Director of the Essex County Hospital Center (ECHC). JNESO filed a brief and no certification.1/ These facts appear. ¶

JNESO represents professional nurses, including registered nurses, employed by the County. The County and JNESO are parties to a CNA with a term of January 1, 2018 through December 31, 2019. The grievance procedure ends in binding arbitration. ¶

Director Del Gaudio certifies that the County is a Civil Service Commission (CSC) jurisdiction. The Registered Nurse (aka Graduate Nurse) position is a Civil Service non-competitive position that is represented by JNESO. The ADON is a Civil Service competitive position and is a title represented by IBEW Local 1158 - Unit Managers and Supervisors. On June 2, 2023, due to the former ADON’s retirement, there was a vacancy in the ADON evening shift position that triggered an immediate need for a replacement prior to a CSC exam. On June 12, the County posted the ADON promotional vacancy announcement at the ECHC. Between the posting date and September 26, 2023, ECHC’s interviewing committee participated in a selection process based on interviews, review of resumes, and various criteria. Four candidates applied for the ADON vacancy, including three internal JNESO unit employees and one external candidate. ¶

Director Del Gaudio certifies that all candidates that responded to the ADON vacancy posting were provided the opportunity to interview. He certifies that seniority was considered along with reliability, merit, fitness, leadership, ability to work well with others, ability to follow and enforce all applicable policies, and others. Candidate “A.V.” had the most service in 2023 covering the evening shift on a substitute basis. A.V. met the CSC’s minimum qualifications and emerged as the best selection for temporary appointment to the ADON vacancy. On October 21, 2023, A.V. was provisionally appointed to the ADON position. ¶

On November 8, 2023, JNESO filed a step two grievance with the County alleging that it violated Article 7 of the CNA and other applicable articles and/or policies by hiring a new ADON with significantly less seniority than multiple other JNESO unit employees who applied. As a remedy, the grievance seeks that the affected JNESO unit employees be considered for the ADON position. On December 6, the County denied the grievance, stating that job experience and other factors were considered during the interview process for the ADON appointment. The County also noted that the ADON position is in the IBEW Local 1158 unit and not the JNESO unit. JNESO filed a request for binding arbitration of the grievance with the New Jersey State Board of Mediation. 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 County asserts that arbitration should be restrained because JNESO violated the CNA’s grievance procedure by filing an untimely grievance at step two. It argues that arbitration should be restrained because it has a managerial prerogative to determine promotional criteria and that it cannot be compelled to make a provisional appointment based solely on seniority. The County notes that the CSC sets the minimum qualifications for the job title. The County asserts that the CNA does not require it to promote the most senior candidate and that an arbitrator has previously found no evidence of a past practice of promoting the most senior candidate. Finally, the County argues that because the ADON title is in the IBEW unit, arbitration must be dismissed because JNESO has no standing to contest the promotional procedures to a position outside of its unit. ¶

JNESO asserts that while a public employer has a managerial prerogative to determine promotional criteria, the use of seniority as a tie-breaker is a mandatorily negotiable aspect of the promotional process. It argues that its grievance does not contest the County’s determination of the criteria for the ADON position, but only whether the County duly considered the relative seniority of the applicants after it deemed they were minimally qualified. JNESO asserts that the County’s arguments about whether it adhered to the grievance procedure and whether the promotional process is subject to arbitration under the CNA are procedural arbitrability questions for the arbitrator. ¶

Initially, we reject the County’s assertion that arbitration should be restrained because JNESO allegedly violated the grievance procedure by filing its grievance late and at the wrong step. Matters of procedural arbitrability are outside of the Commission’s scope of negotiations jurisdiction and are for the arbitrator to decide. Bd. of Educ. of Alpha v. Alpha Educ. Ass’n, 190 N.J. 34, 43 (2006); ATU, Local 880 v. New Jersey Transit Bus Operations, 200 N.J. 105, 116 (2009); see also, Bradley Beach Bor., P.E.R.C. No. 2023-2, 49 NJPER 111 (¶24 2022); Cape May M.U.A., P.E.R.C. No. 2019-3, 45 NJPER 80 (¶20 2018); and Middlesex Bor. Bd. of Ed., P.E.R.C. 2017-67, 43 NJPER 448 (¶126 2017) (declining to restrain arbitration where the board asserted that the grievance was untimely and filed at the wrong step). ¶

