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H.E. No. 82-51
Synopsis:
A Hearing Examiner recommends that the Public Employment Relations Commission find that the Respondent Town violated Subsections 5.4(a)(1) and (5) of the New Jersey Employer-Employee Relations Act when it unilaterally without negotiations with the Charging Party discontinued full health insurance benefits for certain retired employees as provided for in the 1979 collective negotiations agreement between the parties. The Hearing Examiner rejected the Town's argument that such negotiations would be illegal since the Charging Party was seeking to negotiate for retired employees. The fact was that the agreement contemplated only negotiations for coverage of present employees under the agreement who thereafter retired and who were to have health insurance benefits coverage for five years thereafter.
The Hearing Examiner further recommends that the Commission find that the Respondent Town did not violate the same provisions of the Act when, commencing in May 1981, it unilaterally and without negotiations with the Charging Party assigned employees in certain job classification in the Department of Public Works perform the duties of Sweeper Violation Enforcement Officers. This was purely a managerial prerogative of the employer to direct the work force.
By way of remedy, the Hearing Examiner ordered the Town to reimburse the affected retired employees in the amount of premiums paid by the Town since the discontinuing of health insurance benefits as of February 11, 1981 with interest at the rate of 12% per annum.
A Hearing Examiner's Recommended Report and Decision is not a final administrative determination of the Public Employment Relations Commission. The case is transferred to the Commission which reviews the Recommended Report and Decision, any exceptions thereto filed by the parties, and the record, and issues a decision which may adopt, reject or modify the Hearing Examiner's findings of fact and/or conclusions of law.
PERC Citation:
H.E. No. 82-51, 8 NJPER 330 (¶13150 1982)
Appellate History:
Additional:
Miscellaneous:
NJPER Index:
43.137 72.652 72.667 43.422 43.98 72.665
Issues:
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H.E. NO. 82-51 1.
H.E. NO. 82-51
STATE OF NEW JERSEY
BEFORE A HEARING EXAMINER OF THE
PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the Matter of
TOWN OF KEARNY,
Respondent,
-and- Docket No. CO-81-366-55
SN-82-4
KEARNY COUNCIL NO. 11, N.J.C.S.A.,
Charging Party.
Appearances:
For the Town of Kearny
Cifelli & Davie, Esqs.
(Kenneth P. Davie, Esq.)
For the Charging Party
Fox & Fox, Esqs.
(Richard H. Greenstein, Esq.)
HEARING EXAMINER = S RECOMMENDED
REPORT AND DECISION
An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the A Commission @ ) on June 3, 1981 by Kearny Council No. 11, N.J.C.S.A. (hereinafter the A Charging Party @ or the A Council @ ) alleging that the Town of Kearny (hereinafter the A Respondent @ or the A Town @ ) had engaged in unfair practices within the meaning of the New Jersey Employer-Employee Relations Act, as amended, N.J.S.A. 34:13A-1 et seq. (hereinafter the A Act @ ), in that, notwithstanding two arbitration awards that have sustained the validity of the requirement in the collective negotiations agreement between the parties that health benefits be provided to all retired employees for a period of five years after retirement, the Respondent on February 11, 1981 adopted a resolution with negotiations with the Charging Party, which unilaterally discontinued providing such health insurance for retired employees with less than 25 years of service; and, further on May 13, 1981 the Respondent unilaterally, and without negotiations with the Charging Party required certain employees represented by the Charging Party to perform duties outside of their job classifications, namely, performing the duties of A Violations Officers, @ which entailed the issuance of summonses for street sweeping violations; all of which is alleged to be a violation of N.J.S.A. 34:13A-5.4(a)(1), (5), (6) and (7) of the Act.1/
It appearing that the allegations of the Unfair Practice Charge, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on November 23, 1981. Pursuant to the Complaint and Notice of Hearing, hearings were scheduled for January 19 and 20, 1982 in Newark, New Jersey. However, on January 13, 1982, the Commission consolidated a Petition for Scope of Negotiations Determination involving the identical issues with the instant Unfair Practice Charge, and as a result, the initial hearing dates were cancelled. The first mutually available date thereafter, following several interim adjournments, was April 5, 1982. A hearing was held on that date in Newark, New Jersey, at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. Oral argument was waived and the parties filed post-hearing briefs by May 4, 1982.
An Unfair Practice Charge having been filed with the Commission, a question concerning alleged violations of Act, as amended, exists and, after hearing, and after consideration of the post-hearing briefs of the parties, the matter is appropriately before the Commission by its designated Hearing Examiner for determination.
