H.E. NO. 80-16

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

CITY OF PLAINFIELD,

Respondent,

-and-	Docket No. CO-79-274-101

FIREMEN'S MUTUAL BENEVOLENT

ASSOCIATION, BRANCH NO. 7

and FIRE OFFICER'S ASSOCIATION,

Charging Party.

Appearances:

For the City of Plainfield,

Sachar, Bernstein, Rothberg, Sikora & Mongello, Esqs.

(David H. Rothberg, Esq.)

For the Firemen's Mutual Benevolent Association, Branch No. 7 and the Fire Officer's Association,

(Mac D. Hunter, 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 9, 1979 by the Firemen's Mutual Benevolent Association, Branch No. 7 and the Fire Officer's Association (hereinafter the "Charging Parties" or the "Association") alleging that the City of Plainfield (hereinafter the "Respondent" or the "City") had engaged in unfair practices within the meaning of the New Jersey Employer-Employee Relations Act, as amended, N.J.S.A. 34:13A-1 et seq. (hereinafter the "Act") , in that the Chief of the City's Fire Department did on or about March 20, 1979 issue an order implementing a directive of May 8, 1978, the effect of which imposed additional workload and duties upon the Firefighters and Fire Officers by requiring that they make Burglary Code and Property Maintenance Code inspections, all of which is contrary to the provisions of the Associations' contract and the provisions of the City Charter, and all of which was alleged to be a violation of N.J.S.A. 34:13A-5.4(a)(1) and (5) of the Act.1/

It appearing that the allegations of the above charge, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on June 11, 1979. Pursuant to the Complaint and Notice of Hearing, hearings were held on July 30 and July 31, 1979 in Newark, New Jersey, at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. The parties filed post-hearing briefs by October 16, 1979.2/

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 briefs of the parties, the matter is appropriately before the Commission by its designated Hearing Examiner for determination.

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

FINDINGS OF FACT

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

2. The Firemen's Mutual Benevolent Association, Branch No. 7 and the Fire Officer's Association are public employee representatives within the meaning of the Act, as amended, and are subject to its provisions.

3. The current collective negotiations agreement between the parties is effective during the terms January 1, 1978 to December 31, 1979 and the one agreement covers both the Firefighters and the Fire Officers, the Charging Parties herein (see J-1).

4. Article 8 of the aforesaid collective negotiations agreement, which is entitled "Additional Duties," provides in Section 8-1, in pertinent part, as follows:

"In addition to the normal fire duties performed by the Firefighters and Fire Officers the FMBA and FOA in an effort to improve the effectiveness of the Fire Division and the Department of Public Affairs and Safety agrees to participate in a Safety Patrol Program. It is expressly understood that the Safety Patrol is not a police function, it is merely an expansion of the normal public safety duties of a Firefighter, that is, protecting lives and property. Members of the Safety Patrol will not be expected to engage in those activities for which they have not been properly trained or equipped. The duties of the Safety Patrol will be as follows:

"(a) Detect and report all fires, smoke false alarms observed or detected within areas of assignment, paying particular attention to public buildings.

*	*	*	*	*

"(e) The Safety Patrol shall be assigned to check street alarms and boxes during their hours of patrol.

"(f) The Safety Patrols may be called upon to perform other normal Fire Division activities while engaged in patrol duty, such as pre-fire planning, inspection, fire code enforcement, or training.

"(g) The Safety Patrol will engage in a check of all houses listed on the "vacant house checklist' in its assigned areas during daylight hours.

"(h) The Safety Patrol will seek out and report vehicles that appear to be abandoned..."

(Emphasis supplied)

5. Section 8-5 of the agreement, which is headed "Alternative Duties," states that:

"It is understood that those Firefighters and Fire Officers who do not qualify for Safety patrol duties or who with the approval of the Chief of the Fire Division, after request by the Firefighter or Fire Officer are excused from Safety Patrol duties, may be trained and assigned as building inspectors during the day-time hours..." (Emphasis supplied)

6. Finally, Article 9 of the agreement, entitled "City's

Rights and Privileges," provides in Section 9-1, headed

"Management Responsibilities," that:

"It is recognized that the management of the City Government, the control of its properties and the maintenance of order and safety, is solely a responsibility of the City. Accordingly, the City hereby retains and reserves unto itself, without limitation, all powers, rights, authority, duties and responsibilities conferred upon and vested in it prior to the signing of this Agreement by the laws and Constitution of the State of New Jersey and of the United, including, but without limiting the generality of the foregoing following rights:

"1. The executive management and administrative control of the City Government and its properties and facilities, and the activities of its employees.

