P.E.R.C. No. 2026-10, Byram Tp

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of BYRAM TOWNSHIP, Petitioner, -and- Docket No. SN-2026-001 PBA LOCAL 406, Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission grants Byram Township’s request for a restraint of binding arbitration of a grievance filed by PBA Local 406. The grievance alleges that the Township violated the parties’ collective negotiations agreement and seeks compensation for its decision not to temporarily promote a sergeant to acting lieutenant as required by a municipal ordinance. The Commission finds that the decision to temporarily promote is a non-negotiable managerial prerogative and that municipal ordinances on non-negotiable subjects may not be incorporated into the contract. The Commission further finds there is no severable compensation claim. ¶

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 BYRAM TOWNSHIP, Petitioner, -and- Docket No. SN-2026-001 PBA LOCAL 406, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, Apruzzese, McDermott, Mastro & Murphy, P.C., attorneys (Arthur R. Thibault, of counsel) ¶

For the Respondent, Limsky Mitolo, attorneys (Merick H. Limsky, of counsel) ¶

DECISION ¶

On July 7, 2025, Byram Township (Township) filed a scope of negotiations petition seeking a restraint of binding arbitration of a grievance filed by the PBA Local 406 (PBA). The grievance asserts that the Township violated the parties’ collective negotiations agreement (CNA), Police Department Rules and Regulations, and a municipal ordinance by not filling the temporarily vacant Lieutenant position. The PBA challenges this decision following the retirement of the previous Chief of Police and the subsequent promotion of the then-Lieutenant to Chief. ¶

The Township filed briefs, exhibits and the certification of its Township Manager, Joseph Sabatini. The PBA filed a brief, an exhibit and the certification of its counsel, Merick H. Limsky.1/ These facts appear. ¶

The PBA represents all full-time uniformed police officers of the rank of Lieutenant and below employed by the Township on a permanent basis. The Township and PBA are parties to a CNA in effect from January 1, 2022 through December 31, 2026. The grievance procedure ends in binding arbitration. ¶

The Township Manager certifies to the following facts. The Township is a civil service jurisdiction subject to the rules and regulations of the Civil Service Commission regarding to appointments and promotions within its police department. The Township’s police department, when fully staffed, is comprised of 14 police officers - a Chief, one lieutenant, three sergeants, one detective, and eight patrol officers. ¶

On February 18, 2025, the previous Police Chief began terminal leave in advance of his March 1, 2025 retirement from the Township. Lieutenant (Lt.) Guy Mariani was then assigned as Acting Chief while the outgoing Chief was on terminal leave. Upon the Chief’s retirement, Lt. Mariani was promoted to Police Chief. The position of police lieutenant was intentionally left vacant by the Township. ¶

The Township Manager further certifies that the decision to leave the lieutenant’s rank vacant was made so that the Township could assess the need for a lieutenant in a small police department. This was part of an effort by the Mayor and Council to restructure the department and better define the role and duties of the police chief and the police lieutenant, if one were to be promoted. ¶

On March 24, 2025, the PBA asserts it filed a grievance, framing the issue in the following way: ¶

The Byram Township Policemen’s Benevolent Association (PBA) Local 406 is grieving the employer’s continuing failure/refusal to appoint a Sergeant to serve as an Acting Lieutenant in accordance with the Rules and Regulations, as stated in the Municipal Code, as well as the Collective Bargaining Agreement. ¶

The relevant municipal code referenced by the grievance states in part: ¶

Sergeants shall be second-ranking officers under the Chief of Police. In the temporary absence of the Police Lieutenant, a Police Sergeant shall act in his place, during which time he may be known as “Acting Lieutenant,” which title, however, shall be used only for the duration of the temporary absence or disability of the Police Lieutenant. ¶

[Byram Tp. Municipal Code, § 48-11.C(1).] ¶

On March 31, 2025, the grievance was denied by the Chief. The same day, the PBA advanced the grievance to the Township Manager at Step Two of the grievance procedure. On April 16, he denied the grievance, stating that the decision to appoint an acting, provisional or permanent lieutenant is a managerial prerogative. ¶

After mutual agreement by the parties to hold the grievance in abeyance, the PBA filed a Request for Submission of a Panel of Arbitrators on June 27, 2025 seeking to arbitrate the grievance. This petition ensued. ¶

Our jurisdiction is narrow. The Commission is addressing the abstract issue of whether the subject matter in dispute is within the scope of collective negotiations. We do not consider the merits of the grievance or any contractual defenses that the employer may have. Ridgefield Park Ed. Ass’n v. Ridgefield Park Bd. of Ed., 78 N.J. 144, 154 (1978). ¶

The scope of negotiations for police officers and firefighters is broader than for other public employees because N.J.S.A. 34:13A-16 provides for a permissive as well as a mandatory category of negotiations. Paterson Police PBA No. 1 v. City of Paterson, 87 N.J. 78, 92-93 (1981), outlines the steps of a scope of negotiations analysis for firefighters and police: ¶

