H.E. NO. 99-16

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

TOWN OF WEST NEW YORK,

Respondent,

-and-	Docket No. CO-H-97-287

WEST NEW YORK PBA LOCAL NO. 361,

Charging Party.

Appearances:

For the Respondent, Murray, Murray & Corrigan, attorneys

(David F. Corrigan, of counsel; Norman R. Jimerson,

on the brief)

For the Charging Party, Klatsky & Klatsky, attorneys

(Michael A. Bukosky, of counsel)

HEARING EXAMINER'S REPORT

AND RECOMMENDED DECISION

On February 28, 1997, West New York PBA Local No. 361 filed an unfair practice charge against the Town of West New York. The charge alleges that on or about August 28, 1996, the Town hired Carlos Betancourt as a patrol officer at "...top pay, top benefits, top seniority and [provided] certain other benefits which newly-hired officers have not received before." The Town allegedly refused to negotiate over these benefits "...before establishing this new policy and practice...", thereby violating

5.4a(1), (3), (5) and (7)1/ of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. The charge also notes that the parties are negotiating a successor to their 1992-94 collective agreement.

On May 15, 1997, a Complaint and Notice of Hearing issued.

On June 2, 1997, the Town filed an Answer admitting that Betancourt was provided the disputed benefits but denying that he was a "new hire." The Town also asserted several defenses, including the defense that the Complaint, if true, merely alleges a breach of the parties' collective agreement.

On October 31, 1997, the Town filed a Motion for Summary Judgment with the Commission. The motion was referred to me for decision. On December 23, 1997, I issued a letter denying the motion. On January 16, 1998, the Town filed a Motion to Dismiss, arguing that the Complaint should be dismissed because the dispute primarily concerned an interpretation of the parties' agreement and not an unfair practice, citing State of New Jersey (Dept. of Human Services), P.E.R.C. No. 84-148, 10 NJPER 419 (¶15191 1984).

1/	These provisions prohibit public employers, their representatives or agents from: "(1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act. (3) Discriminating in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage employees in the exercise of the rights guaranteed to them by this act. (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. (7) Violating any of the rules and regulations established by the commission."

On or about March 1, 1998, Betancourt filed a Motion to Intervene, pursuant to N.J.A.C. 19:14-5.1. Betancourt also filed an unfair practice charge against West New York PBA Local No. 361 (CI-98-65), which was later deemed withdrawn.

On April 1, 1998, I issued a letter denying both the Town's Motion to Dismiss and Betancourt's Motion to Intervene. I allowed Betancourt the option to file a brief on a proposed remedy in the event that the Town's conduct would be found to have violated the Act.

On July 21, 1998, I conducted a hearing at which the parties examined witnesses and presented exhibits. The Town filed a post-hearing brief on October 30, 1998.

Based upon the entire record, I make the following:

FINDINGS OF FACT

1. The Town of West New York is a public employer within the meaning of the Act. West New York PBA Local No. 361 is a public employee representative within the meaning of the Act and represents police officers and detectives below the rank of sergeant (C-3).2/

2. Article XI (Wages and Pensions) of the applicable 1992-94 collective agreement provides in a pertinent portion:

2/	"C" represents Commission exhibits; "T" represents the transcript, followed by the page number; "R" represents Respondent exhibits.

Section 1. The wage scale of the employees covered by this Agreement shall be increased as follows:

Patrolmen 1/1/92 3/1/92 5/1/92 7/15/93

Step 1 (1st year of service) $23,773 $23,773 $23,773 $24,973

Step 2 (2nd year of service) $27,778 $27,778 $27,778 $29,178

Step 3 (3rd year of service) $32,700 $32,700 $32,700 $34.325

Step 4 (4th year of service) $34,700 $34,700 $35,741 $37,541

Step 5 (5th year of service) $36,700 $37,801 $38,935 $40,885

Step 6 (6th year of service) $39,280 $40,455 $41,670 $43,770

Article VIII (Vacations and Vacation Pay) provides in a pertinent part;

Section 1(b) - All employees hired on or after January 1, 1988 shall receive vacation leave as follows:

During 1st year of service	10 working days

During 2nd year of service	20 working days

During 3rd year of service	31 working days

and each year thereafter

Article XXV (Grievance Procedure) provides a multi-step grievance procedure ending in binding arbitration (C-3).

