H.E. No. 82-13

Synopsis:

A Hearing Examiner recommends that the Public Employment Relations Commission find that the Town did not violate Subsections 5.4(a)(1) and (5) of the New Jersey Employer-Employee Relations Act when it refused the demand of the Association to commence negotiations for the years 1976 through 1979 and thereafter refused to proceed to Interest Arbitration for the said years. The Hearing Examiner recommended that the Commission defer to a grievance arbitration award, which held that a certain "Sick Leave" provision of the 1976-77 collective negotiations agreement between the parties was null and void, and which did not effect the remainder of the agreement.

The Commission adopted a deferral to arbitration award policy in State of New Jersey (Stockton State College), P.E.R.C. No. 77-31, 3 NJPER 62 (1977) and the Hearing Examiner recommended that this was an appropriate case for deferral under that policy. The Hearing Examiner also found that the Association's unfair practice charge was timely filed under the six-month limitation of the Act.

A Hearing Examiner's Recommended Report and Decision is not a final administrative determination of the Public Employment Relations Commission. The case is transferred to the Commission which reviews the Recommended Report and Decision, any exceptions thereto filed by the parties, and the record, and issues a decision which may adopt, reject or modify the Hearing Examiner's findings of fact and/or conclusions of law.

PERC Citation:

H.E. No. 82-13, 7 NJPER 624 (¶12279 1981)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

09.231 46.42 47.54 71.821

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- HE 82-013.pdf
Appellate Division:
Supreme Court:

