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Somerset County Sheriff's Office v. Somerset County Sheriff's Fop Lodge #39

January 25, 2008

IN THE MATTER OF SOMERSET COUNTY SHERIFF'S OFFICE, APPELLANT,
v.
SOMERSET COUNTY SHERIFF'S FOP LODGE #39, RESPONDENT.



On appeal from the Public Employment Relations Commission, Docket No. IA-2005-083.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 7, 2008

Before Judges S.L. Reisner, Gilroy and Baxter.

Somerset County appeals from a November 21, 2006 decision of the Public Employment Relations Commission (PERC) affirming an interest arbitration award setting terms for the contract between the County and its sheriff's officers, represented by the Somerset County Sheriff's FOP Lodge #39 (FOP). We affirm.

I.

A collective bargaining agreement between the FOP and the County expired on December 31, 2004. After failed negotiations regarding a successor contract that was to cover the period of January 1, 2005, through December 31, 2007, the parties submitted the matter to interest arbitration pursuant to N.J.S.A. 34:13A-16. A hearing was held before an arbitrator appointed by PERC. In broad outline, the County offered the FOP a 1% annual increase, while the FOP demanded a 6% increase. On August 31, 2006, the arbitrator rendered an award giving the sheriff's officers a salary package which was near the midpoint of the parties' respective bargaining positions and which was comparable to the salary increases agreed on in the County's previous settlement with the corrections officers. To the extent relevant to this appeal, we discuss the details of the award later in this opinion.

On October 3, 2006, the County appealed the salary ruling to PERC, which affirmed the award on November 21, 2006. This appeal followed.

II.

"[I]nterest arbitration concerns the resolution of disputes about new collective bargaining agreements . . . [It] is essentially a creature of statute. With interest arbitration, PERC provides arbitrators who must apply specific uniform criteria." Policeman's Benevolent Ass'n Local 292 v. Borough of N. Haledon, 158 N.J. 392, 400 (1999).

The Legislature has specifically mandated interest arbitration to resolve collective bargaining disputes between public employers and law enforcement employees, recognizing the "unique and essential duties" those employees perform, the "life threatening dangers [they] regularly confront" and the importance of maintaining the "high morale" of these employees. N.J.S.A. 34:13A-14(a). The same statute, however, also recognizes the importance of giving "all due consideration to the interests and welfare of the taxpaying public." N.J.S.A. 34:13A-14(b).

Pursuant to statutory amendments enacted effective in 1996, L. 1995, c. 425,*fn1 when a public employer and a law enforcement agency reach an impasse, the dispute is to be resolved by conventional arbitration, in which the arbitrator hears the dispute and crafts the terms of a new agreement. See N.J.S.A. 34:13A-16d. Either party may appeal the arbitrator's award to PERC, which in turn "may affirm, modify, correct or vacate the award or may, at its discretion, remand the award to the same arbitrator or to another arbitrator, selected by lot, for reconsideration." N.J.S.A. 34:13A-16f(5)(a).

In deciding an interest arbitration, the arbitrator must consider the following factors:

The arbitrator or panel of arbitrators shall decide the dispute based on a reasonable determination of the issues, giving due weight to those factors listed below that are judged relevant for the resolution of the specific dispute. In the award, the arbitrator or panel of arbitrators shall indicate which of the factors are deemed relevant, satisfactorily explain why the others are not relevant, and provide an analysis of the evidence on each relevant factor:

(1) The interests and welfare of the public. Among the items the arbitrator or panel of arbitrators shall assess when considering this factor are the limitations imposed upon the employer by P.L.1976, c.68 (C.40A:4-45.1 et seq.).

(2) Comparison of the wages, salaries, hours, and conditions of employment of the employees involved in the arbitration proceedings with the wages, hours, and conditions of employment of other employees performing the same or similar services and with other employees generally:

(a) In private employment in general; provided, however, each party shall have the right to submit additional evidence for the arbitrator's consideration.

(b) In public employment in general; provided, however, each party shall have the right to submit additional evidence for the arbitrator's consideration.

(c) In public employment in the same or similar comparable jurisdictions, as determined in accordance with section 5 of P.L.1995, c.425 (C.34:13A-16.2); provided, however, that each party shall have the right to submit additional evidence concerning the comparability of jurisdictions for the arbitrator's consideration.

(3) The overall compensation presently received by the employees, inclusive of direct wages, salary, vacations, holidays, excused leaves, insurance and pensions, medical and hospitalization benefits, and all other economic benefits received.

(4) Stipulations of the parties.

(5) The lawful authority of the employer. Among the items the arbitrator or panel of arbitrators shall assess when considering this factor are the limitations imposed upon the employer by P.L.1976, c.68 (C.40A:4-45.1 et seq.).

(6) The financial impact on the governing unit, its residents and taxpayers. When considering this factor in a dispute in which the public employer is a county or a municipality, the arbitrator or panel of arbitrators shall take into account, to the extent that evidence is introduced, how the award will affect the municipal or county purposes element, as the case may be, of the local property tax; a comparison of the percentage of the municipal purposes element or, in the case of a county, the county purposes element, required to fund the employees' contract in the preceding local budget year with that required under the award for the current local budget year; the impact of the award for each income sector of the property taxpayers of the local unit; the impact of the award on the ability of the governing body to (a) maintain existing local programs and services, (b) expand existing local programs and services for which public moneys have been designated by the governing body in a proposed local budget, or (c) initiate any new programs and services for which public moneys have been designated by the governing body in a proposed local budget.

(7) The cost of living.

(8) The continuity and stability of employment including seniority rights and such other factors not confined to the foregoing which are ordinarily or traditionally considered in the determination of wages, hours, and conditions of employment through collective negotiations and collective bargaining between the parties in the public service and in private employment.

(9) Statutory restrictions imposed on the employer. Among the items the arbitrator or panel of arbitrators shall assess when considering this factor are the limitations imposed upon the employer by section 10 of P.L.2007, c.62 (C.40A:4-45.45).*fn2

[N.J.S.A. 34:13A-16g (emphasis added).]

While the arbitrator need not rely on all of the statutory factors, the arbitrator must at least consider the factors and explain why any factor not relied on is not relevant. This specific statutory requirement, added to N.J.S.A. 34:13A-16g in the 1995 amendments, L. 119, ...


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