I.R. NO. 2021-23

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

COUNTY OF CUMBERLAND,

Respondent,

-and-	Docket No. CO-2021-207

FRATERNAL ORDER OF POLICE,

LODGE 194,

Respondent,

-and-

PBA LOCAL 231,

Charging Party.

SYNOPSIS

A Commission Designee denies an application for interim relief filed by the Cumberland County Policemen's Benevolent Association, Local 231 (PBA), alleging first that the County of Cumberland (County) and the Fraternal Order of Police, Lodge 194 (FOP) violated the New Jersey Employer-Employee Relations Act, specifically N.J.S.A. 34:13A-
5.4a (1), (2), and (3) when the County discriminated against the PBA membership by submitting a layoff plan to the New Jersey Civil Service Commission (CSC) where all supervisory members of the FOP were being retained and only members of the PBA were being subjected to layoffs in violation of the collective negotiations agreement (CNA) between the County and the PBA; and second, the PBA alleges that the County in essence directed certain FOP supervisory members to convince non-
Executive Board PBA members to speak to County representatives and offer certain concessions to potentially decrease the impact of the layoff plan.

The Designee determined that the PBA had not established a substantial likelihood of prevailing in a final Commission decision or that irreparable harm would occur since the layoff plan had been canceled by the CSC and there was no direct evidence of the County's involvement in any conversations that took place between members of the FOP and the PBA. Additionally, material facts were in dispute. The unfair practice charge was transferred to the Director of Unfair Practices for further processing.

I.R. NO. 2021-23

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

COUNTY OF CUMBERLAND,

Respondent,

-and-	Docket No. CO-2021-207

FRATERNAL ORDER OF POLICE,

LODGE 194,

Respondent,

-and-

PBA LOCAL 231,

Charging Party.

Appearances:

For the Respondent, County of Cumberland, John G. Carr, County Counsel, attorneys (Melissa D. Strickland, of counsel)

For the Respondent, Fraternal Order of Police, Lodge 194, Markowitz & Richman, attorneys (Matthew D. Areman, of counsel)

For the Charging Party, Alterman & Associates, LLC, attorneys (Arthur J. Murray, of counsel)

INTERLOCUTORY DECISION

PBA Local 231 (PBA or Charging Party) filed an unfair practice charge (UPC) accompanied by a request for interim relief seeking temporary restraints on March 24, 2021, an amended unfair practice charge on March 30th, and a second amended unfair practice charge on March 31st. The charge is essentially twofold and first alleges that the County of Cumberland (County) and the Fraternal Order of Police, Lodge 194 (FOP) violated the New Jersey Employer-Employee Relations Act (Act), specifically N.J.S.A. 34:13A-5.4a (1), (2) and (3),1/ when the County discriminated against the PBA membership by submitting a layoff plan to the New Jersey Civil Service Commission (CSC) on August 19, 20202/ in which "all supervisory members of the FOP are being retained and only members of Charging Party PBA Local 231 are being subjected

to layoffs" in violation Article Six3/ of the CNA between the County and the PBA.4/

Second, the PBA alleges that the County in essence directed certain FOP supervisory members to convince non-Executive Board PBA members to speak to County representatives and offer certain concessions to potentially decrease the impact of the layoff plan.5/

The PBA represents all Line Corrections Officers, excluding the Warden, Assistant/Deputy Warden, Captain(s), Lieutenants, Sergeants, or any other employees of the Department of Corrections. The most recent CNA between the parties expired on December 31, 2019.

The PBA seeks the following remedy:
a. A cease-and-desist order of any communication between employees of Respondents not affiliated with Charging Party PBA Local 231 with those employees affiliated with Charging Party PBA Local 231 on any topic related to the pending layoffs or negotiations of salary, benefits, or other emoluments of office.

b. A temporary injunction blocking implementation of the layoff notices pending a full hearing on the merits; and

c. Such other relief PERC deems appropriate.

The PBA submitted a brief, exhibits and an Amended Verified Complaint from Michael Kaniuk, Consultant for the PBA (Kaniuk).

On March 31, 2021, I issued an Order to Respond by April 8th to both Respondents pursuant to N.J.A.C. 19:14-9.2(d)1. The County filed a brief and exhibits on April 6th and the FOP6/ filed a brief on April 8th. The PBA filed a reply brief (PBA reply brief) on April 14th with certifications from Victor Bermudez, President and member of the PBA (Bermudez) dated April 13th; Genine Kumiski, member of the PBA (Kuminski) dated April 12th; Ian A. Gross, Jr., former member of the PBA (Gross) dated April 12th; Cynthia Spencer, former member of the PBA (Spencer) dated April 12th; and Robert Shurran, former member of the PBA (Shurran) dated April 12th.

