H.E. NO. 77-8

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

TOWNSHIP OF HILLSIDE,1/

Respondent,

-and-	Docket No. CO-76-42-48

HILLSIDE POLICEMEN'S BENEVOLENT

ASSOCIATION, LOCAL NO. 70,2/

Charging Party.

_________________________________

HILLSIDE POLICEMEN'S BENEVOLENT

ASSOCIATION, LOCAL NO. 70,

Respondent,

-and-	Docket No. CE-76-37-69

TOWNSHIP OF HILLSIDE,

Charging Party.

Appearances:

For the Township of Hillside

Gerald L. Dorf, P.C.

For the Hillside Policemen's Benevolent Association,

Local No. 70, Stamler, Mintzner & Kaczorowski, Esqs. (Mr. John H. Stamler, Esq., of Counsel)

HEARING EXAMINER'S	RECOMMENDED

REPORT AND DECISION

An amended Unfair Practice Charge having been filed on March 4, 1976 by Hillside Policemen's Benevolent Association, Local No. 70 ("PBA" or "Association") and it appearing to the Executive Director, Jeffrey B. Tener, that the allegations thereof, if true, may constitute unfair practices on the part of the Township of Hillside ("Town" or "Township"), an amended Complaint and Notice of Hearing in Docket No. CO-76-42-48 issued on March 5, 1976.3/ Another Complaint and Notice of Hearing based upon an Unfair Practice Charge filed on March 2, 1976 against the PBA, in Docket No. CE-76-37-69 was issued on the same date, along with an Order consolidating the two cases. Both complaints allege unfair practices within the meaning of the New Jersey Employer-Employee Relations Act, as amended, N.J.S.A. 34:13A-1, et seq. (the "Act").

The amended complaint in Docket No. CO-76-42-48 alleges that the Township violated N.J.S.A. 34:13A-5.4(a)(5), (3), and (1),4/ respectively, during the course of negotiations by refusing to grant a higher base salary to unit employees than to firemen because of an insistence on maintaining parity in base salary between the two services; delaying payment of contractual longevity increases to unit employees until agreement was arrived at on the terms of a successor negotiation agreement; and making promises of a promotion to an employee and threatening to withdraw an existing sick leave benefit to employees in order to influence the PBA's negotiation position, and admitting a commitment to the Fire Department not to give the Police Department employees greater than a 6% salary increase.

The complaint in Docket No. CE-76-37-69 alleges that the PBA violated N.J.S.A. 34:13A-5.4(b)(3)5/ by unilaterally terminating a negotiation session on February 21, 1976 without explanation or counterproposal in response to the Township's rejection of the PBA's demand for a 35 hour work week, and thereafter continuing to refuse to resume negotiations in good faith.

In their respective answers each of the parties denied commission of the respective unfair practices alleged. Hearing was held before me on March 4, April 23, and April 28, 1976 in Newark, New Jersey at which time all parties were given an opportunity to examine witnesses, to present evidence and to argue orally. Thereafter, briefs were filed by the PBA on July 15, 1976 and by the Township on July 22, 1976. Upon the entire record in this case I make the following:

FINDINGS OF FACT

I

RESPONDENT'S STATUS

The Complaints allege, the parties stipulated and I find that the Township of Hillside is a public employer within the meaning of N.J.S.A. 34:13A-3(c).

II

The complaints allege, the parties stipulated and I find that the Association is an employee representative within the meaning of N.J.S.A. 34:13A-3(e).

III

The Unfair Practices

Background and Existing Agreement

The PBA has been recognized at least for the last eight years by the Township as the exclusive representative for collective negotiations concerning the terms and conditions of employment of all police personnel with the rank of patrolman and detective employed by the Township. Successive collective negotiation agreements have been entered by the Township and PBA covering these employees. The most recent agreement, effective January 1, 1974 extended through December 31, 1974, but provided for its terms to remain in full force and effect thereafter until replaced by a new agreement or to terminate upon the expiration of 30 days written notice of termination by either party.6/

The 1974 agreement contained a base salary of $12,810 for patrolmen and $13,310 for detectives, annual clothing allowance of $274, annual clothing maintenance allowance of $100, a work week averaging 37 1/2 hours over the employees' regular cycle with hours worked in excess to be paid at the regular rate (calculated pro rata) or, at the employees' option, compensated by compensatory time off. The agreement provided among other benefits, for educational incentive pay, longevity pay beginning on an employee's fifth anniversary and continuing every fifth year thereafter to the 25th anniversary date at the rate of 2% of "previous years' base salary", and two compensatory days off per calendar year for personnel employed more than one calendar year, with payment of $35 if not used. The agreement also provided that unresolved grievances involving disciplinary action taken by the Township against a permanent employee not for just cause and those concerning the application of the agreement shall be submitted to the Township for its final binding decision. Finally, a prior practice clause provided that all other rights, benefits and privileges enjoyed by both parties not specifically provided for or abridged in the agreement are protected by the agreement.

The Course of Negotiations, Including

the Parity Issue and Aborted February

21, 1976 Meeting

Negotiations looking toward a successor agreement for the year 1975 commenced with a meeting at the end of February 1975 between the PBA Committee headed by Patrol Vincent DeMaio, its President, and the Township's Negotiation Committee, which included Mayor Vincent Baldassano, and Police Commissioner Harold Wovsaniker, at which the PBA submitted a three page list of typed proposals. Among them were demands for improvement in salary scale,7/ an increased longevity plan and an increase in clothing allowance and maintenance. PBA President DeMaio admitted "some progress was made in negotiations" by the end of this meeting. The Township agreed on four demands; to wit, promotional examinations would not exclude presently employed personnel for failing to obtain college credit; all officers of the PBA to be excused for PBA meetings while on duty; new personnel to receive compensatory days their first year without having to wait an entire year for them and the Township would continue to supply false arrest insurance in accordance with existing ordinance. Other demands continued open for further discussion and still others, including a demand for third highest salary scale in Union County among Police Departments, were rejected.

Meetings continued between the parties on a fairly regular basis. On August 5, 1975, the Town entered a collective negotiation agreement for the calendar year 1975 with the Hillside Public Works Independent Union, the exclusive representative of its Public Works Department blue collar employees, providing a wage increase for unit employees of 6 1/2% over and above the wage rate paid to such employees for the year 1974. After August 5, 1975, for the first time, the PBA demanded a 6 1/2% salary increase in the base rate for patrolmen and detectives, tying its precise salary demand to the increase granted public works employees. The Township in rejecting this demand also rejected PBA's effort to compare its members with the equipment operators, laborers, mechanics in public works whose salaries were generally substantially less than patrolmen's, a number earning in the neighborhood of $6,500. The Township noted that the 1/2% above 6% granted to public works reflected its attempt to recognize the necessity for a living wage and overcome the effects of inflation for employees who start at a much lower wage base than do policemen.

During 1975, the Township was also engaged in ongoing negotiations for calendar 1975 with Local No. 35, Firemen's Mutual Benevolent Association ("FMBA") as exclusive representative and bargaining agent for all uniformed fire personnel employed by the Township. At the time the PBA first made its 6 1/2% salary demand, the Town had not yet signed an agreement with the FMBA and did not do so until September 25, 1975. There is substantial evidence in the record that while rejecting comparability with public works employees, the Township equated policemen with firemen, at least insofar as their base salaries are concerned. When its demand was first placed on the negotiating table in August or September, 1975, according to PBA President DeMaio, in a conversation held with one of the Township's Committee members, Police Commissioner Wovsaniker, DeMaio was told to the effect that "we could not get the 6 1/2% because the firemen had already signed or were in the process of signing a 6% increase." When asked by DeMaio why reference had been made to the firemen, Wovsaniker responded that there would be a snowballing effect if the patrolmen received more than 6%, that the firemen would demand a lot more later and he didn't have the authority to break parity.

