P.E.R.C. No. 2026-26, Lower Tp

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of TOWNSHIP OF LOWER, Petitioner, -and- Docket No. SN-2026-013 AFSCME LOCAL 3779, Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission denies the Township's request for a restraint of binding arbitration of the Local's grievance, which alleges that the grievants should have received retroactive pay for promotions from January 1, 2025 instead of from June 1, 2025. The Commission finds that the Civil Service Commission statutes relied on by the Township do not preempt the Local’s claim of retroactive compensation from the date the grievants began performing higher level work. The Commission concludes that the issue of whether the grievants are entitled to retroactive compensation from January 1 is legally 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 TOWNSHIP OF LOWER, Petitioner, -and- Docket No. SN-2026-013 AFSCME LOCAL 3779, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, Blaney, Donohue & Weinberg, P.C., attorneys (William G. Blaney, of counsel; Catherine E. Boggia, on the brief) ¶

For the Respondent, AFSCME New Jersey Council 63, (Seth Gollin, of counsel) ¶

DECISION ¶

On October 3, 2025, the Township of Lower (Township) filed a scope of negotiations petition seeking a restraint of binding arbitration of a grievance filed by AFSCME Local 3779 (the Local). The grievance alleges that four employees did not receive retroactive pay for promotions from January 1, 2025; but rather, incorrectly received retroactive pay from June 1, 2025. ¶

The Township filed a brief, exhibits, and the certification of its counsel. The Local filed a brief.1/ These facts appear. ¶

The Local represents the Township’s full-time and part-time white-collar employees. The Township and the Local are parties to a collective negotiations agreement (CNA) with a term of January 1, 2024 through December 31, 2026, which continues in effect. The grievance procedure ends in binding arbitration. Article XVIII (General Provisions) at ¶ C provides: ¶

Employees who are covered by this Agreement shall perform duties and responsibilities outlined in the New Jersey Department of Civil Service job specifications for their positions. ¶

The Township’s counsel certifies to the following facts. On July 10, 2025, the Local filed a grievance on behalf of four employees alleging the following: ¶

... The effective date of [the employees’ ] promotion should have been 01/01/25 as their promotions were included in the 2025 departmental budgets. However, they only received retroactive pay from 06/01/25. As per established precedent, employees whose promotions were included in the current year departmental budgets have always received retroactive pay dating back to January 1 of that year. This has been a consistent and well-established past practice for over 15 years. This is in accordance to any and all articles of the [CNA]. ¶

* * * ¶

We request that the affected employees be issued the remaining retroactive pay covering the period of January 1, 2025 through May 31, 2025 in alignment with prior years practices and expectations set during the budgeting process. ¶

On July 11, 2025, the Township Manager denied the grievance. On July 28, the Local filed an appeal of the grievance, stating that Civil Service regulations allow for provisional appointments for up to six months prior to official approval and that the parties’ past practice was to recognize these promotions retroactive to January 1 of the budgeted year. On July 31, the Township Manager denied the Local’s appeal, explaining that the grievants were not provisionally appointed, budgeting allowances do not guarantee promotion, and that promotions without retroactive pay have not been a consistent past practice of the Township. ¶

On August 15, the Local filed a Request for Submission of a Panel of Arbitrators identifying the grievance as follows: ¶

The Township failed and refused to compensate AFSCME Local 3779 unit members...for higher title work retroactive to January 1, 2025 in violation of Article XVIII.C. and all other applicable provisions of the parties collective negotiations agreement, past practice and applicable law. ¶

On August 27, the Commission appointed an arbitrator. 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). ¶

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). ¶

The Township argues that the Local’s grievance is preempted by Civil Service Commission (CSC) statutes and should be restrained. The Township asserts that the grievants were promoted with an effective date of June 1, 2025, and the CSC’s statutes and regulations do not require that an employee be paid retroactively for their new title, even if they were performing some higher level duties before their promotion. The Township further asserts that none of the grievants were appointed provisionally. The Township argues that the grievants cannot be paid for a promotion they did not acquire before June 1 and that there is no established past practice of retroactively paying promoted employees. ¶

