H.E. NO. 96-7 1.
H.E. NO. 96-7
STATE OF NEW JERSEY
BEFORE A HEARING EXAMINER OF THE
PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the Matter of
CITY OF JERSEY CITY,
Respondent,
-and- Docket Nos. CO-H-94-72 and
CO-H-94-76
JERSEY CITY POLICE OFFICERS BENEVOLENT
ASSOCIATION and JERSEY CITY POLICE
SUPERIOR OFFICERS ASSOCIATION,
Charging Parties.
Appearances:
For the Respondent
Martin R. Pachman, attorney
For the Charging Party - POBA,
Schneider, Goldberger, Cohen, Finn
Solomon, Leder, and Montalbano, attorneys
(Bruce D. Leder, of counsel)
For the Charging Party - PSOA,
Klausner, Hunter & Seid, attorneys
(Stephen B. Hunter, of counsel)
HEARING EXAMINER'S REPORT
AND RECOMMENDED DECISION
On September 7 and 13, 1993, respectively, the Jersey City Police Officers Benevolent Association, and then the Jersey City Police Superior Officers Association filed unfair practice charges with the Public Employment Relations Commission alleging the City of Jersey City engaged in unfair practices within the meaning of
N.J.S.A. 34:13A-5.4(a)(1) and (5)1/ when, without negotiations, it unilaterally transferred work traditionally performed by employees in these two bargaining units to non-unit, civilian employees.
The City argues that its actions resulted from a re-organization of its police force and therefore it had a non-negotiable, managerial right to take the disputed actions.
A Complaint and Notice of Hearing was issued on October 6, 1993 and hearings were conducted on July 25, July 29 and November 28, 1994. Briefs were filed by April 24, 1995.
Findings of Fact
1. Beginning in 1993, the City embarked on a policy it calls civilianization. It began hiring civilian employees and assigning these employees duties formerly performed by police officers. The police officers who were displaced were assigned to patrol duties.
Joseph Pelliccio served as Police Director from June 1992 until January 1, 1994. 2/ Soon after Pelliccio became Director, he
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. (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/ He was also a police officer in the Department from 1955 to 1984.
instituted the civilianization plan. Pelliccio describes civilianization as identifying those positions within the Department that could be handled by civilian personnel (2T94).
In 1993, there were 854 police officers. Pelliccio's plan called for 940 employees, 60 of whom would be civilian (2T87).
2. The current Police Director, Michael Moriarity, testified that plans to civilianize were promulgated as early as 1988 by County Prosecutor DePasquale (who apparently acted as police director). A police consulting management firm also developed plans to civilianize the police force. In a memorandum dated September 17, 1992, Police Chief Salvo identified 64 positions he and Director Pelliccio believed should be "civilianized". Moriarity reviewed all these plans and generally followed the recommendation in Chief Salvo's memo. Not all of the recommendations had been implemented at the time of the hearing.
Moriarity is civilianizing the force to "reduce crime or the fear of crime in Jersey City by improving the quality of service and maintain the resources of the Department" (3T11). The Department's budget only allowed for 840 officers. Moriarity attempted to structure the Department so that the budget was maximized by redeploying officers doing administrative tasks to more operational duties. Currently 67% of the force is operational and Moriarity's goal is to increase the police force to 85% operational (3T15).
As part of Moriarity's overall re-organization, he also instituted a work schedule change to ensure a sergeant is always on duty with a certain number of police officers. There are three squads in each shift and one of those squads is on duty at any given time (3T16). The Department is also instituting community-based policing; that is, certain officers are assigned to specific geographic areas of responsibility.
3. Vincent Adler, and one other officer, delivered mail for the Police Department. Adler delivered mail for four years (1T18). The two officers picked up and delivered mail, including interdepartmental mail, to all police locations in marked police cars (there are 10 or 12 such locations). These two officers also distributed subpoenas to officers for court appearances. They picked up money at the car pound every day and delivered it to the chief of police; on occasion they picked up evidence and delivered it to the police property room at Boland Street. For at least 18 years only police officers delivered the mail (1T19; 2T102, 103). In September 1993 both mail duty officers were transferred to patrol duty (1T10), and the mail duties were assigned to civilian employees. The City already had civilian employees delivering mail to other City departments (3T20). In October 1993, Adler was asked to return to mail duty because civilian delivery of police mail was not functioning properly. Adler continued delivering the mail until mid-December 1993 when he was again returned to patrol. .
4. Patrolman Vincent A. Czachorowski has been assigned to the Bureau of Criminal Identification (BCI) for nine years. In 1985, the BCI staff consisted of a lieutenant, 3 sergeants, 14 police officers and 2 clerk typists on the day tour (1T67). Before civilianization, there were five police officers on the day tour, five on the evening tour and four on the midnight tour. The clerk typists would take telephone messages, answer mail correspondence, draw files, prepare correspondence for officers, and do fingerprinting and photographing. Clerk typists never processed prisoners.
