P.E.R.C. NO. 2010-8 STATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of HARDYSTON TOWNSHIP BOARD OF EDUCATION, Petitioner, -and- Docket No. SN-2009-070 HARDYSTON TOWNSHIP EDUCATION ASSOCIATION, Respondent. SYNOPSIS The Public Employment Relations Commission grants the request of the Hardyston Township Board of Education for a restraint of binding arbitration of a grievance filed by the Hardyston Township Education Association. The grievance contests a change in the negotiated mileage reimbursement rate in the parties agreement. The Commission finds that the grievance is not legally arbitrable because it is preempted by State statute and regulation regarding mileage reimbursement for school districts. This synopsis is not part of the Commission decision. It has been prepared for the convenience of the reader. It has been neither reviewed nor approved by the Commission.
P.E.R.C. NO. 2010-8 STATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of HARDYSTON TOWNSHIP BOARD OF EDUCATION, Petitioner, -and- Docket No. SN-2009-070 HARDYSTON TOWNSHIP EDUCATION ASSOCIATION, Appearances: Respondent. For the Petitioner, Schwartz Simon Edelstein Celso & Zitomer, LLC, attorneys (Marc H. Zitomer, of counsel and on the brief) For the Respondent, Zazzali, Fagella, Nowak, Kleinbaum & Friedman, attorneys (Aileen O Driscoll, on the brief) DECISION On April 15, 2009, the Hardyston Township Board of Education petitioned for a scope of negotiations determination. The Board seeks a restraint of binding arbitration of a grievance filed by the Hardyston Township Education Association. The grievance contests a change made by the Board in the mileage reimbursement rate for employees who are required to use their personal vehicles while performing their duties. We grant the request for a restraint. The parties have filed briefs. The Board has filed exhibits and the certification of its superintendent of schools. These facts appear.
P.E.R.C. NO. 2010-8 2. The Association represents the Board s certified teaching personnel, child study team members, nurse, librarian, custodial and maintenance employees, full and part time instructional aides, and library aide. On October 24 and 28, 2008, respectively, the Association and the Board signed a collective negotiations agreement effective from July 1, 2008 through June 30, 2011. Article XI.B provides, in pertinent part: Teachers who may be required to use their own automobile in the performance of their duties or while on other school business shall be reimbursed for all such travel at the prevailing IRS rate. Split staff shall be reimbursed no less than two (2) times per year.... Article XXIII.A provides: If any provision of this Agreement or any application of this Agreement to any employee is held to be contrary to law, then such provision or application shall not be deemed valid and subsisting, except to the extent permitted by law; but all other provisions or applications shall continue in full force or effect. The Board continued to pay Association members at the IRS rate of $.585 until the June 30, 2008 expiration of the parties prior collective negotiations agreement. In late September 2008, the Association filed a grievance asserting that the Board was violating Article XI.B because teachers were being reimbursed for travel at the rate of $.31 per mile rather than at the IRS rate. The grievance was denied at all steps of the grievance procedure. The superintendent states that he relied on Article XXIII and
P.E.R.C. NO. 2010-8 3. implemented the lower rate required by a Department of Treasury, Office of Management and Budget ( OMB ) circular. On January 16, 2009, the Association demanded arbitration. This petition ensued. Our jurisdiction is narrow. Ridgefield Park Ed. Ass n v. Ridgefield Park Bd. of Ed., 78 N.J. 144, 154 (1978), states: The Commission is addressing the abstract issue: is the subject matter in dispute within the scope of collective negotiations. Whether that subject is within the arbitration clause of the agreement, whether the facts are as alleged by the grievant, whether the contract provides a defense for the employer's alleged action, or even whether there is a valid arbitration clause in the agreement or any other question which might be raised is not to be determined by the Commission in a scope proceeding. Those are questions appropriate for determination by an arbitrator and/or the courts. Thus, we cannot consider the merits of the grievance or any contractual defenses the employer may have. Local 195, IFPTE v. State, 88 N.J. 393 (1982), lists the standards for determining mandatory negotiability: [A] subject is negotiable between public employers and employees when (1) the item intimately and directly affects the work and welfare of public employees; (2) the subject has not been fully or partially preempted by statute or regulation; and (3) a negotiated agreement would not significantly interfere with the determination of governmental policy. To decide whether a negotiated agreement would significantly interfere with the determination of governmental policy, it is necessary to balance the interests of the public employees and the public employer.