Even before September 1975, in negotiation sessions held in the prior spring of that year Mayor Baldassano, on behalf of the Town, indicated that police base pay had to equal fire department base pay. At the May 1975 negotiation session, for example, when the PBA tentatively mentioned a 7% increase figure, according to DeMaio, the Township responded "if it was given to the Police Department it would have to be given to the Fire Department based on historical past procedures that they had been doing in the Township." The Town representatives asked, rhetorically, what were they going to do next year when the firemen came into negotiate their contract? In the words of DeMaio "They said they would not break parity with the Fire Department" and the Township offered the PBA a 6% increase.

At this same May 1975 meeting the parties also discussed a PBA claim that firemen had received an extra $75 "shape up bonus" in their 1972 or 1973 contract, not granted policemen.8/ According to DeMaio this extra compensation denied the PBA unit employees was not fair inasmuch as patrolmen actually spend an extra 20 minutes a day preparing reports for which they are not compensated.

The FMBA -- Township agreement covering calendar 1975, signed on September 23, 1975 provided for a 6% salary increase over 1974 base pay.9/

During the course of continued negotiations in the fall of 1975, the PBA continued to demand a 6 1/2% increase in base salary and the Town rejected such an increase, relying on the snowballing effect such an increase would have on FMBA demands at the next negotiations for firemen as well as anticipated verbal abuse from firemen and fear of political retaliation by firemen at the next Township elections. During this period, by letter dated September 24, 1975, Police Commissioner Wovsaniker on behalf of the Township made an offer including 6% salary increase, one additional compensatory time day, $125 weapon maintenance allowance, $325 annual clothing allowance, $150 clothing and maintenance allowance and reaffirmed prior agreement to permit all police officers to take promotional examinations without completion of college incentive programs.

By October 1975, in an effort to overcome the stalemate on salary, the PBA offered to accept the Township's offer of 6% provided the Township consider or try a 35 hour work week, a plan recommended at an earlier October meeting by Police Chief George Shelbourne for its economy and to reduce excessive overtime. The Township rejected a specific offer to reduce the then 37 1/2 hour week to 35 for November and December on a trial basis. A later meeting was held in October after the PBA submitted revised proposals through its counsel, John Stamler, Esq. Stamler for the PBA and Alexander Menza, Esq. for the Township appeared at this meeting held October 25, 1975. On this occasion, the Township acceded to PBA proposals for $75 increases in uniform maintenance and allowance, one additional funeral day for death of relative other than an immediate relative, a continued work schedule of 37 1/2 hours per week, the absence of any contract clause, rule or ordinance which would make promotional examinations contingent upon college level courses or degree, and payment of longevity raises within one month after qualifying anniversary date. Other PBA proposals for a joint committee to review Police Department rules and regulations and the establishment of a procedure for taking affidavits from complainants charging misconduct by police officers were reviewed favorably but were taken under advisement for further review by the Police Chief and the Township Commissioner Welsh, respectively, not present at the meeting. The Township again rejected the PBA's demand for a 6 1/2% increase, among others. In addition, at this October 25 meeting, a weapon maintenance allowance of $125 which the Township had proposed as early as May, 1975 was agreed to by the PBA.

In spite of these individual agreements, the continued differences on the size of a salary increase prevented overall agreement. In addition, the Township's continued failure to make payment of certain longevity increases demanded by the PBA under the 1974 agreement and a Township proposal to reduce annual paid sick days, subjects to be separately discussed in later sections of this Report, contributed to an inability of the parties to arrive at a settlement and delayed further process in resolving their differences.

Commencing as early as May 1975, the Township had made counter offers in the areas of uniform allowance, uniform maintenance and newly introduced weapon maintenance allowance, which, together with its proposal for a 6% base salary increase, comprised a total financial package of $1,049 for each unit employee. For its part, the PBA was prepared to forego the uniform and weapon allowances to long as its members received a 6 1/2% salary increase, a financial increase over the prior 1974 contract of $842 per unit employee.

The apparent net loss in benefits for 1975, of $207 per employee thereby incurred on adoption of the PBA salary demand is not an accurate reflection of the hidden costs to the Township which would result from its granting the 1/2% increase in base salary above 6% without any increases in uniform or grant of a new weapons allowance. Thus, in addition to its reflection in salary, the 1/2% would be built into pension costs, overtime salary costs -- an item which particularly troubled the Township as it considered the PBA's revised 35 hour work week proposal -- vacation and holiday pay and salaries for superior officers, tied by a percentage ratio to salaries of rank and file patrolmen.

One witness for the PBA, Patrolman Michael Galloway, testified on direct examination that sometime prior to December 1975, in a side discussion he had with Mayor Baldassano, the Mayor reflected the Township's concern that an additional 1/2% increase in salary would have a pyramiding effect on other salary derived or related costs. The Mayor and Police Commissioner Wovsaniker both emphasized during their testimony these additional cost factors as major inducements for the Township's rejection of the PBA's salary demand.

During the course of negotiations the PBA continually claimed that differences in duties, responsibilities and training between policemen and firemen warranted the pay differential it sought.10/ While the PBA amended Charge and the Complaint assert at page 7, that the Township refused "to discuss or even consider [these] qualitive differences..." the PBA witnesses, particularly PBA President DeMaio, reiterated that these matters were brought up and discussed at a succession of negotiation meetings. It is apparent, however, that these discussions did not prove fruitful. Thus, while Police Commissioner Wovsaniker admitted his awareness of certain of these differences between the uniformed forces as raised by the PBA at the meetings, in particular the greater mileage driven, more calls made and more responses by police over given periods of time, the Township remained unwilling to grant any greater salary increase to policemen than to firemen.

According to PBA witness DeMaio, by November 25, 1975, the Township had requested the appointment of a mediator to assist the parties in their negotiations.11/ Apparently, the PBA was unwilling to agree to the appointment of a mediator at that time. In any event, no mediator was assigned by the Commission.

No meetings were held in December 1975, but meetings did resume in January 1976. By this time the Township had retained Gerald L. Dorf, P.C. as its labor counsel to conduct negotiations and represent it in the unfair practice proceeding before the Commission. A revised written list of negotiating demands dated January 15, 1976 were furnished to the Township at a January 19, 1976 meeting held at Dorf's office attended by PBA counsel Stamler, DeMaio, Alexander J. Menza, Esq., general Township attorney and Dorf. The PBA at this time revised its earlier salary demand and now sought a two year agreement with a 6% increase in base salary in the first year retroactive to January 1, 1975 (as offered by the Town on September 25, 1975), and an increase of 6% for calendar year 1976 coupled with a 35 hour work week based on five days on and five days off. The PBA revised proposal also included 9 other demands for benefits and improvements in calendar 1975 and 31 other such items for 1976.

Discussion was held on January 19, 1976 relative to a number of the PBA demands, although the Township attorney had insufficient time to respond to the full range of demands presented. Mr. Menza noted that he could see no way the Town could agree to the PBA's demand for an extra 1/2% increase above 6%. However, offers were made by the Township to certain PBA submissions. Mr. Stamler by letter dated January 26, 1976 forwarded to Dorf a revised set of counter proposals "to the offers made by the Township Committee." The PBA's counter proposals included agreement to the Township's offer of 6% increase for 1975, on the unstated condition, separately discussed by telephone between DeMaio, Dorf and Stamler, of a 35 hour work week (in place of the existing 37 1/2 week) to be instituted on a trial basis in the second year.12/

Stamler's letter also noted various PBA agreements to Township offers, including for calendar 1975, one additional compensatory day (to be received in 1976); $60 weapon maintenance allowance; one additional funeral day for a relative other than immediate relatives; immediate payment of longevity benefits due under 1974 contract to be computed on 1975 salary as determined in accordance with existing contractual criteria; and a past practice clause acceptable to both sides. With respect to its 1976 demands, aside from reasserting its demand for 6% increase in salary and rejecting the Town's offer of $550 across the Board, Stamler's letter of January 26, 1976, evidenced agreement on some, an agreement to discuss others further, a moderation of certain additional demands which the Town had rejected at the January meeting, as well as an amendment of others and clarification of still others, all in an effort to obtain ultimate agreement on terms of the second year of a new two year agreement.

