H.E. NO. 84-17

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 No. CO-82-126-3

JERSEY CITY PUBLIC EMPLOYEES, INC.,

LOCAL 245,

Charging Party.

Appearances:

For the City of Jersey City

Paul W. Mackey, Esq.

For the Charging Party

John W. Yengo, Esq.

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the "Commission") on December 3, 1981, and amended on December 29, 1981 and January 18, 1982, by the Jersey City Public Employees, Inc., Local 245 (hereinafter the "Charging Party" or "Local 245") alleging that the City of Jersey City (hereinafter the "Respondent" or the "City") has 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 by resolution of December 10, 1981 acted to transfer 30 employees from the Department of Public Works, represented by the Charging Party, to the Jersey City Incinerator Authority without notice to or negotiations with the Charging Party, contrary to the provisions of the recognition clause in the current collective negotiations agreement between the parties, all of which is alleged to be a violation of N.J.S.A. 34:13A-5.4(a)(1), (2), (3) and (5) of the Act.1/

It appearing that the allegations of the Unfair Practice Charge, as amended, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on July 7, 1982. Pursuant to the Complaint and Notice of Hearing, hearings were held on March 10, April 22, April 29 and August 15, 19832/ in Newark, New Jersey, at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. Oral argument was waived and the Respondent only filed a post-hearing brief by September 8, 1983.

An Unfair Practice Charge, as amended, 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 brief of the Respondent, 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 City of Jersey City is a public employer within the meaning of the Act, as amended, and is subject to its provisions.

2.	Jersey City Public Employees, Inc., Local 245 is a public employee representative within the meaning of the Act, as amended, and is subject to its provisions.

3.	The most recent collective negotiations between the parties, submitted in evidence, was effective during the term January 1, 1980 to December 31, 1981 (J-1).

4.	Article I, Recognition, of the above agreement provides that the Respondent recognizes Local 245 as the collective negotiations agent for all non-supervisory blue and white collar employees in the following departments of the City: the Department of Public Works including "engineering," the Department of Human Resources, the Division of Parks and Recreation, and bus drivers in the Division of Transportation. (J-1, p. 2).

5.	Article II, Maintenance of Standards, in the same agreement provides as follows:

A.	All conditions of employment contained in this Agreement relating to wages, hours of employment and general working conditions presently in effect for employees included in this bargaining unit shall be maintained at not less than the standards now in effect, and the conditions of employment shall be improved wherever specific provisions for improvement are made in this Agreement.

B.	Proposed new rules or modifications of existing rules governing working conditions as stated above, shall be negotiated with the Union before they are established." (J-1, p. 3)

6.	At all times material hereto there were approximately 550 employees covered by the recognition clause in the collective agreement (J-1).

7.	Since about 1955 there has been in the City of Jersey City an autonomous body known as the Jersey City Incinerator Authority (hereinafter the "Authority"), which was created by ordinance of the City pursuant to the provisions of the Incinerator Authorities Law (N.J.S.A. 40:66A-1 et seq.). Among the powers conferred upon the Authority is that of entering into contracts for the purpose of disposing of refuse.

8.	Commencing in October 1981 the Executive Director of the Authority, Leonard E. Greiner, Frederick J. Tomkins, the City's Business Administrator, John R. James, the Director of Public Works (DPW), and John M. Yurchak, the Director of Sanitation, entered into discussions regarding the Authority's taking over certain enumerated sanitation services then being performed by the City. The reason for these discussions was that the City was having problems staying with the "Cap" law for the calendar year 1982 while the Authority had a surplus in excess of $1 million dollars in 1981 and was not governed by the "Cap" law.

9.	On December 2, 1981 Tomkins prepared a resolution, which, upon adoption, authorized him to execute an agreement with the Authority for the performance of sanitation services (CP-1). This resolution was adopted by the City Council on December 10, 1981 and Tomkins was authorized to enter into an implementing agreement as of that date (CP-1).

10.	On December 18, 1981 a formal agreement was entered into between the City and the Authority (CP-2) wherein the Authority agreed to perform enumerated sanitation services within the City, which included snow removal, refuse collection and disposal, the sweeping and cleaning of streets, etc. Further, the City transferred title to the Authority as to certain equipment of the DPW such as sweepers, salters, bombardiers and compactors (see CP-2, Exhibit "A"). Finally, the Authority agreed to offer positions of employment to 30 named City employees in the DPW (see CP-2, Exhibit "B"), who were in the unit represented by Local 245.

