City Stuck With Police Director’s Grant Of Grievances

Written on 05/13/2022
Will Aitchison

The Newark Police Superior Officers Association (SOA) filed grievances alleg­ing that the City of Newark violated the terms of its contract with the SOA by: (1) refusing to pay active SOA members longevity on payments for compensatory time; and (2) failing to pay two SOA members for unused vacation days upon their retirement. Both grievances were sustained by the City’s Police Director, the decisionmaker at Step Five of the griev­ance procedure in the contract. The City did not invoke Step Six of the grievance procedure, which required submission of the grievances to binding arbitration.

When the City failed to implement the Police Director’s decisions, the SOA filed unfair practice charges with New Jersey’s Public Employment Relations Commission (PERC), citing the City’s failure to comply with the Police Di­rector’s order that the City “calculate longevity due on all past compensatory time payouts and include longevity on all future compensatory time payouts for all affected members.” The SOA filed two other unfair practice charges based on the City’s failure to compensate two re­tired captains for unused vacation time.

A PERC hearing officer ruled in the SOA’s favor, finding that the City’s refusal to “abide by a decision of its designated grievance representative constituted a refusal to negotiate in good faith.” The City failed to file exceptions to the hearing examiner’s report. Under PERC’s rules, the report became PERC’s final decision.

When the City failed to appeal PERC’s decision, PERC began efforts to obtain the City’s compliance with its decision. Eventually, PERC brought the matter before a New Jersey appeals court.

The Court spent little time finding in PERC’s (and the SOA’s) favor. The Court observed that “the City contends PERC must demonstrate a willful failure to comply with its orders, and that our assistance is necessary to secure com­pliance. Alternatively, the City argues it is entitled to an evidentiary hearing to determine whether it is noncompliant and, if so, why. We disagree.

“Without question, PERC’s orders rest upon substantial evidence on the record as a whole as to all the unfair practice charges. The City conceded that its designated grievance representative, the Police Director, issued a decision, with which the City failed to comply, and the City never sought arbitration as it was entitled to do under the contract. The City has never contested that such conduct constitutes an unfair practice.

“We refuse to consider the merits of the City’s defenses, specifically, that PERC’s orders are contrary to law or against public policy, or that they are vague and unclear. Simply put, the City could have asserted those arguments by filing a timely appeal with our Court. For reasons still unexplained by this record, the City chose not to do so.”

City of Newark, 2022 WL 871381 (A.D. 2022).

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