H.E. NO. 79-20

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

COUNTY OF ESSEX,

Respondent,

-and-	Docket No. CO-76-211-71

ESSEX COUNTY INSTITUTIONAL

PATROLMEN'S ASSOCIATION,

affiliated with ESSEX COUNCIL

NO. 1, NEW JERSEY CIVIL SERVICE

ASSOCIATION,

Charging Party.

Appearances:

For the Respondent,

Goldberger, Siegel & Finn, Esqs.

(Howard A. Goldberger, of Counsel)

For the Charging Party,

Fox and Fox, Esqs.

(David I. Fox and Richard Greenstein, of Counsel)

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

An Unfair Practice Charge was filed with the Public Employment Relations Commission (the "Commission") by the Essex County Institutional Patrolmen's Association (the "Association") affiliated with Essex Council No.1 New Jersey Civil Service Association ("Council #1") alleging that the County of Essex (the "County") had violated the New Jersey Employer-Employee Relations Act (the "Act"). Specifically it was alleged that the County had failed to negotiate with the Association before making changes in certain terms and conditions of employment in derogation of N.J.S.A. 34:13A-5.4(a)(5) and (7).1/ It appearing that the allegations, if proved, might constitute an unfair practice, a Complaint and Notice of Hearing was issued, and a hearing conducted before the undersigned Commission Hearing Examiner concluding on May 18, 1978.2/

The Association was certified by the Commission on February 11, 1976, as representative of a unit of Institutional Patrolmen, Sergeants and Captains employed by the County, all of whom were assigned to the Essex Hospital Center. By resolution passed February 11, 1976, the Institutional Patrolmen titles were abolished by the Board of Freeholders and these employees were placed in a Guard, Public Property series. Subsequently by resolution passed June 9, 1977, the Freeholders having been notified by the New Jersey Department of Civil Service that the placement in that series was not warranted by the duties performed, placed the former Institutional Patrolmen in a Security Officer series. Also placed in that series were the employees properly in the Guard, Public Property titles who provided security at other County institutions and were also under the jurisdiction of the County's Security Department.

One aspect of the Association's charge is that this changing of job titles was not negotiated. However, the Hearing Examiner finds no merit to that portion of the charge. The initial change from Institutional Patrolmen to Guard, Public Property was effectuated on the day of certification of the Association - February 11, 1976. Because first notice of the proposed change had been given as far back as 1974, the Hearing Examiner does not believe that the timing of the actual passage of the resolution is significant. In any event, there is no allegation of changes in terms and conditions of employment such as compensation or the like, and the undersigned believes that the change in name was within the County's prerogative. Furthermore, the title change - in June 1977 - to the current titles was pursuant to a directive from the Department of Civil Service and therefore beyond the County's power to negotiate. See State of New Jersey v. State Supervisory Employees Association, ___ N.J. ___ (Aug. 2, 1978).

The other portion of the charge relates to the County's decision to remove firearms from these employees, as well as their badges. This unilateral change is claimed to violate N.J.S.A. 34:13A-5.4(a)(5) either for failure to negotiate on that decision or, in the alternative, because of the impact upon terms and conditions of employment, specifically the safety of the employees.

The issue of guns for the security personnel of a public institution was considered by the Commission in In re Brookdale Community College, P.E.R.C. No. 77-53, 3 NJPER 156 (1977). Therein the Commission held that "the subject of whether and at what times members of the College's campus police force shall carry firearms is not a required subject of negotiations." P.E.R.C. No. 77-53 at p. 11. However, any affect on terms and conditions of employment, including employee safety, was held to be mandatorily negotiable. Nothing has been cited to the Hearing Examiner which would warrant any departure from Brookdale, either to guns or badges. Therefore the only possible unfair practice would be a refusal to negotiate an effect on terms and conditions of employment.

The Association has alleged an effect on the safety of its members and has convinced the undersigned that there has been an effect that would require negotiations. On the record, during the hearing Counsel for the County conceded that such duty existed and denied that it had ever been breached. Apparently some discussions did take place between representatives of the County and the employees regarding County proposals for a shorter work day as a quid pro quo for both the title changes and removal of the guns and badges. The Association retorts that this "raise in salary" [i.e. same money for less hours] was also unilaterally imposed and that negotiations within the meaning of the Act did not take place.

The Hearing Examiner does not believe that the record before him is adequate to make a meaningful finding of fact as to just what level the meetings between the parties reached. Given the burden of proof imposed upon a charging party by N.J.A.C. 19:14-
6.8 this lack must weigh against the Association which has not proven its case by a preponderance of the evidence. As a result, there is no alternative but to recommend that the complaint be dismissed.

RECOMMENDED ORDER

For the reasons set forth it is recommended that the Complaint in this matter be dismissed in its entirety.

____________________________

James F. Schwerin

Hearing Examiner

DATED: Trenton, New Jersey

October 12, 1978