I.R. NO. 2011-37

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

COUNTY OF ATLANTIC,

Respondent,

-and-	Docket No. CO-2011-255

NEW JERSEY STATE PBA LOCAL #77,

Charging Party.

SYNOPSIS

The PBA filed an application for interim relief seeking an order requiring the County to pay salary increments upon the expiration of a collective negotiations agreement. The Chair denied the application, finding that the relative hardship to the parties weighs in favor of the County.

I.R. NO. 2011-37

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

COUNTY OF ATLANTIC,

Respondent,

-and-	Docket No. CO-2011-255

NEW JERSEY STATE PBA LOCAL #77,

Charging Party.

Appearances:

For the Respondent, James F. Ferguson, County Counsel

(Richard C. Andrien, Assistant County Counsel)

For the Charging Party, Plotkin Associates, LLC

(Myron Plotkin, Labor Relations Consultant)

INTERLOCUTORY DECISION

On December 29, 2010, New Jersey State PBA Local #77 filed an unfair practice charge against the County of Atlantic which was accompanied by an application for interim relief. The charge alleges that the County violated N.J.S.A. 34:13A- 5.4a(1), (2), (3), (5) and (7)1/ of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq., when it failed to pay salary increments upon the expiration of the collective negotiations agreement. The application seeks an Order directing the County to pay increments plus interest retroactively to January 1, 2011 and to enjoin the County from engaging in conduct which violates the Act.

On January 14, 2011, a Commission designee issued an Order to Show Cause specifying February 10 as the return date for argument via telephone conference call. The County was directed to file a response by February 3. On the return date, the parties argued their cases. On February 24, I requested that the matter be transferred to me due to its important public policy implications. Another return date was scheduled for March 4, at which point the parties argued their cases telephonically. The following facts appear.

The PBA represents all Detective I and Detectives employed by the Prosecutor's Office. The County and the PBA are parties to a collective negotiations agreement with a term of January 1, 2007 through December 31, 2010. The parties have not commenced negotiations for a successor contract.

On December 22, 2010, the County informed the PBA's attorney that although the payment of salary increments upon the expiration of a collective negotiations agreement is "the practice [that] is normally followed", it is no longer "efficacious or reasonable to do so", and that effective January 1, 2011, the County "will not move any officers through the salary guide on expired contracts."

The PBA has filed the certification of Norman Meyers who has been employed as a Business Agent for the PBA since 2006. Prior to 2006, Meyers was employed as a police officer for the Township of Galloway for 14 years and served as PBA president during that time. Meyers asserts that it has been the County's consistent past practice to pay salary increments for the succeeding year if a contract had expired. The County has filed the Certification of Diana Rutala, its Deputy County Administrator. Rutala certifies that "continued movement on the guide in the last contract will result in an increase in salaries of $103,737 or 3.2%."

The PBA asserts that given the County's past practice of paying salary increments upon the expiration of a collective negotiations agreement, its failure to do so on January 1, 2011 is a unilateral change in terms and conditions of employment without negotiations as well as a repudiation of the collective negotiations agreement. It further asserts that the County's decision not to pay salary increments will irreparably harm the negotiations process and will cause its members financial harm.

The County responds that it has a duty to spend public funds wisely and that the negotiations landscape has changed as demonstrated by a 2.0% property tax cap levy. The County also references the recently enacted interest arbitration law. It argues that both of these legislative enactments will significantly restrict the salary increases that can be given inclusive of salary increments. The County also asserts that payment of the salary increments will likely result in increases that exceed the amounts that can legally be granted, and that if overpayment is made, officers would be required to remit the excess payments to the County. The County contends that such an adjustment process would be unfair to the officers and an administrative burden. It also asserts that whatever salary guide provisions are contained in a new agreement would be paid retroactively.

Interim relief is extraordinary relief, and the granting of such relief requires the "most sensitive exercise of discretion." Crowe v. De Gioia, 90 N.J. 126, 132 - 134 (1982). A determination as to whether interim relief should be granted is guided by four fundamental principles. Ibid. The first is that interim relief should not granted except when necessary to prevent irreparable harm. The second principle is that interim relief should not be granted if the legal right underlying the movant's claim is unsettled. A third rule is that interim relief should not be granted where material facts are in dispute and the movant has not made a preliminary showing of a reasonable probability of ultimate success on the merits. The final test is a weighing of the relative hardship to the parties in granting or denying relief. Ibid.

The test that is dispositive in this case is the fourth test which is a weighing of the relative hardship to the parties.2/ Unit members will incur some level of financial hardship if the salary increment is not paid immediately. However, that hardship is outweighed by the County's hardship if it was ordered to immediately pay the salary increment. P.L. 2010, c. 44 became effective on July 13, 2010 and is applicable to the next local budget year.3/ That law reduced the property tax cap levy from 4.0% to 2.0% - - i.e. a county or municipality may not increase property taxes more than 2.0% over the prior years rates. While P.L. 2010, c.44 does not explicitly limit any increases in employees' salaries to 2.0%, it is reasonable to determine that the financial constraints thrust upon the County by the 2.0% property tax cap levy will result in reduced increases awarded to unit members than have been awarded in the past. The County's immediate payment of a 3.2% salary increment may result in an overpayment. The PBA argues that the County could recoup any excess payments made to unit members. However, under these circumstances where the likelihood of recoupment is substantial, it is inefficient to order the County to pay the salary increment only to have it recoup money when the successor negotiations conclude. Additionally, it is inexpedient to have unit members receive money immediately when they may have to return some amount of that money. The PBA alleges that the County has an ability to pay the increment irrespective of the 2.0% property tax cap levy, however, that allegation should be borne out during impasse resolution procedures or a full evidentiary hearing.

Moreover, P.L. 2010 c.105 established significant changes to the interest arbitration process. Among the more significant changes is the requirement that an arbitrator will not render any award which, on an annual basis, increases base salary items by more than 2.0% of the aggregate amount expended by the public employer on base salary items in the preceding year.4/ The law became effective January 1, 2011, however, the portion of the law establishing the 2.0% base salary cap is applicable only to collective negotiations agreements expiring on January 1, 2011 or later. The collective negotiations agreement herein expired on December 31, 2010. Nonetheless, due to the property tax cap levy currently in effect, the parties will likely either reach a voluntary settlement or an interest arbitration award will ultimately issue that comports with the spirit of P.L. 2010, c.105.

Having given careful consideration to the 2.0% property tax cap levy, the hardship to the County if it were required to immediately pay the salary increment outweighs the hardship to unit members in not immediately receiving the salary increment. Therefore, the PBA has not satisfied one of the requisite elements to allow for the grating of interim relief. The PBA's application for interim relief is denied.
ORDER

The application for interim relief is denied.5/

P. Kelly Hatfield

Chair

DATED: March 7, 2011

Trenton, New Jersey