H.E. NO. 82-4

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

BOROUGH OF EAST RUTHERFORD,

Respondent,

-and-	Docket No. CO-81-87-74

EAST RUTHERFORD PBA LOCAL 275,

Charging Party.

Appearances:

For the Respondent, Alfred A. Porro, Jr., Esq.

For the Charging Party, Osterweil, Wind, & Loccke, Esqs.

(Manuel A. Correia, Esq.)

HEARING EXAMINER'S

RECOMMENDED REPORT AND DECISION

On September 25, 1980, the East Rutherford PBA Local 275 (Charging Party or PBA) filed an Unfair Practice Charge with the Public Employment Relations Commission alleging that the Borough of East Rutherford (Respondent or Borough) violated N.J.S.A. 34:13A-5.4(a) et seq. when it failed to promote Arthur Cosentino to the rank of sergeant pursuant to a settlement agreement, entered into between the Borough and the PBA. This agreement entered into in September of 1979, was executed as a settlement of an unfair practice filed by the PBA in 1978 wherein it was alleged that the Borough bypassed four employees for promotion in the police department for their exercising of protected rights. It was specifically alleged that the Borough's failure to promote Cosentino violated § 5.4(a) (1), (2), (3) (4) and (5) of the Act.1/

It appearing that the allegations of the Unfair Practice Charge, if true, might constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on September 25, 1980. Pursuant to the Complaint and Notice of Hearing, hearings were held on March 23 and 24, 1981, in Newark, New Jersey, at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. Both parties submitted briefs which were filed by July 6, 1981.

In 1978 the Association filed an Unfair Practice Charge alleging that four officers, two patrolman, Cosentino and Dennis Toarmina, and two sergeants were unlawfully denied promotion to the ranks of sergeant and lieutenant, respectively, because they engaged in protected activities on behalf of the PBA. On September 27, 1979, the parties entered into a stipulation of settlement in which the Borough recognized that "employees of the Police Department of the Borough of East Rutherford have the right, freely and without fear of penalty or reprisal, to form, join and assist any employee organization...(and) pursuant to the foregoing statutory requirements and in an effort to resolve the dispute raised by the instant unfair practice charge, the Borough agreed to promote" the four officers mentioned in the unfair practice charge. The Borough furthermore agreed to make each promotion retroactive to July 12, 1978, "thereby affording the appropriate back pay to each of the above-named individuals." The settlement agreement was signed for the Borough by their attorney, Alfred Porro. The four officers including Cosentino were all granted retroactive promotions pursuant to the agreement.

At the time of the settlement agreement, the most recent Civil Service list for promotion to sergeant was effective January 2, 1974. On that list Taormina ranked number one and Cosentino was ranked number two. Normally this list would have been effective for only three years but Civil Service extended the life of the list for an extra year and a half since the Attorney General had brought suit in another action to compel the Borough to promote someone from it.2/ The list expired on August 28, 1978, when the Borough appointed the number three man on the list, John LaGreca, as sergeant. In making this appointment the Borough bypassed Taormina and Cosentino upon Mr. Porro's representation that Taormina and Cosentino were not bypassed for political purposes or in retaliation of their participation in contract negotiations." Civil Service accepted LaGreca's appointment and dropped its action against the Borough.

On June 12, 1980, Cosentino was reduced to the position of patrolman, pursuant to a Civil Service ruling dated June 10, 1980. In the June 10, 1980 Civil Service ruling, it was held that the promotion of Taormina and Cosentino could only be made pursuant to a list promulgated in February, 1980. On this new list Taormina still was listed as number one so his promotion was not questioned. Cosentino however was ranked fourth on the list and Civil Service rejected Cosentino's promotion. The Borough complied with the Civil Service ruling and demoted Cosentino.

In August of 1980 two patrolmen other then Cosentino were promoted by the Borough even though, after Taormina's promotion, Cosentino was eligible for promotion on the February 1980 Civil Service list. Thereupon the Charging Party brought the instant unfair practice charge claiming that the Borough had an obligation under the settlement agreement to promote Cosentino in August of 1980.

The Civil Service rulings were never raised as an issue by the parties. What is to be decided here is only 1) whether the Borough had an obligation to promote Cosentino in August of 1980 pursuant to the 1979 settlement agreement and 2) whether the Borough discriminated against Cosentino.

