The Public Employment Relations Commission (“PERC”) has proposed to readopt, with amendments, N.J.A.C. 19:16, which is the administrative code provision governing Negotiations, Impasse Procedures, and Compulsory Interest Arbitration of Labor Disputes in Public Fire and Police Departments. Specifically, N.J.A.C. 19:16-5.7 deals with scope of negotiations petitions, and the proposed rule would allow arbitrators to take evidence and render decision on whether an issue is outside the scope of mandatorily negotiable subjects, and provides for post-award appeals to PERC so long as the scope petitions were timely filed.
The proposed rule presents a number of problems which were raised by the New Jersey State League of Municipalities and New Jersey Association of Counties during the comment period for the proposed rule, which expired on May 18, 2012. The Employer-Employee Relations Act, and more specifically, N.J.S.A. 34:13A-5.4(d), confers exclusive jurisdiction on PERC to make scope of negotiations determinations, granting it the power “at all times” to make such determinations. Therefore, this abdication of responsibility to an arbitrator, effectuated through rulemaking is impermissible absent amendment of the statute. In addition, the proposed rule does not even provide under what standard PERC will decide scope of negotiations issues on appeal. For example, would PERC be bound to the standard for appeals of interest arbitration awards, or will it invoke the general standard for scope of negotiations issues?
Furthermore, the proposed rule does not amend the time period for filing a scope of negotiations petition, which is 14 days from the filing of a petition for interest arbitration (or 5 days from receipt of the notice of filing the petition). In many scenarios, complying with this timeframe will be highly impractical, if not impossible. By the time an arbitrator gets assigned, sets a date for hearing, and receives final offers from the parties, the 14-day filing period will likely have already passed. Moreover, the situation is further aggravated by the fact that the proposed rule extends the timeframe for submission of final offers from 10 days before hearing to 2 days before hearing. Without the submission of final offers, parties will be unlikely to even know what potential issues will require a scope of negotiations determination, yet face the possibility of waiver by not timely filing a petition.
It remains to be seen whether these issues surfaced by comment to the proposed rule will be addressed in the final promulgation of the rule by PERC.