On April 15th, I issued an Order to Show Cause without Temporary Restraints with a return date via telephone conference call for April 29th. In response to the PBA's submissions, the County filed a brief and exhibits (County OSC brief)and the FOP filed a brief and a certification from Darren Govan, a Cumberland County Corrections Sergeant and President of the FOP (Govan) dated April 26th. The PBA filed a reply brief (PBA OSC reply brief) along with exhibits.

FINDINGS OF FACT

First Allegation: County Layoff Filing with CSC

At the outset, and in pertinent part to this interim relief application, it should be noted that the County's layoff plan filed with the CSC on August 19, 2020 and approved on September 28, 2020, expired on January 21, 2021 and was canceled by the CSC on March 23, 2021. (County OSC brief Exhibits W, X).

Prior to the layoff decision, the County initially had a plan to build a new correctional facility and on or about July 17, 2020, the County Commissioners re-evaluated that decision and decided to move forward with a plan to downsize the current correctional facility to a holding and transportation facility; this decision meant that the County would need less corrections officers. As a result, on July 30, 2020, County officials met with the PBA's counsel, Stuart Alterman and several Executive Board members of the PBA, in a virtual meeting, to discuss the potential layoff of PBA members. (County OSC brief Exhibits I, J, K, L).

The PBA's Amended Verified Complaint certified by Kaniuk states the following:

10. On or about September 23, 2020, Charging Party PBA Local 231 filed an Order to Show Cause and Verified Complaint with the CSC.7/

11. On the same date, Charging Party PBA Local 231 filed an Order to Show Cause with a Verified Complaint in Lieu of Prerogative Writs in the Superior Court of Cumberland County, which was eventually transferred to Camden County.

12. Charging Party PBA Local 231 was denied a temporary injunction in the Superior Court of Camden County on November 5, 2020.8/

13. The [State of New Jersey] Office of Public Defender ("OPD") likewise filed an Order to Show Cause with a Verified Complaint in the Superior Court of New Jersey.

14. However, unlike Charging Party PBA Local 231, the OPD successfully secured a Temporary Injunction against Respondent [Cumberland County] on November 4, 2020.

15. The OPD's matter is still pending in the Superior Court of Camden County.9/

16. Charging Party PBA Local 231's matter pending before the CSC is currently stayed pending the outcome of the OPD's matter in Superior Court.

Saheed Olushi, Human Resource Consultant 5 from the CSC informed the County on March 23, 2021, "In light of the on-going lawsuit, and the attendant multiple changes to the layoff plan, I must ask that the County submit a new plan whenever you have all necessary information to proceed with the layoff." (County OSC brief Exhibit X).10/

Second Allegation: County and FOP Action in Violation of Article Six of the CNA

Regarding this allegation, the PBA has provided the following certifications that are based on personal knowledge:11/

Kuminski certifies the following in pertinent part:

3. In or about October or November of 2020 after PBA Local 231 had filed its Order to Show Cause seeking a temporary injunction to prevent the closure of the Cumberland County Jail, I was approached by Sgt. Govan of FOP Lodge 194.

4. Sgt. Govan stated something along the following lines to me: "Ya'll need to find someone else besides Vic to go talk to the warden, so ya'll can get some stuff. Cause you'll never get anything with Vic at the table. They got a pissing contest going."

Gross certifies the following in pertinent part:

3. In or about October of 2020 after PBA Local 231 had filed its Order to Show Cause seeking a temporary injunction to prevent the closure of the Cumberland County Jail, I was approached by Sgt. Govan of FOP Lodge 194. Multiple other members of PBA Local 231 were present.

4. Sgt. Govan stated the following at the time: "[Your] members should report to the complex and possibly negotiate to keep more officers by negotiating and giving up [your] holiday pay and sick time."

Shurran certifies the following in pertinent part:

3. On either November 16, 2020 or November 18, 2020, after PBA Local 231 had filed and lost its Order to Show Cause seeking a temporary injunction to prevent the closure of the Cumberland County Jail, I, along with three other members of PBA Local 231, was in the area of the Sergeant's Desk when we were approached by Sgt. Govan and Sgt. Berry of FOP Lodge 194. Sgt. Govan said something along the lines of "You all need to go over to the Complex without Vic and stand together. Just give some sick time back or holidays to keep more officers. I bet they will do it. Go first thing in the morning." Sgt. Berry chimed in by saying something like: "Look what we did and we have all our members staying. I would do it if it was me. Don't be a dummy."

The Govan certification from the FOP provides the following in pertinent part:

4. At no time has Cumberland County, its agents, or anyone else on its behalf communicated, instructed or requested that I, as an employee of Cumberland County, as a representative of the FOP or otherwise, communicate with anyone, including rank-and-file corrections officers, regarding the proposed closure of the Cumberland County Jail, the impact of the closure upon employees and/or their collectively bargained rights, or any other matters related thereto.

5. On a few occasions, I did engage in discussions with my work colleagues of various ranks about the proposed jail closure and the impact of the proposed closure upon the workforce, and I also participated in the exchange ideas with these colleagues about ways to possibly minimize the impact of the proposed jail closure on the workforce.