Upon the entire record, the Hearing Examiner makes the following: FINDINGS OF FACT 1. The Town of Kearny is a public employer within the meaning of the Act, as amended, and is subject to its provisions.
2. Kearny Council No. 11, N.J.C.S.A. is a public employee representative within the meaning of the Act, as amended, and is subject to its provisions.
3. The applicable collective negotiations agreement between the parties was effective during the calendar year 1979 (J-1). Article XIV, Health Benefits and Insurance, provides in Section 2 that the Town agrees to provide, at no cost to all retired employees formerly covered by the agreement, full insurance coverage as set forth therein for a period of five years after retirement, provided that the retired employee is not otherwise covered for such insurance or is not covered by Medicare (J-1, p. 18).
4. The Respondent, acting on advice from the Division of Pensions of the State Department of Treasury, adopted a Resolution on February 11, 1981 directing its attorney to advise the State Division of Pensions that the practice of paying health benefits for employees with less than 25 years of credited service has been discontinued (J-2). As a result thereof certain retired employees with less than 25 years of credited service had their health insurance benefits discontinued, notwithstanding the provision of Article XIV, Section 2 of the collective negotiations agreement, supra.2/
5. On January 29, 1977, Arbitrator Paul G. Kell held that the Respondent violated the 1974-75 collective negotiations agreement with respect to health benefits for retired employees by having unilaterally discontinued same and ordered the Respondent to reimburse the retired employees involved in the amount of premiums paid by the Respondent to purchase certain enumerated health insurance coverage, provided that said retired employees were not otherwise covered for such insurance or were not covered by Medicare (CP-1).
6. On October 7, 1980, Arbitrator John J. Pearce, Jr. rendered an award, which followed the Kell award, supra, holding that retired employees should be reimbursed in the amount of premiums paid by the Respondent for the purchase of the insurance coverage specified in the collective negotiations agreement (CP- 2).
7. When the Respondent terminated health insurance benefits for retired employees with less than 25 years of service on February 11, 1981 this was done without negotiations with the Charging Party.
8. On May 13, 1981 the Respondent adopted a Resolution extending the authority to issue summonses for street sweeping violations to the following employees under the supervision of the Superintendent of Public Works: Raymond Duger, James McAleavy, Carmine Nigro, Thomas Russo, Frank Kane, James Mossey and Harold McCann (J-3A). On May 27, 1981 the Respondent adopted a like Resolution involving additional employees: Edward Hedden, John Callaghan, Robert Magee and Hugh Forfar (J-3B).
9. The job descriptions for the foregoing employees were introduced in evidence as follows: Laborer (J-4); Truck Driver (J-5); Pumping Station Repairer (J-6); Equipment Operator (J-7); Heavy Equipment Operator (J-8); Assistant Public Works Foreman (J-9); and Public Works Foreman (J-10).
10. The job description for Sweeper Violations Enforcement Officer was enacted by ordinance dated May 22, 1974 (J-11). There was also introduced in evidence the subsequent job description for this position (J-12).
11. The aforenamed Public Works employees were assigned the duties of Sweeper Violations Enforcement Officers commencing in May 1981. There was no change in the hours worked per week for the affected employees nor was there any change in salary.
12. The affected employees perform Sweeper Violations duties Monday through Thursday, 8:00 a.m. to 4:00 p.m., with 1 hour for lunch; on Friday the said employees do their regular Public Works assignments in accordance with their job descriptions, supra.
13. The affected employees drive Town-owned vehicles in performing Sweeper Violations duties.
14. If weather conditions prevent the sweeper equipment from being utilized, the affected employees performed their regular work in accordance with their job descriptions, supra.
15. Of the affected employees doing Sweeper Violations work, three employees perform the duties most of the time (two laborers and one truck driver) with the other affected job classifications doing Sweeper Violations work as needed.
16. The foregoing assignment of Public Works employees to perform the job duties of Sweeper Violations Enforcement Officers was made unilaterally and without negotiations with the Charging Party.