3. From late 1982 until January 29, 1993, Carlos Betancourt was employed as a police officer by the West New York park police department (T85; R-3(d)).

4. In July 1992, the State Attorney General wrote to the Town that "...it was no longer feasible...to maintain two police departments and that the park police department should be discontinued" (R-1). The letter also advises, "Inasmuch as the employment of some park police members would be terminated for economic reasons, their appointment as regular police officers could be achieved without undergoing civil service procedures as permitted by N.J.S.A. 40A:14-180" (R-1).

On November 25, 1992, the Town passed an ordinance abolishing the park police department (R-2). Betancourt and another officer, Joaquin Martinez, were the only "regular" officers employed by the park police department when it was abolished; all other officers were "specials" (T96).

5. Betancourt applied to the Town police department but was not accepted (T91). After being laid off from his sergeant position at the park police, Betancourt was hired as a patrol officer by the City of East Orange in April 1993 (R-3a; T91). He was employed there until August 26, 1996.

6. In early 1995, Betancourt advised the State Department of Personnel (which had earlier determined that Betancourt was entitled to placement on the State-wide police officer reemployment list under N.J.S.A. 40:A14-180) that he wished to return to West New York as a police officer (R-3(d)).

On May 1, 1995, Betancourt and J. Martinez (who also unsuccessfully applied to the Town police department), filed a civil action in the Superior Court of Hudson County (Docket No. Hud-1-3685-95) (R-4). The complaint alleged that the officers were denied employment because of wrongful political retribution by the Mayor (R-4).

7. In August 1995 and on August 30, 1996, the Department of Personnel issued two inconsistent decisions concerning Betancourt. In the first decision, the Department found that Betancourt was entitled to placement on the police sergeant and

police officer reemployment lists for the Town. In the second decision (issued two days after Betancourt was sworn in as a Town police officer), the Department Director of Human Resource Management found that Betancourt was not entitled to placement on the reemployment lists (R-3(d)). The decision nonetheless recommended Betancourt's appointment on "equitable grounds."3/

8. In early 1996, Betancourt and Town labor counsel engaged in settlement discussions of the civil action (T93; T105). Betancourt acknowledged, "Certain things were knocked off the table [i.e., back pay and attorney fees]; I had to make certain compromises so top pay was included and vacation time" (T94). On August 28, 1996, about thirty minutes before he was sworn in as a Town police officer, Betancourt signed a release, surrendering his civil action (T114; R-5). The release does not provide any hint of Betancourt's salary and benefits.

At no time during settlement discussions was the PBA informed about Betancourt's salary and benefits. Betancourt is not a PBA member (T58).

3/	R-3(d) is a Merit System Board "Final Administrative Action" in the Matter of Carlos Betancourt and Joaquin Martinez issued 3/16/98. I take administrative notice of facts set forth in the decision. The Order states in a pertinent part, "It is further ordered that based on equitable grounds and the facts of this case, Mr. Betancourt's August 28, 1996 appointment from a police officer special reemployment list should be approved in accordance with N.J.A.C. 4A:1-1.2(c) rule relaxation procedures."

9. Kevin Williams is a Town of West New York police officer and was president of and chief negotiator for PBA Local No. 361 from June 1996 to June 1998 (T26). During the interest arbitration process, Williams learned that Betancourt had been recently hired, and was started at "top base pay and top vacation" (T28, T30). No evidence indicates that the PBA participated in such decisions (T69-T70). Williams understood that the Town invariably hired experienced police officers at step one on the guide (T31; T32).

Williams promptly complained to West New York Public Safety Commissioner Sal Vega, who replied that he was "ordered to pay [Betancourt] that salary and benefits by the courts" (T32). Williams also told his membership about Betancourt's salary and benefits and those with a few years' experience, "sort of hit the ceiling" (T38). Williams talked with Vega "numerous times" about Betancourt's placement, to no avail (T32).

10. West New York police officer Ray Semararo was first employed as a regular officer by the park police department in 1980 and was promoted to sergeant in 1982 (T86). On March 29, 1985, he was hired by the Town police department at step one (T40).

Nitin Daniel was first employed as a regular officer of the park police department for about two years before he was hired at step one by the Town police department (T43; T88).

An officer Jininez was first employed as a regular officer of the park police department for about two and one-half

years before he was hired at step one by the Town police department (T44; T88).

