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County of Monmouth v. Communications Workers of America

April 22, 1997

COUNTY OF MONMOUTH, PETITIONER-APPELLANT,
v.
COMMUNICATIONS WORKERS OF AMERICA, RESPONDENT-RESPONDENT. COUNTY OF UNION, PETITIONER-RESPONDENT, V. PATROLMEN'S BENEVOLENT ASSOCIATION, UNION COUNTY CORRECTION OFFICERS, LOCAL NO. 199, INC., RESPONDENT-APPELLANT. TOWNSHIP OF SOUTH BRUNSWICK, PETITIONER-RESPONDENT, V. SOUTH BRUNSWICK PBA LOCAL 166, RESPONDENT-APPELLANT. TOWNSHIP OF WOODBRIDGE, PETITIONER-APPELLANT, V. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN, AND HELPERS OF AMERICA, LOCAL 469, RESPONDENT-RESPONDENT. TOWNSHIP OF WOODBRIDGE, PETITIONER-APPELLANT, V. LOCAL 3044, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, RESPONDENT-RESPONDENT. TOWNSHIP OF WOODBRIDGE, PETITIONER-APPELLANT, V. LOCAL 3044, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, RESPONDENT-RESPONDENT. TOWNSHIP OF WOODBRIDGE, PETITIONER-APPELLANT, V. LOCAL 3044, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, RESPONDENT-RESPONDENT. CITY OF ORANGE TOWNSHIP, PETITIONER-APPELLANT, V. ORANGE FMBA LOCAL NO. 10, RESPONDENT-RESPONDENT. COUNTY OF HUDSON, PETITIONER-APPELLANT, V. DISTRICT 1199J, NUHHCE, AFSCME, AFL-CIO, RESPONDENT-RESPONDENT. COUNTY OF HUDSON, PETITIONER-RESPONDENT, V. NEW JERSEY STATE PATROLMEN'S BENEVOLENT ASSOCIATION, LOCAL NO. 51, RESPONDENT-APPELLANT. BOROUGH OF HOPATCONG, PETITIONER-APPELLANT, V. PBA LOCAL 149, RESPONDENT-RESPONDENT.



On appeal from eleven decisions and orders of the Public Employment Relations Commission.

Approved for Publication April 24, 1997.

Before Judges Dreier, D'Annunzio and Villanueva. The opinion of the court was delivered by Dreier, P.j.a.d.

The opinion of the court was delivered by: Dreier

The opinion of the court was delivered by

DREIER, P.J.A.D.

In six of these eleven consolidated cases, public employers appeal from separate decisions of the Public Employment Relations Commission ("PERC") declining to restrain the binding arbitration of minor disciplinary actions against Civil Service employees who were not police officers. In two cases, public employee organizations appeal from separate PERC decisions restraining the binding arbitration of minor disciplinary actions against police officers, Civil Service employees, and in one case from the dismissal of a provisional corrections officer employee. In the remaining two cases, the public employers appeal from PERC decisions restraining arbitration in a police officer job-reassignment dispute, and declining to restrain the binding arbitration of certain pre-discipline procedural matters in a minor disciplinary action against a police officer Civil Service employee. We have consolidated the cases because they involve related issues of the Disposition of minor discipline cases of Civil Service employees.

Principally at issue is whether a public employer may submit a minor disciplinary dispute involving Civil Service employees to binding arbitration. Cases decided prior to a recent amendment to N.J.S.A. 34:13A-5.3 indicate that it may not. See L. 1996, c. 115, § 4, (effective January 9, 1997, 120 days following its approval on September 11, 1996). Also at issue is whether a public employer may submit to binding arbitration certain procedural matters, the timeliness of a disciplinary charge and the necessity for a hearing on that charge before guilt is determined, attendant to a minor disciplinary action involving a police officer who is a Civil Service employee. Additionally, there is a question as to whether these same rules apply to the dismissal of a provisional employee or to an employee's reassignment, allegedly for disciplinary reasons. Finally, there is an issue concerning how to treat five-day suspensions, since the new statute covers punishment for "less than five days," while the Civil Service law defines a minor grievance as one of "five days or less." N.J.S.A. 11A:2-14 and 16.

I. The Cases Presented

In each case, a governmental entity petitioned PERC to restrain the binding arbitration of a grievance in a minor disciplinary action involving a Civil Service employee. In each case, the governmental entity and an employee-representative organization had previously entered into a collective negotiations agreement that included a provision for the binding arbitration of grievances. In each case, the dispute centered chiefly upon whether the governmental entity was legally required to agree to such binding arbitration of disciplinary grievances involving Civil Service employees. A brief description of each of the eleven cases follows in chronological order.

In County of Monmouth v. Communications Workers of America, A-3286-94T1, the County imposed a three-day suspension on an income maintenance worker for her alleged failure to meet deadlines, her low productivity, and her excessive use of supervisory time. The union filed a grievance, and the County petitioned PERC for a scope of negotiations determination, seeking to restrain binding determination of the grievance. On January 25, 1995, PERC refused to restrain arbitration of the grievance.

In Township of Woodbridge v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, Local 469, A-3476-94T1, the Township suspended a senior maintenance worker for five days for his alleged insubordination, disorderly conduct, neglect of duty, and willful violation of work rules. The union filed a grievance, and the Township petitioned PERC for a scope of negotiations determination to restrain binding arbitration. On January 25, 1995, PERC denied the Township's request to restrain arbitration.

In Township of Woodbridge v. Local 3044, American Federation of State, County, and Municipal Employees, A-3477-94T1, the Township suspended a principal clerk typist for two days for alleged outbursts toward a fellow employee. The typist filed a grievance, and the Township petitioned PERC for a scope of negotiations determination to restrain binding arbitration. On January 25, 1995, PERC refused to restrain the arbitration.

