On appeal from a Final Decision of the New Jersey Public Employment Relations Commission, P.E.R.C. No. 2010-17.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 22, 2010
Before Judges Cuff, Sapp-Peterson, and Simonelli.
This matter involves a public sector compulsory interest arbitration
award rendered pursuant to the Police and Fire Public Interest
Arbitration Reform Act (Act), N.J.S.A. 34:13A-14 to -16.6.*fn1
Appellant Borough of Fort Lee (Borough) appeals from two
decisions of the Public Employment Relations Commission (PERC): (1)
the initial decision of May 28, 2009, remanding the matter to the
arbitrator; and (2) the supplemental decision of September 24, 2009,
affirming the arbitrator's award. We affirm.
Respondent PBA Local 235 (PBA) represents approximately 100 Borough police officers. The Borough and the PBA are parties to a 2003-2006 collective bargaining agreement (CBA), which expired on December 31, 2006. Their attempt to negotiate a successor agreement for the period January 1, 2007 to December 31, 2010 failed. As a result, the PBA filed a petition with PERC seeking compulsory public interest arbitration pursuant to the Act. In accordance with N.J.A.C. 19:16-5.6, the parties mutually selected, and PERC appointed, an arbitrator.
The parties stipulated to a four-year successor agreement for the period January 1, 2007 to December 31, 2010, but differed on salary and other items. The PBA proposed an across-the-board 5% salary increase in each year on each rank, step, and position. The Borough proposed an across-the-board 3% increase on January 1 and a 1% increase on June 1 of each year, and a freeze on starting pay/academy step for new hires. The Borough's proposal would result in a 16% salary increase over four years.
The PBA also proposed folding holiday pay into base salary as compensated time to be paid with regular payroll and utilized for all computation purposes, including overtime and pensions.*fn2
The Borough opposed this proposal because of its financial impact on overtime and pension contributions. It filed a scope of negotiations petition with PERC seeking a determination that this proposal is an illegal subject for negotiation and outside the arbitrator's jurisdiction. PERC dismissed the petition as untimely pursuant to N.J.A.C. 19:16-5.5(c), but noted that "both parties recognize that the placement of holiday pay into base pay is mandatorily negotiable and that only the Division on Pensions [and Benefits] may determine whether that form of holiday pay is creditable for pension purposes."
The PBA also proposed a medical opt-out provision of 50% of the amount of premium the Borough saved to be paid to the opting-out officer no later than November in each calendar year; the establishment of an IRS Plan Code Section 125(b) Cafeteria Plan to allow for the voluntary allocation on a pre-tax basis; a $100 annual increase in clothing allowance from 2007 to 2010; and a modification of Article XLII to require the Borough to pay the PBA $150 annually to provide legal services.
The Borough did not propose a medical opt-out provision; rather, it proposed a health and prescription plan that would transfer officers from the PBA Traditional and Direct Access plans to the less-costly civilian Traditional and Direct Access plans, effective July 1, 2008. It also proposed paying $150 per year per officer toward legal defense insurance to be purchased by the officers through the PBA.
The arbitrator acknowledged that he must decide the dispute giving due weight to the factors listed in N.J.S.A. 34:13A-16g.*fn3
Those factors are as follows:
(1) The interests and welfare of the public. . . .
(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 ...