A subsequent meeting was scheduled for Saturday morning, February 21, 1976 at which the PBA expected to discuss the contents of the PBA's counter proposals and 35 hour work week demand, among other items.

According to uncontested testimony of Police Commissioner Wovsaniker, the Township gave serious consideration to the proposal for a 35 hour work week.13/ However, after examining the matter, it had become convinced that a serious overtime problem for police would not be alleviated by the shortened work week, devised to include a work schedule of 10 hour shifts for five consecutive days followed by five days off, since overtime was attributable primarily to court appearances by unit members, a factor not dealt with in the PBA proposal. The Township was concerned, as well, with having adequate police coverage with fewer work hours.14/

At the outset of the February 21, 1976 meeting, Dorf advised Stamler that the Township was no longer interested in scheduling or continuing discussions on a 35 hour week. At this point Stamler and the PBA Committee left the meeting without explanation. According to witness Wovsaniker this scheduled meeting had been arranged during a lengthy telephone conversation between Dorf and Stamler a few days prior as a follow up to Stamler's January 26 letter submission of numerous revised proposals for 197 and 1976 in which Stamler had asked Dorf to contact him as to the progress made with the Township Committee apparently as to the Town's willingness to agree to the PBA's counter offers. with respect to the issue of salary, that counter offer was that based on a two year package, the PBA would accept the Township's offer of 6% increase each year only if the Town would agree to implementation of a 35 hour work week on a trial basis in the second year. While Wovsaniker testified it was his understanding of the conversation that Dorf advised Stamler that the Town would discuss other items but not a 35 hour week on February 21, neither Mr. Dorf nor Mr. Stamler testified at the hearing. Under these circumstances, I am unable to give weight to a non-participant's understanding. Based upon the evidence in the record of the PBA's reaction to Dorf's announcement at the outset of the meeting, I infer that Stamler had concluded from his conversations with Dorf that either the Township was agreeable to a 35 hour week on a trial basis in 1976 or, at least, was willing to continue to consider it. This was not the case as the Township would not discuss the matter at the February 21 meeting and had apparently concluded by that time after due consideration that such a work week was not in its best interests.

Thereafter, a Notice of Impasse was filed by the Township with the Commission on March 1, 1976, a mediator was assigned on March 2 and two mediation sessions followed, on March 22 and on or about April 2, 1976, with both parties in attendance. As testified to by PBA President DeMaio, during those sessions "a whole host of different package proposals were made...different packages of proposals were made by the PBA to the Township and by the Township to the PBA".

The first negotiation session with the mediator lasted three and a half to four hours. During it, there was some discussion between the parties of increasing the number of weekly work hours as a way of providing the employees with a higher salary increase, rather than decreasing hours, as had previously been discussed in January and February, and then rejected by the Town by February 21.

Later, on March 22, after the first mediation session, Wovsaniker and DeMaio met accidentally at a store where DeMaio was employed part-time. DeMaio had a question as to the manner of computing the employees' hourly rate of pay which had been discussed at the session as the figure to be used for computing pay for one additional hour of work a week above the then work week of 37 1/2 hours. Wovsaniker satisfied DeMaio that the rate was accurately derived by multiplying the annual base salary of $12,810 for patrolmen by 6% for 1975 and 6% for 1976 and then dividing by annual work hours at the rate of 37 1/2 per week. According to DeMaio, the proposal discussed would provide for employees in 1975 an additional sum derived by multiplying the computed hourly rate of $7.38 by 26 or half the weeks in the year.15/ Further, according to DeMaio, the PBA negotiating committee was prepared to accept such a figure, to be characterized as "shape up" pay, in addition to 6% salary increases for each of 1975 and 1976, by recommending it to the membership and the Township, as satisfactory means of resolving the salary dispute.

The April 1 or 2 mediation session did not resolve the parties' differences, either in accordance with the extra hour proposal or otherwise. Shortly thereafter, the Commission invoked fact-finding and by letter dated April 13, 1976, the PBA received notice from the fact-finder, Jack Tillem, of his appointment although by April 28, the last hearing day, the Township labor counsel Dorf had not yet received such a notice. By close of hearing no meetings with the fact-finder had yet bee held. However, by letter dated April 14, 1976, Dorf placed in writing the Township's position on each unresolved contract issue. Dorf advised that "I have reviewed the Township's position on each [difference between the parties] with the members of the Governing Body and I am noting below our current position on each item (most of which you are already aware of) and, in addition, including a suggestion at the end which may assist in making a settlement."

The Township's 1975 offers reaffirmed or modified its previous offers on salary (6%); compensatory days off (one additional to be taken in 1976); $60 weapon maintenance allowance; clothing allowance (up $25 to $300); clothing maintenance (up $25 to $125); added one funeral leave day for relative other than immediate relative; accepted, as previously agreed, promotion language, immediate payment of longevity computed on salary then being received, with an adjustment to be made upon execution of a contract containing increased salary for 1975, and a past practices clause continuing all benefits enjoyed under the 1974 agreement. The 1976 positions included a 6% salary increase; increase of $65 in weapon allowance; an increase from 5 to 7 days funeral leave for death of spouse or child (PBA sought 10 days); longevity to be paid within 60 days of anniversary date (PBA had sought one month and 8% interest on delinquent payments thereafter); overtime payments computed monthly and paid quarterly, within 45 days of its close (PBA had sought 30 days); and modified acceptance of a few other PBA proposals and rejected (through failure to respond) a larger group of other PBA counters. Dorf's suggestion was to agree to submit a referendum to Township voters in November the resolution: "Should a patrolman receive a higher base pay than a fireman?"

The Longevity Issue

As earlier noted the parties' 1974 agreement provided for longevity pay. Article X "LONGEVITY" provided in pertinent part, as follows:

All employees of the Hillside Police Department covered by this agreement shall be entitled to and be paid longevity pay. Longevity pay shall begin on the members 5th anniversary date at the rate of 2% of his previous years' base salary. Subsequent five year periods of continuous service shall increase the employee's longevity pay an additional 2% until a maximum of 10% is realized . . .

The 1974 agreement, including Article X, continued in full force and effect until on or about March 31, 1975 when 30 days had expired from Dorf's written notice of termination of the agreement.16/ On January 1, 1975 two patrolmen, including PBA President DeMaio, achieved their fifth year anniversary of employment. Thereafter and during 1975, a number of other patrolmen as well as a number of sergeants and Police Captain achieved either their fifth, tenth or, in one case, twentieth anniversary date.

The Township failed to make any longevity payments on and after January 1, 1975 to any of these employees who first achieved initial eligibility or who first became eligible for increased longevity benefit on achieving a subsequent contractually designated anniversary date by mid December 1974.17/ After January 1, 1975, the Township did continue to make longevity payments based upon existing salaries to those employees who had already achieved eligibility and were receiving such payments prior to January 1, 1975.

In February 1975, PBA President DeMaio approached Police Chief Shelbourne about the Town's failure to pay the initial or increased longevity payment due newly eligible police officers under the contract. The Chief advised him to write out a grievance about the matter and DeMaio did so. On March 25, 1975 Chief Shelbourne forwarded DeMaio's grievance to Police Commissioner Wovsaniker, noting in a covering letter, a copy of which he forwarded to DeMaio, that the failure to pay the longevity payments to police officers when they become due "is an apparent violation of the existing contract and or longevity ordinance."18/ The Chief also noted his belief that the dispute could only be settled by the Township Committee. DeMaio also contacted Miss Bertha Brooks, the Township Treasurer, who advised that longevity would not be paid unless and until a new contract had been signed.