6. At all times during the aforenoted discussions and exchanges, I was speaking and sharing ideas personally, rather than as a representative of the FOP. I never presented my personal comments, thoughts or ideas as representative of the membership of the FOP, and never represented to my work colleagues that I was speaking as President of the FOP.

ANALYSIS

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 allegations12/ 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); Burlington Cty., P.E.R.C. No. 2010-33, 35 NJPER 428 (¶139 2009), (citing Ispahani v. Allied Domecq Retailing United States, 320 N.J. Super. 494 (App. Div. 1999) (federal court requirement of showing a substantial likelihood of success on the merits is similar to Crowe)); 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). In Little Egg Harbor Tp., the designee stated:

[T]he undersigned is most cognizant of and sensitive to the extraordinary nature of the remedy sought to be invoked and the limited circumstances under which its invocation is necessary and appropriate. The Commission's exclusive remedial powers, normally intended to be exercised subsequent to a plenary hearing, will not be called into play for interim relief in advance of such hearing except in the most clear and compelling circumstances.

Regarding the first allegation concerning the layoff, the County argues that this application should be dismissed because the matter is moot as a result of the cancellation of the layoff plan by the CSC. Additionally, the County argues that it had submitted a well-developed layoff plan to the CSC on August 19th and the reason for the potential impact on the PBA, had the layoff not been canceled, is that CSC regulations provide for "bumping rights" that would be granted to FOP members based on their permanent status and the ability to exercise their demotional rights in a layoff action due to their preferred status. See N.J.A.C. 4A:8-2.4(c)1. (County OSC brief Exhibits S, T).

In response to the County's argument that the layoff matter is moot, the PBA argues that this matter is not moot but just "delayed" since the County is taking steps to limit the intake of inmates.13/ Regarding the "mootness" argument the PBA asserts:

New Jersey Courts have "often declined, however, to dismiss a matter on grounds of mootness, if the issue in the appeal is an important matter of public interest." AAA Mid-Atlantic Insurance Company of New Jersey, 194 N.J. 474, 484 (2008). The necessary condition precedent to the invocation of continued jurisdiction in moot cases, however, is that the case "present[s an] issue of great public importance compelling definitive resolution despite mootness[.]" Nini v. Mercer County Community College, 202 N.J. 98, 118 (2010).

[PBA OSC reply brief, P.4].

However, this application concerns interim relief and is not a decision on the merits, "Generally, the equitable relief of a preliminary injunction should not be entered except when necessary to prevent substantial, immediate and irreparable harm." Subcarrier Communications, Inc. v. Day, 299 N.J. Super. 634, 638 (App. Div. 1997), citing Citizens Coach Co. v. Camden Horse R.R. Co., 29 N.J. Eq. 299, 303-04 (E. & A. 1878). Since the layoff plan has been canceled by the CSC and the County has not filed a new plan at this time, I cannot conclude that the PBA is suffering or on the verge of suffering "substantial, immediate and irreparable harm" at this point.

With respect to the second allegation, the amended unfair practice charge alleges that the County violated Article Six of the parties CNA by essentially directing certain FOP supervisory members to speak to the PBA non-Executive Board members as set forth above. The amended unfair practice charge only asserts alleged "unfair practices" against the County as the employer and not the FOP. (N.J.S.A. 34:13A-5.4a (1), (2) and (3), concern alleged violations by public employers, their representatives or agents). The PBA's certifications set forth above, Kuminski, Gross and Shurran, concern statements that Govan made to them (Shurran cert., para 3 also mentions Sgt. Berry), but do not concern any statements made by County representatives or its agents.

In contrast, the Govan certification from the FOP, although not denying that conversations occurred, unequivocally denies that the County or anyone acting on its behalf prompted him to speak to "work colleagues of various ranks" and at all times he was acting as an individual employee and not as a representative of the FOP. (Govan cert., para., 3, 4, 5).

Based on the record in this application, there is no direct evidence of the County's involvement in any conversations that took place between members of the FOP and the PBA. As a result, there is a material factual dispute between the parties in this matter.

Given the heavy burden required for interim relief, I find

that the Charging Party has not established a substantial

likelihood of prevailing in a final Commission decision on their

legal and factual allegations, a requisite element to obtain

interim relief.14/ Crowe. Additionally, I find that there is no

evidence in the record to indicate that irreparable harm will

occur since the layoff has been canceled at this point. I also find that material facts are in dispute. The application for interim relief is denied. Accordingly, this case will be transferred to the Director of Unfair Practices for further processing.

ORDER

IT IS HEREBY ORDERED, that the Charging Party's application for interim relief is denied and this matter will be returned to the Director of Unfair Practices for further processing.

/s/ David N. Gambert

David N. Gambert

Commission Designee

DATED: May 21, 2021

Trenton, New Jersey