H.E. NO. 84-53

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

BOROUGH OF SAYREVILLE,

Respondent,

-and-	Docket No. CO-83-335-25

PBA LOCAL NO. 98,

Charging Party.

Appearances:

For the Borough of Sayreville

Robert A. Blanda, Esq.

For the Charging Party

Weinberg & Manoff, Esqs.

(Yale Manoff, Esq.)

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the "Commission") on June 15, 1983 by PBA Local No. 98 (hereinafter the "Charging Party" or the "PBA") alleging the Borough of Sayreville (hereinafter the "Respondent" or the "Borough") had engaged in unfair practices within the meaning of the New Jersey Employer-
Employee Relations Act, as amended, N.J.S.A. 34:13A-1 et seq. (hereinafter the "Act"), in that the Respondent: (1) beginning in January 1983, unilaterally established an Accident Review Board for the purpose of conducting hearings to determine whether disciplinary action should be taken against members of the PBA who have been involved in automobile accidents and, since the inception of the Board, members of the PBA have been compelled to participate in hearings without the right of representation, notwithstanding the disciplinary nature of the proceedings; and (2) in February 1983 discriminatorily transferred Michael O'Hara and Douglas Olsen from the Detective Bureau to Patrolmen in the uniformed division of the Respondent's Police Department because of their refusal to take compensatory time off in lieu of filing for overtime pay under the collective negotiations agreement, which request for overtime pay by O'Hara and Olsen was ultimately honored by the Respondent; all of which is alleged to be a violation of N.J.S.A. 34:13A-5.4(a)(1), (3) and (5) of the Act.1/

It appearing that the allegations of the Unfair Practice Charge, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on July 28, 1983. Pursuant to the Complaint and Notice of Hearing, hearings were held on February 13, 14 and 15, 1984 in Newark, New Jersey,2/ at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. Oral argument was waived and the parties filed post-hearing briefs by April 5, 1984.

An Unfair Practice Charge having been filed with the Commission, a question concerning alleged violations of the Act, as amended, exists and, after hearing, and after consideration of the post-hearing briefs of the parties, the matter is appropriately before the Commission by its designated Hearing Examiner for determination.

Upon the entire record, the Hearing Examiner makes the following:

FINDINGS OF FACT

1.	The Borough of Sayreville is a public employer within the meaning of the Act, as amended, and is subject to its provisions.

2.	PBA Local No. 98 is a public employee representative within the meaning of the Act, as amended, and is subject to its provisions.

3.	There are two collective negotiations agreements between the parties, one covering a unit of patrolmen and the other covering a unit of superior officers. The agreement covering patrolmen is effective during the term January 1, 1982 through December 31, 1984 (J-1). This agreement provides in Article VIII, Hours of Work and Compensation, Section C, that time and one-half shall be paid for all hours worked in excess of eight hours in any 24-hour period (J-1, p. 17).

4.	There are 72 employees in the Borough's Police Department, of whom 50 are uniformed. The Adult Division of the Detective Bureau (non-uniformed) consists of a Captain, a Sergeant and four plainclothes patrolmen, two of whom were, until February 1983, Michael O'Hara and Douglas H. Olsen. O'Hara has been a patrolman for 16 years and was assigned to the Detective Bureau from May 8, 1978 until February 28, 1983 (CP-5 and CP-6). Olsen has been a patrolman for 17 years and was assigned to the Detective Bureau from 1970 until February 28, 1983 (CP-4 and CP-
7). Unlike patrolmen in the Uniformed Division, who work on a three-shift basis, those in the Detective Bureau work Mondays to Fridays on two-shift basis with weekends off. Also, those patrolmen assigned to the Detective Bureau receive an annual stipend of $250. It was stipulated that O'Hara and Olsen have received written commendations as detectives and that neither their job performance nor efficiency had anything to do with the involuntary transfers that are the subject of this proceeding.

5.	On January 27, 1983 the Captain of the Detective Bureau, Joseph A. Kilcomons, informed Detective Sergeant Edward Wodarczyk that there was to be a "stakeout" at a store known as the Sayreville Sportsman on Friday, Saturday and ______________

was a witness for the Charging Party and testified that he told Olsen and O'Hara to work Saturday or Sunday "day for day," meaning each man would take a compensatory day off. Wodarczyk said that Olsen and O'Hara "agreed." However, on the following day, Friday January 28th Olsen and O'Hara said that they wanted to be paid overtime rather than take compensatory time, at which time Wodarczyk ordered Olsen to work the Saturday and O'Hara to work the Sunday. Wodarczyk issued a memorandum to this effect, which also covered others in the Detective Bureau, and which indicated that the patrolmen so assigned would have their "Choice day off" (CP-1).

