H.O. NO. 77-4

STATE OF NEW JERSEY

BEFORE A HEARING OFFICER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

CITY OF TRENTON,

Public Employer,

-and-	Docket No. CU-111

P.B.A. LOCAL 11,

Employee Representative.

Pursuant to Notice of Hearing, a hearing was held before the undersigned Hearing Officer of the Commission on January 8, 1976 and June 23, 1976.

Appearances:

For the Public Employer:

George T. Dougherty, Esq.

Assistant City Attorney

For the Employee Representative:

Zazzali and Zazzali, Esqs.

by Lawrence A. Whipple, Jr., Esq.

The within petition was filed by the City of Trenton on April 8, 1973, to clarify the unit of the PBA representing the Police Division, Department of Public Safety, City of Trenton, sought being the severance of patrolmen from superior officers and the exclusion of the rank of deputy chief from any unit.

Discussion

The parties hereto have been engaged in a formal negotiations relationship since 1971. In that first agreement, and thereafter, the City has reserved the right to contest the composition of the unit.1/ The unit in that first agreement and succeeding ones has covered all ranks from patrolmen through deputy chief. The City seeks to sever superior officers from sergeants through captains, and excluding deputy chiefs entirely. The PBA, on the other hand, contends that sergeants, lieutenants, captains and deputy chiefs are not supervisors within the meaning of the Act,2/ and their inclusions in a unit covering patrolmen is entirely consistent with the Act. Counsel for the PBA also contended that a negotiating history as far back as 1950 (perhaps even to 1907) has hallowed the single unit approach and only recently has the City sought to divide the unit into a unit of patrolmen and a unit of superior officers, less the deputy chiefs. He further contended that the historical relationship had been "harmonious."3/ However, in the formal negotiations history between the parties commencing with an agreement dated February 8, 1971, a specific clause in said agreement saved the right of the City to invoke the appropriate procedures with the Commission4/ to redefine the unit. Substantially, the same agreement (regarding the City's reservation insofar as unit composition is concerned) was carried over to the succeeding agreement dated March 17, 1973.5/ Accordingly, the within joint petition was filed on April 6, 1973, but PBA moved to amend said petition with the consent of the City. Said motion to amend was accepted by the undersigned, and consisted, substantially, of deletion of the PBA as a party in the filing of the petition.

In February, 1975, the Trenton City Council investigated an incident involving many members of the police force and released its findings in the summer of 1975. It is apparent, from the testimony of several councilmen who participated in said investigation, that they all shared a pervasive unease with the unit as it was constituted.6/ Remarks in this vein ranged from, "...it was more or less talking out of both sides of your mouth...;"7/ "I think when it comes to negotiations they should be separated."8/

The same vein of reaction, based on feeling rather than information, permeates the testimony of the other councilmen who testified. A general, undefined sense that something was amiss in the relationship of the chain of command characterized all of their testimony. How much of this is based on the factual situation within the Department or how much is a residual private sector reaction is as a matter of pure speculation.9/10/11/

However, the members of the Council expressed amazement that certain superior officers of the Police Department who testified in the Council's investigation aforementioned were active members of the PBA, and even served on the PBA Negotiating committee.12/13/14/ In his testimony, the mayor likewise spoke to the managerial-subordinate relationship.15/ Further, the Business Administrator of the City, in reviewing the City's insistence ab initio to inclusion of the City's right to challenge the unit,16/ cited bye City's reasons for desiring a severance of the Superior Officers.17/ These were the standard philosophical objections customarily found in these matters.

(The undersigned hastens to add that the foregoing is not a cavalier dismissal of such beliefs, because they are part of the fiber of the Act.)

Counsel for PBA attempted most persuasively to elicit from all of Petitioner's witnesses the harmlessness of the commingling of patrolmen and superiors.18/19/20/21/ And although no one came forward with any concrete examples of conflict, this is not surprising. This is true because the Council is not involved in day to day police operations, but also because the fact of commingling became highlighted in the aforementioned investigation conducted by the Council. Because of this background, and the continuous saving clause to permit such action, the within petition has been submitted.

Chapter 303, as amended, provides that there shall be no mingling of supervisors and non-supervisors.22/ Counsel for the PBA presented a competent case in showing that the usual indicia of supervisors reside almost entirety in the Director of Public Safety.23/

Charges may originate lower in the hierarchy, but the actual imposition of discipline resides in the Director,24/ with no recommendation accompanying the charge.25/26/ However, it is noted that charges originate below and pass upward through the chain of command.27/ It is stipulated in the record that Sergeants through Captain have no role in regard to hiring of a patrolman or any other rank, therefore, the authority to hire is absent, thus at least one of the criteria for identifying supervisors is lacking here. However, as set forth above at length, the superior officers do play an important part in the discipline procedure, by virtue of being the point of origin in disciplinary matters.

Therefore, the criteria originating in Board of Education of West Orange v. Wilton28/ and refined in subsequent matters before the Commission nearly spells out that the patrolmen-superior officer relationship in a city police department carries an innate conflict of interest.29/ In Wilton, the court found that a superior exercising authorities over other supervisors was in a situation of actual or potential conflict of interest. In Camden, supra, this concept was applied to sever superior officers from a fireman's unit. Nor is it deemed by the undersigned that the rule of de minimis, as set forth in Hanover,30/ can be applied herein. The record clearly demonstrates that conflict of interest is apparent.

Regarding the status of the Deputy Chiefs, this rank is shown to serve as Acting Chief of Police in the absence of the Chief.31/32/ Said fact is uncontroverted, having appeared in the record during cross examination of the Director. Merely based on this fact, it is sufficient to conclude that Deputy Chiefs, like the Chief are managerial executives and, as such are excluded by the Act from coverage thereunder.33/ Further, that the Deputy Chief in serving as Acting Chief, "runs his division"34/ (i.e. the Police Division of the Department of Public Safety). Therefore, there seems little doubt that a Deputy Chief has been designated Acting Chief, and is therefore not properly a member of any negotiating unit, pursuant to N.J.S.A. 34:13A-3(f), cited above.

Prior to the hearing on June 23, 1976, James V. Lazana offered an off the record proposal to compromise this situation: the PBA would agree to sever the superior officers, from sergeant to deputy chief, but including the latter. The attorney for the City declined said compromise. It should be noted that PBA was not represented by counsel at this hearing.

By reasoning set forth above, a study of the entire record and the facts presented, the undersigned recommends the following:

1.	The ranks of sergeant, lieutenant, captain and deputy chief should be severed from the negotiating unit represented by the PBA;

2.	The deputy chiefs should be severed from any negotiating unit.

Respectfully submitted,

/s/Leo M. Rose

Hearing Officer

DATED:	August 30, 1976

Newark, New Jersey