P.E.R.C. No. 2026-12, Edison Tp

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of TOWNSHIP OF EDISON, Petitioner, -and- Docket No. SN-2026-003 AFSCME COUNCIL 63, LOCAL 3269, Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission grants, in part, and denies, in part, the Township’s request for a restraint of binding arbitration of Local 3269’s grievance. The grievance alleges that the Township violated parties’ CNA when it promoted a less senior member of the same bargaining unit over the grievant. The Commission finds the grievance not arbitrable to the extent that the grievance is challenging the Township not promoting the grievant based on its determination that another candidate was better qualified for the position. The Commission finds the grievance arbitrable to the extent that the grievance concerns promotional procedures, including Local 3269's claims that the Township changed promotional criteria without notice and that it did not provide requested information concerning the selected candidate’s qualifications for the position. ¶

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 TOWNSHIP OF EDISON, Petitioner, -and- Docket No. SN-2026-003 AFSCME COUNCIL 63, LOCAL 3269, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, Ruderman & Roth, LLC, attorneys (Allan C. Roth, of counsel) ¶

For the Respondent, AFSCME Council 63 (Tracy Smith, Staff Representative) ¶

DECISION ¶

On August 1, 2025, the Township of Edison (Township or Department) filed a scope of negotiations petition seeking a restraint of binding arbitration of a grievance filed by AFSCME Council 63, Local 3269 (Local 3269). The grievance asserts that the Township violated Article XXV (Union Rights), Subsection C(2) (Job Bidding) of the parties’ collective negotiations agreement (CNA) when it promoted a less senior member of the same bargaining unit to the position of Chief Registered Environmental Health Specialist (CREHS) over the Grievant, who was more qualified for the position. ¶

The Township filed a brief and exhibits. Local 3269 filed a brief and exhibits. Neither party filed a certification.1/ These facts appear. ¶

Local 3269 represents all salaried and hourly employees in the classifications listed under Appendix A of the CNA. The Township and Local 3269 are parties to a CNA with a term of January 1, 2023 through December 31, 2027. The grievance procedure ends in binding arbitration. ¶

Article II(A)(4)(Management Rights) provides, in pertinent part: ¶

The Employer hereby retains and reserves unto itself, without limitation all powers, rights, authority, duties, and responsibilities...To hire all employees, whether permanent or temporary; to promote, transfer, assign or retain employees. ¶

Article XXV (Union Rights) of the parties’ CNA, entitled “Union Rights,” provides in pertinent part: ¶

C. Job Bidding ¶

1. As established in section B above, when a vacancy exists in an established position or a newly created position needs to be filled, the Township will make every effort to seek qualified applicants from among the current Township employees. ¶

2. If one or more bargaining unit members are equally qualified, Township seniority shall prevail. ¶

The job description provides the following requirements for the CREHS position: ¶

-Six (6) years of experience in performing the duties incumbent upon a Registered Environmental Health Specialist in the enforcement of relevant sanitary, environmental, and public health laws, rules and ordinances; ¶

- Three (3) years as a Principal Environmental Health Specialist; and ¶

-Possession of an active Registered Environmental Health Specialist License issued by the New Jersey Department of Health and Senior Services. ¶

The Township makes the following representations in its brief. It received approximately four to five applications for the CREHS position. Only two candidates interviewed for the position and possessed the requisite certifications and qualifications. Both candidates were interviewed in October 2024 for forty minutes by the Township’s Director of Health and Human Services, the Human Resources Coordinator, and the Chief of Staff. The Grievant did not perform well during the interview because the only qualification she discussed was her seniority. She failed to demonstrate how her experience would qualify her for the position or meet the needs of the Department. The Grievant’s seniority and experience were not enough to overcome the strong qualifications of the other candidate. During the interview the other candidate demonstrated overwhelming substantive qualifications for the position including more experience with registered environmental health specialist work and continuously showed initiative in that role. After analyzing the interviews, the Township chose to promote the other candidate who was the less senior employee but who was the most qualified for the position. ¶

Local 3269 represents in its brief that prior to the position being posted, the selected candidate was promised the CREHS position by the Township’s Director of Health and Human Services.2/ Local 3269 further asserts that it requested the qualifications for the selected candidate three times,3/ and the Township did not comply with the requests. The remainder of Local 3269's disputed factual assertions concern the respective candidates’ qualifications for the position and the Township’s evaluation of those qualifications during the interviews. ¶

On December 17, 2025, Local 3269 filed its grievance alleging a violation of the CNA’s Article XXV (Union Rights), Subsection C(2)(Job Bidding) and requesting the following remedy: ¶

To provide the employee with the aforementioned position or salary; to make [the Grievant] whole; to have the Township provide qualifications for other applicants, including the chosen applicant. ¶