In Township of Woodbridge v. Local 3044, American Federation of State, County and Municipal Employees, A-3478-94T1, the Township suspended a senior clerk typist for three days for allegedly turning in incomplete and incorrect petty cash vouchers. The union filed a grievance, and the Township petitioned PERC for a scope of negotiations determination to restrain binding arbitration. On January 25, 1995, PERC denied the Township's request.

In Township of Woodbridge v. Local 3044, American Federation of State, County and Municipal Employees, A-3479-94T1, the Township again disciplined the same clerk typist, this time imposing a five-day suspension for allegedly talking back to the mayor. She filed a grievance, and the Township petitioned PERC for a scope of negotiations determination to restrain binding arbitration. On January 25, 1995, PERC refused to restrain arbitration.

In City of Orange Township v. Orange FMBA Local No. 10, A-3480-94T1, the City suspended a firefighter for four days for allegedly feigning illness and for leaving his house while on sick leave without first calling the department. The firefighters' union filed a grievance, and the City petitioned PERC for a scope of negotiations determination to restrain binding arbitration. On January 25, 1995, PERC denied the City's request to restrain arbitration. This matter has been settled by the parties, and the appeal has been withdrawn.

In County of Hudson v. District 1199J, NUHHCE, AFSCME, A-3483-94T1, the County suspended a clerk typist for three days for allegedly failing both to advise her supervisor of her absence and to produce a doctor's note. The union filed a grievance, and the County petitioned PERC for a scope of negotiations determination to restrain binding arbitration. On January 25, 1995, PERC refused to restrain arbitration.

In County of Union v. Patrolmen's Benevolent Association, Union County Corrections Officers, Local No. 199, Inc., A-3416-94T1, the County terminated a provisionally appointed corrections officer for conduct unbecoming a public employee. The officer's union filed a grievance, and the County petitioned PERC for a scope of negotiations determination to restrain binding arbitration. On January 25, 1995, PERC granted the County's request to restrain arbitration.

In Township of South Brunswick v. South Brunswick PBA Local 166, A-3418-94T1, a police officer filed a grievance alleging that the chief of police violated provisions of the collective negotiations agreement by reassigning him to a different job on the police force. Subsequently, the Township petitioned PERC for a scope of negotiations determination to restrain arbitration. On January 25, 1995, PERC granted the Township's petition to restrain binding arbitration of the job-reassignment dispute.

In County of Hudson v. New Jersey State Patrolmen's Benevolent Association, Local No. 51, A-4698-94T1, the County imposed separate five-day and three-day suspensions on a police lieutenant for, respectively, threatening another police officer and for refusing to follow a superior officer's directive. The union filed a grievance and the County petitioned PERC for a scope of negotiations determination to restrain arbitration. On March 27, 1995, PERC granted the County's request to restrain arbitration.

In Borough of Hopatcong v. PBA Local 49, A-0371-95T5, the Borough suspended a police officer for two days for allegedly violating both a departmental rule concerning sick and injury leave as well as a procedure concerning job-related injuries. In the course of imposing the suspension, the Borough was alleged to have violated the employee's procedural rights by failing both to bring charges against him within forty-five days of the culpable incident and to conduct a hearing before imposing discipline. The union filed a grievance, and the Borough petitioned PERC for a scope of negotiations determination to restrain binding arbitration. On March 27, 1995, PERC granted the Borough's request to restrain arbitration of the grievance to the extent that the Borough either contested the merits of the two-day suspension or sought to have an arbitrator sit as a hearing officer. However, PERC "declined to restrain arbitration to the extent that the grievance claimed violations of the officer's procedural rights to have charges brought within 45 days and to receive a hearing before any discipline was imposed." On July 28, 1995, PERC also denied the Borough's motion for reconsideration.

While the appeals were pending, we granted the motion of the State to appear as amicus curiae in the consolidated appeals and the motions of the New Jersey State Lodge, The Fraternal Order of Police and the New Jersey State Policemen's Benevolent (PBA) to appear as amici curiae in A-3416-94T1, A-3418-94T1, and A-4698-94T1.

As noted earlier, the principal question on appeal is whether a minor disciplinary action involving a Civil Service employee is arbitrable. PERC answered this question in the affirmative for non-police employees and in the negative for police employees.

II. Historical Development

Case law interpreting the relevant statutes before the recent amendment to N.J.S.A. 34:13A-5.3 states clearly that PERC should not have based its decisions on the distinction between police and non-police Civil Service employees. Instead, the critical distinction was between those employees who have Civil Service status and those who do not. Civil Service employees who are involved in a minor disciplinary action could not have a resulting grievance submitted to binding arbitration, while non-Civil Service employees could. State v. State Troopers Fraternal Ass'n, 134 N.J. 393, 400-13, 634 A.2d 478 (1993).

Before the 1996 amendment, this dispute centered on our Supreme Court's interpretation of the 1982 "discipline amendment" to N.J.S.A. 34:13A-5.3, L. 1982, c. 103, which is part of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 to -29. Although all of the PERC decisions and the State Troopers case were based on this Act, the 1996 amendment so radically changed the applicable law that we must reanalyze the law in light of this change.

As originally enacted, N.J.S.A. 34:13A-5.3 required public employers to negotiate in good faith with the majority representative of public employees concerning "grievances and terms and conditions of employment." L. 1968, c. 303, ยง 7. However, the Act did not define what was meant by "terms and conditions of employment" and did not specify which terms were negotiable and which terms were not. See State v. State Troopers Fraternal Ass'n, (supra) , 134 N.J. at 401. As a result of this lack of definitions, courts were left to ...


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