H.E. NO. 82-13 1. H.E. NO. 82-13 STATE OF NEW JERSEY BEFORE A HEARING EXAMINER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of TOWN OF HARRISON, Respondent, -and- Docket No. CO-80-326-148 HARRISON FIREMEN = S BENEVOLENT ASSOCIATION, Charging Party. Appearances: For the Town of Harrison Murray, Granello & Kenney, Esqs. (James P. Granello, Esq.) For the Harrison Firemen = s Benevolent Association Schneider, Cohen, Solomon & DiMarzio, Esqs. (David Solomon, Esq.) HEARING EXAMINER = S RECOMMENDED REPORT AND DECISION An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the A Commission @ ) on May 1, 1980, and amended on May 21, 1980, by the Harrison Firemen = s Benevolent Association (hereinafter the A Charging Party @ or the A Association @ ) alleging that the Town of Harrison (hereinafter the A Respondent @ or the A Town @ ) had engaged in unfair practices within the meaning of the New Jersey Employer- Employee Relations Act, as amended, N.J.S.A. 34:1A-1 et seq. (hereinafter the A Act @ ), in that, under the circumstances of an arbitrator having declared a sick leave provision in the parties = collective negotiations agreement void on July 10, 1979, the Charging Party, on the assumption that the entire agreement was void, demanded that the Respondent commence negotiations for the years 1976 through 1979, and when the Respondent refused the said demand to negotiate the Charging Party on February 1, 1980 filed a petition with the Commission to initiate interest arbitration, to which the Respondent objected, all of which is alleged to be a violation of N.J.S.A. 34:13A-5.4(a)(1) and (5) of the Act.1/ It appearing that the allegations of the Unfair Practice Charge, as amended, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on April 30, 1981. Pursuant to the Complaint and Notice of Hearing, a hearing was held on August 10, 1981, in Newark, New Jersey, at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. By agreement the parties stipulated a complete record consisting of documentary exhibits, but did not waive a Hearing Examiner = s Recommended Report and Decision. The Charging Party argued orally. The parties filed post-hearing briefs by September 25, 1981. An Unfair Practice Charge, as amended, having filed with the Commission, a question concerning alleged violation of the Act, as amended, exists and, after hearing, and after consideration of the oral argument of the Charging Party and the post-hearing briefs of the parties, the matter is appropriately before the Commission by its designated Hearing Examiner for determination. Upon the entire record, the Hearing Examiner makes the following: FINDINGS OF FACT 1. The Town of Harrison is a public employer within the meaning of the Act, as amended, and is subject to its provisions. 2. The Harrison Firemen = s Benevolent Association is a public employee representative within the meaning of the Act, as amended, and is subject to its provisions. 3. The last collectively negotiated agreement between the parties was effective during the term January 1, 1976 through December 31, 1977 (CP-1). The said agreement provided an Article X, A Sick Leave, @ that: A Sick leave shall be provided for illness to the extent provided by State Law. @ 2/ 4. The applicable State Law, N.J.S.A. 40A:14-16, A Leaves of absence with pay to certain members and officers, @ provides as follows: The governing body of any municipality, by ordinance, may provide for granting leaves of absence with pay not exceeding one year, to members and officers of its paid or part-paid fire department and force who shall be injured, ill or disabled from any cause, provided that the examining physician appointed by said governing body, shall certify to such injury, illness or disability. The Town herein has adopted an ordinance providing for the allowance of sick leave in accordance with State Law, i.e., N.J.S.A. 40A:14-16. 5. The collective agreements between the parties subsequent to 1977 have resulted from Interest Arbitration awards, namely for the years 1978-1979 (CP-2) and for the years 1980-1981 (CP-9). The said Interest Arbitration awards, supra, in no way altered or modified the A Sick Leave @ provisions of Article X (CP-1, supra). 6. Early in 1979 the Association submitted to grievance arbitration a sick leave dispute involving two of its members, which required the Arbitrator to construe the sick leave provision (Article X, CP-1, supra). The Association contended, inter alia, that the Town was obligated to grant the two grievants a mandatory one year sick leave, provided they qualified as being sick. Under the facts involved the Association was seeking one month sick leave pay for each of the two grievants. The Association contended before the Arbitrator that the sick leave provision proposed in negotiations (see footnote 2, supra) was approved by the Town = s chief negotiator with the proviso that the Town = s chief negotiator did not want the mandatory one year sick leave to be expressed in writing. The Town, on the other hand, insisted that sick leave under N.J.S.A. 40A:14-16, supra, is discretionary on the part of the Town as to length of sick leave up to one year. The Town = s chief negotiator denied that the Town had agreed to eliminate its discretion in the length of sick leave and thereby obligate itself to a mandatory one year of sick leave. Under date of July 10, 1979 the Arbitrator issued an award (CP-3) denying the Association = s grievance for the reason that there was such a wide divergence in the testimony of the parties = chief negotiators as to what was intended by the language of Article X, A Sick Leave @ (CP-1, supra). Thus, the Arbitrator held that there was no A mutuality @ or A meeting of the minds @ and that Article X was null and void and of no effect. Therefore A Sick Leave @ under the agreement was governed solely by N.J.S.A. 40A:14-16, supra, A ...as implemented by the Town ordinance, namely granting them leave, at the Town = s discretion, up to one year... @ (CP-3, p. 5). The Arbitrator retained jurisdiction for thirty days in the event A clarification, amplification or implementation is requested by either party. @ (CP-3, p. 5). 