Some time between March 25, 1975 and October 25, 1975, DeMaio approached Mayor Baldassano directly about the problem after DeMaio had not heard from the Township with respect to a final step grievance meting he had requested. According to DeMaio, Baldassano told him that payment would not be made unless the PBA signed the contract for 1975. DeMaio stated he then pointed out and showed Baldassano the contract language that payment was based on previous years' salary and had nothing to do with having a contract signed or not. According to DeMaio, Baldassano then said "they gave me the excuse that it was too much paper work for the treasury to complete the longevity benefit on the '75 salary and then compute it again once the contract is signed".

DeMaio testified he also took up the longevity problem with Wovsaniker who replied he could see no problem paying it.

In its October 24, 1975 written proposals the PBA made demand for payment of longevity raises within one month after the anniversary date which vests such raise, adding "In violation of the 1974 contract19/ the Township has not paid longevity raises to many officers who were entitled to them. The Township has indicated it will not pay such raises until the 1975 contract is signed and the new salaries computed. This is inherently unfair..."

By January 15, 1976, the PBA proposals included demand for immediate payment of longevity benefits due under 1974 contract, to be computed on 1975 salary as determined by paragraph 1 (in which demand was made for a salary increase of 6%, retroactive to January 1, 1975 for the first year of a new two year agreement).

Sometime in December 1975, after the Town had continued to refuse to make any longevity payments to newly eligible employees until a new contract had been signed, those employees in the unit affected signed, [those employees in the unit affected signed] complaints against Mayor Baldassano and each of the four other Commissioners and the Town Treasurer in the Hillside Municipal Court alleging violations of N.J.S.A 2A:170-90.2.20/ Thereafter, because of apparent conflicts of interest, the matters were transferred for hearing before a Judge of the County Court. On April 9, 1976 upon application of John Stamler, Esq. for the complainants, Judge Filmore Wood of the Union County Court entered an Order upon consent of Alexander Menza, Esq., attorney for the defendants dismissing the complaints with prejudice "it further appearing that the defendants have agreed to make payment to the complainants of those sums to which the complainants are entitled under a 1974 contract..." At the hearing before the undersigned on April 28, 1976 counsel stipulated that an agreement had been entered by the parties that longevity payments will be paid shortly. As earlier noted the parties' agreement contemplated payments to be made in accordance with the then existing salary with the understanding that once new salary had been agreed to an adjusted retroactive payment would be made.

According to Mayor Baldassano, a dispute as to the date to determine eligibility for longevity benefits, whether to use the employee's anniversary date or the contract date had been resolved in favor of the anniversary date back in 1974. Then, in 1975 when policemen became eligible for benefits or increased benefits the Township still withheld payment. Baldassano showed some confusion as to the reason. He first indicated that a conflict as to the basis of computation - whether to use previous years salary as specified in the contract or present salary as required by the ordinance21/ caused delay in making payment. On cross-examination, Baldassano first indicated the dispute in 1975 was about anniversary date, later agreed that dispute had been resolved in 1974, and then stated that because of the pending criminal action against the Town officials, not instituted until December 1975, payments which accrued commencing January 1975 were withheld for employees newly eligible for benefits or increased benefits. When Baldassano's confusion was brought to his attention, Baldassano then relied on the absence of 1975 contract figures as the reason for withholding payments. When pressed as to why payments were still withheld into the summer of 1975 when it was apparent the contract negotiations would be protracted, Baldassano admitted the Township gave no consideration to payment because of a hope and an assumption that every new meeting would result in contract agreement. This response was almost immediately followed by the statement that he didn't think anyone ever assumed it would be an easy matter to settle a new contract. Baldassano did not deny DeMaio's testimony as to their conversation about the withholding of longevity.

Wovsaniker did not specifically dispute DeMaio's testimony that he advised DeMaio sometime in 1975 he could see no problem in paying longevity. Wovsaniker also evidenced some confusion as to dates, first stating that after recognizing a conflict between "preceding years' salary" and "current years' salary" he checked with Treasurer Brooks and learned that payment in the past had been made on the basis of current years' salary. According to Brooks, the 1974 contract was settled early and signed on March 19, 1974. Longevity was then paid for employees who first qualified for new or increased benefits after December 1973, some receiving early payment if they did not qualify until later in 1974 and others receiving late payment if they qualified before March 19. Wovsaniker later acknowledged that the Township's recognition of a conflict between contract and ordinance did not arise until after the complaints were filed in Hillside Municipal Court in December 1975 when the Township attorneys discovered the discrepancy. Wovsaniker finally stated that after checking on past practice, he responded to DeMaio's inquiry at the next negotiation meeting by asking why the parties shouldn't follow the same past practice, and as soon as we sign the contract. the Township will pay longevity as it has been done in the past. Wovsaniker later admitted during the cross-examination that he never told the PBA during 1975 that the reasons the Township would not pay longevity benefits was because of any conflict between the contract and Township Ordinance in computing base pay. That defense to payment, according to Wovsaniker, was only raised after the Municipal Court complaints were filed in December 1975.

Promise of Promotion, Threat to

Withdraw Sick Leave Benefit and

Commitment to Fire Department

According to witness DeMaio, sometime in the spring of 1975, after negotiations had been underway, he received a telephone call at his home from Mayor Baldassano. As DeMaio related it, the Mayor asked him if he had thought about the terms of the 6% salary offer by the Town in response to the PBA's 6 1/2% demand.22/ DeMaio responded that the PBA demand remained at

6 1/2%. At this point, DeMaio testified that the Mayor said that he had knowledge of a test coming up for promotion and suggested that if DeMaio as President could sell the package or give it a favorable recommendation, no matter where he came out on the test, he, DeMaio, would be made sergeant. DeMaio expressed disbelief, to which Baldassano responded he couldn't see a break in parity, there would be a political issue if we did break parity. DeMaio told Baldassano he would think about the matter and the conversation ended.

Thereafter, DeMaio testified, he received a call that the Mayor wanted to speak to him in regard to the contract. DeMaio, then in uniform and on duty, went to the Mayor's home. The Mayor told him if he could give a favorable recommendation to the PBA to accept the Township's offer of a two year package containing a 6% salary increase in each year,23/ no matter where he came out on the sergeant's test, he, DeMaio, would be made sergeant.

According to Baldassano, he recalled two conversations in which the subject of a promotion was discussed. As to the first conversation, the parties were still negotiating, and were about a 1/2% apart, and DeMaio had suggested to him that the PBA's previous negotiator had sold out the PBA and was now sitting in the Juvenile Division of the Hillside Police Department. The Mayor testified he then jokingly responded saying, "Hell Vinnie, you can do better than that. If you settle at 6% I will make you captain." According to the Mayor, it was unfortunate Mr. DeMaio didn't have a sense of humor, but added that he thought DeMaio laughed too, and kind of grinned about it. Mayor Baldassano noted that promotions can only be made by a three member Township Committee majority and that regardless of the test results the three highest scores on the test are the ones who ultimately will become sergeant and this is generally understood among unit employees.24/

As to the second conversation, the Mayor further testified he made a similar comment in the conference room with PBA members present, when he more or less punched DeMaio in the shoulder and said, "Come on Vinnie, I will make you a captain if you move in this session, and everybody had a laugh about it."

Baldassano did not deny DeMaio's testimony regarding the conversations held between them by telephone and, later, at Baldassano's home.

The second allegation of Township conduct in violation of subsection (1) concerns a threatened withdrawal of a sick leave benefit. Since 1958, and up to 1975, under Township practice and procedure, a policeman was entitled to up to one year sick leave with full pay depending upon the illness or injury and with the consent of the Township. No ordinance covered this practice25/ and the existing negotiation agreement is silent as to the specific matter of sick leave but does contain a provision protecting all other rights, benefits and privileges enjoyed by both parties which are not specifically abridged in the agreement.