In the Spring of 1994, two police officers in BCI retired and within a month were re-hired as civilians (1T70).
Since civilianization in 1994, there are four officers on days, four on evenings, three on midnights, one sergeant on each tour, two clerks on days, one on evenings and one on midnights. The two former police officers who are now civilians perform the same functions they performed as police officers. They check FBI correspondence to verify fingerprint identification, fingerprint civilians and occasionally process prisoners when ordered to by a supervisor (1T73). The civilian retirees have been assigned to lift fingerprints from evidence at BCI headquarters (1T77). The retirees do not go to crime scenes.
5. Patrol Officer James Gallagher is a desk assistant (D.A.) on the day tour at the West District police station. His duties include distributing walkie-talkies to officers going on
patrol, building security, report taking and writing, taking reports of citizens who come into the District for such things as stolen car reports, domestic violence complaints, assault complaints, etc. The D.A. also makes visual inspections of patrol cars. Gallagher had access to the police computer in order to send duty notes to the dispatcher.
In the summer of 1992, or earlier, (over a year before these unfair practice charges were filed) a civilian clerk typist began working next to Gallagher (1T55). The clerk now takes reports (e.g., domestic violence, assaults). Gallagher continues to take reports when the clerk is busy.
6. In the North District, there were three police officer D.A.S. and no civilian clerks. In July 1993, a civilian clerk replaced one of the police officers. The civilian clerk does work formerly done by the police clerks (2T6).
7. In the South District, four police officers functioned as D.A.S. Two officers retired July 1, 1994 and one of them, Jerry Ferraro, was immediately re-hired as a civilian clerk. His duties as a civilian are the same as when he was a police officer (2T20).
8. There is nothing in the record as to the use of civilian clerks in the East District. 3/
9. Police officers assigned to the property room have historically collected evidence from the four police districts and
3/ However, Pelliccio recalled that there were civilian clerks in at least two districts and possibly more (2T104).
brought it to the central property room where it is cataloged and stored. Two officers assigned to the property room retired in early 1994 and were re-hired as civilians. They have continued to work in the property room but have no duties outside the property room (2T44). They handle and record evidence including narcotics (2T45). Prior to this time, there were no civilians in the property room (2T96).
10. The City employs 70 to 100 civilian crossing guards. Historically, the school crossing guards were supervised by superior officers. James M. Kenyon, a sergeant in the Special Patrol Bureau, supervised school crossing guards for seven or eight months (2T68). Kenyon did pre-hiring background checks, made hiring recommendations and provided training for school crossing guards. In August 1993, Kenyon was replaced by a civilian.
11. For many years, the Police Department had its own legal bureau, staffed by police officers which was independent of the City's Corporation Counsel office. The bureau's staff was used to review documents signed by the Director, draft policy directives and memos from the Director, as well as engage in negotiation, and personnel actions (1T90).
John Dooley, a captain in the Department, worked in the legal bureau, performing legal duties for ten years, until September 1993. The legal bureau often interacted with the City's Corporation Counsel. There were certain matters that the police legal bureau would not refer to Corporation Counsel, e.g., personnel questions
and investigations of conduct and criminal matters where no conclusions were yet drawn (2T143).
Legal work was no more than 10 to 15% of what the legal office did. "Most of the work was akin to senior staff advisor or administration assistant" (2T144). The legal bureau was abolished in September 1993. Dooley believes that no one is now performing the functions that he performed. Any legal work that is now being done, including requests for advice are now being forwarded to Corporation Counsel's office (2T147).
Pelliccio had two civilians on his legal staff. Civilian attorneys have worked with internal affairs and with the police director on various matters (2T118) and none handled negotiations and contracts (2T119).
12. There were three or four officers who ran the motor pool for the police department. They did minor repairs but were primarily responsible for the assignment of motor vehicles. 4/ These duties were taken over by the City's Department of Public Works which, prior to this transfer of work, maintained and repaired all other City vehicles (3T24).
13. Radio repairs have traditionally been performed by three police officers in the support services division. At the time of the hearings, two officers were doing this work and the City wanted to transfer this work to the civilian Department of Public
4/ The record does not establish who made major repairs.
Works. It could not do so; public works had to first hire a civilian electronics technician to do the work (3T30).
14. The City's police pistol range was staffed by a lieutenant and three police officers. The City was about to civilianize the pistol range. A civilian range master and two range instructors were to replace the assigned police officers. the City was looking for a third instructor, so temporarily a sworn officer would remain with the pistol range (3T43).