17. Prior to May 1981 three female employees performed the duties of Sweeper Violations Enforcement Officers. However, these three employees were laid off for economy reasons on an unspecified date in 1981 but prior to May 1981. THE ISSUES 1. Did the Respondent Town violate Subsections (a)(1) and (5) of the Act by unilaterally, and without negotiations with the Charging Party, discontinuing the health insurance benefits of retired employees with less than 25 years of credited service, notwithstanding the provisions of Article XIV, Section 2, of the 1979 collective negotiations agreement?3/
2. Did the Respondent Town violate Subsections (a)(1) and (5) of the Act when it unilaterally, and without negotiations with the Charging Party, assigned employees in certain job classifications in the Department of Public Works to perform the duties of Sweeper Violations Enforcement Officers in May 1981? DISCUSSION AND ANALYSIS The Respondent Town Violated Subsections
(a)(1) And (5) Of The Act By Unilaterally,
And Without Negotiations With The Charging
Party, Discontinuing The Health Insurance
Benefits Of Retired Employees With Less
Than 25 Years Of Credited Service,
Notwithstanding The Provisions Of Article
XIV, Section 2, Of the 1979 Collective
Negotiations Agreement
The Hearing Examiner finds and concludes that the Respondent Town did violate the Act by unilaterally discontinuing the health insurance benefits of retired employees with less than 25 years of credited service, notwithstanding the provisions of Article XIV, Section 2, of the 1979 collective negotiations agreement, without negotiations with the Charging Party.
Article XIV, Section 2, of the 1979 collective negotiations agreement provides, in pertinent part, that the Town A ...further agrees to provide, at no cost, to all retired employees who have been, prior to retirement, employees covered by this Agreement... @ (emphasis supplied) full health insurance benefits for a period of five years after retirement, provided that the employee is not otherwise covered by such insurance or covered by Medicare.
The Town argues that the Charging Party has sought to negotiate for A all @ retired employees, which is clearly precluded by the Commission = s decisions in Township of Ocean, P.E.R.C. No. 81-136, 7 NJPER 338 (1981) and County of Middlesex, P.E.R.C. No. 79-80, 5 NJPER 194 (1979). These decisions, however, clearly pertain to efforts by public employee representatives to negotiate for all retired employees with no limitation whatsoever. Plainly, a public employee representative cannot negotiate for benefits for employees who have already retired: Ocean and Middlesex, supra.
However, the instant case does not involve an effort to negotiate for all retired employees, including employees who have previously retired. Article XIV, Section 2, supra, makes clear that the Charging Party has negotiated only for present employees A ...covered by this Agreement... @ who are to receive full health insurance benefits for a period of five years after retirement. There is no requirement in the agreement that such employees have to have had 25 years of credited service in order to qualify. The Respondent did not offer in evidence, nor does its brief contain, any statute or regulation which A sets @ such a qualification within the meaning of State v. State Supervisory Employees Association, 78 N.J. 54, 81, 82 (1978).
As the Commission said in Borough of Bradley Beach, P.E.R.C. No. 81-21, 6 NJPER 429 (1980):
...Nothing in the State Health Benefits Program Act indicates that such negotiations are beyond the authority of the public employer. However, the case cited by the Borough as precluding negotiations in this area, New Jersey Policemen = s Benevolent Assn. v. New Jersey Health Benefits Commission, supra, does indicate that, if such benefits are accorded to future retirees of the Police Department, then these same benefits must be extended to all eligible employees...The apposite administration regulation...which is binding on the member employer, requires such benefits to be extended to present and future pensioners of the employer. Thus, the employer who is a member is obligated to provide equal benefits to all employees under the State Health Benefits Program Act, but this requirement is not inconsistent with mandatory negotiations.
Our holding that an employee organization such as the P.B.A. can negotiate such benefit only for present employees does not mean that the member employer cannot extend such benefits to all eligible employees... (6 NJPER at 430).
The Hearing Examiner notes, but does not attach great significance, to the fact that two arbitrators have sustained grievances involving the discontinuance of the provision for full health insurance benefits for retired employees up to five years after retirement under prior agreements. Thus, the decision of the Hearing Examiner herein is merely consistent with the decisions of two prior arbitrators in construing the same contract language.
The Charging Party having carried its burden of proof that the Respondent Town violated Subsections (a)(1) and (5) of the Act, the Hearing Examiner will recommend an appropriate remedy hereinafter.
The Respondent Town Did Not Violate
Subsections (a)(1) And (5) Of The Act
When It Unilaterally, And Without
Negotiations With The Charging Party,
Assign Employees In Certain Job
Classifications In The Department Of
Public Works To Perform The Duties
Of Sweeper Violations Enforcement
Officers In May 1981
The Hearing Examiner finds and concludes that the Respondent Town did not violate Subsections (a)(1) and (5) of the Act when it unilaterally, and without negotiations with the Charging Party, assign employees in certain job classifications in the Department of Public Works to perform the duties of Sweeper Violations Enforcement Officers commencing in May 1981.
