The AFT also submitted an Order to Show Cause. The Order was executed and made returnable for June 14, 1991. A hearing was held and both parties had the opportunity to submit affidavits and other evidence, file briefs and argue orally.

The standards that have been developed by the Commission for evaluating interim relief requests are similar to those applied by the Courts when addressing similar applications. The moving party must demonstrate that it has a substantial likelihood of success on the legal and factual allegations in a final Commission decision and that irreparable harm will occur if the requested relief is not granted. Further, in evaluating such requests for relief, the relative hardship to the parties in granting or denying the relief must be considered. ^1/

It is not disputed that the AFT and State met for negotiations on May 24 and May 31.

The AFT submitted a list of demands for negotiations (Appendix A). The State took the position that many of these demands are not negotiable and, since the statute specifically and expressly sets the implementation dates for employees to file for the program, the State could put off implementing the program.

1/ Crowe v. DeGioia, 90 N.J. 126 (1982); Tp. of Stafford, P.E.R.C. No. 76-9, 1 NJPER 59 (1975); State of New Jersey (Stockton State College) , P.E.R.C. No. 76-6, 1 NJPER 41 (1975); Tp. of Little Egg Harbor , P.E.R.C. No. 94, 1 NJPER 36 (1975).

At the hearing, the AFT argued that certain procedures unilaterally established at Glassboro State College and Kean College were mandatorily negotiable. Chapter 137 provides that if the College believes a faculty member who applies for early retirement is indispensable, the College may, with the consent of the faculty member, have that employee work one additional year and still qualify for the benefits of Chapter 137. Kean and Glassboro Colleges solicited the names of faculty members who wished to qualify for this program without negotiations with the AFT. At the hearing, State counsel stated that these Colleges had exceeded their authority and these programs would be abandoned.

The area of negotiations here is narrow. It is not disputed that Chapter 137 is a pension statute. The Act at subsection 8.1 provides that no provision of the Act shall "annul or modify any pension or statute of this state."

The N.J. Supreme Court held that:

The Legislature has determined that the entire subject matter of public employee pensions is to be insulated from negotiated agreements which would contravene or supplement its comprehensive regulation of that area. Public employees and employee representatives may neither negotiate nor agree upon any proposal which would affect the sacrosanct subject of employee pensions. [ State v. State Supervisory Employees Assn., 78 N.J . 54, 93 (1978)].

Chapter 137's retirement program is a voluntary one and employees are not required to retire. Similarly, a College may ask an employee who wishes to retire under the program to stay on, but the employee is not required to do so. Given the narrow area of negotiability and the voluntary nature of the program, I find the AFT has not met its heavy burden.

The AFT's application is denied.

It is noted that neither party filed a scope of negotiations petition to determine the negotiability of the AFT demands. However, such a petition may expedite the processing of this matter. It could avoid an unfair practice hearing and allow the Commission to directly review the underlying issues of this case. Accordingly, I suggest the parties file a scope of negotiations petition.

Edmund G. Gerber
Commission Designee

DATED: June 19, 1991
Trenton, New Jersey