Officer John Alvarez was first employed as a regular officer of the park police department for about three years before he was hired in 1991 on step one by the Town police department (T45; T57; T88-T89).

Officer Carlos Irimia was first employed as a regular officer of the park police department for about two years and then as an officer with New Jersey Transit before he was hired at step one by the Town police department (T48).

All of these officers (except Irimia) were hired by the Town police department before the park police department was abolished (T53). Other experienced officers hired at step one were either special officers with the park police department or were employed for years by the County police department or the County Sheriff (T42-T47; T87-T89). For example, Officer Teddy Martinez was an officer with the (now abolished) Hudson County police department for about ten years before he was hired by the Town at step one in January 1997 (T46; T52). The evidence shows that before August 28, 1996, the Town hired experienced officers at step one on the guide.

ANALYSIS

N.J.S.A. 34:13A-5.3 entitles a majority representative to negotiate on behalf of unit employees over their terms and

conditions of employment. Section 5.3 also defines an employer's duty to negotiate before changing working conditions:

Proposed new rules or modifications of existing rules governing working conditions shall be negotiated with the majority representative before they are established.

To prove a violation of this section, a charging party must show that a working condition was changed or instituted without negotiations. Hunterdon Cty. Freeholders Bd. and CWA, 116 N.J. 322 (1989); Galloway Tp. Bd. of Ed. v. Galloway Tp. Ed. Ass'n., 78 N.J. 25, 52 (1978); Passaic Cty. Reg. H.S. Dist. No. 1, P.E.R.C. No. 91-11, 16 NJPER 446 (¶21192 1990); Elmwood Park Bd. of Ed., P.E.R.C. No. 85-115, 11 NJPER 366 (¶16129 1985). An employer may defeat this claim if it has a managerial prerogative to change or institute the working condition or if it shows that the majority representative has clearly and unequivocally waived its statutory right to negotiate. Passaic Cty.; Elmwood Park. A controlling contract provision may also establish that the parties have already negotiated over an issue and no further negotiations are required. Passaic Cty.

Initial placement on the salary guide is mandatorily negotiable. In general, an employer cannot set a new employee's starting salary without first negotiating with the majority representative. Belleville Bd. of Ed., 209 N.J.Super. 93 (App. Div. 1986); Middletown Tp. and Middletown PBA Local 124, P.E.R.C. No. 98-77, 24 NJPER 28 (¶29016 1997 [8]) mot. to reinstate app. granted, app. pending App. Div. Dkt. No. A-2351-97T5; Stanhope Bor. Bd. of

Ed., P.E.R.C. No.. 90-81, 16 NJPER 178 (¶21076 1990); Gloucester Tp., P.E.R.C. No. 87-42, 12 NJPER 805 (¶17308 1986); See also Middlesex Cty. Pros., P.E.R.C. No. 91-22, 16 NJPER 491 (¶21214 1990), aff'd 155 N.J.Super. 333 (App. Div. 1992) (credit for prior governmental service mandatorily negotiable).

The PBA claims that an existing working condition--starting experienced officers at step one on the salary guide--was changed unilaterally in August, 1996 when Betancourt was hired at step six with maximum vacation benefits. The evidence supports the PBA's contention; regular (as opposed to "special") officers with two to five years of police experience with the Town park police department were all started at step one on the Town police department guide. Regular officers with at least three years of police experience, including experience at other law enforcement employers (i.e., the County Sheriff, County police and New Jersey Transit police) were also started at step one on the Town police department guide.

The Town has not presented contrary evidence. In its Answer, the Town asserted that Betancourt was not a "new hire," implying that he had previous Town police employee experience. In its brief, the Town argues that other experienced officers were "rookies" compared to Betancourt. The latter argument is a concession to the evidence that other Town police officers were also former park police officers. They too were not "new hires."

Betancourt was a park police officer for at least twice the number of years as anyone else was before being hired by the Town

police department. While this fact lends superficial support to the "rookies" argument, it does not explain why a five-year park police officer (Semararo) was started at step one on the Town police salary guide and a ten-year park police officer (Betancourt) was started at step six. Nor does it explain why an officer with ten years of police experience (T. Martinez) was started at step one and an officer with a total of thirteen and one half years of police experience (Betancourt) was started at step six. Settlement of litigation, rather than "experience," explains Betancourt's initial placement at step six.4/

I am persuaded that the evidence defining an existing working condition in this case is at least as compelling as that which defined the same type of working condition (i.e., initial placement on the salary guide) in Middletown Tp. (police officers with academy training and one year in a municipal department were placed on step three of the salary guide). Betancourt's starting at step six with all attendant benefits is the only deviation of the Town's apparent policy of starting experienced officers at step one.

