H.E. NO. 87-26

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

CITY OF NEW BRUNSWICK,

Respondent,

-and-	Docket No. CO-85-174-24

NEW BRUNSWICK MUNICIPAL

EMPLOYEES ASSOCIATION,

Charging Party.

Appearances:

For the Respondent

Rubin, Rubin & Malgran, Esqs.

(Ralph Stanzione, of Counsel)

For the Charging Party

Smoriadasky & Stawnychy, Esqs.

(Petro R. Stawnychy, of Counsel)

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

On January 16, 1985, the New Brunswick Municipal Employees Association ("MEA" or "Association") filed an Unfair Practice Charge with the Public Employment Relations Commission ("Commission") alleging that the City of New Brunswick ("Employer" or "City") violated the New Jersey Employer-Employee Relations Act ("Act"), N.J.S.A. 34:13A-1 et seq. The Association specifically alleged that the City violated subsections (a)(1) and (5) when it unilaterally

increased the salaries of several unit employees.1/ On July 31, 1985 the Association filed an amendment to its charge alleging that the City unilaterally increased the salary of an another named unit employee. On August 7, 1985, the Director of Unfair Practices issued a Complaint and Notice of Hearing.2/

On November 25, 1985, I conducted a hearing. The parties stipulated that the Unfair Practice Charge had been resolved except with respect to the one unit employee named in the Association's July 31 amendment. The parties also had the opportunity to examine witnesses and introduce documents. Post-hearing briefs were submitted by January 16, 1986.

Based upon the entire record, I make the following:

FINDINGS OF FACT

1.	The City of New Brunswick is a public employer within the meaning of the Act.

1/	These subsections 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; and (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."

2/	The Employer did not file an Answer pursuant to N.J.A.C. 19:14-3.1. Since the City did not deny the factual allegations of the July 31 amended charge and the parties stipulated that the original charge was resolved, I deem the allegations of the amended charge are as true and incorporate them into the findings of fact.

2.	The New Brunswick Municipal Employees' Association is a public employee representative within the meaning of the Act.

3.	Thomas North is a public employee within the meaning of the Act. He is an Animal Control Officer and is included in the Association's collective negotiations unit of all City employees excluding police officers, firefighters, crossing guards and other professional employees (J-1, J-2).

4.	The parties stipulated that on April 30, 1985, North received a wage increase of $4,000. The agreement in place at the time of the increase had expired December 31, 1984 (J-1). On July 1, 1985, the parties executed a collective negotiations agreement for 1985-86 which is retroactive to January 1, 1985 (J-2).

5.	The parties stipulated that under the agreement North's 1985 salary as Animal Control Officer would be $16,000 and on January 1, 1986 his salary would be $17,000. North's current salary is $19,500.

6.	The parties stipulated that they did not negotiate a change in North's compensation before the April 30, 1985 wage increase.

7.	The City Business Administrator, Stanley Marcinczyk, testified that sometime before April 30, 1985 North threatened to quit his post unless his salary was increased. He also testified that the City was disappointed in the job performances of other employees hired before North in the title (T 10-11). The City determined his new salary by approximately averaging the salaries of

Animal Control Officers in surrounding communities. The Business Administrator approved that salary increase.

DISCUSSION

The City does not dispute that it unilaterally increased Thomas North's salary on April 30, 1985. Although the City raised the Animal Control Officer's salary to retain North's services, it cannot lawfully alter a term and condition of employment without negotiating with the Association. Middletown Tp., P.E.R.C. No. 85-122, 11 NJPER 377 (¶16136 1985), East Brunswick Tp., P.E.R.C. No. 86-41, 12 NJPER (¶ 1985), Trenton Housing Authority, P.E.R.C. No. 82-49, 7 NJPER 677 (¶12305 1981).

In Trenton Housing Authority, the employer unilaterally increased the salaries of certain unit employees above those negotiated with the majority representative. The Commission, in agreement with the Hearing Examiner, found that the employer's action violated §5.4(a)(5) and derivatively (a)(1) of the Act. The facts of this case compel me to find the same violations, especially since the employer has not alleged that the union waived its right to negotiate the salary increase. Accordingly, I find that the City of New Brunswick violated §5.4(a)(5) and derivatively (a)(1) of the Act when it increased Thomas North's salary on April 30, 1985.

At the hearing, the Association specifically requested that the increase North received on April 30, 1985 be rescinded prospectively so as to place him within the contractual guide. It also specifically requested that the employee not be ordered to

return any monies he received in excess of the contractually agreed upon salary.

RECOMMENDED ORDER

I recommend that the Commission ORDER that

A.	Respondent cease from

1.	Interfering with, restraining or coercing its employees in the exercise of rights guaranteed to them by the Act, particularly by unilaterally granting a salary increase to a unit employee.

2.	Refusing to negotiate in good faith with the New Brunswick Municipal Employees Association concerning the salary of unit employee Thomas North.

B.	The Township take the following affirmative action:

1.	Forthwith reduce prospectively the annual salary of Thomas North to the appropriate 1985-86 contractual rate.

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 Respondent'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 Chairman of the Commission within twenty (20) days of receipt what steps the Respondent has taken to comply herewith.

Jonathon Roth

Hearing Examiner

Dated: October 17, 1986

Trenton, New Jersey