6.	Olsen and O'Hara each worked as scheduled on the stakeout over the weekend of January 29 and January 30, 1983. On January 31st Olsen and O'Hara each submitted vouchers for the payment of overtime for the day worked on the stakeout (CP-2 and CP-3). O'Hara testified that he had a conversation with Wodarczyk after the stakeout and Wodarczyk stated that if O'Hara filed for overtime there was going to be "trouble" and he would probably be transferred back to uniform (1 Tr. 27, 28). O'Hara said that Kilcomons stated the same thing regarding a transfer (1 Tr. 29). Olsen testified that at some point in and around the weekend in question Wodarczyk stated to him that if an overtime voucher was submitted there probably would be transfer to the Uniformed Division (1 Tr. 77). Olsen also testified that Wodarczyk and Kilcomons said to him that it would be "in my best interest" to withdraw the overtime voucher (1 Tr. 78). Wodarczyk, as a witness for the Charging Party, testified that he never said that there was going to be "trouble" regarding the matter of overtime and denied discussing with others what would happen if Olsen and O'Hara refused to take compensatory time. During the week of January 31st the overtime vouchers of O'Hara and Olsen were rejected by the Borough. However, when Olsen and O'Hara resubmitted them the Borough paid the overtime in due course. Olsen testified that when the vouchers were resubmitted Wodarczyk and Kilcomons again told Olsen that it was probable that he would be transferred back to the Uniformed Division (1 Tr. 92, 93). O'Hara testified that at about the same time Kilcomons said that it looked very much like there was going to be a transfer (1 Tr. 29). Captain Ronald Connors, who is in charge of the Uniformed Division, did not deny the testimony of O'Hara that he, Connors, stated to O'Hara that he was probably going to be transferred if he "continue(d) with the vouchers" (1 Tr. 30). Acting Lieutenant Edward . Boyler, a Charging Party witness, testified that Kilcomons indicated to him that he, Kilcomons, had told O'Hara and Olsen that if they didn't take compensatory time "they would be gone, they would be transferred" (2 Tr. 13). Raymond Suchciki, the President of the PBA, testified that he heard both Wodarczyk and Kilcomons indicate that there would be a "problem" if the vouchers for overtime were not withdrawn.3/ Wodarczyk denied that he heard Kilcomons say there would be "trouble" or that Olsen and O'Hara would be transferred.

7.	As previously found, the transfers of Olsen and O'Hara from the Detective Bureau to the Uniformed Division were made by the Chief of Police, Raymond N. Sweeney, effective February 28, 1983, as set forth in a memo to each individual dated February 14, 1983 (CP-4 and CP-5). Chief Sweeney has held the position for 21 years and is responsible, inter alia, for the making of assignments within the Department. The Chief testified that there is no rank of "Detective" and this is supported by the Department of Civil Service, which issued a clarifying letter to the Borough under date of January 26, 1983 (R-1). In this letter Civil Service states that in any Police Department operating under Civil Service there is no class, title or rank of "Detective" and that any incumbent so assigned does not obtain permanency in the assignment and may at any time be returned to his permanent class title. The Chief testified further that in his 21 years there had been twenty (20) or more transfers in and out of the Detective Bureau, most of which were involuntary, and were made by the Chief. Within the past five years there have been five or six involuntary transfers out of the Bureau. The Chief testified that the reason for the transfers of Olsen and O'Hara was to"change personnel," which he thought was necessary.

* * *

8.	On June 20, 1979 the borough adopted an ordinance, which created an Accident Review and Safety Board (hereinafter the "Board") consisting of six members, three of whom were to be the Chief of Police, a superior officer with the rank of Lieutenant or above and the President of the PBA. The Board was granted certain powers, which include: the investigation of accidents involving borough employees and vehicles; the holding of hearings and meetings concerning the investigation of reported accidents where interested parties are given the opportunity to be heard before any determination is made as to whether an accident was preventable or non-preventable; and the making of written findings of fact and recommendations to the Governing Body for appropriate action within 40 days of the date of the accident. (See Stipulations, paragraph 1 and Exhibit "A").4/

9.	Prior to the adoption of the aforesaid ordinance, the PBA objected to its passage because the President of the PBA, as a member of the Board, might be required to recommend or mete out punishment. Assurances were made by the Borough that the purpose of the Board was to prevent accidents and not to fix fault or mete out punishment. (See Stipulations, paragraphs 2 and 3).