7. The parties subsequently sought clarification of the foregoing award (CP-3), namely, as to what effect the Arbitrator = s declaration that Article X was null and void had on the remainder of the agreement (CP-1). Under date of September 4, 1979 the Arbitrator ruled that only Article X was null and void and that it had no effect on the remainder of the agreement, particularly in view of Article XXIII, A Savings and Separability, @ which provides as follows: A In the event any provision or provisions of this Agreement is declared illegal or null and void, then said provision or provisions shall be deleted from this Agreement and the remainder of this Agreement shall continue in effect. If a direct economic benefit provision is declared illegal or null and void, then the parties shall renegotiate sum of such provision. @ The Arbitrator stated that under the foregoing A Savings and Separability @ clause the balance of the agreement remained in full force and effect. Finally, the Arbitrator rejected: (1) the request of the Association to reopen contract negotiations for the past years of 1976 through 1979 and (2) its request for an additional hearing to resolve the A conflict @ in the testimony between the Association = s and the Town = s chief negotiators (See CP-4). 8. Thereafter, under date of September 7, 1979, the attorney for the Association sent a letter to the Town = s attorney demanding negotiations for the years 1976 through 1979 since the Arbitrator had found that there was no A mutuality @ with respect to A Sick Leave @ then there could not have been any A mutuality @ with respect to the entire agreement, citing also the A Savings and Separability @ provision of the agreement (R-3). 9. Correspondence continued between the attorneys for the parties, the grievance Arbitrator and the American Arbitration Association through early February, 1980 (CP-5, CP-6, CP-8, R-1 and R-2). 10. Under date of February 1, 1980, the attorney for the Association sent to the Commission an Interest Arbitration Petition, which was docketed under Docket No. IA-80-172 on February 5, 1980 (CP-7). In this Interest Arbitration Petition the Association specifically sought to include the years 1976 through 1979. 11. Under date of February 15, 1980, the attorney for the Town requested dismissal of the Interest Arbitration Petition on the ground that a valid collective negotiations agreement existed and that two years of the period raised by the Association (1978 and 1979) were covered by an Interest Arbitration Award (CP-2, supra). Finally, the attorney for the Town pointed to the grievance arbitration award (CP-3, supra) and the rejection by the grievance Arbitrator of the Association = s request to reopen negotiations for the years 1976 through 1979 (CP-4, supra). (See CP-7A). 12. Following the response of the Association = s attorney under the date of February 19, 1980 (CP-7B), James W. Mastriani, on behalf of the Commission, sent a letter to the attorney for the Association under the date of April 11, 1980 declining to process the Interest Arbitration Petition: A Inasmuch as a substantial question of law has been raised concerning the Association = s rights to negotiate or arbitrate... @ (CP-7C). 13. The instant Unfair Practice Charge was filed on May 1, 1980 and amended on May 21, 1980 (C-1). THE ISSUES 1. Should not the Commission defer to the grievance arbitration award rendered under the 1976-77 collective negotiations agreement wherein Article X, A Sick Leave, @ was held to be null and void for want of mutuality? 2. Should not the Commission further defer to the arbitrator = s clarification of his initial award wherein he noted the existence of a A Savings and Separability @ clause in the agreement and held that only Article X was null and void and held that this had no effect on the remainder of the 1976-77 collective negotiations agreement? 3. Could the Respondent Town have violated the Act by its conduct herein under the circumstances of the collective negotiations agreements between the parties for the years 1978-79 and 1980-81 having resulted from Interest Arbitration awards, which in no way altered or modified the A Sick Leave @ provisions of Article X of the 1976-77 collective negotiations agreement? 4. Should the Unfair Practice Charge be dismissed as untimely filed within the six-month limitation of N.J.S.A. 34:13A-5.4(c)? DISCUSSION AND ANALYSIS The Commission Should Defer To The Grievance Arbitration Award And The Clarification Thereof Which Was Rendered Under The 1976-77 Collective Negotiations Agreement Wherein Article X, A Sick Leave, @ Was Held To Be Null And Void And That This Agreement Had No Effect On the Remainder Of The Agreement The Hearing Examiner finds and concludes that the Commission, under its deferral to arbitration policy, should give effect to the grievance arbitration award, and the subsequent clarification, both of which were rendered under the 1976-77 collective negotiations agreement, wherein Article X, A Sick Leave, @ was held to be null and void and, under the A Savings and Separability @ clause, was deemed to have no effect on the remainder of the agreement. The Commission adopted the National Labor Relation Board = s Spielberg3/ rationale in State of New Jersey (Stockton State College), P.E.R.C. No. 77-31, 3 NJPER 62 (1977). The Board in Spielberg held that it should defer to an arbitration award where it found that the proceedings were fair and regular, that the unfair labor practice was fully litigated and, finally, that the award was