On appeal from the Public Employment Relations Commission, P.E.R.C. No. 2011-75, No. IA-2009-103 (A-4989-10); and P.E.R.C. No. 2011-80, No. IA-2009-067 (A-5311-10).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Lihotz.
This opinion addresses the appeals filed by the County of Hunterdon (the County) from final orders entered by the Public Employment Relations Commission (PERC) affirming the arbitrator's award following conventional arbitration of contract disputes between the County and the Fraternal Order of Police (FOP) Lodge No. 94 (FOP 94) (Sheriff's Officers) and FOP Lodge No. 29 (FOP 29) (Corrections Officers). The principal issue in contention between the parties in this appeal is the incremental salary guide awarded by the arbitrator for each group of officers. We calendared these separate appeals back-to-back and now consolidate them for the purpose of opinion only. We affirm.
Our review of the PERC order issued in each case is governed by the statutory role of PERC and our standard of review. PERC is authorized by statute, N.J.S.A. 34:13A-16f(5)(a), to decide appeals of public interest arbitration awards. Twp. of Teaneck v. Teaneck Firemen's Mut. Benev. Ass'n Local No. 42, 353 N.J. Super. 289, 306 (App. Div. 2002), aff'd o.b., 177 N.J. 560 (2003). "Absent violation of standards of conduct, PERC's appellate role is to determine whether the arbitrator considered the criteria in N.J.S.A. 34:13A-16(g) governing the issuance of an interest arbitration award and rendered a reasonable determination of the issue or issues at impasse that was supported by substantial evidence in the record." Ibid.
This court, in turn, owes deference to an order rendered by PERC because of the expertise of that agency. The Supreme Court in In re Hunterdon County Board of Chosen Freeholders, 116 N.J. 322, 328 (1989), explained that deference as follows:
It must also be emphasized that the judicial role in this kind of case must be both sensitive and circumspect. We deal here with the regulatory determination of an administrative agency that is invested by the Legislature with broad authority and wide discretion in a highly specialized area of public life . . . . These manifestations of legislative intent indicate not only the responsibility and trust accorded to PERC, but also a high degree of confidence in the ability of PERC to use expertise and knowledge of circumstances and dynamics that are typical or unique to the realm of employer-employee relations in the public sector.
An arbitrator in a public interest conventional arbitration is not required to select from one of the last offers of the parties. See Fox v. Morris Cnty. Policemen's Ass'n, P.B.A. 151, 266 N.J. Super. 501, 514 (App. Div. 1993) (holding an arbitrator is not required to consider only factors on which the parties choose to produce evidence because "this may lead to a choice between two unreasonable offers"), certif. denied, 137 N.J. 311 (1994). Rather the arbitrator may fashion an award based on the evidence produced by the parties. See Hillsdale PBA Local 207 v. Borough of Hillsdale, 137 N.J. 71, 82 (1994) (holding an arbitrator's analysis "depends on the disputed issues and the evidence presented"). He is also obliged to analyze and consider nine statutory factors. Ibid.; see also N.J.S.A. 34:13A-16g. In addition, the party seeking to alter a provision in an existing agreement has the burden of proof on any modification, addition or deletion sought by it of an existing provision. Twp. of Teaneck, 25 N.J.P.E.R. 450 (¶30199 1999).
Here, the same arbitrator resolved the contract dispute between the County and FOP 94 (Sheriff's Officers) and FOP 29 (Corrections Officers). In each case, the principal issue was whether an incremental salary schedule should be reinstituted for both groups of employees. Although recognizing that the use of an incremental salary schedule is a mandatorily negotiable term, and the representatives of both groups had properly presented that issue for resolution by the arbitrator, the County argued vociferously against the provision noting that such a schedule had been eliminated through an earlier round of collective negotiations in 2003. Each award was accompanied by a comprehensive decision in which the arbitrator addressed the factors outlined in N.J.S.A. 34:13A-16g. We briefly outline the award for each bargaining unit and the last offers by both parties.
FOP 94 (Sheriff's Officers).
The arbitrator entered an award containing five provisions. For the FOP 94 agreement, in addition to the issues stipulated by the FOP and the County, the arbitrator awarded a three-year agreement, an incremental salary schedule with eleven steps reflecting a 14.96% salary increase over the life of the agreement, and a salary payment schedule of twenty-five payments in place of twenty-six payments on an annual basis. The latter provision had been advanced by the County. The arbitrator also rejected the proposed salary increase advanced by FOP 94, modifications to the provisions governing overtime for officer's "called out" to duty outside of regular work hours, holiday pay, leaves of absence, medical benefits, employee expenses, safety, uniforms and equipment, attendance bonus, on-call, longevity, tuition reimbursement, and employment and reimbursement agreements. The arbitrator also rejected a new provision governing modified duty. Additionally, the arbitrator denied the County's proposed salary increase schedule.
FOP 29 (Corrections Officers).
The arbitrator entered an award containing six provisions. In addition to the provisions stipulated by the parties, the arbitrator awarded a three-year agreement, an incremental salary schedule consisting of eleven steps reflecting a 13.40% increase over the life of the agreement, a salary payment schedule of twenty-five weeks in place of twenty-six weeks on an annual basis, and a $100 increase in the uniform maintenance allowance. The arbitrator also rejected the ten step salary schedule proffered by FOP 29, as well as the salary increase proposed by the ...