15. Police Officer Phil Rolly, ran the police fiscal office. The fiscal officer handled and prepared the budget for the Department. He maintained pension files and handled purchasing requisitions. Apparently, sometime in 1993, Rolly began using his leave time to attend law school and was replaced by a civilian who apparently, is still there (2T98). 5/
ANALYSIS
N.J.S.A . 34:13A-5.3 entitles a majority representative to negotiate on behalf of unit employees over mandatorily negotiable terms and conditions of employment.
The shifting of work from employees within a particular negotiations unit to other public employees outside of the unit is a mandatorily negotiable subject of negotiation. An employer has an obligation to negotiate with the majority representative before
5/ Although Director Moriarity testified there is a separate payroll department and pension office in the City Administration, there is nothing in the record to indicate that these City departments now do this work (3T28, 3T29).
shifting work to employees outside the unit. Rutgers, The State University , P.E.R.C. No. 82-20, 7 NJPER 505 ( & 12224 1981), aff'd App. Div. Dkt. No. A-468-81T1 (5/18/83); ; Middlesex Cty ., P.E.R.C. No. 79-80, 5 NJPER 194 ( & 10111 1979), aff'd in relevant part, App. Div. Dkt. No. A-3564-78 (1980); Rutgers, The State University, P.E.R.C. No. 79-72, 5 NJPER 186 ( & 10103 1979), mot. for recon. den. P.E.R.C. No. 79-92, 5 NJPER 230 ( & 10128 1979), aff'd App. Div. Dkt. No. A-3651-78 1980); Borough of Paramus , P.E.R.C. No. 86-17, 11 NJPER 502 ( & 16178 1985); City of Newark , P.E.R.C. No. 88-87, 14 NJPER 248 ( & 19092 1988); City of Newark , P.E.R.C. No. 87-106, 14 NJPER 336 ( & 19126 1988); City of Newark , P.E.R.C. No. 85-107, 11 NJPER 300 ( & 16106 1985); Washington Tp ., P.E.R.C. No. 83-166, 9 NJPER 402 ( & 14183 1983); Monroe Tp. Bd. of Ed ., P.E.R.C. No. 81-145, 7 NJPER 357 ( & 12161 1981); Passaic Co. Reg. H.S. Dist ., P.E.R.C. No. 81-107, 7 NJPER 155 ( & 12068 1981); Piscataway Tp. Bd.Ed ., P.E.R.C. No. 78-81, 4 NJPER 246 ( & 4124 1978); Middlesex Cty. College , P.E.R.C. No. 78-13, 4 NJPER 47 ( & 4023 1977).6/ The City also argues that its civilianization program was part of a
6/ The City argues that in Middlesex County College , the Commission relied upon the rationale in Fiberboard Paper Products Corp. AFL-CIO v. State, 88 N.J . 393 (1982), but the State Supreme Court rejected any reliance upon Fiberboard in public sector cases in State v. Local 195, IFPTE . Accordingly, the Commission's line of cases conflicts with the holding of Local 195. However, the Commission rejected this same argument in the Rutgers decisions. The Commission drew a distinction between subcontracting (the subject matter of both Fiberboard and Local 195 ) and the issue here of work reassignment. See also Monmouth County Sheriff, P.E.R.C. No. 93-16, 18 NJPER 447 ( & 23201 1992)
re-organization of the Police Department, and therefore, not negotiable. Where an employer engages in a legitimate reorganization to effectively fulfill its managerial mission, such action constitutes a managerial prerogative and any reassignment of work flowing from such a reorganization would not be subject to negotiations. In Tp. of Maplewood, P.E.R.C. No. 86-22, 11 NJPER 521 ( & 16180 1985), dispatching functions of the police and fire departments were consolidated with civilian dispatchers. An employee representative filed for arbitration claiming the reassignment deprived unit employees of overtime in violation of the parties contract. The Commission held that the dispute predominately concerned Maplewood's managerial prerogative to consolidate functions and the issue was not arbitrable ( i.e., negotiable).
However, in County of Bergen , P.E.R.C. No. 92-17, 17 NJPER 412 ( & 22196 1991), the Commission found that dispatching work traditionally performed by unit employees, was shifted to employees outside the unit for economic reasons and, therefore, the employer had an obligation to negotiate before transferring unit work. See also Toms River Ed. Assn., P.E.R.C. No. 92-71, 18 NJPER 62 ( & 23027 1991).
Also, where police have historically shared duties with civilian employees, where there is a historical waiver, the transfer of additional work to civilians does not create an obligation to negotiate. State of New Jersey, Dept. of Law and Public Safety and
IFPTE Local 195 , P.E.R.C. No. 94-78, 20 NJPER 74 ( & 25031 1994); Monmouth County Sheriff ; Town of Dover, P.E.R.C. No. 89-104, 15 NJPER 264 ( & 20111 1989).