not repugnant to the National Labor Relations Act. Following Stockton and Spielberg, supra, the Hearing Examiner has no difficulty in deciding that the three criteria of Spielberg have been met in the instant case. There was no evidence that the proceeding before the grievance arbitrator was other than fair and regular. The opinion and award indicate that the subject matter of the instant unfair practice was fully litigated before the arbitrator. Finally, the Hearing Examiner finds and concludes that the award was not repugnant in any way to the Act. Thus, the Hearing Examiner has no hesitation in recommending to the Commission that it defer to the grievance arbitration award, which declared that Article X, A Sick Leave, @ in the 1976- 77 collective negotiations agreement was null and void for want of mutuality, and that this had no effect on the remainder of the agreement in view of the A Savings and Separability @ clause of the agreement. The Hearing Examiner categorically rejects the argument of counsel for the Charging Party that the arbitrator = s award declaring Article X null and void operated to void the entire agreement. This argument might have been made if there were not a clearly delineated A Savings and Separability @ clause. The instant clause states clearly in the first sentence that where A any provision or provisions @ of the agreement are declared A null and void, then said provision or provisions shall be deleted from this Agreement and the remainder of this Agreement shall continue in effect. @ The only consequence of a declaration that a provision or provisions is null and void is that any provision involving a A direct economic benefit @ is subject to renegotiation by the parties (see Finding of Fact No. 7, supra). In so concluding, the Hearing Examiner has considered fully the authorities cited by the Charging Party in its post-hearing Brief at pages 5 & 6. Accordingly, for these reasons the Hearing Examiner will recommend dismissal of the Complaint. The Respondent Town Could Not Have Violated The Act By Its Conduct Herein Under The Circumstances Of Interest Arbitration Awards Which Established The Terms And Conditions Of The 1978-79 And 1980-81 Collective Negotiations Agreements Which In No Way Altered Or Modified The A Sick Leave @ Provisions Of Article X Of The 1976-77 Collective Negotiations Agreement The above finding and conclusion of the Hearing Examiner that the Respondent Town did not violate the Act by its conduct herein becomes clearer when one considers that the terms and conditions of employment of the unit members of the Charging Party for the years 1978 through 1981 were fixed by two Interest Arbitration awards, which in no way altered or modified the A Sick Leave @ provisions of Article X of the 1976-77 collective negotiations agreement. The 1980-81 award (CP-9) clearly indicates that the Charging Party raised the A Sick Leave @ issue and the Arbitrator rejected any modification of Article X (CP-9, p. 13). The Hearing Examiner notes that the Charging Party has completely ignored and has made no reference to the effect of the 1978-79 and 1981 Interest Arbitration awards on the result which should be reached by the Hearing Examiner in the instant case. Thus, the Hearing Examiner recommends to the Commission that it defer also to the Interest Arbitration awards for the years 1978 through 1981 inasmuch as they are clearly not repugnant to the Act herein. For these additional reasons, the Hearing Examiner will recommend that the Complaint be dismissed. The Unfair Practice Charge Should Not Be Dismissed As Untimely Filed Within The Six- Month Limitation of N.J.S.A. 34:13A-5.4(c) The Respondent Town urges that the instant Unfair Practice Charge be dismissed as untimely filed within the six-month limitation of N.J.S.A. 34:13A-5.4(c). Although the Hearing Examiner has some doubt as to the timeliness of the filing of the instant Unfair Practice Charge he is satisfied that a valid argument can be made that the Charge was timely filed in view of the action of the Charging Party in filing an Interest Arbitration petition with the Commission on February 5, 1980. The Unfair Practice Charge was filed on May 1, 1980, which falls within the six-month limitation period. Accordingly, the Hearing Examiner will not recommend dismissal on the ground that the instant Unfair Practice Charge was untimely filed. * * * Upon the foregoing, and upon the entire record in this case, the Hearing Examiner makes the following: CONCLUSIONS OF LAW The Respondent Town did not violate N.J.S.A. 34:13A- 5.4(a)(1) and (5) when it refused the demand of the Harrison Firemen = s Benevolent Association to commence negotiations for the years 1976 through 1979 and thereafter refused to proceed to Interest Arbitration for the said years. RECOMMENDED ORDER The Hearing Examiner recommends that the Commission ORDER that the Complaint be dismissed in its entirety. /s/Alan R. Howe Hearing Examiner DATED: September 30, 1981 Trenton, New Jersey 1/ These Subsections prohibit public employers, their representatives or agents from: A (1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this Act. (5) Refusing to negotiate in good faith with a majority representative of employees in an appropriate unit concerning terms and conditions of employment of employees in that unit, or refusing to process grievances presented by the majority representative. @ 2/ The Charging Party, in the negotiations preceding CP-1, had proposed a Sick Leave Clause, which read as follows: A A member shall be granted sick leave without loss of pay for one year from date of such illness or injury even though he is unable to perform his duties. Said member shall continue to accumulate vacation until he returns to duty. @ (CP-3, p.2). 3/ Spielberg Mfg. Co., 112 NLRB 1080, 36 LRRM 1152 (1955). ***** End of HE 82-13 *****