I.R. NO. 2012-018

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

COUNTY OF CAMDEN &

COUNTY OF CAMDEN SHERIFF'S OFFICE,

Respondent,

-and-	Docket No. CO-2012-296

CAMDEN COUNTY SHERIFF'S

OFFICERS PBA LOCAL 277 &

SUPERIOR OFFICERS ASSOCIATION,

Charging Party.

SYNOPSIS

A Commission Designee denies an application for interim relief filed by the Charging Party alleging that, after a consolidated interest arbitration award was issued (that required the replacement of an existing insurance article with a new one proposed by the Respondent), the Respondent failed to sign a CNA prepared by the Charging Party to memorialize the award.

The Charging Party argued that the new insurance article awarded by the interest arbitrator would not take effect until the new CNA is signed by the parties, and as a result, the original insurance language should be contained in the new CNA to cover the "temporal gap," especially for the benefit of retirees.

The Designee found that based upon Commission precedent, since the award was not vacated or modified on appeal, it should have been implemented immediately and the parties had an obligation to reduce the award to writing and sign it.

The Designee found that the Charging Party had not established a substantial likelihood of prevailing in a final Commission decision on its legal and factual allegations, a requisite element to obtain interim relief.

I.R. NO. 2012-018

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

COUNTY OF CAMDEN &

COUNTY OF CAMDEN SHERIFF'S OFFICE,

Respondent,

-and-	Docket No. CO-2012-296

CAMDEN COUNTY SHERIFF'S

OFFICERS PBA LOCAL 277 &

SUPERIOR OFFICERS ASSOCIATION,

Charging Party.

Appearances:

For the Respondent, Mark S. Tabenkin, Assistant County Council

For the Charging Party, Loccke, Correia, Limsky & Bukosky, attorneys, (Marcia J. Tapia, of counsel; Michael A. Bukosky, of counsel and on the brief)

INTERLOCUTORY DECISION

On April 25, 2012, the Camden County Sheriff's Officers PBA Local 277 ("PBA") & Superior Officers Association ("SOA") (both units collectively referred to as "PBA") filed an unfair practice charge against the County of Camden and the Camden County Sheriff's Office (both collectively referred to as "County"), which was accompanied by an application for interim relief, a certification, and a brief. The charge alleges that, after a consolidated interest arbitration award was issued on June 10, 2011, the County failed to sign a contract prepared by the PBA to memorialize the award. The award set the term of the collective negotiations agreement ("CNA") from January 1, 2008 through December 31, 2012. As set forth in the Charge, the County's conduct allegedly violates 5.4a(1), (2), (3), (4), (5), (6) and (7)1/ of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq.

The application seeks an Order requiring the County to sign the CNA as presented by the PBA.

On May 7, 2012, an Order to Show Cause was issued specifying May 11 as the return date for oral argument via telephone conference call. At the mutual request of the parties, the return date was rescheduled for May 15 and held on that date.

The following pertinent facts appear:

On December 22, 2010, the County submitted its final

proposal to the interest arbitrator. The County's proposal included a new insurance article seeking to replace the former Article XII (in the PBA CNA) and the former Article XXV (in the SOA CNA) in their entirety. The County's proposal to the interest arbitrator specifically stated, "The attached proposal is meant to replace these existing articles in their entirety."

On June 10, 2011, the interest arbitrator issued her opinion and award in the two consolidated cases. The interest arbitrator awarded, in pertinent part, that, "The County's proposed insurance article shall replace Articles XII and XXV in the 2003-2007 contracts." Award at p. 38.2/

The award was not appealed by the parties and no stay of implementation for the award was sought. On July 5, the PBA forwarded to the County proposed CNA insurance language that included the previous language as well as the new language awarded by the arbitrator. On August 16, the County forwarded a "marked-up" CNA to the PBA with insertions and deletions. In the cover letter, the County stated in pertinent part:

The agreement prepared by your office retains all of the old insurance provisions of the agreement, which is quite confusing to the reader. It is the County's position that the direction to "replace" the old insurance provisions with the County's proposal requires substitution of the new language for the old, without retention of the old.

On August 22, 2011, the PBA issued the following correspondence to the County, in pertinent part:

We have had an opportunity to review your letter of August 16, 2011, most specifically the second paragraph regarding drafting of the insurance clause. While we agree that the Arbitrator's Award provided for a replacement of insurance language, the reason that the old language was included with a change date for the effective point of replacement was included [sic] was for clarity. There are circumstances of ongoing medical treatment and changes which may affect co-payment in various areas. We believe that a change date being included will provide clarity and avoid grievances in the future. Please consider this language for its clarity.

