I.R. No. 2011-25

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

TOWNSHIP OF EDISON,

Respondent,

-and-	Docket No. CO-2011-120

INTERNATIONAL ASSOCIATION OF

FIREFIGHTERS LOCAL 1197,

Charging Party.

SYNOPSIS

A Commission Designee denies an interim relief application seeking an Order restraining the public employer from assigning unit work to non-unit personnel. The unfair practice charge alleges that Edison Township posted a hiring notice seeking a civilian "fire inspector" to replace negotiations unit work performed by firefighters/inspectors represented by IAFF, Local 1197. The charge alleges that the Township's conduct violates 5.4a(1) and (5) of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq.

The Designee determined that the Township's conduct is analogous to circumstances in which employers have transferred duties previously performed by police officers to civilians, thereby implicating the New Jersey Supreme Court decision, City of Jersey City v. Jersey City POBA, 154 N.J. 555, 568 (1998). Applying the test set forth in that "civilianization" case, the Designee determined that IAFF Local 1197 did not demonstrate a substantial likelihood of success on the merits of its case.

I.R. No. 2011-25

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

TOWNSHIP OF EDISON,

Respondent,

-and-	Docket No. CO-2011-120

INTERNATIONAL ASSOCIATION OF

FIREFIGHTERS LOCAL 1197,

Charging Party.

Appearances:

For the Respondent, DeCotiis, FitzPatrick & Cole, LLP (Louis N. Rainone, of counsel)

For the Charging Party, Kroll Heineman, attorneys (James M. Monica, of counsel)

INTERLOCUTORY DECISION

On September 22, 2010, International Association of Firefighters Local 1197 (Local 1197) filed an unfair practice charge against Edison Township, together with an application for interim relief, certification, exhibit and proposed order. The charge alleges that on or about August 19, 2010, the Township advertised for a civilian fire inspector to replace bargaining unit work without prior negotiations with Local 1197. The Township's conduct allegedly violates 5.4a(1) and (5)1/ of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. (Act). The application seeks an order directing the Township ". . . to restore the terms and conditions of employment . . . with particular respect to fire prevention."

On September 28, 2010, I wrote to Counsel for Local 1197, requesting that a brief be filed by October 18. On that date, Local 1197 filed its brief. On October 29, 2010, I signed an Order, directing the Township to file a response by November 4. On November 9, I issued a letter advising that argument on the application would be conducted on November 19 in a telephone conference call. On November 19, the parties argued their cases. The following facts appear.

Local 1197 represents firefighters, firefighters/EMTs and firefighter/inspectors employed by the Township. The parties' most recent collective negotiations agreement extended from January 1, 2005 through December 31, 2009. A petition to initiate interest arbitration was filed on June 23, 2010 (IA-
2010-119).

Article 4 (Duties of Firefighters) of the agreement provides that unit employees may be assigned to perform any duties related to firefighting, rescue, salvage, fire prevention, training, etc.

The Township employs three firefighter/inspectors who perform "life hazard inspections in schools, warehouses and other larger buildings, smaller regularly scheduled inspections and are also trained firefighters so that they often assist firefighters on the scene of a fire." Firefighter/inspectors are trained in fire prevention and are required to take continuing education courses. Inspectors have been included in the unit for many years. Fire inspectors work weekdays from 8 a.m. to 5 p.m.

The number of sworn firefighters (including inspectors) employed by the Township has declined from 148 in 2005 to 125, currently. Before July 14, 2010, minimum staffing was set at 22 firefighters and officers per company. After July 14, the minimum was reduced to 20. On an unspecified date, the Township determined to transfer fire inspection duties to the Department of Planning and Engineering.

On or about August 19, 2010, the Township posted a notice soliciting applicants for two civilian titles, "fire official" and "fire prevention." The Township anticipates that inspection duties shall be performed by two civilian employees in the Department of Planning and Engineering. The three firefighter/inspectors ". . . will be returned to an engine or ladder company and included in the 24/7/365 duty schedule." They will not be laid off or demoted. The assistant public safety director certifies that the transfer of inspection duties to the Department of Planning and Engineering ". . . was necessary in order to provide the maximum number of sworn firefighters and officers available for community fire protection while at the same time upholding its duty to the taxpayers."