First, it must be determined whether the particular item in dispute is controlled by a specific statute or regulation. If it is, the parties may not include any inconsistent term in their agreement. State v. State Supervisory Employees Ass’n, 78 N.J. 54, 81 (l978). If an item is not mandated by statute or regulation but is within the general discretionary powers of a public employer, the next step is to determine whether it is a term or condition of employment as we have defined that phrase. An item that intimately and directly affects the work and welfare of police and firefighters, like any other public employees, and on which negotiated agreement would not significantly interfere with the exercise of inherent or express management prerogatives is mandatorily negotiable. In a case involving police and firefighters, if an item is not mandatorily negotiable, one last determination must be made. If it places substantial limitations on government’s policymaking powers, the item must always remain within managerial prerogatives and cannot be bargained away. However, if these governmental powers remain essentially unfettered by agreement on that item, then it is permissively negotiable. ¶

Arbitration is permitted if the subject of the grievance is mandatorily or permissively negotiable. See Middletown Tp., P.E.R.C. No. 82-90, 8 NJPER 227 (¶13095 1982), aff’d (App. Div. 1983). Thus, if a grievance is either mandatorily or permissively negotiable, then an arbitrator can determine whether the grievance should be sustained or dismissed. Where a statute or regulation addresses a term and condition of employment, negotiations are preempted only if it speaks in the imperative and fixes a term and condition of employment expressly, specifically and comprehensively. Bethlehem Tp. Ed. Ass’n v. Bethlehem Tp. Bd. of Ed., 91 N.J. 38, 44 (1982); State v. State Supervisory Employees Ass’n, 78 N.J. 54, 80-82 (1978). Paterson bars arbitration only if the agreement alleged is preempted or would substantially limit government’s policy-making powers. ¶

The Township argues that arbitration must be restrained because the decision of whether to promote an employee to a vacant position is a managerial prerogative. It further argues that to find otherwise would undermine forty years of precedent holding that it would significantly interfere with the employer’s ability to determine staffing levels and would implicate a non- negotiable government policy determination. ¶

In opposition, the PBA argues that the subject matter of the grievance is arbitrable because it seeks to enforce a contractual provision relating to the compensation of a member by proving the Township violated a municipal ordinance. Specifically, it argues that a sergeant would have been compensated as a lieutenant had the Township followed its own law. The PBA specifically notes that it does not seek an order from the arbitrator that would command the Township to promote one of its members. ¶

In reply, the Township contends that the PBA’s position is indistinguishable from an attempt to compel the Township to appoint an acting lieutenant because the PBA asks the Commission to allow arbitration over the compensation for a sergeant who should have been promoted. The Township also avers that the PBA cited no legal authority for its position. ¶

The Commission finds that arbitration must be restrained because the decision to temporarily fill a vacant position is a non-negotiable managerial prerogative without any severable negotiable aspect. ¶

It is well-established that collective negotiations may “not limit the employer’s ability to determine qualifications to fill [temporary assignments] and to determine when and if such positions must be filled.” Atlantic City, P.E.R.C. No. 90-125, 16 NJPER 415 (¶21172 1990) (emphasis added); see also Paterson 8 N.J. 78, 97 (1981) (decision to promote is managerial prerogative); and Jersey City, P.E.R.C. No. 2024-17, 50 NJPER 247 (¶55 2023) (promotion of employees in either a permanent or provisional capacity not legally arbitrable). This correlates with a public employer’s managerial prerogative to set staffing levels. See Atlantic Cty. Sheriff (App. Div. 2021), aff’ g P.E.R.C. No. 2020-33, 46 NJPER 281 (¶69 2019); and Bergen Cty (App. Div. 1984), aff’ g P.E.R.C. No. 83-110, 9 NJPER 150 (¶14071 1983).2/ ¶

We further find that even if municipal ordinance § 48-11.C(1) created an enforceable right, it cannot be adjudicated through the grievance process. A contractual provision incorporating municipal ordinances “is illegal to the extent the ordinances pertain to matters which are not mandatory subjects of negotiation.” Paramus Boro. P.E.R.C. No. 86-17, 11 NJPER (¶16178 1985). Since the decision to temporarily promote is a managerial prerogative, the aspect of the ordinance affirmatively requiring the Police Chief to temporarily promote an employee cannot be incorporated into the CNA and, thus, is not legally arbitrable. ¶

We also reject the PBA’s assertion that there is a severable compensation claim. There has been no impact on negotiable terms and conditions of employment from the Township’s decision not to promote since the officers have not been performing the duties of lieutenant. Where “promotion and salary claims are [] interwoven” there is no severable negotiable compensation claim and we must order the complete restraint of the arbitration proceeding. Monmouth Cty., P.E.R.C. No. 96-15, 21 NJPER 213 (¶26 1995). ¶

OrderORDER ¶

The Township of Byram’s request for a restraint of binding arbitration is granted. ¶

BY ORDER OF THE COMMISSION ¶

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

ISSUED: October 23, 2025 ¶

Trenton, New Jersey ¶

Note1/ The PBA submitted a certification of its counsel encompassing an exhibit. However, the PBA did not recite all pertinent facts supported by certification(s) based upon personal knowledge. N.J.A.C. 19:13-3.6(f). ¶

2/ Once an employer decides to fill a vacant position, the issue of “temporary assignments to replace absent officers...may be permissively negotiable” depending on the circumstances. Camden, P.E.R.C. No. 93-43, 19 NJPER 15 (¶24008 1992) aff’d (App. Div. 1994). ¶