10.	Under date of December 1, 1982 the Chief of Police directed his Deputy to recreate the Board so that it consisted of four members, three of whom being officers with the rank of Sergeant or higher and the President of the PBA. The directive to the Deputy also stated that the Board would determine the party at fault in an accident and make necessary recommendations to the Chief of Police as to whether or not disciplinary action should be taken "against the...officer." The PBA objected to the continued inclusion of the PBA President and the fixing of fault vis-a-vis disciplinary action (See Stipulations, paragraphs 4 and 5 and Exhibits "B" and "C").

11.	On December 21, 1982 counsel for the Borough wrote to counsel for the PBA, citing City of Jersey City, 179 N.J. Super. 137 (App. Div. 1981) as authority for disciplining employees as a managerial prerogative of the Borough. Counsel for the PBA advised the Borough on December 23, 1982 that the PBA did not challenge the right of the Borough to mete out discipline, but, rather, the PBA challenged the procedures which the borough was attempting to establish, citing the recent amendment to Section 5.3 of the Act by implication. (See Stipulations, paragraphs 6 and 7 and Exhibits "D" and "E").

THE ISSUES

1.	Did the Respondent Borough violate Subsections (a)(1) and (3) of the Act when its Chief of Police involuntarily transferred Michael O'Hara and Douglas H. Olsen from the Detective Bureau to the Uniformed Division effective February 28, 1983?

2.	Did the Respondent Borough violate Subsections (a)(1) and (5) of the Act when it unilaterally established and thereafter implemented an Accident Review and Safety Board without negotiations with the PBA?

DISCUSSION AND ANALYSIS

The Respondent Violated Subsections

(a)(1) And (3) Of The Act When The

Chief Of Police Transferred O'Hara

And Olsen From The Detective Bureau

To The Uniformed Division Effective

February 28, 1983

The Charging Party alleges and has proven that the Respondent Borough was discriminatorily motivated by the action of its Chief of Police in transferring Olsen and O'Hara from the Detective Bureau to the Uniformed Division in the latter part of February 1983. The Hearing Examiner is persuaded that, notwithstanding the Chief's testimony that the transfers were merely to "change personnel," all of the surrounding circumstances, beginning with the weekend of the stakeout, indicate overwhelmingly that the reason for the transfer was the assertion by Olsen and O'Hara of their rights under the collective negotiations agreement. Thus, the Chief's stated reason for the transfer was a mere pretext and a sham.

The Wright Line5/ analysis in "dual motive" cases was recently adopted by the New Jersey Supreme court in Bridgewater Township v. Bridgewater Public Works Association, 95 N.J. 235 (1984).6/ First, by asserting a right to overtime under the agreement, Olsen and O'Hara were engaged in a protected activity under the Act: North Brunswick Township Board of Education, P.E.R.C. No. 79-14, 4 NJPER 451, footnote 16, (1978), aff'd. App. Div. A-698-78 (1979). Further, the pursuit of this protected activity, wherein O'Hara and Olsen submitted a voucher for overtime, was a "substantial" or "motivating" factor in the Borough's decision to transfer them from the Detective Bureau to the Uniformed Division. The record is replete with statements by superior officers of the Borough's Police Department that there would be "trouble" and that Olsen and O'Hara would probably be transferred back to uniform if they filed for overtime (see Finding of Fact No. 6, supra). Only Sergeant Wodarczyk denied making the statement that there was going to be "trouble" regarding the matter of overtime. Even though Wodarczyk was called as a witness for the Charging Party, under which the Charging Party would normally be bound, the Hearing Examiner finds and concludes that there were so many witnesses for the Charging Party, who testified to the contrary, that the Hearing Examiner finds that the Charging Party has proven by a preponderance of the evidence that protected activity was a substantial or a motivating factor in the Chief's decision to transfer Olsen and O'Hara to the Uniformed Division.

