‘Me-too’ Negotiating

Labor Relations Report 

I’ve often referred to the “16g criteria” that arbitrators must consider when creating an interest arbitration award. These are nine specific criteria outlined in N.J.S.A. 34:13A-16g.

Section 1 is generally granted the most weight, possibly because it is the least defined — the interests and welfare of the public. It is similar to charging someone with careless driving or disorderly conduct. It means whatever the complainant wants it to mean.

The public’s interests and welfare can be served by freezing salaries to keep the tax rate the same for the duration of the contract, or they can be served by granting sufficient salary increases to stop the exodus of police officers who were hired and trained before moving on to a higher-paying department. Both of those scenarios are also covered specifically by other criteria, but an arbitrator is free to include them under these criteria, simply to give them more weight in awarding what he/she wants to accomplish.

Section 2 is also somewhat malleable when the arbitrator makes an award because “comparability” is in the eye of the beholder. The employer and union seldom agree on what constitutes a comparable jurisdiction, and an arbitrator may bring their own ideas on external comparables.

When you consider internal comparables, there are really only the professional firefighters in your jurisdiction that are close enough for consideration. Public safety work is like no other public employment, and policing is still different from firefighting. Essentially, one must choose what is and what is not comparable and make the argument to defend that choice.

In preparation for negotiating a new contract, it is incumbent upon the Local’s negotiating committee to evaluate salaries and benefits of other police units for comparison of the total compensation package. This allows you to make cogent arguments to the employer on your way to the best settlement possible. You must also be prepared for the employer representative’s counterarguments with their own comparable units.

Most often, this will be what they must give the other unionized and nonunionized employees in your jurisdiction. The employer will always be concerned with the terms that it negotiates with the “first unit” in a negotiating cycle because it may set a pattern.

More specifically, if the employer agrees to a large raise, each subsequent unit will negotiate for it, “me too.” In fact, some contracts will include a clause that indicates any raise that is negotiated higher than that received by another unit will also apply to this unit.

As the largest union in most jurisdictions, the PBA rank and file will usually be the first negotiating unit that the employer will want to agree. They have a statutory obligation to limit the tax increase to 2 percent each year, so they will look to keep raises under 2 percent for all employees to keep it simple. Most other public employees are not subject to the salary guides that are in PBA contracts, so step increases of 5 to 10 percent are not counted in those units.

By contrast, an employee retiring from a negotiating unit that is not covered by a 10-15 step salary guide is not replaced by a new employee who earns less than half that salary. That is just one of the differences that must be stressed when discussing internal comparables. A creative way to avoid a “me-too” claim by the other employees would be to negotiate pensionable stipends that are police-only.

For example, the Local could agree to a salary guide granting 2 percent across-the-board raises to all employees in the unit. In a separate clause, the Local could agree that all employees receive a stipend as part of base pay equal to 1.5 percent of salary for consideration of fulfilling the requirements to maintain a license issued by the NJ Police Training Commission. That’s one way to get a 3.5 percent raise that the DPW can’t qualify for.

Recently, in a matter of interest arbitration between Madison Borough and FMBA Local #74, Arbitrator James Mastriani
actually created a me-too clause as a reopener in his award. The FMBA sought a 2.5 percent reduction in healthcare contributions each year in a four-year contract, for a total reduction of 10 percent in 2025. The borough made its case against it by stressing that the Tier 4 contribution levels set by Chapter 78 applied to all Madison employees. Although Mastriani didn’t actually award a reduction, he authorized negotiations on that subject if the PBA successfully negotiates or is awarded a reduction before this contract expires.

In his award, Mastriani wrote:

The record does not reflect that any bargaining unit in the Borough has successfully negotiated a reduction in Chapter 78 employee contribution rates. Although other bargaining units have Agreements at Tier 4 levels, I take notice that the PBA negotiations are pending without an agreement having been reached. I find the evidence on internal comparisons are compelling. The FMBA’s proposal would cause deviation from other Borough employees, unionized or non-unionized. Given the internal comparisons, which I give substantial weight to, I decline to award the FMBA proposal. However, I also find that this unit would be undermined if their contribution levels were frozen through December 31, 2025 and the Borough agrees, or an arbitrator awards, a reduction in the contribution rates in any other bargaining unit. Accordingly, I award re-opener language on this issue. This would allow for immediate negotiations for the FMBA on demand, pursuant to the terms of the interest arbitration statute if, during the course of this agreement (Expiration December 31, 2025), the Borough and any other bargaining unit agrees to, or is awarded, a reduction in, or any modification, to existing Tier 4 contribution levels. Accordingly, I award the following language:

During the term of this Agreement, if the Borough and any of its bargaining units agree to revise employee contributions for health insurance at less than a Tier 4 level, the FMBA and the Borough, upon demand of either party, shall reopen negotiations on health insurance contribution levels.

Spoiler alert: If you look up Docket No. IA-2023-018 on the PERC website, Mastriani awarded 2 percent ATB salary increases, not the 3.5 percent that the FMBA proposed. He justified it by saying they are well compensated and received a $200 increase to the uniform allowance and a $350 EMT stipend increase along with some additional on-call time compensation.

In a confounding portion of the award, he codified a previous grievance arbitration award that will not allow step movement after the expiration of this agreement. The borough argued that changing the language through an interest arbitration award would effectively vacate the grievance arbitration award.

Mastriani seemed to agree with that position, although the grievance award was essentially rendered moot at the issuance of the IA award, since the raises were retroactive to the time the borough stopped recognizing step movement. He stated that the parties should negotiate it back into the next contract.

It seems to me that they attempted to negotiate it into this contract and could not come to agreement, so the item was submitted for arbitration. It should be noted that this award has been appealed, but I think it illustrates, once again, that a negotiated settlement would not have been worse for the FMBA than this award.