There is no question that this Commission has a duty to guard and preserve voluntary settlements, if at all possible. Jannarone v. W.T.Co., 65 N.J. Super. 472 (App. Div. 1961), certif. denied sub nom Jannarone v Calmoneri, 35 N.J. 61 (1961); Honeywell v Bubb, 130 N.J. Super. 130 (App. Div. 1974). It is the position of the Borough that they did comply with the settlement agreement. After Civil Service held Cosentino's promotion was invalid and he was reduced in rank, the Borough argues it was compelled to promote in accordance with Civil Service regulations. Civil Service Rule 4:1-8.4 states that in addition to the score of competitive examination, records of service and such other tests of fitness may be evaluated as necessary for promotion. The Borough claimed it based its August promotion on such other qualifications. The PBA alleged that the Borough discriminated against Cosentino when it declined to appoint him in August, 1980. It submitted evidence only with respect to Cosentino and his relationship with the Borough, there was no attempt at the hearing to introduce evidence as to the other officers who were subjects of the 1978 unfair practice charge.

It is clear from the record that Cosentino is forthright and outspoken as a leader of the PBA. He is the only PBA officer who was part of the 1978 settlement agreement who still holds an office in the PBA. He is state delegate and chairman of the negotiating committee. He has successfully grieved Borough practices on a number of occasions. Further, Cosentino has challenged his status as a patrolman since 1972 when, while serving as a desk officer he filed a complaint with Civil Service in which he claimed he was performing the duties of a sergeant.

The evidence is abundantly clear however that Cosentino had problems as an employee. Even witnesses called by the PBA who are PBA officers admitted that "Cosentino has been a little lax" and "unreliable." Three officers have asked their superiors that they not be on the same shift with Cosentino. He had a poor record in responding to backup calls of fellow officers.3/ Cosentino also has had a long history of illness with a resultant high rate of absenteeism (Cosentino owed the Borough 74 sick days at the time of the hearing). It was not alleged by the Borough that this absenteeism was less than legitimate, rather it reflects on the difficulties the Borough might have if Cosentino's absences continued were he to resume a sergeant's supervisory duties.

On the other hand, the testimony of all witnesses (including PBA officers) substantiate the Borough's position that the two officers who were promoted to sergeant were more fit than Cosentino. Strictly on the basis of evidence before me I am satisfied that when the Borough promoted two other employees over Cosentino in August 1980, the decision to promote was made on the basis of merit and fitness.

Even if the PBA established a prima facie case herein, I find the Borough has established that its justification for its action were valid and that the Borough's refusal to promote Cosentino to sergeant in August 1980 was not motivated, even in part, by a desire to retaliate against Cosentino for his exercise of protected rights. Township of Teaneck and Sylvester Gray, P.E.R.C. No. 81-142, 7 NJPER ____ (¶ 1981).

I find that the Borough did not unilaterally alter a term and condition of employment without negotiations in violation of § 5.4(a)(5) when it failed to follow the June 1979 settlement agreement in bypassing Cosentino. The Borough is compelled to follow the regulations of the Civil Service Commission. Agreements which contravene Civil Service regulations are illegal. State of New Jersey v. State Supervisory Assn., 78 N.J. 54 (1978)

It is noted that Civil Service's handling of eligibility lists in this matter is rather frustrating.

The 1979 settlement agreement was signed under the auspices of this Commission, four months before the promulgation of the February 1980 list. More significantly, the unfair practice charge was first filed with the Commission on August 17, 1978, eleven days before the 1974 list expired with the appointment of LaGreca. Civil Service Rule 4:1-11.7 states:

4:11-11.7 Limited revival of expired employment lists

(a) The institution of a...court action concerning the ...status of an employment list shall not stop the running of time of such list. However ...an employment list, in litigation...which expires while the appeal is pending shall be revived by the Chief Examiner and Secretary upon the subsequent entry of judgment favorable to a claimant in the court action.... Such revival shall be limited to the purpose of permitting execution of the judgment of the court or order of the Commission.

(b) The Commission may also revive an employment list beyond its expiration date if there has occurred bona fide error which had unjustly denied any eligible of certification or appointment.

It would seem that our sister agency could have on the basis of comity considered that a supervised settlement of this Commission qualifies under Rule §11.7 and find that a question pursuant to the 1974 list was in litigation while that list was still valid and therefore revive the old list. It is significant that there was no testimony to indicate that Cosentino, as well as Taormina, were not the most qualified officers eligible for promotion in September 1979 when the promotions were made.

Civil Service chose not to apply § 11.7 and this agency cannot compel them to do so.

There was no evidence adduced at the hearing to demonstrate independent violation of § 5.4(a)(1) or violation of § 5.4 (a)(2) and (4).

Recommendations

It is therefore recommended that the Commission dismiss the Complaint in its entirety.

_____________________

Edmund G. Gerber

Hearing Examiner

DATED: August 11, 1981

Trenton, New Jersey