It is first noted that neither the hours of work nor the compensation for the affected employees in the Department of Public Works was altered. No employee = s hours were increased nor was any employee = s compensation reduced. Further, the 1979 collective negotiations agreement provides in Article XXIV, the management rights clause, that A ...the right to manage the affairs of the Town and to direct the working forces and operations of the Town...is vested in and retained by the Employer, exclusively. @ (J-1, p. 30).
The right of a public employer to transfer and reassign its employees is clear under the New Jersey Supreme Court = s decision in Ridgefield Park Education Association v. Ridgefield Park Board of Education, 78 N.J. 144 (1978) and the Commission = s decision in Deptford Twp. Bd. of Ed., P.E.R.C. No. 80-82, 6 NJPER 29 (1980).
The only limitation on the employer = s right to transfer and reassign employees is that it may not be done for discriminatory or retaliatory reasons: City of Elizabeth, P.E.R.C. No. 79-93, 5 NJPER 231 (1979). There is no allegation of discrimination or retaliatory action involved herein.
Accordingly, the Town having the inherent managerial prerogative to direct and assign or reassign the work force, the Hearing Examiner must recommend dismissal of this aspect of the Unfair Practice Charge. * * * Upon the foregoing, and upon the entire record in this case, the Hearing Examiner makes the following: CONCLUSIONS OF LAW 1. The Respondent Town violated N.J.S.A. 34:13A-5.4(a)(1) and (5) when it unilaterally, and without negotiations with the Charging Party, discontinued full health insurance benefits for certain retired employees as provided for in Article XIV, Section 2, of the 1979 collective negotiations agreement.
2. The Respondent Town did not violate N.J.S.A. 34:13A- 5.4(a)(1) and (5), when, commencing in May 1981, it unilaterally, and without negotiations with the Charging Party, assigned employees in certain job classifications in the Department of Public Works to perform the duties of Sweeper Violations Enforcement Officers.
3. The Respondent Town did not violate N.J.S.A. 34:13A- 5.4(a)(6) and (7) by its conduct herein. RECOMMENDED ORDER The Hearing Examiner recommends that the Commission ORDER:
A. That the Respondent Town cease and desist from:
1. Interfering with, restraining or coercing its employees in the exercise of the rights guaranteed to them by the Act, particularly, by unilaterally discontinuing the health insurance benefits coverage for certain retired employees without negotiations with the Charging Party.
2. Refusing to negotiate upon demand in good faith with the Charging Party regarding employees in the contract unit, particularly, by unilaterally discontinuing health insurance benefits for certain retired employees as provided for in the collective negotiations agreement between the parties.
B. That the Respondent Town take the following affirmative action:
1. Forthwith make payment to the retired employees whose health insurance benefits were discontinued as of February 11, 1981 in the amount of the premiums paid by the Respondent Town to purchase Blue Cross and Blue Shield, Rider A J, @ and Major Medical coverage, except that no payment is required for employees who were otherwise covered by other insurance or were covered by Medicare, together with interest at the rate of 12% per annum from February 11, 1981.
2. Post in all places where notices to employees are customarily posted, copies of the attached notice marked as Appendix A A. @ Copies of such notice, on forms to be provided by the Commission, shall be posted immediately upon receipt thereof and, after being signed by the Respondent = s authorized representative, shall be maintained by it for at least sixty (60) consecutive days thereafter. Reasonable steps shall be taken by the Respondent Town to assure that such notices are not altered, defaced or covered by other materials.
3. Notify the Chairman of the Commission within twenty (20) days of receipt what steps the Respondent Town has taken to comply herewith.
C. That the allegations in the complaint that the Respondent Town violated N.J.S.A. 34:13A-5.4(a)(6) and (7) be dismissed in their entirety.
/s/Alan R. Howe
Hearing Examiner
DATED: May 11, 1982
Trenton, New Jersey
1/ These Subsections prohibit public employers, their representatives or agents from: A (1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this Act. (5) Refusing to negotiate in good faith with a majority representative of employees in an appropriate unit concerning terms and conditions of employment of employees in that unit, or refusing to process grievances presented by the majority representative. (6) Refusing to reduce a negotiated agreement to writing and to sign such agreement. (7) Violating any of the rules and regulations established by the commission. @
2/ The first paragraph of the Unfair Practice Charge alleges a violation of the Act by the Respondent in adopting the Resolution of February 11, 1981, supra.
3/ There was no evidence adduced which would constitute a violation of Subsections (a)(6) and (7) of the Act and, accordingly, the Hearing Examiner will recommend dismissal as to these allegations in the Unfair Practice Charge.
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