The Local argues that the grievance is arbitrable because it is seeking retroactive compensation for higher title work the grievants performed while their promotions were pending. The Local argues this issue is negotiable and arbitrable based on Commission precedent and the parties’ established past practice. The Local asserts that the CSC statutes and regulations cited by the Township do not preempt its grievance, which challenges compensation owed for the grievants performing higher level duties. ¶

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. This includes claims for additional compensation for work performed in a higher title or different job category. West Caldwell Tp., P.E.R.C. No. 2016-52, 42 NJPER 361 (¶102 2016)(finding that “[e]mployees have a strong interest in receiving additional pay for performing work of a higher level or different nature than that on which their standard compensation is based. In general, those compensation claims do not significantly interfere with governmental policymaking.” ); see also City of Paterson, P.E.R.C. No. 2024-39, 50 NJPER 354 (¶84 2024). ¶

We find that the CSC statutes and regulations relied upon by the Township do not preempt the Local’s grievance. N.J.S.A. 11A:3-1, “Classification,” provides, among other things, that the CSC shall establish a State classification plan governing all positions in State service, assign and reassign titles to appropriate positions, and provide a specification for each title. N.J.S.A. 11A:3-2, “Career Service” , provides in pertinent part, “the commission shall assign and reassign such titles to each division and may provide for movement, including promotion, of employees from one division to the other.” Additionally, the Township references N.J.S.A. 11A:3-7, “Employee Compensation” , which provides in pertinent part, “[e]mployees of political subdivisions are to be paid in reasonable relationship to titles and shall not be paid a base salary below the minimum or above the maximum established salary for an employee’s title.” ¶

These statutes do not expressly, specifically and comprehensively preempt the Local’s assertion to entitlement for additional compensation. N.J.S.A. 11A:3-1 empowers the CSC to classify positions in State service. N.J.S.A. 11A:3-2 enables the CSC to assign and reassign titles and provides movement among divisions. N.J.S.A. 11A:3-7 requires that employees be compensated based on the minimum and maximum salary range for their titles. None of these statutes preempt the Township’s ability to promote employees and provide retroactive compensation to the date the promoted employees began performing the higher level work. ¶

In State of New Jersey (Juvenile Justice Commission), P.E.R.C. No. 2020-30, 46 NJPER 272 (¶66 2019), the Commission found that arbitration over a grievant’s compensation following the inclusions of his title in the negotiations unit was not preempted by N.J.S.A. 11A:3-1 and its regulations. In that case, the grievance challenged the grievant’s placement in the proper Employee Relations Group and the corresponding compensation increase. Those facts are akin to the grievants’ retroactive compensation claims based on their promotions.2/ In State of New Jersey (Dept. of Environmental Protection), P.E.R.C. No. 2018-37, 44 NJPER 376 (¶106 2018), we found that N.J.S.A. 11A:3-7 and corresponding regulations were not preemptive of a grievance contesting the grievants’ appropriate placement on a salary guide as the 2001 amendments to N.J.S.A. 11A:3-7 made compensation mandatorily negotiable for State employees represented by a majority representative under the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1, et seq. ¶

For the foregoing reasons, we find the Local’s grievance mandatorily negotiable and legally arbitrable. Whether the grievants were actually performing higher title work and whether the grievants are entitled to additional compensation based on the CNA’s Article XIII or an alleged past practice are issues for an arbitrator. Ridgefield Park. Accordingly, we deny the Township’s request for restraint of binding arbitration. ¶

OrderORDER ¶

The Township of Lower’s request for a restraint of binding arbitration is denied. ¶

BY ORDER OF THE COMMISSION ¶

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

ISSUED: February 26, 2026 ¶

Trenton, New Jersey ¶

Note1/ The Local did not file a certification. N.J.A.C. 19:13- 3.6(f) requires that all pertinent facts be supported by certifications based upon personal knowledge. ¶

2/ However, we did find that N.J.S.A. 11A:3-1 and applicable regulations did preempt arbitration to the extent the grievance sought to compel the State to classify, assign, or reassign classification of the grievant’s position, none of which are at issue in this case. ¶