H.E. NO. 96-13

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

BOROUGH OF DUNELLEN,

Respondent,

-and-	Docket No. CO-H-95-343

DUNELLEN PBA LOCAL 146,

Charging Party.

Appearances:

For the Respondent, Ruderman & Glickman, attorneys

(Mark S. Ruderman, of counsel)

For the Charging Party, Klausner, Hunter & Seid, attorneys

(Stephen B. Hunter, of counsel)

HEARING EXAMINER'S DECISION ON MOTION

TO DEFER TO ARBITRATION

On April 19, 1995, Dunellen PBA Local 146 filed an unfair practice charge against the Borough of Dunellen. The charge alleges that on or about April 7, 1995, the Borough "started unilaterally debit[ing] money from the paychecks of unit employees represented by the PBA to purportedly recoup alleged overpayments" of compensation in lieu of accumulated compensatory time off. The charge also alleges that on March 24, 1995, the Borough advised the PBA of its "mistake" in paying; specifically, that it was not required to pay more than straight time rates "inasmuch as the accumulated comp[ensatory] time had already reflected time and one half adjustments"; and that it would start deducting on April 7, 1995. These actions allegedly "ignore prescriptions" of a 1992 interest

arbitration award and the parties' subsequent 1992-94 collective agreement and violate subsections 5.4(a)(5) and (1)1/ of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq.

The PBA also alleges that the parties have negotiated a 1994-98 successor agreement, but compensatory time overpayment was not discussed.

Accompanying the charge was an application for interim relief, which was later withdrawn.

On August 2, 1995, the Director of Unfair Practices issued a Complaint and Notice of Hearing.

On August 14, 1995, the Borough filed an Answer, denying it engaged in any unfair practice. It asserts that "...the issue at hand is one involving contract interpretation and not one involving an unfair practice." It asks that the matter be deferred to arbitration.

On October 11, 1995, the Borough filed a Motion to Defer the Charge to Arbitration.

On November 16, 1995, the PBA filed a response, urging that deferral is not appropriate, given the "unilateral change", i.e.,

1/	These subsections 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. (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."

the Borough had paid "all compensation owed" in the early part of 1994 and then "unilaterally reduced" salaries over six pay periods. It maintains that the alleged reductions, occurring during collective negotiations, had a "chilling effect" on the rights of unit employees. Finally, it asserts that the Motion, filed after the Complaint has issued, is untimely.

On November 30, 1995, the Borough filed a letter, writing that it had sought deferral of the charge in May 1995, while opposing the application for interim relief.

On January 19, 1996, the Borough filed a letter, agreeing to waive procedural defenses and proceed to arbitration.

The motion is timely. The Borough sought to have the matter deferred in May 1995 and repeated the request in its Answer to the Complaint. The Commission favors deferral, if appropriate, before hearing. Pennsauken Tp., P.E.R.C. No. 88-53, 14 NJPER 61, 63 n. 5 (¶19020 1987). The Director's decision to issue a Complaint is not a legal determination that the matter is not deferrable. Nor is this a case in which a hearing examiner is asked to overrule the Director's determination that specificity requirements have been met for purposes of issuing a Complaint. Englewood Bd. of Ed., P.E.R.C. No. 93-119, 19 NJPER 355 (¶24160 1993).

The parties negotiated a 1992-94 collective agreement with a "compensatory time" provision (Article XVII [sic]). It states:

All compensatory time, either accumulated and/or obtained, must be utilized by December 31, 1993. The Borough, during the period up to December 31, 1993, may not unreasonably deny an Officer's

request to take compensatory time. If a request must be denied, the Officer shall be compensated at the rates then in existence, pursuant to current practice. If there is any compensatory time remaining on the books, as amended below, as of December 31, 1993, the Officers shall be paid for same, by the 2nd pay period in July, 1994, at the overtime rate in effect on December 31, 1993. However, the compensatory time required from personal days, either current or accumulated and unused as of December 31, 1993, shall not be paid at the overtime rate as set forth above.

