H.E. No. 83-29

Synopsis:

A Hearing Examiner recommends that the Public Employment Relations Commission find that the Respondent violated Subsections 5.4(a)(1) and (5) of the New Jersey Employer-Employee Relations Act when it failed to adopt a resolution by January 1, 1982, providing funding for the wages and fringe benefits due PBA unit employees on January 1, 1982 pursuant to the provisions of a 1981-82 collective negotiations agreement. The Township had statutory authority to adopt such a resolution under N.J.S.A. 40A:4-19, which covers the discharge of contractual obligations between the beginning of the fiscal year and the date of adoption of the municipal budget. The Hearing Examiner relied upon Galloway Township Board of Education v. Galloway Township Education Association, 78 N.J. 25 (1978) as authority for his holding herein.

Further, the Hearing Examiner recommended that the Commission find that the Township violated Subsections 5.4(a)(1) and (4) of the Act when its Mayor on July 1, 1982 advised the President of the PBA that the Township would not issue retroactive salary checks to members of the PBA unit because the PBA had on June 30, 1982 filed an unfair practice charge.

By way of remedy, the Hearing Examiner recommends that the Township be ordered to pay affected PBA unit members interest at the rate of 12% per annum on the gross amount of their retroactive salary checks from January 1, 1982 to July 15, 1982, the date on which the checks were issued.

A Hearing Examiner's Recommended Report and Decision is not a final administrative determination of the Public Employment Relations Commission. The case is transferred to the Commission which reviews the Recommended Report and Decision, any exceptions thereto filed by the parties, and the record, and issues a decision which may adopt, reject or modify the Hearing Examiner's findings of fact and/or conclusions of law.

PERC Citation:

H.E. No. 83-29, 9 NJPER 204 (¶14094 1983)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

07.28 72.652 72.662 72.4

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- HE 83-029.pdf
Appellate Division:
Supreme Court:

