1/ These provisions prohibit public employers, their representatives or agents from: "(1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act. (3) Discriminating in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage 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. (7) Violating any of the rules and regulations established by the commission."

2/ The PBA did not seek interim relief on the basis that the County's actions violated a(1), independently, (3) or (7) of the Act. The theory asserted by the PBA to warrant a grant of interim relief related only to the County's alleged violation of a(5).

The County and the PBA are parties to a collective negotiations agreement covering the period January 1, 1998 through December 31, 2000. The parties have engaged in successor negotiations and are currently involved in interest arbitration. Prior to April 1, 2001, the County operated two correctional facilities. On or about April 1, 2000, the County closed the "Old Jail," except for the third and fourth floors, and transferred most of the correctional officers assigned to the "Old Jail" to the correctional facility which remained open. As the result of the consolidation, all posts had to be re-bid in accordance with the terms of the parties collective agreement. Generally, the picking of posts is determined on the basis of the most senior employee having priority in his/her pick.

Article 14, Seniority, provides, in relevant part, as follows:

3/ The recreation post dispute was resolved before the return date. The 12th floor escort and clothing room posts were resolved during oral argument on the return date. The County agreed to immediately subject the escort and clothing room positions to the mini pick process, if they had not already done so.

The County contends that the transportation posts have traditionally been considered administrative posts which are excluded from the seniority pick system. The County cites Article 14, Seniority, Section 7, A.(1) for the proposition that the two transportation posts were filled by two employees designated in the Community Service Administrative position.

On or about April 1, 2001, in conjunction with the consolidation of the County's jails, the County entered into an agreement with the Delaney House concerning provision of drug offender rehabilitation services. Delaney House is located in Newark. In light of the need to transport prisoners to and from the Delaney House, the Court and the jail, the County decided to increase the number of corrections officers assigned to perform transportation duties. The County assigned an additional two corrections officers to the newly created transportation posts. The

County asserts that the transportation posts were served by two additional community service positions listed in the collective agreement as administrative positions and excluded from the seniority pick process. Additionally, in the alternative, the County contends that the two additional transportation positions are temporary in nature and are thus excluded from the seniority pick process in accordance with Article 14, Section 5(e) of the collective agreement.

The PBA contends that the newly created transportation posts are just that, regular transportation posts subject to seniority budding, and are not administrative community service positions which are exempt from the seniority post bidding process. The PBA argues that transporting prisoners to and from the Delaney House is common, everyday work which requires no special skills, special credentials, additional training or administrative expertise. The PBA argues that the transportation posts at issue are "...unexceptional, garden variety posts basically indistinguishable from any other post within the facility" (PBA responsive letter dated June 6, 2001). The PBA argues that the collective agreement is clear in its intention to cover all posts and positions by the seniority pick system, unless otherwise specifically excluded. The PBA claims that there is no specific exception for the transportation posts at issue nor can such positions be arguably defined as an "administrative post."

To obtain interim relief, the moving party must demonstrate both that it has a substantial likelihood of prevailing in a final Commission decision on its legal and factual allegations and that irreparable harm will occur if the requested relief is not granted. Further, the public interest must not be injured by an interim relief order and the relative hardship to the parties in granting or denying relief must be considered. Crowe v. De Gioia, 90 N.J. 126, 132-134 (1982); Whitmyer Bros., Inc. v. Doyle, 58 N.J. 25, 35 (1971); State of New Jersey (Stockton State College), P.E.R.C. No. 76-6, 1 NJPER 41 (1975); Little Egg Harbor Tp., P.E.R.C. No. 94, 1 NJPER 37 (1975).

Here, a dispute exists between the parties concerning whether the employee's who are assigned to transport prisoners to and from the Delaney House are serving in the community service administrative position. If, in fact, the employees are serving in the community service administrative position, it is then likely that an arbitrator could find that such employees are excluded from the seniority bid system pursuant to the specific terms of Article 14, Section 7, A(1) and (2). Conversely, if the PBA's position that the employees performing transport services are not included in the community service administrative positions, it is likely that an ultimate determination could be made holding that such positions must be subject to the seniority bid system and the County's exclusion of the positions from seniority bidding violates the terms of the collective agreement. However, this dispute of material fact

(whether these are administrative positions), the resolution of which may be determinative as to whether or not the County acted properly, serves to undermine the PBA's ability to establish the requisite likelihood of success with respect to whether the positions at issue are subject to the seniority bidding system. Interim relief is denied in circumstances where disputes of material fact exist. See City of Trenton, I.R. No. 2001-8, 27 NJPER 206 ( & 32070 2001); Borough of Franklin , I.R. No. 2001-1, 26 NJPER 346 ( & 31136 2000); Township of Dover , I.R. No. 94-4, 20 NJPER 6 ( & 25004 1993); City of Trenton , I.R. No. 91-8, 16 NJPER 568 ( & 21248 1990).

The County also argues that, notwithstanding whether the transport positions are administrative under Section 7, A(1) of the collective agreement, it has the right under Article 14, Section 5(e) to assign employees to posts outside of the seniority bidding system on a temporary basis. The County contends that it may make administrative assignments on a temporary basis (not to exceed six months) to posts which will not be subject to the seniority bidding procedures. The County claims that the transport posts at issue in this matter are only temporarily established, consequently, pursuant to Section 5(e), it may assign employees outside of the seniority bidding system. The PBA contends that Section 5(e) does not give the County the right to exclude the transportation posts at issue from the seniority bidding process. It argues that the transportation posts are subject to the seniority bidding procedures on the grounds that these positions "...regularly [recur] for

periods of less than a full year..." as provided in Section 5(e). While I do not rule upon the interpretation or application of Section 5(e), I find that it does appear that both parties rely upon the same language contained in the collective agreement to arrive at differing conclusions. The Commission has refused to issue a complaint on unfair practice charges where the alleged violation is dependent upon an underlying contractual dispute. It appears that the parties' differing construction of Section 5(e) of the collective agreement should be resolved through resort to the negotiated grievance procedure. Consequently, I find that under Human Services , the underlying contractual dispute may not result in the issuance of a complaint, and therefore, cannot meet the interim relief standards.

Thus, under these circumstances, the PBA has not, at this early stage of the dispute, established a substantial likelihood of prevailing in a final Commission decision on its legal and factual allegations. Consequently, I decline to grant the PBA's application for interim relief. This case will proceed through the normal unfair practice processing mechanism.