The agreement includes a grievance procedure ending in "binding grievance arbitration" before a "mutually suitable" arbitrator (Article IV).

The compensatory time provision was purportedly based upon a recommendation in a July 20, 1992 Interest Arbitration Award. The arbitrator wrote:

....a change in the current system regarding compensatory time and personal days2 is in order. Therefore, I shall direct that Police Officers must utilize all compensatory time by December 31, 1993. As a result, Police Officers will have a reasonable period (approximately seventeen months) to "draw down" their compensatory time accruals. Furthermore, to facilitate such usage, the Borough may not unreasonably deny an Officer's request to take compensatory time. If, however, a request must be denied, the Officer shall be compensated therefor at the rates then in existence, pursuant to current practice. Also, if there remains any compensatory time after December 31, 1993, Police Officers shall be paid for same at the overtime rate. Such payment shall not be applicable to personal days.

2. Personal days are granted in the form of compensatory time. (Emphasis supplied).

Article VI, Section 2A of the agreement ("wages, hours and overtime") states:

The first hour of overtime immediately following the completion of a shift shall be paid at time and one-half or shall be taken as compensatory time at the discretion of the officer in question. However, as of January 1, 1994, overtime shall be paid only in cash at time and one-half....

Brookdale Comm. Coll., P.E.R.C. No. 83-131, 9 NJPER 266 (¶14122 1983), articulates the Commission's deferral policy. Deferral to binding arbitration is the preferred mechanism when a charge essentially alleges a violation of subsection 5.4(a)(5) interrelated with an alleged breach of contract and no procedural barriers bar arbitration. The Commission retains jurisdiction over the charge so that, if the arbitrator's award is challenged, it can assure itself that the procedures were fair and regular and the result is not repugnant to the Act. Stafford Tp. Bd. of Ed., P.E.R.C. No. 90-17, 15 NJPER 527 (¶20217 1989); see also, Collyer Insulated Wire, 192 NLRB 834, 77 LRRM 1931 (1971); Spielberg Mfg. Co., 112 NLRB 1080, 36 LRRM 1152 (1955).

This case is deferrable. The gravamen of the charge is that the public employer's alleged "unilateral debiting" of paychecks "ignores prescriptions" of the applicable arbitration award and 1992-94 collective agreement. The public employer relies on the agreement as a defense. It contends that Article VI "directs that a rate of 1 1/2 be applied only one time in the calculation overtime payments...." It contends that it "erroneously failed to apply the proper overtime rate" by incorrectly recording "the number

of hours as 1 1/2 times the actual number of hours earned and then multiplied this incorrect figure with the 1 1/2 overtime rate." The primary source of the parties' rights and obligations in this dispute is the 1992-94 collective agreement, which prescribes an overtime rate, payment in lieu of compensatory time off, and a period for payments.

Other portions of the charge implicate statutory rights but are tangential to the contractual dispute. For example, recoupment of overcompensation is most likely a mandatorily negotiable term and condition of employment. See East Brunswick Bd. of Ed., P.E.R.C. No. 80-31, 5 NJPER 398, 400 n. 2 (¶10206 1979), aff'd in part, rev'd in part, App. Div. Dkt. No. A-280-79 (6/18/80). Recoupment during collective negotiations may have "chilled" the process, but did not prohibit these parties from reaching a successor agreement. The Commission has often held that successful completion of contract negotiations may make moot disputes over alleged misconduct during negotiations. Ramapo-Indian Hills Ed. Assn., P.E.R.C. No. 91-38, 16 NJPER 581 (¶21255 1990).

The validity of the Borough's contractual defense before an arbitrator may be decisive in further litigation over remaining portions of the charge. Retention of jurisdiction in this matter will permit the Commission to re-enter the dispute for a failure to promptly pursue the dispute to resolution under the contract, lack of fairness in the arbitration process or an arbitration determination repugnant to the Act. Brookdale.

I recommend that this case be deferred to binding grievance arbitration.

Jonathon Roth

Hearing Examiner

DATED:	January 22, 1996

Trenton, New Jersey