The Charging Party having established a prima facie case under Wright Line-Mt. Healthy, it remained for the Borough to demonstrate that the transfer of Olsen and O'Hara would have taken place even in the absence of their protected activity of asserting a right under the agreement. Unfortunately for the Borough, it did not begin to meet its burden of showing that the transfers would have taken place even in the absence of the submission by O'Hara and Olsen of vouchers for overtime. As noted above, it was the Chief of Police who made the decision to transfer. No other witness for the Respondent offered any reason for the transfer other than the Chief, whose testimony was that the transfers were made to "change personnel," a change which he thought was "necessary." Plainly, there had to be more to the Chief's decision to transfer than necessity for change. The reliance on the letter from Civil Service (R-1) that there is no such title as "Detective" is makeweight. It is noted that on the average there has been only one involuntary transfer out of the Detective Bureau per year in 21 years. The only inference that the Hearing Examiner can draw from the Respondent's evidence is that the Chief was miffed or piqued with O'Hara and Olsen for having the audacity to assert a right to overtime compensation under the agreement rather than take compensatory time as had been suggested by Wodarczyk and other superior officers, including Kilcomons.

For the foregoing reasons, the Hearing Examiner finds and concludes that the Respondent Board violated Subsection (a)(3), and derivatively Subsection (a)(1), of the Act by the action of the Chief of Police herein.

The Respondent Did Not Violate The Act

When It Unilaterally Established An

Accident Review And Safety Board Without

Negotiations But, To The Extent That The

Respondent Has Refused To Negotiate

"Disciplinary Review Procedures" Under

Section 5.3 Of The Act, Then The

Respondent Has Violated Subsections (a)(1)

and (5) Of The Act

The Commission long ago held that a public employer may establish an Internal Investigation Unit, which is analogous to the instant Accident Review and Safety Board, without collective negotiations as to the decision to establish: City of Trenton, P.E.R.C. No. 76-10, 1 NJPER 58 (1975). Since that decision there have been many cases decided by the New Jersey Supreme Court, which underline and reinforce the authority of a public employer to make decisions involving managerial prerogatives as to its method of operation and the discharge of its public function: See for example, the three-part analysis on negotiability set forth in IFPTE, Local 195 v. State of New Jersey, 88 N.J. 393, 403, 404 (1982).

In City of Trenton, supra, the employer created an Internal Investigation Unit in its Police Department to investigate alleged breaches of conduct by police employees. The unit was authorized, inter alia, to investigate referrals from the Mayor and the Director of Public Safety and allegations of criminal offenses, gross misconduct or neglect of duty. The Commission said: "We do not view...the decision to utilize a particular method of (investigation)...as constituting a term or condition of employment of its employees. As such, the employer's decision is not a required subject for collective negotiations..." (1 NJPER at 59).

The Hearing Examiner finds and concludes that the establishment of the Accident Review and Safety Board by the Borough is directly analogous to the establishment by the City of Trenton of its Internal Investigation Unit. Thus, the Borough herein was under no obligation to negotiate the decision to establish the Board.

* * *

However, to the extent that the Board has undertaken to recommend to the Chief of Police as to whether or not disciplinary action should be taken against an individual officer or officers, the Borough, upon demand, is obligated to negotiate disciplinary review procedures in accordance with the July 30, 1982 amendment to Section 5.3 of the Act.

Although there is no pertinent decision, to which the Hearing Examiner can refer, as authority for the foregoing proposition pertaining directly to discipline, he can refer to the 1982 decision of the New Jersey Supreme Court in Bethlehem Township Education Association v. Bethlehem Township Board of Education, 91 N.J. 28, where it was held that evaluation procedures are mandatorily negotiable whereas evaluation criteria are not. The 1982 amendment to Section 5.3 contains an express proviso that: "Nothing herein shall be construed as permitting negotiation of the standards or criteria for employee performance." This is no more than a reflection of what the Supreme Court held in Bethlehem, supra.

The Charging Party raises the issue of representation before the Board when an employee is required to appear. Weingarten7/ is the law of this state in the public sector8/ and there should be no problem between the parties in applying it to matters that have come before the Board. The post-hearing Stipulations do not contain any facts upon which the Hearing Examiner can make a finding of a violation of Weingarten by the Borough in this case. The Charging Party's letter memorandum of April 4, 1984 appears to contain some alleged facts regarding individual discipline, which are not contained in the Stipulations, nor were litigated in this proceeding. Therefore, they will be disregarded.