On February 23, 2012, the County filed an unfair practice charge alleging that the PBA violated the Act when it repeatedly prepared a CNA that omitted the insurance proposal awarded by the interest arbitrator and when it failed to sign the CNA presented by the County. The matter is currently pending before the Director of Unfair Practices.

On March 29, the County advised the PBA that it was going to implement the insurance provisions from the interest arbitration award effective with the first pay period of May 2012.

On April 13, the PBA responded to the County, in pertinent part:

[T]he language of Article XII, which the Camden [sic] proposed, clearly states that "effective upon the signing of the agreement,3/ the Traditional/Indemnity plan will not be an option." As of this date, the collective bargaining agreement has not been signed due to the parties' disagreement as to the language of this very Article. Accordingly, we object to the implementation of the insurance provisions of the agreement, and/or, the removal of the Traditional/ Indemnity Plan. The PBA demands negotiations in regards to this unilateral change by the employer.

On April 24, the PBA sent a final letter to the County before filing the instant unfair practice charge. In pertinent part the letter stated:

The county [sic] has taken the position that the new contract language must supplant the old contract language in its entirety.

This creates a temporal gap in the contract between the initial effective date of the contract (January 1, 2008) and the present time, where the contractual level of health benefits will not be referenced in the contract.

This gap in time, and gap in a referenced level of benefits, matters - especially to retirees. Any person who retired between January 1, 2008 and before the contract is finally executed, would be entitled to the level of benefits which they retired under. If the contract is silent as to exactly what level of benefits they are entitled to, this creates a situation where the level of benefits is "lost" and remains un-memorialized. A retiree would be in the unfortunate position of claiming an entitled level of benefits which is not cited to within the contract. This would be irresponsible and improper.

Thus the County's proposal to word the contract so as to leave a time gap where the level of benefits remains intentionally unknown, is unreasonable and runs counter to what the contract between the parties, in conjunction with the arbitration award, exactly intends. The intent is to memorialize and provide a certain level of benefits up until the contract is "signed", whereupon a new level of benefits will be established.

ANALYSIS

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). In Little Egg Harbor Tp., the designee stated:

[T]he undersigned is most cognizant of and sensitive to the extraordinary nature of the remedy sought to be invoked and the limited circumstances under which its invocation is necessary and appropriate. The Commission's exclusive remedial powers, normally intended to be exercised subsequent to a plenary hearing, will not be called into play for interim relief in advance of such hearing except in the most clear and compelling circumstances.

As set forth above, the PBA argues that the new insurance article awarded by the interest arbitrator will not take effect until the new CNA is signed by the parties, and as a result, the PBA believes that the original insurance language should be contained in the new CNA. However, in Borough of Leonia, P.E.R.C. No. 2008-3, 33 NJPER 204 (¶73 2007), the Commission held:

Interest arbitration is a binding procedure for	settling contracts involving police officers and firefighters. N.J.S.A. 34:13A-
14a. An arbitrator's award is final and binding unless vacated or modified on appeal. N.J.S.A. 34:13A-16f(5). An award that is not appealed must be implemented immediately. Consistent with the obligation to implement the award is the obligation to reduce the award to writing and sign it. There is no duty to negotiate further after an award issues.

The arbitrator's award is unambiguous and there is no evidence that his choice of words was inadvertent. The Borough could have appealed the award and raised all of its concerns, but chose not to do so.

[Id. at 205]

In the instant matter, neither party sought to have the award vacated or modified on appeal. See N.J.S.A. 2A:24-7. The interest arbitrator's language is unambiguous: "The County's proposed insurance article shall replace Articles XII and XXV in the 2003-2007 contracts." Since the award was not vacated or modified on appeal it should have been implemented immediately in June 2011. The fact that the insurance proposal used the term "Effective upon the signing of this agreement," is without merit because if the award had been implemented immediately, reduced to writing and signed in a timely manner, then there would not have been any alleged "temporal gap" as asserted by the PBA.

Thus, I find that the PBA has not established a substantial likelihood of prevailing in a final Commission decision on its legal and factual allegations, a requisite element to obtain interim relief.4/ The application for interim relief must be denied. Accordingly, this case will be transferred to the Director of Unfair Practices for further processing.

ORDER

The application for interim relief is denied. The charge will be forwarded to the Director of Unfair Practices for processing in accordance with the Commission's Rules.

David N. Gambert

Commission Designee

DATED:	June 19, 2012

Trenton, New Jersey