On or about October 22, 1975, following the Township's rejection of the PBA's offer to accept a 6% increase if coupled with a trial weekly work schedule of 35 hours for the balance of the year, an unusually high number of police officers called in sick.26/

In its revised contract demands contained in Stamler's October 24, 1975 letter to the Township, the PBA sought "The immediate rescission or withdrawal of the Order of the Police Chief dated October 22, 1975, and entitled 'Sick Report Procedure.'"27/ The letter continued, "The Township Committee directed the Police Chief to issue that Order based upon a set of circumstances or conditions existing on that date. It is submitted that the set of circumstances or conditions which led to the issuance of the Order have been removed, permitting the use of the procedure theretofore followed for sick officers." Officer DeMaio explained the Chief's Order as based upon his feeling that at one time the Police Department was in an emergency situation due to the amount of men out sick.

According the DeMaio, Mayor Baldassano stated, at the time, in late October, 1975, that he would take away the employees' unlimited sick leave of up to a year including pay and enforce a fifteen day per year sick leave.

During the course of the negotiation session of October 25, 1976, Township attorney Menza handed DeMaio a copy of a letter on Menza's letterhead dated October 22, 1975, marked confidential, which he had addressed to the Township Committee. In the letter Menza noted that it had been called to his attention that there was no ordinance of the Township granting a leave of absence with pay to a member of the Police or Fire Department for a period of one year. Menza then cited a repealed and an existing statutory provision28/ authorizing the governing body of any municipality, by ordinance, to grant its paid firemen and police officers such a leave with pay not exceeding one year provided the injury, illness or disability is certified by the examining physician. In the letter Menza went on to note that no ordinance had been adopted by the Township on authority of the statute, recited the long standing Township practice of providing one year paid leave of absence for illness and injury, and closed by noting that the statute is quite clear and suggesting immediate appropriate action be taken by the Township Committee.

Following Mr. Menza's letter the Township had a proposed ordinance drawn to the effect it would allow 15 days paid sick leave a year for police officers which would be accumulated over a number of years. According to Police Chief Shelbourne the ordinance was to be effective for police officers hired after its adoption. Passed at its first reading, the proposed ordinance was then withdrawn and never adopted.

The third alleged act of coercion by the Township concerned a conversation held between Wovsaniker and Township Police Captain, James T. Silva. Silva attended almost all PBA Township negotiation sessions in the capacity of advisor to the PBA Negotiating Committee. At a dance held at the College Inn on the evening of September 27, 1975 Captain Silva engaged Wovsaniker in a private conversation. Silva urged Wovsaniker to meet the PBA's salary demand b agreeing to the 1/2% increase above 6% in base pay, or, in lieu thereof, to agree to a 35 hour work week. Silva testified Wovsaniker replied that he couldn't do anything for the police because he gave his word to the Fire Department that we wouldn't get more than they got.

ANALYSIS AND DISCUSSION

The Alleged Refusal to Negotiate

in Good Faith by the Township

In its amended charge the Association placed primary emphasis upon the Township's insistence on maintaining parity in base salary with the Fire Department as establishing evidence of a closed mind and unwillingness to settle the salary issue on its merits. After hearing the testimony and considering the history of the parties' negotiations over a period of a year and one-half I conclude that the standard against which to judge the Township's conduct must be more broadly viewed than the Association would allow. The parity question cannot be viewed in isolation but, rather, the Township's position on parity must be weighed and analyzed in the context of its overall negotiating conduct in light of the applicable governing law.

The leading case in this area is In the Matter of The State of New Jersey and Council of New Jersey State College Locals, NJSFT-AFT/AFL-CIO, E.D. No. 79, 1 NJPER 39, aff'd., State of New Jersey v. Council of New Jersey State College Locals, NJSFT-
AFT/AFL-CIO, 141 N.J. Super. 470 (App. Div. 1976). In that case, the Commission's Executive Director refused to issue a complaint after investigation of a charge alleging that the State's failure to acquiesce during negotiations on salaries and fringe benefits under a contract reopener clause constituted "bad faith bargaining." The Executive Director, drawing upon established principles of labor law in both the private and public sectors found "It is necessary to subjectively analyze the totality of the parties' conduct in order to determine whether an illegal refusal to negotiate may have occurred . . . The object of this analysis is to determine the intent of the respondent i.e., whether the respondent brought to the negotiating table an open mind and a sincere desire to reach an agreement as opposed to a pre-determined intention to go through the motions, seeking to avoid, rather than reach, an agreement." State of New Jersey, Id. at page 7. The Director went on to note as follows:

"it is well established that the duty to negotiate in good faith is not inconsistent with a firm position on a given subject. 'Hard bargaining' is not necessarily inconsistent with a sincere desire to reach an agreement. An adamant position that limits wage proposals to existing levels is not necessarily a failure to negotiate in good faith. Were the State to have been inflexible on the salary issue, which it appears not to have been, a refusal to negotiate in good faith would not be found without an evaluation of its conduct throughout the negotiations on all issues." Id. at pages 9 and 10.

The Director concluded on the stipulated facts before him that while the state had been adamant on a major issue - salaries - it had given its reasons for its position, and he could find no indication of a desire or intention not to reach an agreement on the part of the state, nor any other conduct which might constitute a refusal to negotiate in good faith.

Applying these principles to the instant facts, I am equally convinced here that an examination of the totality of the parties' conduct over the course of negotiations does not warrant a finding of violation of the negotiating duty on the part of the Township. I conclude that the Association has failed to establish by a preponderance of the evidence that the Township has engaged in a refusal to negotiate in violation of the Act as charged.

Apparently within a few months of the commencement of the negotiations the PBA was made aware of the Township's desire to retain parity in basic annual salary between the Police and Fire Departments. The motivation for this response to the PBA's demand for a salary increase was expressed on a number of different occasions in terms of anticipated matching demands by the FMBA on the next round of negotiations and the political vulnerability of Town's Committee members as a result of adverse reaction from firemen. On at least one occasion, admitted by Patrolman Michael Galloway, the Township in rejecting the PBA demand for one-half percent salary increase relied upon the multiplier effect such an increase would have on other salary-
related benefits such as pension and other salary items in the PBA contract. Furthermore, both Mayor Baldassano and Police Commissioner Wovsaniker testified at length as to the underlying concerns of the Township Committee with respect to the PBA's salary demand. Both Committee members testified to their concern that an increase in base salary would have a pyramiding effect on other salary benefits including pensions, overtime pay,29/ vacation and holiday pay and the salary rates and pay increases for superior officers, whose salaries are tied by a percentage ratio to patrolman.

With respect to its expression of concern for the so called snowballing effect upon further demands by the FMBA in the firemen's unit, the Township's response to the PBA cannot be viewed in a vacuum. Employers in the public sector are naturally guided in negotiations by the relative inflexibility of their budgets coupled with the multiple units with which they must deal. These factors make the Township's concern for the impact the actual cost of settlement in one unit will have on its negotiations with other units a very real one in terms of its practical consequences. As stated by a sister State Commission in a case involving a related issue on the validity of a parity agreement:

"Such [parity] agreements are not rare or limited to police and fire settlements and do, as the [WAPPA] urges affect the calculations of a municipal employer in its subsequent negotiations with other labor organizations. However even in the absence of such agreements, employers...calculate the effects of proposed settlements with other groups of employees....This is a 'fact of life' in collective bargaining. The [WAPPA] realizes this, but distinguishes the present case on the basis of the existence of a formal agreement...We hold that this distinction is artificial and not to be adopted herein." West Allis Professional Policemen's Association v. City of West Allis, WERC Case XX, No. 17300, MP-294, Decision No. 17206 (May 17, 1974), summarized at GERR No. 563, pps. B-7 and B-8.

The issues before the Wisconsin Employment Relations Commission in City of West Allis and those dealt with by such other jurisdictions as Connecticut30/ and New York31/ encompassed whether the existence, enforcement or demand for a parity clause in a collective negotiation agreement between a public employer and employee organization necessarily restrains and coerces representatives of employees in other negotiating units in future negotiations because of its inhibiting effect on such negotiations. The argument which proved effective in Connecticut and New York, (but not in Wisconsin) is that the guarantee in such a clause, that mandates automatic wage increases to employees covered by the clause equal to those obtained thereafter in negotiations by employees in another negotiating unit, necessarily restricts the negotiations in the other unit by imposing equality for the future upon the negotiating representative in such units who had no opportunity to negotiate the clause itself.