11.	Of the 30 employees whose names appeared in CP-2, supra, 24 were ultimately employed after being interviewed by Greiner. Greiner testified credibly that he did not discuss "union" with the employees interviewed and further, he credibly denied that he would not hire an employee if he was a member of the "union." Those employees hired by the Authority were employed at salaries in excess of that received from the City.

12.	At no time from October 1981 until the implementation of the agreement between the City and the Authority (CP-2) did any representative of the City or the Authority give notice, discuss or negotiate the subcontracting of certain DWP functions, supra, with the Charging Party.

13.	The Charging Party failed to adduce any evidence of anti-union animus by the City toward the Charging Party in the foregoing actions taken by the City.

14.	Further, the Charging Party did not establish that the City had dominated or interfered with the existence or administration of Local 245.

THE ISSUE

Did the Respondent City violate Subsections (a)(1), (2), (3) and (5) of the Act3/ when, by resolution of December 10, 1981, it acted to transfer 30 employees from the Department of Public Works, represented by Local 245, to the Jersey City Incinerator Authority without notice to or negotiations with the Charging Party, notwithstanding the recognition clause in the collective negotiations agreement?

DISCUSSION AND ANALYSIS

The Respondent City Did Not Violate

Subsections (a)(1) And (5) Of The Act

When, By Resolution Of December 10,

1981, It Acted To Transfer 30 Employees

From The DPW, Represented By Local 245,

To The Incinerator Authority Without

Notice To Or Negotiations With The

Charging party, Notwithstanding The

Recognition Clause In The Collective

Negotiations Agreement

The decision in this case is governed by Local 195, IFPTE v. State of New Jersey, 88 N.J. 393 (1982). In that case the New Jersey Supreme Court held, inter alia, that a contractual provision requiring the State (public employer) to negotiate all incidents of contracting or subcontracting whenever a layoff or job displacement might result was a non-negotiable matter of managerial prerogative. On the other hand, the Court held "...that a public employment contract may include a provision reciting an agreement...to discuss decisions to contract or subcontract whenever it becomes apparent that a layoff or job displacement will result, if the proposed subcontracting is based on solely fiscal considerations" (88 N.J. at 409). While the Supreme Court emphasized that discussion with the public employee representative before subcontracting was "altogether appropriate," a necessary implication from the above-quoted provision of the Court's opinion is that the contract must contain a provision requiring that such discussion occur.

An examination of the instant agreement (J-1) discloses that there is no provision which required the City to discuss with Local 245 its December 10, 1981 decision to subcontract. This conclusion is buttressed by the testimony of John E. O'Brien, the Acting President of Local 245, who, when asked on cross-
examination what provisions of the agreement obligated the City to negotiate before subcontracting, pointed to Article I, Recognition, and Article II, Maintenance of Standards (see Findings of Fact Nos. 4 and 5, supra). These provisions in no way, expressly or impliedly, create an obligation requiring the City to negotiate or discuss with the Charging Party a decision to subcontract for fiscal reasons.4/ Concededly, J-1 was drafted before the Supreme Court decision in Local 195, supra. However, before an enforceable obligation to discuss could exist, there would have to be appropriate language in J-1 creating such an obligation.

There being no obligation to negotiate with Local 245 before subcontracting under Local 195, and the agreement (J-1) containing no provision obligating the City to discuss before subcontracting, the Charging Party has failed to prove by a preponderance of the evidence that the City violated Subsections (a)(1) and (5) of the Act by its actions in December 1981. Accordingly, the Hearing Examiner must recommend dismissal of all allegations in the Complaint.

* * *

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

CONCLUSION OF LAW

The Respondent City did not violate N.J.S.A. 34:13A-
5.4(a)(1), (2), (3) and (5) when, by resolution of December 10, 1981, it acted to transfer 30 employees from the Department of Public Works to the Jersey City Incinerator Authority, notwithstanding the provisions of the collective negotiations agreement in effect at that time.

RECOMMENDED ORDER

The Hearing Examiner recommends that the Commission ORDER that the Complaint be dismissed in its entirety.

/s/Alan R. Howe

Hearing Examiner

DATED:	September 12, 1983

Trenton, New Jersey