Santo Della Monica, president of Local 245, is unbowed following an unfavorable arbitration ruling that could cost the union over $20 million. “They won the battle but not the war. … This is only step one. We’re going to step two.”
Based on a technicality, a state arbitrator ruled May 18 that Jersey City has no obligation to pay 400 city union workers double time during the pandemic.
In his decision, state Public Employment Relations Commission arbitrator Robert C. Gifford found that Jersey City Public Employees Local 245, representing crossing guards and blue-collar workers in recreation and public works, failed to file its grievance in a timely manner as outlined in the union’s contract with the city.
In a tweet posted May 19, Mayor Steven Fulop said, “A big win for Jersey City … in arbitration dismissing in its entirety of Local 245’s State of Emergency grievance filed against the city for extra pay during COVID. It was estimated that a loss in this case would have exposed JC to approximately $15 million in additional payroll liability.”
The city’s exposure could have been worse. Arthur Thibault, the Warren attorney who represented the city in the arbitration case, put it at $21.6 million “and growing” for a 3-year double pay period.
The mayor went on to say, “ … at this point I have 10 years of negotiating with 6-plus unions on so many issues. I pride myself on being FAIR as we fight for the taxpayers, but we also want a positive work environment for our employees. It’s one of the toughest parts of my job.”
The union had previously successfully sued the city for more than $100,000 in double-time pay for work performed in March 2018 during a weather-related week-long state of emergency declared by Gov. Phil Murphy. In this instance it notified the city that double-time pay was due for pandemic-related emergency work performed going back to March 2020.
The union’s contract with the city says, “Employees who work during a State of Emergency … as declared by the Governor of New Jersey, will receive double-time pay for all hours worked during the State of Emergency.” The contract specifies that the union has 10 days to file a grievance with the city business administrator if the city takes no corrective action.
It wasn’t until October 2021 that the union put the city on notice that its members had yet to be paid double time but, in its legal argument filed with the arbitrator, Local 245 reasoned there was really no need to strictly follow the notification procedure because “there is no dispute that there has been a (continuing) State of Emergency since March 2020 and that the city has not paid Local 245 double time per the (union contract).”
Moreover, says union attorney Thomas A. McKinney, of Morristown, the city didn’t bother to raise the timing issue until after it was notified the union intended to seek arbitration on the pay issue.
Beyond the argument about timely filing of a grievance, the city’s lawyer argued that the extraordinary pressures brought by COVID-19 render compliance with the double-time provision of the city’s contract with Local 245 “impracticable” because “it threatens the city’s finances” (and) “ … jeopardizes the city’s ability to provide the same level of services or provide those services with the same number of employees, whether within Local 245 or elsewhere.”
“The city,” Thibault says in his brief, “submits that the facts of the pandemic, the seemingly unlimited and unforeseen duration of the State of Emergency declared by the governor … mitigate in excusing the city from having to pay double time to members of Local 245. … An unforeseen once in a century viral pandemic is so severe that it cannot be regarded as one of the risks the city foresaw when (the union double pay provision) was negotiated.”
In his decision, arbitrator Gifford elected to focus on the contract language related to the “three-step grievance procedure” outlined in Local 245’s contract with the city that calls for a 10-day notice from the time of the perceived infraction.
“There is nothing in that language that reflects any intent to set aside clear and unambiguous contract language,” Gifford says. And, he continues, “Union counsel’s memorandum to the city’s assistant counsel, sent more than 19 months after the governor declared a State of Emergency on March 9, 2020, does not satisfy those mutually-agreed-upon requirements.”
And, because the contract says that “ … failure by the grievant to act within … 10 days shall be deemed to constitute an abandonment of the grievance,” Gifford says he’s obliged to “ … conclude that the grievance was not timely filed. For similar reasons, I do not sustain the union’s argument that the grievance is timely because it involves a continuing violation.”
And, Gifford says, because the union “skipped” preliminary steps spelled out by the contract – discussing with the city department director the alleged contractual violation, identifying the grievants, outlining the extent of loss to the grievants, results of any prior discussions, why there is dissatisfaction with those discussions and the remedy sought – “it was not unreasonable for the city to rely on the (contract’s) strict … terms concerning procedural requirements.”
Therefore, Gifford concludes, “ … the city has established that the grievance is untimely and must be dismissed.”