Such a restriction and such a clause - often described as a "me-too" clause - is not present in the instant proceeding.32/ There is no evidence in the record that such an agreement exists between the Township and FMBA or that the Township relied upon such an agreement in rejecting the PBA's demand for a 6 1/2% salary increase. This report therefore will not determine or weigh the validity of parity agreements.

With respect to the Township's conduct in relying, at least in part, upon considerations of the effects upon other employees of a wage settlement with one group of employees, even the frank and open expression of such concern by the Township's representatives during the course of negotiation, in response to the PBA's salary demands, I do not find to evidence an unwillingness to negotiate and conclude a collective agreement even as to the matter of salary for policemen, particularly in light of the totality of the Township's and PBA's negotiating conduct.

Thus, the Township early in the negotiations offered additional fringe benefits in the form of a new weapon maintenance allowance and an increase in clothing and clothing maintenance allowances not tied to salaries, in an effort to arrive at a settlement. Thus, when the basic salary issue continued deadlocked after a series of meetings, and the PBA sought to increase salary by decreasing work hours, the Township seriously considered and weighed its proposal before finally rejecting it. Thus, during the mediation sessions the Township and PBA explored an increase in salary tied to an increased hourly rate after adding percentage increases applied to an additional hour to be worked per week which the parties characterized as shape-up-time.

While the basic salary of the police and fire personnel was the same under the 1974 agreement and the Township was adamant in insisting upon continuing that parity, in fact patrolmen and detectives clearly enjoyed a substantially higher rate of pay than firemen of $.71 per hour by virtue of the fact that the regular work week of policemen was 4 1/2 hours less than that of firemen.33/ This difference in hourly rate coupled with the substantially greater overtime hours worked by the police establishes that the employees in the unit represented by the PBA enjoyed a significantly greater salary than that enjoyed by firemen. Viewed from such a perspective, the Township's insistence on retaining parity in basic salaries may reasonably be viewed as an effort on its part to sustain a publicly perceived parity in annual salary between policemen and firemen while at the same time permitting differences in actual take home pay between them which recognizes the different functions and responsibilities of the two services.

The PBA's emphasis on the Township's parity position is not without some irony. As earlier indicated, the PBA sought to capitalize on the settlement of the Township's 1975 contract with its blue-collar employees in August as a trigger for its own demand for a similar 6 1/2% salary increase.34/ The PBA also claimed a $75 shape-up to equal the sum provided the firemen in a 1972-73 FMBA agreement. The PBA thus has not been shy about making use of benefits provided employees in other units as a tactic in its own negotiations with the Township.

Apart from the salary issue the Township's response to PBA demands in other areas evidenced the normal give and take of the negotiations process. PBA witness DeMaio admitted to some progress following the first negotiation session. Further areas of agreement and consideration of PBA demands by the Township resulted from the second October 1975 meeting. Again, according to PBA President DeMaio, each side presented modified packages during the course of mediation efforts after January 1976.

Finally, the last PBA written counter proposal made by its attorney as late as January 26, 1976, a year after negotiations had commenced, establishes that the PBA was willing to forego the extra 1/2% salary increase provided the Township agreed to a two year contract for 1975 and 1976 with a 6% salary increase for each year among other items and the introduction of a 35 hour week, on a trial basis in accordance with the PBA's proposed work schedule.

Based upon the foregoing and all of the evidence introduced at the hearing, I conclude that by the close of the hearing, as the parties awaited further meetings with a fact-finder appointed by the Commission, the Township's overall conduct could not be said to have evidenced a closed mind on salary issues or other matters and did not constitute a refusal to negotiate under the Act.

The Alleged Discriminatory Delay

In Longevity Pay

The Township's consistent position during the course of negotiations was that those employees who first became eligible for longevity pay or increased longevity pay by December 1974 based upon their years of service would not receive such pay until the PBA had agreed to a collective negotiation agreement for calendar 1975. The Township took this position in spite of the fact that the 1974 contract requiring the longevity payments by its terms continued in force during all of 1975 and the first three months in 1976 until the Township's belated notice of termination. Early in the dispute in this matter Police Chief Shelbourne admitted that the Township's action violated the existing contract and/or its longevity ordinance. The Respondent did not question the Chief with respect to his admission, binding upon the Township, Board of Education, Englewood and Englewood Administrator's Association, P.E.R.C. No. 76-18. Furthermore, Mayor Baldassano did not dispute Patrolmen DeMaio's testimony that when confronted by DeMaio's claim that payment under the contract was based on previous year's salary and had nothing to do with signing a new contract he failed to respond and instead attempted to excuse non-payment on the ground of extra paper work in computing first on 1974 salary and later on a new 1975 salary rate. Neither did then Police Commissioner Wovsaniker dispute DeMaio's testimony that when confronted on the matter by DeMaio he responded he could see no problem in paying longevity.

During their direct testimony, both Baldassano and Wovsaniker evidenced considerable confusion as to the reasons the Township withheld the longevity payment at various periods of time over th more than a year and a half after the benefit had first accrued for some employees. See pages 16 and 17, infra. Wovsaniker, in particular, appeared to rely on an alleged past practice consistent with the Township's conduct in withholding longevity pay until new salary rates were settled. However, the only practice to which he testified shows that longevity pay earned in January and February 1974 was not paid until the following month, March 1974, when the 1974 contract was signed. Such a limited history fails to establish a past practice in this area. Of greater significance, the history of timing of longevity payments in 1974 does not establish a practice of delaying longevity benefits for more than 18 months for some employees and at least a year for others.

It was not until December 1975, at the earliest, that the Township first asserted and sought to justify its non-payment because of a discrepancy between the 1974 contract and the Township ordinance with respect to the salary basis used in computing longevity. Even with respect to the alleged discrepancy the wording of the ordinance does not support the claim asserted by Wovsaniker at the hearing and the Township in its brief. The ordinance fixes base salary as of the "determining date". Where, as in the instant case, salary for 1975 had not been finally negotiated, salary as of the determining date could just as reasonably be interpreted to mean currently received salary, i.e., previous years (1974) salary as 1975 salary ultimately determined through negotiations -- the interpretation claimed by the Township. Furthermore, even after the alleged discrepancy was discovered and asserted, nothing prevented the Township from making the payment under the old salary rate and resolving the conflict at the negotiating table. In fact, the Township did just that when in settlement of the court complaints it finally agreed to pay longevity based on 1974 salary and then to adjust the benefit when 1975 salary agreement was reached.

The Township's defenses for the first year during which it failed to make the payment - that extra paper work would be required and that the Township anticipated an early settlement resolving the salary rate - both appear to me to be disingenuous and not justified under the circumstances of the legitimate contractual claim. As to the paper work only a relatively small number of employees out of the total complement of policemen were involved and the Township ultimately agreed in April 1976 to make the computations when sufficiently pressed. As to the anticipation of an early settlement, surely by the summer of 1975, when the dispute particularly regarding salary, continued without resolution the Township could not reasonably have further delayed contractually required longevity payments accrued as early as December 1974. During the period of lengthy delay the Township was well aware that the grievance procedure under which DeMaio pressed the PBA's claim for payment culminated in its own final and binding determination rather than a determination by a neutral third party.