The Town asserts that the Complaint "consists of a mere contactual dispute... [over] Article XI of the agreement" and should be dismissed under State of New Jersey (Dept. of Human Services), P.E.R.C. No. 84-148, 10 NJPER 419 (¶15191 1984).

4/	I see no relevant legal significance to the fact that Betancourt was hired after the park police department was abolished.

I disagree. Unlike the charges filed in Human Services, the PBA nowhere alleges that the Town abrogated a contractual right. I have discussed that the PBA has alleged and shown a unilateral change of an existing working condition. Such changes implicate Section 5.3's duty to negotiate over proposed modifications. See Middletown Tp.

Assuming that the gravamen of the case is a dispute over Article XI, I believe that the expiration of the 1992-94 agreement and the parties' subsequent participation in interest arbitration "...indicates that the policies of our Act, rather than a mere breach of contract claim may be at stake." Human Services at 10 NJPER 423. Citing Galloway Tp. Bd. of Ed., the Commission wrote at footnote 13 in Human Services:

[T]he unilateral alteration of a prevailing term and condition of employment during the course of collective negotiations constitutes a refusal to negotiate in good faith [federal citation omitted]. Thus, the statutory policy upholding the status quo during the delicate period of successor contract negotiations warrants unfair practice proceedings on claims that an employer has unilaterally altered a term and condition of employment set in the expired predecessor contract.

[10 NJPER 426]

Under all the circumstances, I reject the Town's Human Services defense.

The Town also contends that the PBA waived its right to negotiate over initial salary guide placement because it never participated in such decisions. A waiver will be found if the employee representative has expressly agreed to a provision

authorizing a change or impliedly accepted an established past practice permitting similar actions without prior negotiations. In re Maywood Bd. of Ed., 168 N.J.Super 45, 60 (App. Div. 1979), certif. den. 81 N.J. 292 (1979); South River Bd. of Ed., P.E.R.C. No. 86-132, 12 NJPER 447 (¶17167 1986), aff'd NJPER Supp.2d 170 (¶149 App. Div. 1987); Middletown Tp.

No facts suggest a waiver. The Commission rejected an identical "acquiescence" argument in Middletown Tp. There, as here, an existing employment condition, unwritten but defined by its constancy, was unilaterally changed. In both cases, unfair practice charges were filed, putting each employer "on notice that if it deviated from the practice, as that practice concerned employees with the requisite experience, the union would challenge the [employer's] action." Middletown Tp. at 24 NJPER 30.

Finally, the Town asserts that the Commission has no authority to vacate the settlement agreement with Betancourt. In general, settlement agreements to a lawsuit can be vacated only by clear and convincing proof of fraud or other compelling circumstances. Nolan v. Lee Ho, 120 N.J. 465, 472 (1990); Pascarella v. Bruck, 190 N.J.Super. 118 (App. Div. 1983), certif. den. 94 N.J. 600 (1983).

I do not believe that any Commission decision has considered the effect of an individual settlement agreement upon a public employer's duty to negotiate collectively. The Commission has found that an employer violates the Act by unilaterally

increasing a unit employee's salary. Camden Cty., P.E.R.C. No. 94-121, 20 NJPER 282 (¶25143 1994).

The Town has the managerial prerogative to hire Betancourt. See City of Atlantic City, P.E.R.C. No. 97-132, 23 NJPER 339 (¶28154 1997). But the individually negotiated placement on the salary guide together with attendant benefits are really terms and conditions of employment which by statute must be collectively negotiated "before they are established." Section 5.3. As such, the Town's action also violates the exclusivity principle in Section 5.3. D'Arrigo v. N.J. State Bd. of Mediation, 119 N.J. 74 (1990); Lullo v. Int'l. Ass'n. of Firefighters, Local 1066, 55 N.J. 409 (1970); City of Newark and FOP Lodge No. 12 and Newark PBA Local #3, P.E.R.C. No. 96-53, 22 NJPER 67 (¶27030 1996), aff'd 23 NJPER 34 (¶28022 App. Div. 1996).