One final matter which pertains to disciplinary procedure is whether or not the Borough can, on its own initiative, require that the PBA President, or his designee, be a member of the Board. It appears to the Hearing Examiner that this is a negotiable item and, in the absence of agreement by the PBA, the Borough would illegally intervene in the internal affairs of the PBA if it unilaterally succeeded in placing the PBA President on the Board. The reason for this is that it would place the President in a serious conflict with the members of the unit that he represents, who might be the subject of disciplinary proceedings before the Board.

Accordingly, the Hearing Examiner finds and concludes that the Borough has violated Subsections (a)(1) and (5) of the Act by its failure to have negotiated with the Charging Party over disciplinary review procedures attendant to the implementation of the Accident Review and Safety Board.

* * *

Upon the entire record in this case, the Hearing Examiner makes the following:

CONCLUSIONS OF LAW

1.	The Respondent Borough violated N.J.S.A. 34:13A-
5.4(a)(3), and derivatively 5.4(a)(1), when its Chief of Police involuntarily transferred Michael O'Hara and douglas H. Olsen from the Detective Bureau to the Uniformed Division effective February 28, 1983.

2.	The Respondent Borough violated N.J.S.A. 34:13a-
5.4(a)(1) and (5) when, after properly establishing an Accident Review and Safety Board, it failed to negotiate disciplinary review procedures with the PBA attendant to the implementation of the Board.

RECOMMENDED ORDER

The Hearing Examiner recommends that the Commission ORDER:

A.	That the Respondent Borough cease and desist from:

1.	Interfering with, restraining or coercing its employees in the exercise of the rights guaranteed to them by the Act, particularly, by refraining from transferring employees such as Michael O'Hara and Douglas H. Olsen from the Detective Bureau to the Uniformed Division because they applied for overtime payment under the agreement, or by refusing to negotiate with the PBA regarding disciplinary review procedures in the course of implementing an Accident Review and Safety Board.

2.	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 the Act, particularly, by refraining from transferring employees such as Michael O'Hara and Douglas H. Olsen from the Detective Bureau to the Uniformed Division because they applied for overtime payment under the agreement.

3.	Upon demand, refusing to negotiate in good faith with the PBA regarding disciplinary review procedures in connection with the implementation of the Accident Review and Safety Board.

B.	That the Respondent Borough take the following affirmative action:

1.	Forthwith rescind the involuntary transfers of Michael O'Hara and Douglas H. Olsen from the Detective Bureau to the Uniformed Division and reinstate them to their former positions in the Detective Bureau. Further, forthwith make payment to O'Hara and Olsen of their $250 annual stipend, calculated from the date of the involuntary transfers on February 28, 1983 together with interest at a rate of 12% annum since that date.

2.	Upon demand, negotiate in good faith with the PBA regarding disciplinary review procedures in connection with the implementation of the Accident Review and Safety Board.

3.	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 by the Respondent Borough to insure that such notices are not altered, defaced or covered by other materials.

4.	Notify the Chairman of the Commission within twenty (20) days of receipt what steps the borough has taken to comply herewith.

/s/Alan R. Howe

Hearing Examiner

DATED:	April 10, 1984

Trenton, New Jersey

WE WILL NOT interfere with, restrain or coerce our employees in the exercise of the rights guaranteed to them by the Act, particularly, by refraining from transferring employees such as Michael O'Hara and Douglas H. Olsen from the Detective Bureau to the Uniformed Division because they applied for overtime payment under the agreement, or by refusing to negotiate with the PBA regarding disciplinary review procedures in the course of implementing an Accident Review and Safety Board.

WE WILL NOT discriminate 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 the Act, particularly, by refraining from transferring employees such as Michael O'Hara and douglas H. Olsen from the Detective Bureau to the Uniformed Division because they applied for overtime payment under the agreement.

WE WILL, upon demand, negotiate in good faith with the PBA regarding disciplinary review procedures in connection with the implementation of the Accident Review and Safety Board.

WE WILL forthwith rescind the involuntary transfers of Michael O'Hara and Douglas H. Olsen from the Detective Bureau to the Uniformed Division and reinstate them to their former positions in the Detective Bureau. Further, we will forthwith make payment to O'Hara and Olsen of their $250 annual stipend, calculated from the date of the involuntary transfers on February 28, 1983 together with interest at the rate of 12% annum since that date.