H.E. NO. 78-19

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

TOWNSHIP OF OLD BRIDGE,

Respondent,

-and-	Docket No. CO-77-299-6

OLD BRIDGE P.B.A. LOCAL 127,

Charging Party.

Appearances:

For the Township of Old Bridge,

(Louis J. Alfonso, Esq.)

For the Old Bridge P.B.A. Local 127,

Rothbard, Harris & Oxfeld, Esqs.

(Nancy I. Oxfeld, Esq.)

HEARING EXAMINER'S RECOMMENDED REPORT

AND DECISION

An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the "Commission") on April 14, 1977 by the Old Bridge P.B.A. Local 127 (hereinafter the "Respondent" or the "Township") 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 Township unilaterally altered the seniority system, contrary to past practices, and that the Township further based its shift schedule for Sergeants upon the seniority system as unilaterally altered, all of which is alleged to be a violation of N.J.S.A. 34:13A-5.4(a)(1),(2) and (7) of the Act.1/

It appearing the allegations of the above charges, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on July 21, 1977.

Pursuant to the Complaint and Notice of Hearing, a hearing was held on September 19, 1977 in Newark, New Jersey at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. A post-hearing brief was submitted by the Charging Party on November 8, 1977 and by the Respondent on December 16, 1977.

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 the consideration of briefs by 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 FACTS

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

2. The Old Bridge P.B.A. Local 127 is a public employee representative within the meaning of the Act, as amended, and is subject to its provisions.

3. The collective negotiations agreements of the parties have never contained any provisions with respect to seniority.2/ Seniority has been a matter of practice over the years under the Rules and Regulations adopted by the Township on September 20, 1962.

4. Paragraph 15 of the aforesaid Rules and Regulations of the Township provides, in connection with responsibility of command within the Police Department, that seniority in the Police Department shall be determined "...first by rank, secondly by continuous service in rank." (Emphasis supplied).

5. The same Rules and Regulations provide in Paragraph 16 that the order of rank within the Police Department shall be as follows: (a) Chief of Police; (b) Captain of Police; (c) Captain of Detectives; (d) Lieutenant; (e) Sergeant and (f) Patrolman.

6. At least until 1974, seniority, based on "continuous service in rank," was followed for purposes of promotion, shift schedules and vacations.

7. Effective June 3, 1974, seven Patrolmen were promoted to Sergeant. The badge numbers, issued for seniority purposes in the rank of Sergeant, were based upon the test scores received on competitive examinations given for the promotion rather than upon length of continuous service. The foregoing was set forth in a letter of June 3, 1974 to each of the promoted Patrolmen from the then Township Manager, Lawrence A. Kenyon. No convincing evidence was adduced that the PBA took issue with Kenyon's having based seniority upon test scores rather than upon "continuous service in rank."3/

8. In December 1975 shift assignments of Sergeants were changed. The criteria for shift assignment was seniority based on length of continuous service.

9. On December 8, 1975, Sergeant John Kenny, who had been promoted to Sergeant on June 3, 1974 along with six other Patrolmen, as noted above, filed a grievance alleging that his seniority had been violated since it was not based on the test scores which were utilized for promotion on June 3, 1974. A Sergeant Thomson filed a similar grievance on the same date.4/

10. On June 18, 1976, Kenyon rendered a decision sustaining the grievances of Kenny and Thomson.5/ Seniority was recognized in each case based upon the test scores of Kenny and Thomson, which were the basis for the promotions made on June 3, 1974, supra. The PBA grievance committee was present at the grievance hearing before Kenyon. No evidence was adduced that the PBA ever contested the said decision of Kenyon of June 18, 1976 under the grievance procedure.6/

11. Notwithstanding the sustaining of his grievance, Sergeant Kenny did not exercise his "test score seniority" in order to change his shift.

12. As a result of a heart attack, the Chief of Police, George Gillard, was off duty from May through October 1976 and returned to light duty in November 1976. As a result, he was unaware of Kenyon's disposition of the Kenny and Thomson grievance on June 18, 1976, supra.

13. On December 1, 1976, Chief Gillard sent a memo to Charles Spinola, PBA President, confirming the results of a meeting between them on November 30, 1976, which memo set forth a new shift schedule based on seniority, the criteria of which was length of continuous service and not test scores.

14. Sometime prior to March 1977, the new Township Manager, John Morse, overruled Police Chief Gillard's aforesaid memo of December 1, 1976. Morse based his action upon the decision of the prior Township Manager, Kenyon, who had sustained the Kenny and Thomson seniority grievances of June 18, 1976, supra. The PBA filed a grievance which was denied.

15. On March 29, 1977, Captain Robert Cotton, acting for the Township issued a memo recognizing seniority among all Sergeants based upon test scores and not length of continuous service. Thereafter the instant charge of unfair practices was filed on April 14, 1977.