P.E.R.C. NO. 2010-8 4. When the dominant concern is the government s managerial prerogative to determine policy, a subject may not be included in collective negotiations even though it may intimately affect employees working conditions. [Id. at 404-405]. Negotiations are preempted only when a statute or regulation fixes a term and condition of employment expressly, specifically and comprehensively. Bethlehem Tp. Ed. Ass n v. Bethlehem Tp. Bd. of Ed., 91 N.J. 38, 44 (1982). The Board argues that the rate at which school district employees are reimbursed for their mileage has been fully preempted by statute and a Department of Education regulation that require that these staff members be reimbursed at the OMB rate of $.31 per mile. The Association responds that the Department of Education regulation, adopted on December 18, 2008, does not preempt because it provides that if there is a conflict between the regulation and an existing contract, the terms of the contract will prevail. The Board replies that both the OMB circular and the statute requiring that Board policies adhere to the OMB circular were adopted before the parties entered into their current contract and any exemption for existing contracts does not apply. The rate of mileage reimbursement is a term and condition of employment. See State of New Jersey, P.E.R.C. No. 77-40, 3 NJPER 78 (1977), aff'd NJPER Supp.2d 48 ( 34 App. Div. 1978). However,
P.E.R.C. NO. 2010-8 5. negotiations may be limited or preempted by statutes or regulations setting particular terms and conditions of employment. In March 2007, a statute was enacted that requires that school boards comply with the OMB mileage reimbursement rate. N.J.S.A. 18A:11-12(c). The statute states, in pertinent part: A board of education shall ensure through its policy and procedures that all travel by its employees and board members is educationally necessary and fiscally prudent, and shall include the requirement that all school district travel expenditures are: * * * (3) in compliance with State travel payment guidelines as established by the Department of the Treasury and with guidelines established by the federal Office of Management and Budget; except that those guidelines that conflict with the provisions of Title 18A of the New Jersey Statutes shall not be applicable, including, but not limited to, the authority to issue travel charge cards. The board of education shall specify in its travel policy the applicable restrictions and requirements set forth in the State and federal guidelines including, but not limited to, types of travel, methods of transportation, mileage allowance, subsistence allowance, and submission of supporting documentation including receipts, checks or vouchers. On March 17, 2008, the Office of Management and Budget adopted OMB Circular (08-19-OMB). It communicates the State s travel guidelines and provides that mileage reimbursement shall be made at the rate authorized by the State Appropriations Act. That rate is $.31 per mile. The circular also provides that:
P.E.R.C. NO. 2010-8 6. If any condition in a negotiated contract, in any administrative regulation or in any statute is in conflict with these regulations, the provision of the contract, regulation or statute would prevail. In August 2008, the Department of Education issued an Executive County Superintendent Review of Administrator Contracts Q&A. That document states that the OMB circular mileage reimbursement rate of $.31 applies to all board of education employees but that, pursuant to the circular, existing negotiated agreements, which have not expired, may be honored. On December 18, 2008, the Department of Education adopted regulations that set the mileage reimbursement rate at the OMB rate and further state that in accordance with the OMB circular, only existing negotiated contracts are exempt. See N.J.A.C. 1/ 6A:23A-7.9(4)(c)(i). Thus, since at least March 17, 2008, when the OMB circular was adopted, the only exemption from the $.31 mileage 1/ N.J.A.C. 6A:23A-7.9(4)(c)(i), entitled Travel Methods, effective December 18, 2008, provides, in pertinent part: Mileage allowance... shall be allowed at the rate authorized by the annual State Appropriations Act, or a lesser rate at the board s discretion for an employee or board member traveling by his personally owned vehicle on business. (1) In accordance with the OMB Circulars, if any condition in an existing negotiated contract is in conflict with the Circulars, such as the mileage reimbursement rate, the provision of the contract will prevail.
P.E.R.C. NO. 2010-8 7. reimbursement rate has been for contracts that had been 2/ negotiated prior to that date. In Paterson State-Operated School Dist., P.E.R.C. No. 2009-58, 35 NJPER 136 ( 49 2009), we held that the Department of Education regulation preempted successor contract negotiations over a higher rate. But we could also have relied on the implementing statute and OMB circular. This case requires a similar application of the statute, regulation and OMB circular. The exemption for preexisting negotiated contracts in the March 17, 2008 OMB circular does not apply to this contract because the contract was entered into after the adoption of the circular. The grievance seeking a mileage reimbursement rate higher than the OMB rate is therefore not legally arbitrable. 2/ We have considered, but rejected, an interpretation of the March 17, 2008 OMB circular that would permit contracts entered into after the circular issued to prevail over the circular. Unlike conflicting regulations and statutes which, under the terms of the circular, would also prevail, only negotiated contracts would prevail. We interpret the use of the qualifying word negotiated to restrict the contracts that would prevail to those that had already been negotiated at the time the circular issued.
P.E.R.C. NO. 2010-8 8. ORDER The request of the Hardyston Township Board of Education for a restraint of binding arbitration is granted. BY ORDER OF THE COMMISSION Chairman Henderson, Commissioners Colligan, Joanis and Watkins voted in favor of this decision. None opposed. Commissioner Fuller abstained. Commissioners Branigan and Buchanan were not present. ISSUED: August 13, 2009 Trenton, New Jersey