The Commission often considers federal precedent in unfair practice cases. Lullo. Exclusivity is federal precedent incorporated into our Act. In J.I. Case Co. v. NLRB, 321 U.S. 332, 14 LRRM 501 (1944), the U.S. Supreme Court narrowly held that employers and employees could not maintain individual agreements providing an employee less than what would be provided under the collective bargaining agreement. The Court also expressed a concern which applies to this case:

[A]dvantages to individuals may prove as disruptive of industrial peace as disadvantages. They are a fruitful way of interfering with organization and choice of representatives; increased compensation, if individually deserved, is often earned at the cost breaking down some

other standard thought to be for the welfare of the group and always creates the suspicion of being paid at the long-range expense of the group as a whole. Such discriminations not infrequently amount to unfair labor practices.

[14 LRRM 504-505]

The Town's private settlement agreement with Betancourt does not obviate its duty to negotiate terms and conditions of employment with the PBA. Accordingly, I recommend that the Town of West New York violated 5.4a(1) and 5.4a(5) of the Act.5/

REMEDY

The PBA requests that the Town be ordered to pay all officers hired in or around August, 1996 the same level of salary and benefits being paid to Betancourt. The second and alternately proposed remedy is that the Town return Betancourt to step one on the salary guide, pending negotiations.

I reject both proposals. The first is a mere windfall to unit employees. The second is burdensome to Betancourt.

In 1995, Betancourt filed a civil action seeking vindication of certain personal rights (which were not collectively negotiated or which otherwise existed as terms and conditions of employment). His August, 1996 settlement agreement with the Town represents the value of those rights. It would be burdensome for Betancourt to renegotiate the settlement agreement so that it

5/	No facts show that the Town violated 5.4a(3) and (7) of the Act. I dismiss those allegations.

maintains its current economic value while returning him to step one on the guide as of August, 1996.

The Town's duty was to negotiate but not necessarily to agree. That duty has an economic value. Perhaps the value is the difference between Betancourt's current salary and benefits and those he would be receiving if he had started on step one of the guide in August, 1996. In any event, I order the Town to negotiate with the PBA compensation for unilaterally placing Betancourt at step six of the guide in August, 1996.

RECOMMENDED ORDER

The Town of West New York is ordered to:

A.	Cease and desist from:

1.	Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by the Act, particularly by unilaterally changing a practice of placing new police officers with regular police experience at step one of the salary guide.

2.	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, particularly by unilaterally changing a practice of placing new police officers with regular police experience at step one of the salary guide.

B.	Take this action:

1.	Restore the practice of starting new police officers with regular police experience at step one of the salary guide.

2.	Negotiate in good faith with West New York PBA Local No. 361 over possible changes to the practice of placing new police officers with regular police experience at step one of the salary guide.

3.	Negotiate in good faith with West New York PBA Local No. 361 over compensation for unilaterally placing Carlos Betancourt at step six of the salary guide in August, 1996.

4. Post in all places where notices to employees are customarily posted, copies of the attached notice marked as Appendix "A." Copies of such notice on forms to be provided by the Commission shall be posted immediately upon receipt thereof and, after being signed by the Respondent's authorized representative, shall be maintained by it for at least sixty (60) consecutive days. Reasonable steps shall be taken to ensure that such notices are not altered, defaced or covered by other materials.

5.	Notify the Chair of the Commission within twenty (20) days of receipt what steps the Respondent has taken to comply herewith.

Jonathon Roth

Hearing Examiner

Dated: January 29, 1999

Trenton, New Jersey

!!@GH0!!!@BT0!!!/120!!!@LN20!

WE WILL cease and desist from interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by the Act, particularly by unilaterally changing a practice of placing new police officers with regular police experience at step one of the salary guide.

WE WILL cease and desist from 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, particularly by unilaterally changing a practice of placing new police officers with regular police experience at step one of the salary guide.

WE WILL restore the practice of starting new police officers with regular police experience at step one of the salary guide.

WE WILL negotiate in good faith with West New York PBA Local No. 361 over possible changes to the practice of placing new police officers with regular police experience at step one of the salary guide.

WE WILL negotiate in good faith with West New York PBA Local No. 361 over compensation for unilaterally placing Carlos Betancourt at step six of the salary guide in August, 1996.