H.E. NO. 93-3

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

TOWNSHIP OF MONTCLAIR,

Respondent,

-and-	Docket No. CO-H-92-259

POLICE BENEVOLENT ASSOCIATION,

LOCAL 53,

Charging Party.

Appearances:

For the Respondent, Ruderman & Glickman, Attorneys

(Mark S. Ruderman, of counsel)

For the Charging Party, Young, Tarshis, Dimiero & Sayovitz, Attorneys (Joanne L Butler, of counsel)

HEARING EXAMINER'S DECISION

ON MOTION FOR SUMMARY JUDGMENT

On March 3, 1992 the Police Benevolent Association, Local 53 ("PBA") filed an Unfair Practice Charge with the New Jersey Public Employment Relations Commission alleging that the Township of Montclair violated the New Jersey Employer-Employee Relations Act ("Act"), N.J.S.A. 34:13A-5.4, subsections (a)(1) and (5).1/ The

1/	These subsections prohibit public employers, their agents or representatives from: "(1) Interfering with, restraining or coercing employees in the exercise of rights guaranteed to them by this act; and (5) Refusing to negotiate in good faith with a majority representative of employees in an appropriate unit concerning terms and conditions of employment of employees in that unit, or refusing to process grievances presented by the majority representative."

charge alleges that the Township unilaterally altered a long-standing past practice by failing and/or refusing to permit promotional candidates to review the results of the oral interview phase of the parties' promotion process.

A Complaint and Notice of Hearing issued on June 10, 1992. A hearing is scheduled for August 4, 1992. On June 16, 1992 the Township filed an answer denying that it violated the Act, and on June 24, 1992 it filed a Motion for Summary Judgment with the Commission's Chairman. On July 6, 1992 the PBA filed a response to the Motion, accompanied by affidavits and exhibits. On July 7, 1992, the Chairman of the Commission referred the Motion to me, pursuant to N.J.A.C. 19:14-4.8.

The Township and the PBA were parties to a collective negotiations agreement effective from January 1, 1990 through December 31, 1991. Article XVII contains the promotional procedure and provides, in relevant part:

B.	Whenever a promotional examination or procedure is given in the department, the following procedures shall take place:

(1)	prior to giving an examination, the Employer shall inform the PBA about the nature of the exam and the composition of the test;

(2)	the Employer shall give due consideration to the objections, comments and suggestions of the PBA with regard to the testing procedure;

(3)	failure to comply with (a) and (b), above, shall render the examination null and void;

(4)	after the examination, every officer taking the exam shall have the right to see his own test score or rating and shall have the right to know how he did on each part of the exam or rating relative to the others who received the promotion.

The Township alleges that in accordance with paragraph four, it reveals to each candidate his or her score for each part of the promotional examination, including the oral section. It also alleges that it reveals the identity of the evaluators on the panel but does not reveal the component oral scores and the identity of the respective evaluator who gave that score. In its brief at page 14, the Township states: "The Township has never had a practice of revealing component oral scores and the respective evaluators who gave that score." The Township argues that it has a managerial right to refuse to reveal the scores and respective identity of each member of the oral interview panel.

The PBA alleges that in addition to paragraph four, there existed, prior to 1982, a practice whereby candidates for promotion had also been afforded the opportunity to review the individual evaluation scores prepared by the members of the oral interview panel. Lieutenant Frank Viturello, past president of the PBA, states in his affidavit at Paragraph 9:

"9. During all promotional procedures since approximately 1982, officers have been given the opportunity to review the evaluations and scores of the individual interview panel members."

The PBA alleges that in January 1992 candidates for promotion were informed, on the day of the oral interview, that they

would not be permitted to review the evaluations of the individual members of the panel. The candidates were told that they would only receive their composite scores and rank among all candidates (Viturello Affidavit, Paragraph 12). The PBA also alleges that there were no negotiations prior to January 1992 concerning the alleged change in the practice permitting individual candidates to review the individual oral interview panel evaluations.

Based upon the above allegations I find that at least the following material facts are in dispute:

1. Whether there existed a past practice of permitting promotional candidates in the PBA's unit to view the individual oral panel scores and to know the identity of the respective scorers.

2. Whether there was a change in the alleged practice in January 1992.

The parties also disagree over whether the PBA is entitled to know how individual evaluators have scored the candidates. The Township asserts that the PBA's demand for this information would interfere with the integrity and reliability of the promotion process and would thereby interfere with inherent management prerogatives and limit the Township's policy making powers. The PBA asserts that revealing the component score and the evaluator's identity would not interfere with any management prerogative, nor place limits on policy making powers.2/

2/	The parties cited several cases to support their legal theories. Each case, however, is factually distinguishable from the facts of this case and none definitively disposes of the scope of negotiations issue.

Pursuant to N.J.A.C. 19:14-4.8(d), summary judgment may be granted "If it appears from the pleadings, together with the briefs, affidavits and other documents filed, that there exists no genuine issue of material fact and the movant or cross-movant is entitled to its requested relief as a matter of law...." Summary judgment is to be granted with extreme caution. The moving papers must be considered in the light most favorable to the opposing party, all doubts must be resolved against the movant, and the summary judgment procedure may not be used as a substitute for a plenary trial. Baer v. Sorbello, 177 N.J. Super. 182, 185 (App. Div. 1981); Essex Cty. Ed. Services Cmm'n., P.E.R.C. No. 83-65, 9 NJPER 19 (¶14009 1982).

Having considered the parties' arguments and all of the documents submitted, I deny the Township's Motion. I find that there are genuine issues of material fact in dispute. Giving all favorable inferences to the PBA, I find that, for purposes of this Motion, there may have been a unilateral change of a past practice in January 1992. Accordingly, both parties must be given the opportunity in a plenary hearing to fully develop these issues.3/

3/	I caution the parties to remember, however, that I may not draw the same inferences at the conclusion of the hearing, and that dismissal of the Motion is not a finding that the PBA has proven its case.

DECISION

The Motion for Summary Judgment is denied. The parties are ORDERED to appear before me on August 4, 1992 for a Hearing and to be available for the Pre-Hearing telephone conference on July 31, 1992 at 11:00 a.m.4/

Elizabeth J. McGoldrick

Hearing Examiner

Dated: July 16, 1992

Trenton, New Jersey

4/	The parties are requested to contact me by July 28, 1992, if subpoenas are needed.