"2. The selection and direction of the work forces, including the right to hire, suspend or discharge for just cause, assign, promote or transfer..." (Emphasis supplied)

7. The City has for some years used a Form M-21 (J-2) in reporting to the Chief Inspector of the Bureau of Fire Prevention conditions within the City involving alleged infractions of the Property Maintenance Code (J-7A, J-7B), the Burglary Prevention Code (J-8a, J-8B) and the Fire Prevention Code (J14). Form M-21 was completed and filed by members of the Safety patrol.

8. Under date of May 8, 1978 the Chief of the Fire Department, Maurice F. Reilly, sent a memo to all Platoon Commanders on the subject of the Fire Safety Patrols (J-6), which made reference to a new form, M-21A (J-3), for the reporting of infractions of the various Codes, supra.

9. Thereafter, the FMBA filed a grievance concerning the use of Form M-21A and, after the grievance procedure was exhausted, Fire Chief Reilley sent a memo to all Platoon Commanders under date of March 20, 1979 (J-4) implementing the use of the said form M-21A for infractions of the Fire Prevention Code. 3/

10. Under date of June 6, 1979, the Acting Fire Chief, Edward Ingraham, sent a memo to all Platoon Commanders with respect to Burglary Code Inspections, indicating that the memo of March 23, 1979 (J-5) was rescinded and that the Form M-21 would no longer be utilized (see J-9, J-10 and J-11).4/

11. The witnesses for the Charging Parties, in the main, attempted to establish that since the issuance of the memo of March 20, 1974 (J-4, supra) there was a significant increase in the workload of the Firefighters and Fire Officers as a result of the implementation of Form M-21A, which, on its face, is more detailed in inspection reporting than was Form M-21 (compare J-3 with J-2).5/

12. The Charging Party introduced into evidence two charts which purport to present statistically the number of Code inspections made by the various Platoons in April, May and June 1979 (CP-1 and CP-4). The Hearing Examiner is unable to make a finding that CP-1 and CP-4 prove that there was an increase in inspection workload of Firefighters and Dire Officers after the implementation of Form M-12A since the two exhibits provided no basis for comparison between the workload before and after the implementation of Form M-21A.6/

THE ISSUE

Did the Respondent City violate the Act by the unilateral implementation of Form M-21A on March 20, 1979, i.e., did the Respondent City unilaterally increase the workload of Firefighters and Fire Officers without collective negotiations with the Charging Parties?

DISCUSSION AND ANALYSIS

The Respondent City Did Not Violate The Act

When it Implemented Form M-21A And The

Charging Parties Have Failed To Prove That

There Was Any Increase In The Workload Of

The Firefighters And Fire Officers

Clearly, decisions of a public employer which involve: "Work hours and workloads clearly relate to terms and conditions of employment and thus are mandatorily negotiable...": Byram Township Board of Education and Byram Township Education Association, 152 N.J. Super. 12, 26 (App. Div. 1977). Further, current Commission precedent also indicates that the decision to increase the workload of public employees is in itself mandatorily negotiable where the negotiations with respect to the additional duties would not interfere with or infringe upon the right of a public employer to make basic managerial decisions.7/

As the foregoing Findings of Fact dictate, the Hearing Examiner necessarily finds and concludes that the Charging Parties have failed to meet the burden of proving by a preponderance of the evidence that there was in fact an increase in workload of the Firefighters and Fire Officers as a result of the Respondent City eliminating the use of Form M-21 and substituting in lieu thereof Form M-21A on March 20, 1979 (J-4). Mr. Tedesco, a witness for the Charging Parties, testified on cross-examination that the inspection workload had not been increased this year over the past year and, further, that inspections were down by 50 per cent.8/

While it is true the Form M-21A solicits more detailed information than did the prior Form M-21, the Respondent's proofs demonstrate clearly to the Hearing Examiner that the new Form M-
21A is merely a more efficient way to compile data by the use of a 12 paragraph checklist than was done previously on Form M-21.9/

There being no increase in workload, the City's decision to substitute Form M-21A for Form M-21 was clearly within the City's managerial prerogatives, which are set forth in Article 9 of the collective negotiations agreement and the decision is thus insulated from attack by a charge of unfair practices. Further support for such action by the City is also found in Article 8 of the collective negotiations agreement, namely Sections 8-1 and 8-
5.10/

Accordingly, the Hearing Examiner has no alternative but to recommend dismissal of the Complaint.11/

*	*	*	*	*

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

CONCLUSIONS OF LAW

The Respondent City did not violate N.J.S.A. 34:13A-
5.4(a)(1) and (5) when on March 20, 1979 it implemented Form M-
21A for reporting Code violations.

RECOMMENDED ORDER

The Respondent City not having violated the Act, supra, it is HEREBY ORDERED that the Complaint, including the Supplemental Unfair Practice Charge, be dismissed in its entirety.

_________________________

Alan R. Howe

Hearing Examiner

DATED: October 26, 1979

Trenton, New Jersey