On or about October 29, 2010, Local 1197 filed a civil action in New Jersey Superior Court seeking to reverse the Township's decision to reduce minimum staffing at each fire company from 22 to 20.

ANALYSIS

A charging party may obtain interim relief in certain cases. To obtain interim relief, the moving party must demonstrate both that it has a substantial likelihood of prevailing in a final Commission decision on its legal and factual allegations and that irreparable harm will occur if the requested relief is not granted. Further, the public interest must not be injured by an interim relief order and the relative hardship to the parties in granting or denying relief must be considered. Crowe v. De Gioia, 90 N.J. 126, 132-134 (1982); Whitmyer Bros., Inc. v. Doyle, 58 N.J. 25, 35 (1971); State of New Jersey (Stockton State College), P.E.R.C. No. 76-6, 1 NJPER 41 (1975); Little Egg Harbor Tp., P.E.R.C. No. 94, 1 NJPER 37 (1975).

The unit work rule provides that an employer must negotiate before using non-unit employees to do work traditionally performed by unit employees alone. See Hudson Cty Police Dept., P.E.R.C. No. 2004-14, 29 NJPER 409, 410 (¶136 2003). In City of Jersey City v. Jersey City POBA, 154 N.J. 555, 568 (1998), our Supreme Court held that the negotiability balancing test set forth in Local 195, IFPTE v. State, 88 N.J. 393 (1982) must be explicitly applied to determine whether in a given set of circumstances, an employer may unilaterally transfer duties previously performed by police officers to civilians. That test provides:

[A] subject is negotiable between public employers and employees when (1) the item intimately and directly affects the work and welfare of public employees; (2) the subject has not been fully or partially preempted by statute or regulation; and (3) a negotiated agreement would not significantly interfere with the determination of governmental policy. To decide whether a negotiated agreement would significantly interfere with the determination of governmental policy, it is necessary to balance the interests of the public employees and the public employer. When the dominant concern is the government's managerial prerogative to determine policy, a subject may not be included in collective negotiations even though it may intimately affect employees' working conditions.

88 N.J. at 404-405.

In applying the dispositive third prong, the Court agreed with the City that its actions (civilianization of dispatching duties) were taken primarily to augment its ability to combat crime by increasing the number of police officers in field positions. It concluded that because the City implemented the reorganization for the purpose of improving the police department's "effectiveness and performance," the City's actions constituted an inherent policy determination that under Local 195, would be impermissibly hampered by negotiations. Id. at 573.

The Commission applied Jersey City in Bogota Borough, P.E.R.C. No. 99-77, 25 NJPER 129 (¶30058 1999), where the employer created a civilian dispatcher position and announced that it planned to hire civilians to perform dispatching duties that had for many years been performed exclusively by police officers. Following a hearing examiner's report (H.E. No. 98-10, 24 NJPER 158 (¶29076 1998)) supplemented by its own findings of fact, the Commission determined that the Borough acted ". . . to reduce police overtime costs, maintain department resources and avoid layoffs, improve supervision and increase the availability of superior and other police officers for patrol [and other] duties." Bogota at 25 NJPER 131. The Commission noted that all those factors are "legally significant in applying the negotiability balancing test set forth in Local 195." Id. The Commission found that ". . . the balance weighs in the Borough's favor and that negotiations would significantly interfere with the Borough's governmental policy decision to civilianize dispatching functions to accomplish these goals." 25 NJPER at 132. The Commission noted that "after a plenary hearing and our review of the record, [the facts] indicate that economics was not the only basis for the Borough's action." 25 NJPER at 133.

It appears that the Township's decision to hire civilians to perform inspections which have been performed exclusively by firefighter/inspectors is equivalent to the employers' decisions in Jersey City and Bogota to civilianize dispatching duties. The Township certifies that its purpose is to bolster the number of firefighters available for duty on all shifts and to ". . . uphold its duty to taxpayers." No firefighters will be laid off as a consequence of the Township's decision, just as no officers were laid off in Jersey City and Bogota. Considering the materiality of disputed motives or purposes of the Township in the context of a civilianization unit work case, and the fact-
intensive inquiry mandated by the Local 195 balancing test, I cannot find that Local 1197 has demonstrated a substantial likelihood of success on the merits of its case.

ORDER

The application for interim relief is denied.

_____________________________

Jonathan Roth

Commission Designee

DATED:	November 29, 2010

Trenton, New Jersey