With respect to longevity, the PBA claims that the Township was unlawfully motivated to withhold payments because of the exercise by the employees of their rights protected by N.J.S.A. 34:13A-5.335/ to assist the PBA in the course of the negotiations. It is true that the employee whose longevity pay was withheld since January 1, 1975 and whose grievance raised the issue and who continued to press the matter with the Township officials was the President of the PBA and its chief negotiator, Vincent DeMaio. However, I have found that the Township evidenced good faith in the collective negotiations with the PBA led by DeMaio. Also, during 1975 it arranged for earlier payment of accrued overtime which prior thereto had been held in abeyance, accumulated and paid the following year. On the record before me, including the absence of any evidence of hostility to the PBA,36/ I am not persuaded that the Township's failure to make longevity payments until it agreed to do so in settlement of the various employees' municipal court complaints was motivated either in whole or in part by a desire to discourage any employee in the exercise of the rights guaranteed to him by the Act - a standard against which the Township's conduct may be measured to determine whether it violated subsection (3).37/

I am persuaded, however, that the Township's conduct in withholding the longevity pay until a new collective negotiation agreement was executed was so "inherently destructive of important employee rights"38/ that even in the absence of specific motivation to discourage the exercise of protected rights under the Act the Township has thereby engaged in conduct violative of N.J.S.A. 34:13A-5.4(a)(3). I find that the refusal to pay longevity until execution of a successor agreement had the natural, foreseeable consequence which the Township must be presumed to have intended of discouraging the PBA and the unit employees from exercising fully their rights to negotiate. Only by withdrawing their salary and other demands and agreeing to the Township's terms could the employees affected hope to receive their contractual longevity benefit. The nature of the negotiations was such that the Township's signal that agreement on a successor contract would bring the withheld longevity payments constituted illegitimate pressure upon the PBA to agree to Township terms on salary and other items contrary to its own deeply held negotiating positions. The Township must be held accountable for these natural consequences of its conduct.

Even if it is argued that the discriminatory effect of the withholding of the longevity payments is "comparatively slight," the Township has failed to show that it had legitimate and substantial business justifications for its conduct. Thus, the absence of a specific discriminatory motivation is not fatal to the allegation39/ and I, accordingly, sustain it.40/

The Promise to Promote

As earlier noted, Mayor Baldassano did not deny DeMaio's testimony regarding the two conversations, during which DeMaio attributed to him offers of promotion to sergeant in exchange for his support within the PBA for the Township's salary and other contract proposals. The Mayor recalled two conversations held in person but at no time did he deny DeMaio's characterizations of remarks made by him during a telephone call he had made to DeMaio and in a conversation held at his residence. At most, the Mayor implied, since he did not answer directly his attorney's question as to his recollection of either conversation testified to by DeMaio, that he did not recall them. He did so by prefacing his answer with the comment, "Well, the first conversation that I recall..."41/ and proceeding to describe a face-to-face meting with DeMaio and a second discussion held in a conference room at a negotiating session. Thus, the Mayor's recollections do not exclude the likelihood based upon DeMaio's testimony alone, that he and DeMaio discussed a promotion for DeMaio on two other occasions during the course of the negotiations. In the absence of any specific denial by Baldassano, DeMaio's testimony stands uncontroverted and, normally, would be credited. However, as the Township, at least through the Mayor's subsequent testimony (but not in its brief) sought to discredit DeMaio by asserting his testimony to be inherently improbable, I will now undertake an examination of the Mayor's claims in this regard.

In evaluating the nature of the conversations I find it significant that the Mayor actively sought out DeMaio to make the promotional offer, first by telephoning him and then by requesting him while on duty to come to his home. Such circumstances support DeMaio's evaluation of the offers as having been made seriously.

The Mayor attempted to demonstrate that his lack of authority and the limitations imposed by Civil Service regulation upon the Township's discretion in making promotional appointments made his ability to fulfill his promise highly unlikely. I am not persuaded. The Township failed to adduce any evidence which would tend to show that the Mayor did not enjoy the support of at least two other Committee members in fulfilling his promise to DeMaio. On many, if not all negotiating positions the three Township members who participated in negotiations from time to time appeared to present a united front. Absent evidence to the contrary, there is no reason to believe that Baldassano's plan to improve DeMaio's position did not enjoy like majority support.

Furthermore, in a municipality such as Hillside where Civil Service in in effect (see N.J.S.A. 11:19-1 et seq.) the Township Committee retains some degree of flexibility in making appointments from among eligibles on a promotional list.42/ The Township may also seek authorization to fill a vacant position of sergeant by provisional appoint which, if it exceeds six months must be reported to the Civil Service Commission.43/

I conclude that the Township had the capacity to fulfill its Mayor's promise to DeMaio. Accordingly, I determine on the basis of creditable testimony the Township's then Mayor offered a promotional opportunity to PBA President DeMaio to influence the PBA's negotiating position and that this conduct interfered with, restrained and coerced its employees in the exercise of the rights guaranteed to them by the Act in violation of N.J.S.A. 34:13A-5.4(a)(1).

The Alleged Threat to Withdraw

Sick Leave Benefits

The preponderance of the evidence in the record, summarized at pages 19-21 of the Report, infra, warrants the conclusion that the Township's consideration of a revised sick leave ordinance reducing the existing sick leave benefits constituted a legitimate response to the occasion in October 1975 when 14 patrolmen called in ill. None of the evidence adduced by the PBA establishes that the Township considered passage of such an ordinance in order to punish employees because of their exercise of rights guaranteed them in the Act. The PBA does not claim that the 14 employees involved were exercising protected rights of protest.44/ Neither does the PBA contend that the Township did not confront an emergency shortage of manpower when the 14 failed to appear for work. On the contrary, both the PBA attorney and President recognized that valid circumstances existed for the initial issuance by Police Chief Shelbourne of his October 22, 1975 Order rescinding the one year sick leave practice. Attorney Stamler in his October 24, 1975 letter argued that the conditions which led to the issuance of the order had since been removed and DeMaio stated that in his view the Police Chief's Order was based upon a belief that the Police Department was in an emergency situation when the 14 policemen failed to appear for duty.

Clearly, the Police Chief's Order was in response to the high number of absences for illness on one particular occasion. The main evidence of coercive pressure upon which the PBA relies - the occasion at the negotiations session of October 25, 1975 when attorney Menza handed DeMaio a copy of his confidential communication to the Township - fails to establish any coercion. On the contrary, Menza's conduct appears to imply that the Township would be well advised to adopt an ordinance providing a one year paid leave of absence for illness or injury in accordance with statutory authority. Nowhere in the letter does Menza recommend a reduction of the existing one year practice. Nothing in this action supports the claim asserted in the PBA's brief that Menza's intent was to let the PBA know that unless a contract was reached, the Township would continue to enforce a 15 day sick leave limit.

The alleged threat which DeMaio attributed to Mayor Baldassano appears in the record unrelated to the exercise by employees of any guaranteed rights. The "threat" which DeMaio relates appears akin to a statement to withdraw existing sick leave in response to the emergency condition which induced the Police Chief to adopt his Order and the Township to consider an ordinance reducing sick days. The characterization of the Mayor's remarks as a "threat" without explication as to its circumstances or the precise language used accordingly fails because of a lack of probative evidence as to its meaning and intent.

The PBA did not offer any evidence that as a result of the Police Chief's Order,45/ any police officers suffered a loss of sick leave benefit46/ or that the Chief's Order imposing a 15 day rather than one year limit remained in effect after the emergency caused by the absence of 14 patrolmen in one day had abated.

In the absence of compelling evidence that the Township sought to withdraw an existing benefit for other than legitimate and immediate reasons of Township management and public safety, I conclude that neither the Police Chief's Order nor attorney Menza's conduct nor the Township's adoption at first reading only of a reduced sick leave ordinance for new employees interfered with, restrained or coerced employees in the exercise of rights guaranteed them by the Act and I will therefore recommend its dismissal.

The Police Commissioner's Statement

of Commitment to the Fire Department

Th Township's conduct during the course of negotiations, in particular with respect to its commitment to maintenance of parity on basic salary between police and firemen, has already been discussed at length. I have earlier indicated that Wovsaniker's statement to Captain Silva on the evening of September 27, 1975 that he had given his word to the Fire Department that the policemen would get no more than firemen in basic salary principally shows the depth of the Township's commitment to its salary position. It constitutes neither a promise of benefit nor a threat of reprisal, nor an act otherwise interfering with any employee rights under the Act. As I have already found that the Township's negotiating position with respect to parity taken in the context of its overall conduct did not violate its negotiating duty, I also find here that the statement of commitment to the maintenance of parity likewise has not violated the Township's obligation to refrain from conduct interfering with the exercise of employee rights under the Act in violation of N.J.S.A. 34:13A-5.4(a)(1).