THE ISSUE

Did the Township violate the Act by basing seniority on test scores rather than length of continuous service in the matter of shift schedules for Sergeants in March 1977?

DISCUSSION AND ANALYSIS

Positions of the Parties

The PBA contends that the Township has unilaterally altered the seniority system in the matter of the scheduling of shifts for Sergeants in 1977. It is alleged, by way of amplification, that the seniority system has always been based upon length of continuous service. Beginning in 1974, the Township instituted a change whereby seniority was based on test scores as a result of competitive examination and not length of continuous service. The PBA distinguishes Town of Bloomfield P.E.R.C. No. 76-39, 2 NJPER 138 (1976) and cites Local 195, IFPTE & Local 518, SEIU and State of New Jersey, P.E.R.C. No. 77-57, 3 NJPER 118 (1977).

The Township cites Town of Bloomfield, supra, as supporting its position, and contends that the charge should be dismissed because the Township has since at least 1964 based seniority upon scores and not upon length of continuous service.

The Township has not violated the Act

In reaching the conclusion that the Township has not violated the Act, as alleged, the Hearing Examiner has weighed carefully the contending arguments of the parties. Unfortunately for the PBA, the record does not support its contentions. Accordingly, the PBA has not met its burden of proving the allegations in the complaint by a preponderance of the evidence. N.J.A.C. 19:14-6.8.

It is clear beyond doubt that seniority "by continuous service in rank" was the criteria for promotions, shift schedules and vacations until 1974. The genesis of this criteria was paragraph 15 of the Rules and Regulations of the Township, adopted on September 20, 1962. There never was any provision for seniority in the collective negotiations agreement between the parties but it is clear that seniority, which is a term and conditions of employment, can arise from sources other than the collective negotiations agreement.7/

The PBA's initial problem in the instant case is that on June 3, 1974 seven Patrolmen were promoted to Sergeant and the seniority criteria was changed from continuous service in rank to the test scores received in competitive examinations. There is no convincing evidence that the PBA took issue with the decision of the Township Manager on June 3, 1974 to change criteria. (See Finding of Fact No. 7, supra.)

To make matters more difficult for the PBA in sustaining its position, the Township in December 1975 changed shift assignments for Sergeants. The criteria for such change in shift assignment was seniority based on length of continuous service. On December 8, 1975, grievances were filed by two Sergeants protesting the use of length of service and not test scores. On June 18, 1976, the Township Manager rendered a decision sustaining the grievances of these two Sergeants. Seniority was recognized in each case based upon test scores. Representative of the PBA were present at the grievance hearing before the Township Manager. There was no evidence that the PBA ever contested the decision of the Township Manager under the grievance procedure as it clearly had a right to do under Step # 5.8/

The instant charges of unfair practices arise from a March 29, 1977 memo of a Police Department Captain, recognizing seniority among all sergeants based upon test scores and not length of continuous service. This memo originated from a ruling

of successor Township Manager Morse, by which he reversed a memo from the Police Chief, dated December 1, 1976, that had based seniority for shift scheduling purposes on length of continuous service and not on test scores. The Chief of Police, is should be noted, had been off duty for seven months, particularly during the period when City Manager Kenyon sustained the grievances of the two Sergeants on June 18, 1976.

The Hearing Examiner finds that the PBA is estopped by its prior inaction in 1974 and 1976 from asserting, at this time and in this proceeding, that the Township has unilaterally changed its seniority system.9/ As noted previously, the change occurred first in 1974 when the seven Patrolmen were promoted to Sergeant on June 3, 1974. The Hearing Examiner has found that the PBA did nothing to contest this change in seniority criteria. Again in 1976 the PBA did nothing to protest the grievance decision of the Township Manager (June 8, 1976), which was a Step # 4 decision in the grievance procedure. The PBA could have appealed to the Township Council as provided in Step # 5 of the grievance procedure.

The Hearing Examiner relies on Town of Bloomfield, supra, in support of the conclusion reached in the instant case. The Hearing Examiner noted that the Local 195 case, cited by the PBA, supra, which was a Scope of Negotiations proceeding, stands only for the proposition that seniority is a term and condition of employment. It has no probative force in resolving the instant case.

*	*	*	*

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

CONCLUSIONS OF LAW

1. The Township did not unilaterally change its seniority system in the matter of shift schedules for Sergeants within six months of the filing of the instant charge of unfair practices on April 14, 1977.

2. The Township did not violate N.J.S.A. 34:13A-
5.4(a)(1),(2) and (5).

RECOMMENDED ORDER

The Township not having violated the Act, it is HEREBY ORDERED that the Complaint be dismissed in its entirety.

_______________________________

Alan R. Howe

Hearing Examiner

DATED: January 24, 1978

Trenton, New Jersey