H.E. NO. 98-14

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

BOROUGH OF FORT LEE,

Respondent,

-and-	Docket No. CO-H-96-269

FORT LEE POLICE ADMINISTRATORS,

Charging Party.

Appearances:

For the Respondent, Savage and Serio, attorneys

(Beverly M. Wurth, of counsel)

For the Charging Party, Loccke and Correia, attorneys

(Richard D. Loccke, of counsel)

HEARING EXAMINER'S REPORT

AND RECOMMENDED DECISION

On March 18, 1996, the Fort Lee Police Administrators filed an unfair practice charge with the New Jersey Public Employment Relations Commission alleging that the Borough of Fort Lee violated subsections 5.4a(1), (2), (3), (5) and (7) of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq.1/ FLPA

1/	These provisions prohibit public employers, their representatives or agents from: "(1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this Act. (2) Dominating or interfering with the formation, existence or administration

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asserts in its charge that the most recent written contract between the Borough and FLPA expired on December 31, 1992. At the Borough's request, FLPA delayed negotiations for a successor contract until the PBA completed its negotiations for the rank-and-file unit. The PBA did so, and signed a contract for 1992-95. FLPA further alleges that, on numerous occasions since then, it has asked the Borough to negotiate a successor collective agreement. FLPA's most recent request was made by letter of December 14, 1995 from FLPA counsel Richard Loccke.2/ FLPA alleges that the Borough never responded to the letter and that the Borough refuses to negotiate with it.

On July 24, 1996, the Director of Unfair Practices issued a Complaint and Notice of Hearing on the charge (C-1). In part, the Complaint provides that,

N.J.A.C. 19:14-3.2 required an original and nine(9) copies of the Answer be filed with the Hearing Examiner, together with proof of service of a copy thereof upon all other parties. Your attention is directed to N.J.A.C. 19:14-3.1, as well as to the statement contained in the Complaint, which provides:

1/	Footnote Continued From Previous Page

of any employee organization. (3) Discriminating in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage 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. (7) Violating any of the rules and regulations established by the commission."

2/	The December 14, 1995 letter is attached to the charge as exhibit A.

All allegations in the Complaint, if no answer is filed, or any allegation not specifically denied or explained, unless the Respondent shall state that he is without knowledge, shall be deemed to be admitted to be true and shall be so found by the Commission, unless good cause to the contrary is shown.

The accompanying cover letter repeats the same statement to the parties. The Borough failed to file an Answer in this matter.

After several agreed-upon postponements, the hearing opened on June 2, 1997. FLPA, after making an opening statement, moved to have the allegations in the Complaint deem to be true based upon the Borough's failure to file an Answer to the Complaint.

Based upon N.J.A.C. 19:14-3.1, I deemed the allegations in the charge to be true. FLPA rested, and the Borough declined to offer any affirmative defense.

Based upon the record in this matter, which consists entirely of the facts as set forth in the Complaint, and the attachments thereto, I find the following:

FINDINGS OF FACT

The most recent written contract between the Borough and FLPA expired on December 31, 1992. At the Borough's request, FLPA delayed negotiations for a successor contract until the PBA completed its negotiations for the rank-and-file police. After the PBA signed a contract for 1992-95, FLPA sought to resume negotiations for its successor contract. It has since asked the

Borough on numerous occasions to negotiate a successor contract. FLPA's most recent request to negotiate was made by letter of December 14, 1995 from FLPA counsel Richard Loccke. The Borough never responded to the letter. The Borough refuses to negotiate with FLPA.

DISCUSSION

N.J.S.A. 34:13A-5.3 provides that,

Representatives designated or selected by public employees for the purposes of collective negotiation...shall be the exclusive representatives for collective negotiation concerning the terms and conditions of employment of the employees in such unit...

A majority representative of public employees in an appropriate unit shall be entitled to act for and to negotiate agreements covering all employees in the unit...the majority representative and designated representatives of the public employer shall meet at reasonable times and negotiate in good faith with respect to grievances, disciplinary disputes, and other terms and conditions of employment.

When an agreement is reached on the terms and conditions of employment, it shall be embodied in writing and signed by the authorized representatives of the public employer and the majority representative. (emphasis added).

N.J.S.A. 34:13A-5.4a(5) makes it an unfair practice for the employer to refuse to negotiate with the majority representative.

In addition, the amendments to the Police and Fire Arbitration Act require that "negotiations shall be conducted" between the public employer and the majority representative of police or fire employees, and further, that if the negotiations reach an impasse, the Commission may appoint a mediator, the parties

may agree upon a terminal procedure to resolve the dispute, or the dispute will be submitted to the statutorily prescribed binding arbitration process. N.J.S.A. 34:13A-16.

I find that the Borough refused to negotiate in good faith with the majority representative, Fort Lee Police Administrators, a per se violation of 5.4a(5) and derivatively, 5.4a(1) of the Act. I find that there are no facts presented to support a violation of 5.4a(2), (3) or (7) of the Act. Accordingly, I recommend that the Commission ORDER:

A. That the Borough of Fort Lee cease:

Interfering with, restraining or coercing police superiors in the exercise of their rights under the Act by refusing to negotiate in good faith with the Police Administrators for a successor collective agreement.

B. That the Borough of Fort Lee take the following affirmative action:

1.	Immediately commence negotiations with the Fort Lee Police Administrators over terms and conditions of employment for employees in the contractual negotiations unit.

2.	Post in all places where notices to employees are customarily posted, copies of the attached notice marked as Appendix "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 Borough's authorized representative, shall be maintained by it for at least sixty (60) consecutive days.

Reasonable steps shall be taken to ensure that such notices are not altered, defaced or covered by other materials.

3.	Notify the Acting Chair of the Commission within twenty (20) days of receipt what steps the City has taken to comply with this order.

C. That the remaining allegations be dismissed.

Susan Wood Osborn

Hearing Examiner

Dated:	November 6, 1997

Trenton, New Jersey

WE WILL NOT interfere with, restrain or coerce our employees in the exercise of their rights under the Act by refusing to negotiate in good faith with the Fort Lee Police Administrators for a successor collective agreement.

WE WILL immediately commence negotiations with the Fort Lee Police Administrators over terms and conditions of employment for employees in the contractual negotiations unit.