In the recent arbitration case of City of Newark and The Police Superior Officers’ Association, Inc., NJSBM Case No,: 15-0282, (December 1, 2015), Arbitrator Perry O. Lehrer required Newark, a civil service municipality, to pay a suspended police captain while he awaited the disposition of the criminal charges pending against him that led to his suspension. The Arbitrator determined that an officer’s receipt of payment while on suspension due to pending criminal charges is a negotiable term and condition of employment and, therefore is arbitrable. The Arbitrator relied upon the parties’ past practice of paying officers who were suspended pending resolution of criminal charges as the basis of his award. While the underlying circumstances are not enviable, employees and their representatives should take note of this favorable outcome for future reference.
Regarding the specific facts of the case, in City of Newark, a police captain, charged with the second degree offense of selling confidential departmental data bases, was suspended without pay while awaiting a criminal trial on the pending charges. His union filed a grievance challenging the suspension. His employer denied the grievance and the union filed for arbitration pursuant to the terms of the parties’ collective negotiations agreement. (The employer also filed a Scope of Negotiations Petition with Public Employee Relations Commission, but that Scope Petition was ultimately dismissed on procedural grounds).
At arbitration, the employer claimed that the officer’s conduct was egregious (and therefore distinctive from other cases where officers were paid while suspended due to pending criminal charges) because his actions “touch[ed] and concern[ed] his employment” as a police officer. The employer also argued that it had a managerial prerogative to decide whether to suspend an officer with or without pay while criminal charges are pending. The employer further contended that the issue was not arbitrable as the subject was preempted by statute.
On the issue of arbitrability, the union countered by arguing that PERC decisions have determined that the issue of whether an employee is suspended with or without pay, pending final disciplinary determinations, is a mandatory subject of negotiations. On the core question of whether suspending employees with or without pay while criminal charges are pending is negotiable, the union contended that continuing pay was required, relying on its argument that there had been a clear past practice of doing so in Newark.
The Arbitrator agreed with the union that the past practice existed and that the past practice constituted a negotiable term and condition of employment between the parties. The employer’s failure to heed that past practice and pay the suspended officer was therefore a breach of the parties’ agreement. The union’s ability to demonstrate that multiple suspended officers had been returned to duty with pay following a departmental hearing while they faced criminal charges was key to its victory.
Of equal importance, the Arbitrator pointed out that while the Civil Service Commission has the ultimate authority to determine the appropriate discipline in such cases, the Commission has already ruled that payment of employees who are suspended while criminal charges are pending is a mandatorily negotiable term and condition of employment and is, therefore, arbitrable.
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