Finally, the assignment of supervisory duties is a permissively negotiable subject. City of Camden, P.E.R.C. No. 93-43, 19 NJPER 14 ( & 92408 1992), affirmed 20 NJPER 319 ( & 25163 1994). Therefore, the unilateral alteration of a supervisory assignment is not an unfair practice within the meaning of the Act. Freehold Regional High School District, P.E.R.C. No. 85-69, 11 NJPER 47 (& 16025 1984); Ridgefield Park, 78 N.J. 144 (1978); Paterson PBA, 87 N.J. 78 (1981).
Conclusions of law.
Although the City claims all of its actions were part of a systematic re-organization, the record shows very discrete actions by the City, not a broad District-wide program. The specific acts must be reviewed on a job-by-job basis.
The transfer of the duties of the crossing guard supervisor to a civilian was not violative of the Act since the work transferred is supervisory in nature and therefore not mandatorily negotiable.
The Jersey City police have historically shared certain clerical duties with civilians. Although neither the North or South Districts employed civilian clericals until July 1993, both the West Districts and BCI have a history of using civilian employees as
early as 1985. Accordingly, I find that a historical waiver exists as to the assignment of civilian clerical employees and the City had no obligation to negotiate over such assignment even where the civilians who were assigned the clerical duties were retired police officers.
The delivering mail and the work of the motor pool have historically been done by police officers. However, the City had civilians simultaneously doing similar work. The consolidation of two City operations into one improves the over-all efficiency of the operation of the City. These consolidations predominately concern a legitimate reorganization and therefore constitute a managerial prerogative. Tp. of Maplewood . The transfer of this work to existing City departments is not negotiable.
However, I find the City's rehiring of retired police officers as civilians in the property room and BCI is neither subject to a historical waiver nor constitute a legitimate re-organization. These former officers are now performing police related duties that are not traditional clerical duties, e.g ., the handling of evidence, including narcotics, and the processing and fingerprinting of prisoners. The City's action was simply economic. It is attempting to keep the same employees doing largely the same jobs for less pay.
I find that the substitution of a civilian fiscal officer for a police fiscal officer is not a true reorganization. There is no evidence that the work is now being done by the City's fiscal office. Rather, it is being performed by a civilian employee.
I further find that the City's plans to transfer radio repair work to the Department of Public Works and to hire civilians to staff the pistol range are not re-organizations to improve efficiency. There is no evidence in the record that the City ever had facilities to repair civilian radios. Rather, the City has to hire a civilian repairman before the work can be transferred. Obviously, the pistol range is purely for police personnel. These are not attempts to consolidate existing functions. Rather, these are attempts to simply lower costs by shifting work to civilian employees outside the unit. Bergen.
Accordingly, I recommend that the Commission find the City of Jersey City unilaterally altered terms and conditions of employment in violation of ' 5.4(a)(1) and (5) of the Act when it rehired retired police officers as civilians to do essentially the same tasks they did as police officers in the Bureau of Criminal Identification and the Property Room, and when it filled the vacant position of fiscal officer with a civilian.
The record does not establish that the City acted on its plans to civilianize radio repair or the pistol range. However, I recommend the Commission find the City's announcement of its intention to take such action while refusing to negotiate with the Associations unlawfully interferes with the Associations' exercise of protected rights in violation of ' 5.4(a)(1) of the Act.
I further recommend that the balance of the unfair practice charge be dismissed.
Recommended Order
I recommend the Commission ORDER:
The City to negotiate with the Jersey City Police Officers Benevolent Association and the Jersey City Police Superior Officers Association before it shifts unit work which does not flow from a re-organization.
I further recommend the Commission ORDER:
1. The City to restore any officers who were improperly transferred from the radio repair or the pistol range to their former positions.
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 shall, after being signed by the Respondent's authorized representative, be posted immediately and 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 with this order.
Edmund G. Gerber
Hearing Examiner
Dated: October 30, 1995
Trenton, New Jersey
WE WILL NOT interfere with, restrain or coerce employees in the exercise of the rights guaranteed to them by the Act, particularly by threatening and/or threatening to transfer unit work outside the unit while refusing to negotiate with the Police Officers Benevolent Association and/or the Police Superior Officers Association.
WE WILL NOT refuse to negotiate in good faith with the Police Officers Benevolent Association and/or the Police Superior Officers Association concerning terms and conditions of employment of employees by unilaterally transferring unit work without negotiations when such transfers were not cause by a legitimate re-organization.
WE WILL restore any officer who were improperly transferred from the radio repair or the pistol range to their former positions. ***** End of HE 96-7 ***** |