The Alleged Refusal to Negotiate

in Good Faith by the PBA

I have previously reviewed the events leading up to the meeting of February 21, 1976, and the conduct of the parties at that meeting. Based upon the evidence and the inferences I have already drawn I am not persuaded that the PBA's summary termination of the meeting constitutes a refusal to negotiate in violation of subsection (b)(3). I have concluded that PBA attorney Stamler had reasonably anticipated that the subject of a 35 hour work week on a trial basis would be discussed at the meeting. When he learned otherwise from Mr. Dorf he and the PBA Negotiating Committee abruptly left. The Township has failed to adduce any probative evidence (I have discounted Wovsaniker's understanding of conversations between the two attorneys leading up to the meeting) that the PBA Committee was unreasonable in believing that the subject matter would be discussed. I am further persuaded that in the context of the tense atmosphere of the ongoing negotiations which had continued for a year without a resolution of basic underlying issues the PBA's isolated conduct on this occasion was insufficient to manifest evidence of an unwillingness to reach agreement on the terms of a successor contract.47/ Its participation at length in two succeeding negotiating sessions held with the assistance of a mediator assigned by the Commission negates the Township's further claim that the PBA unlawfully refused to resume negotiations. I conclude that the Township has failed to prove by a preponderance of the evidence that the PBA unilaterally terminated the February 21, 1976 session without explanation and continued to refuse to negotiate in good faith in violation of N.J.S.A. 34:13A-
5.4(b)(3).

CONCLUSION AND FINDINGS

I find and conclude, based upon the foregoing analysis and conclusions reached on each of the issues presented for determination that the Respondent Township has discriminated in regard to hire or tenure of employment or any term or condition of employment to discourage employees in the exercise of the rights guaranteed to them by the Act by failing to pay and continuing to withhold payment of longevity benefits to certain of its employees, and thereby violated and is violating N.J.S.A. 34:13A-5.4(a)(3).

I further find and conclude that the Respondent Township has interfered with, restrained and coerced employees in the exercise of the rights guaranteed to them by the Act by a promise of a promotional opportunity to employee Vincent DeMaio in order to influence and to modify the PBA's negotiating positions and has, thereby violated, and is violating, N.J.S.A. 34:13A-5.4(a)(1). In all other respects I recommend that the allegations of violation by the Respondent Township of N.J.S.A. 34:13A-5.4(a)(1) and (5) of the Act, and by the Respondent PBA of N.J.S.A. 34:13A-
5.4(b)(3) and therefore the Complaint in Docket No. CE-76-37-69 be dismissed because of failure of proof.

IV

The Remedy

Having found that the Respondent Township as engaged in, and is engaging in, unfair practices within the meaning of N.J.S.A. 34:13A-5.4(a)(3) and (1) of the Act, I find that it is necessary that the said Respondent be ordered to cease and desist from the unfair practices and to take certain affirmative action designed to effectuate the policies of the Act. Respondent Township having withheld the payment of longevity benefits to certain employees until a successor collective negotiations agreement had been executed, for affirmative relief I will order said Respondent to pay to those of its employees whose longevity payments were withheld sums of money representing the appropriate longevity pay due them under the 1974 collective negotiations agreement between the parties, and, if a successor collective negotiations agreement for the year 1975 has been executed, or is subsequently executed, to continue to make payment of longevity benefits to these employees in accordance with its terms. I will also order that the Respondent Township post an appropriate notice to the employees in the form hereto annexed.

All of the foregoing I find to be necessary to neutralize the effects of the said Respondent's unfair practices and to effectuate the policies of the Act.

Upon the basis of the foregoing findings of fact and the entered record in this case, I make the following:

CONCLUSIONS OF LAW

1.	The Respondent Township of Hillside is a public employer within the meaning of N.J.S.A. 34:13A-3(c).

2.	Hillside Policemen's Benevolent Association, Local No. 70 is an employee organization and majority representative of employees within the meaning of N.J.S.A. 34:13A-3(e) and 5.3.

3.	Respondent Township at all times since on or about February 1, 1975, has withheld longevity payments due under the terms of the 1974 contract between the Township and PBA until a successor 1975 contract had been entered, and has thereby engaged in, and is engaging in, unfair practices within the meaning of N.J.S.A. 34:13A-5.4(a)(3).

4.	At all times since August 1975 the Respondent Township has interfered with, restrained and coerced its employees in the exercise of the rights guaranteed to them by the Act by promising a promotion to the President of the PBA in exchange for his support of the Township's negotiating proposals, thereby discouraging the exercise by its employees of th rights to assist the PBA and to freely engage in collective negotiations, and has thereby engaged in, and is engaging in, unfair practices within the meaning of N.J.S.A. 34:13A-5.4(a)(1).

5.	Respondent Township by insisting on maintaining parity in base salary between firemen and policemen in the negotiations with the PBA and by considering and passing at first reading a proposed Township ordinance reducing paid sick leave, and by voicing a commitment to the Fire Department that policemen would not receive a higher base salary than firemen, has not violated either N.J.S.A. 34:13A-5.4(a)(5) or (a)(1).

6.	Respondent PBA by unilaterally terminating a negotiation session with the Township on February 21, 1976 without explanation or counterproposal in response to the Township's rejection of the PBA's demand for a 35 hour work week and by thereafter attending and negotiating at two subsequent meetings held with a mediator in March and April, 1976, has not violated N.J.S.A. 34:13A-5.4(b)(3).

Upon the foregoing findings of fact, conclusions of law and the entire record, and pursuant to N.J.S.A. 34:13A-5.4(c) and Section 19:14-7.1 of the Commission's Rules and Regulations, I hereby issue the following recommended:

ORDER

Respondent, Township of Hillside, shall:

1.	Cease and desist from:

a.	Withholding longevity payments due employees under the terms of a collective negotiation agreement with Hillside Policemen's Benevolent Association, Local No. 70 until a successor agreement has been executed.

b.	In any manner discriminating in regard to hire or tenure of employment or any term or condition of employment to discourage its employees in the exercise of the rights to be represented for the purposes of collective negotiations concerning their terms and conditions of employment by the Hillside Policemen's Benevolent Association, Local No. 70.

c.	Promising benefits to its employees in exchange for support of its negotiating proposals.

d.	Interfering with, restraining or coercing its employees in the exercise of any of the rights guaranteed to them by the Act.

2.	Take the following affirmative action which is necessary to effectuate the policies of the Act:

a.	Restore retroactively to those of its employees represented by the Hillside Policemen's Benevolent Association, Local No. 70 from whose salary longevity pay has been withheld pending the signing of a collective negotiations agreement for the calendar year 1975, the longevity benefits accrued to them pursuant to the terms of the 1974 agreement between the parties, and, upon execution of a collective negotiations agreement for the year 1975, pay such benefits to those employees in accordance with its terms.48/

b.	Post at its Police Department Headquarters in Hillside, New Jersey, copies of the attached notice marked "Appendix A." Copies of said notice on forms to be provided by the Chairman of the Public Employment Relations Commission, shall, after being duly signed by Respondent Township's representative, be posted by said Respondent immediately upon receipt thereof, and maintained by it for a period of at least sixty (60) consecutive days thereafter including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by said Respondent to insure that such notices are not altered, defaced or covered by any other material.

c.	Notify the Commission, in writing, within twenty (20) days of receipt of this Order what steps the said Respondent Township has taken to comply herewith.

________________________

Robert T. Snyder

Hearing Examiner

DATED:	Trenton, New Jersey

November 24, 1976