Local 3269's March 4, 2025 Request for Submission of a Panel of Arbitrators frames the grievance as follows: ¶

The township promoted a member of the same bargaining unit with the same job qualifications for [the CREHS position] over [the Grievant] who has the most seniority violating Article XXV Union Rights - Letter C - Job Bidding. The Township in a grievance meeting stated regarding this issue that [the Grievant] did not do well in her interview...The union requested the qualifications of the other member due to the fact that [the Grievant] actually has a housing, multi-dwelling licenses giving her more qualifications for a position...to date the union has not received them...The union is requesting as a result that [the Grievant] receive the position and money. ¶

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 merits of the grievance or any contractual defenses the employer may have. ¶

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.] ¶

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). ¶

It is well-settled that public employers have a non-negotiable managerial prerogative to fill vacancies and to make promotions to meet the governmental policy goal of matching the best qualified employees to particular jobs. Washington Tp., P.E.R.C. No. 2002-80, 28 NJPER 294 (¶33110 2002) (citing, e.g., Local 195, IFPTE v. State, 88 N.J. 393 (1982); Ridgefield Park, supra). Promotional criteria are not mandatorily negotiable, while promotional procedures are. Ibid. (citing, Bethlehem Ed. Ass'n v. Bethlehem Bd. of Ed., 91 N.J. 38 (1982); State v. State Supervisory Employees Ass'n, 78 N.J. 54 (1978)); see also Plainsboro Tp. P.E.R.C. No. 2023-38, 49 NJPER 450 (¶109 2023)(restraining arbitration to the extent the grievance challenges promotional criterion, but declining to restrain arbitration to the extent the grievance challenges the Township’s alleged failure to provide notice about a change in that promotional criterion). ¶

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 Essex Cty., P.E.R.C. No. 2024-55, 51 NJPER 28 (¶8 2024); Bergen Cty., P.E.R.C. No. 2019-23, 45 NJPER 217 (¶57 2018). “An arbitrator cannot second-guess those determinations.” Middlesex Cty. Bd. of Social Services, P.E.R.C. No. 92-93, 18 NJPER 137 (¶23065 1992). 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 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). ¶

However, the opportunity to apply for a promotion is a term and condition of employment, and candidates should be made aware of the basis upon which they will be evaluated so that they are equipped to understand how promotional decisions are made. State Police v. State Troopers NCO Ass’n of N.J., 179 N.J. Super. 80, 89-91 (App. Div. 1981). A dispute concerning whether an employer followed a specific practice relating to the application of its promotional criteria or provided notice of same is legally arbitrable. See Ridgefield Park; Plainsboro Tp., supra. ¶

Based on the clear precedent established above, Local 3269’s grievance is not legally arbitrable to the extent that it is challenging the Township not promoting the grievant based on its determination that the less senior candidate was better qualified for the position. However, Local 3269's grievance is legally arbitrable to the extent it is asserting that the Township changed promotional criteria without notice as that involves a determination as to whether promotional procedures were violated. Moreover, Local 3269's grievance is legally arbitrable to the extent that it seeks the selected candidate’s qualifications for the CREHS position. Hohokus Boro., P.E.R.C. No. 2022-39, 48 NJPER 400 (¶91 2022)(finding that a grievance challenging the Borough’s failure to provide requested information concerning the promotional process was legally arbitrable.) “[A]n employer must supply information if [there is] a probability that the information is potentially relevant and that it will be of use to the union in carrying out its statutory duties.” In re Univ. of Medicine and Dentistry of New Jersey, 144 N.J. 511, 530-531 (1996). The Township may raise any specific confidentiality concerns to the arbitrator. ¶

For the foregoing reasons, we grant, in part, and deny, in part, the Township’s request for a restraint of binding arbitration of Local 3269's grievance. We decline to speculate about what remedies would be appropriate if the arbitrator were to find a contractual violation. ¶

OrderORDER ¶

The request of the Township of Edison for a restraint of binding arbitration is granted to the extent that the grievance is challenging the Township not promoting the grievant based on its determination that another candidate was better qualified for the position. The request for a restraint of binding arbitration is denied to the extent that the grievance concerns promotional procedures, including Local 3269's claims that the Township changed promotional criteria without notice and that it did not provide requested information concerning the selected candidate’s qualifications for the CREHS position. ¶

BY ORDER OF THE COMMISSION ¶

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

ISSUED: October 23, 2025 ¶

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/ Local 3269 submits two emails dated August 21, 2025, from the Grievant and another employee, regarding conversations they had with the selected candidate on September 27, 2024 about being offered the CREHS position. ¶

3/ On December 19, 2024, January 28 and February 7, 2025. ¶