We also find that the County’s argument that JNESO lacks standing to arbitrate over promotional criteria for a position in another unit is an argument that may be raised to the arbitrator. See Bergen Cty., P.E.R.C. No. 2022-19, 48 NJPER 228 (¶51 2021) ( “standing argument may be raised to the arbitrator” ); City of Newark, P.E.R.C. No. 94-7, 19 NJPER 417 (¶24186 1993) ( “City’s procedural arguments that [the grievant] lacked standing . . . are for the arbitrator.” ) ¶

We turn to the County’s substantive claim that an agreement to promote based on seniority would significantly interfere with its managerial prerogative to determine the criteria and evaluate the candidates for the provisional ADON appointment. The New Jersey Supreme Court and Appellate Division have held that public employers have a non-negotiable right to select promotional criteria and make promotions to meet the governmental policy goal of matching the best qualified employees to particular jobs. See, e.g., Local 195; Ridgefield Park; Paterson Police PBA No. 1 v. Paterson, 87 N.J. 78, 95 (1981); and Byram Tp. Bd. of Ed., 152 N.J. Super. 12 (App. Div. 1977). An employer’s promotion decision based upon a comparison of applicant qualifications is not legally arbitrable. Morris Cty. (Morris View Nursing Home), P.E.R.C. No. 2002-11, 27 NJPER 369 (¶32134 2001); Greenwich Tp., P.E.R.C. No. 98-20, 23 NJPER 499 (¶28241 1997); City of Atlantic City, P.E.R.C. No. 85-89, 11 NJPER 140 (¶16062 1985). ¶

While contract clauses may legally give preference to senior employees when all qualifications are substantially equal, the employer retains the right to determine which, if any, candidates are equally qualified. See Bergen Cty., P.E.R.C. No. 2019-23, 45 NJPER 217 (¶57 2018); Edison Tp. Bd. of Ed., P.E.R.C. No. 2015-74, 41 NJPER 495 (¶153 2015); and Edison Tp. Bd. of Ed., P.E.R.C. No. 2005-71, 31 NJPER 140 (¶61 2005). An arbitrator may not substitute his or her assessment of relative qualifications for that of a public employer. Middlesex Cty. Bd. of Social Services, P.E.R.C. No. 92-93, 18 NJPER 137 (¶23065 1992); Willingboro Tp. Bd. of Ed., P.E.R.C. No. 82-67, 8 NJPER 104 (¶13042 1982). Therefore, where an employer has determined that a less senior employee is the most qualified for a promotional position, the Commission has consistently restrained arbitration despite an alleged contractual seniority preference. See, e.g., Monroe Tp., P.E.R.C. No. 2021-24, 47 NJPER 321 (¶75 2021); Neptune Tp., P.E.R.C. No. 2021-16, 47 NJPER 226 (¶51 2020); South Jersey Transportation Auth., P.E.R.C. No. 2017-32, 43 NJPER 232 (¶71 2016); N.J. Turnpike Auth., P.E.R.C. No. 2004-69, 30 NJPER 137 (¶54 2004); Pascack Valley Reg. H.S. Dist. Bd. of Ed., P.E.R.C. No. 2000-27, 25 NJPER 423 (¶30185 1999); and Mercer Cty., P.E.R.C. No. 99-32, 24 NJPER 471 (¶29218 1998). ¶

Here, the record demonstrates that the County did consider seniority as part of the criteria when evaluating the four candidates for the provisional ADON appointment. However, the County exercised its managerial prerogative to consider and weigh other criteria including, e.g., reliability, merit, fitness, leadership, ability to work well with others, and ability to follow and enforce all applicable policies. The County determined, for example, that A.V. had the most service in 2023 covering as a substitute on the evening shift (the shift the promotional position was for). Director Del Gaudio certified that, after all candidates had an opportunity to interview, the County determined that A.V. was the best and most appropriate selection for the provisional ADON position. ¶

Applying the precedent discussed above, because the County applied its promotional criteria to find that A.V. was the most qualified candidate rather than equally qualified with any of the other JNESO applicants, there was no need to use seniority as a determining factor. Our case law is clear that an arbitrator may not second-guess the employer’s determination of who the most qualified promotional candidate is, even if it is not the most senior applicant. Accordingly, we find that the County’s decision to promote A.V. to the provisional ADON position based on its determination that she was the best qualified among the applicants, is not legally arbitrable. ¶

OrderORDER ¶

The request of the County of Essex for a restraint of binding arbitration is granted. ¶

BY ORDER OF THE COMMISSION ¶

Chair Hennessy-Shotter, Commissioners Eaton, Ford, Higgins, Kushnir and Papero voted in favor of this decision. None opposed. ¶

ISSUED: May 30, 2024 ¶

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. ¶