On appeal from the final decision of the Public Employment Relations Commission.
Matthews, Antell and Francis. The opinion of the court was delivered by Matthews, P.J.A.D.
On March 24, 1982 appellant Policemen's Benevolent Association, Local No. 145 (PBA) made a formal demand for binding arbitration of Art. XXIII, § A, of the collective bargaining agreement between the PBA and respondent township. An arbitration hearing was eventually scheduled for July 6, 1982.
On July 1, 1982 labor counsel for the township appeared before a hearing examiner of the Public Employment Relations Commission seeking to restrain the arbitration on the ground that the subject matter of Art. XXIII, § A, of the collective bargaining agreement was outside the scope of negotiability of public employee contracts because it related to transfer from one pension system to another. A hearing was held that same day before a PERC hearing examiner, who found the matter nonnegotiable and entered an order restraining the scheduled arbitration and transferring the matter directly to the Commission for final disposition.
The Commission considered the matter at its meeting of October 7, 1982. The vote of the Commission was a 3-3 tie, one member being absent, thus affirming the decision of the hearing examiner and leaving the stay of arbitration in force.
PBA requested that a special meeting of the Commission be scheduled to consider the matter before the full Commission. The request was refused and this appeal followed. We expedited the proceedings and have heard the argument of counsel.
The issue before us is whether the PBA has the right to enforce an article in the collective bargaining agreement currently existing between the PBA and the township which provides:
The Township of East Brunswick will seek to obtain membership for the employees covered by this agreement in the Police and Fire Pension Plan and terminate the present pension plan during the term of this Agreement, if not by an act of the New Jersey Legislature, then by binding referendum of the Public.
We are informed that the inclusion of Art. XXIII, § A, in the final collective bargaining agreement was the culmination of the PBA's efforts to effect a transfer from the Public Employees' Retirement System (PERS) to the Police and Firemen's Retirement System (PFRS). Throughout its negotiations with the township the PBA had constantly sought the township's agreement to such a transfer because the benefits under PFRS are far superior to those under PERS. We are also informed that the PBA was successful in obtaining the township's agreement to the transfer only by giving up several other PBA demands, such as increased longevity pay, shift differentials, limiting the term of the collective bargaining agreement to only one year, obtaining a PBA office at the police headquarters, and other items.
After the agreement had been executed pursuant to a resolution of the township council, the township administrator contacted then-Assemblyman James Bornheimer and requested that he sponsor legislation to enable the transfer of members of the PBA from PERS to PFRS to be effected by local ordinance. Bornheimer, joined by several other assemblymen, complied with that request and introduced Assembly Bill 3502. That bill then passed both houses of the Legislature, was signed by the Governor and became L. 1981, c. 404. That law provides:
1. Notwithstanding the provisions to the contrary of any law, the governing body of any municipality which has a population of at least 20,000 and not more than 40,000 according to the latest Federal decennial census, and which has adopted the mayor-council Plan E of the "Optional Municipal Charter Law" (P.L.1950, c. 210; C. 40:69A-1 et seq.), may by ordinance adopt the ...