H.E. NO. 83-29 1. H.E. NO. 83-29 1. NOTICE TO EMPLOYEES PURSUANT TO AN ORDER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION AND IN ORDER TO EFFECTUATE THE POLICIES OF THE NEW JERSEY EMPLOYER-EMPLOYEE RELATIONS ACT, AS AMENDED, We hereby notify our employees that: H.E. NO. 83-29 STATE OF NEW JERSEY BEFORE A HEARING EXAMINER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of MANCHESTER TOWNSHIP, Respondent, -and- Docket No. CO-82-316-50 MANCHESTER TOWNSHIP PBA, LOCAL 246, Charging Party. Appearances: For Manchester Township Steinberg, Steele & Poane, Esqs. (Seigfried W. Steele, Esq.) For Manchester Township PBA, Local 246 Rothbard, Harris & Oxfeld, Esqs. (Mark J. Blunda, Esq.) HEARING EXAMINER = S RECOMMENDED REPORT AND DECISION An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the A Commission @ ) on June 30, 1982, and amended on July 2, 1982, by the Manchester Township PBA, Local 246 (hereinafter the A Charging Party @ or the A PBA @ ) alleging that Manchester Township (hereinafter the A Respondent @ or the A Township @ ) 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 A Act @ ), in that the Respondent unilaterally and without negotiations with the PBA altered the terms and conditions of employment set forth in the parties = collective negotiations agreement by failing and refusing to implement the salary, longevity and prescription coverage for the year 1982 and, further, on July 1, 1982, after the filing of the original Unfair Practice Charge on June 30, 1982, refused to pay retroactive salary increases to members of the PBA collective negotiations unit because of the filing of the original Unfair Practice Charge, all of which is alleged to be a violation of N.J.S.A. 34:13A-5.4(a)(1), (2), (3), (4), (5), (6) and (7) of the Act.1/ It appearing that the allegations of the Unfair Practice Charge, as amended, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on December 3, 1982. Pursuant to the Complaint and Notice of Hearing a hearing was held on February 10, 1983, in Newark, New Jersey, at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. The record was stipulated by counsel for the parties in all material respects. Oral argument was waived and the parties filed post-hearing briefs by March 10, 1983. 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. Manchester Township is a public employer within the meaning of the Act, as amended, and is subject to its provisions. 2. The Manchester Township PBA, Local 246 is a public employee representative within the meaning of the Act, as amended, and is subject to its provisions. 3. The parties = collective negotiations history dates back at least six years. Within that time period there have been several one-year collective negotiations agreements immediately preceding the most recent collective negotiations agreement, which was effective January 1, 1981 through December 31, 1982 (J- 1). 4. Article XIII, Section 3 of J-1 provides that a prescription plan for the employee and his family was to become effective January 1, 1982. 5. Article XXII, Section 1 of J-1 provides for designated salary increases as of January 1, 1982. 6. Neither the benefits under the prescription plan nor the salary increases were paid by the Respondent as of January 1, 1982. 7. On June 30, 1982 the Charging Party filed an Unfair Practice Charge citing the Respondent = s failure to make payments under the prescription plan and to pay the scheduled salary increases, together with payments of longevity and overtime since January 1, 1982 as mandated by the collective negotiations agreement (J-1).2/ 8. Under date of July 1, 1982 the Township = s Mayor wrote to the President of PBA, advising him that because of the filing of the original Unfair Practice Charge the Township solicitor had advised the Township not to issue retroactive salary checks to members of the PBA unit (J-7).3/ 9. On or about July 1, 1982 the Township issued retroactive salary checks to superior officers of the Township = s Police Department and two non-PBA members in the collective negotiations unit but, as noted above, withheld retroactive checks for members of the PBA unit. 10. On July 2, 1982 the Charging Party filed its amended Unfair Practice Charge, which was accompanied by a request for interim relief. On the same date the Chairman of the Commission issued an Order To Show Cause, which was returnable July 14, 1982. 11. On July 13, 1982 the Township agreed to make the payment to all PBA unit members of the contractual benefits, which became effective on January 1, 1982, supra. This was confirmed in a letter from counsel for the Charging Party to counsel for the Respondent (J-8). Immediately thereafter, the Township issued retroactive salary checks to PBA unit members and made adjustments for longevity and overtime and implemented the prescription plan, which included reimbursement for out-of-pocket prescription expenses incurred by PBA unit members since January 1, 1982. 12. Preliminary action on the 1982 Township budget was taken by the Township Committee at a special meeting on March 31, 1982 as set forth in the minutes of the special meeting on that date (J-9). 13. At a special meeting of the Township Committee on May 24, 1982 a resolution was adopted, which adopted the 1982 municipal budget that was approved by the Division of Local Government Services of the State of New Jersey (J-10). THE ISSUES 1. Did the Respondent violate Subsections (a)(1) and (5) of the Act when it failed to make payment of contractual salary increases to members of the PBA collective negotiations unit on or shortly after January 1, 1982, and further, failed to provide for the contractual prescription plan together with increased payments for longevity and overtime since that date as mandated by the collective negotiations agreement between the parties? 2. Did the Respondent violate Subsections (a)(1) and (4) of the Act4/ when on July 1, 1982 the Mayor advised the President of the PBA that because of the filing by the PBA of an Unfair Practice Charge on June 30, 1982 the Respondent would not issue retroactive salary checks to members of the PBA unit? DISCUSSION AND ANALYSIS The Respondent Violated Subsections (a)(1) And (5) Of The Act When It Failed To Make Payment On Or Shortly After January 1, 1982 Of The Wages And Benefits Provided For In The Collective Negotiations Agreement Between The Parties It is well settled that a public employer may not make a unilateral change in the terms and conditions of employment of public employees during the term of a collective negotiations agreement: Galloway Township Board of Education v. Galloway Township Education Association, 78 N.J. 25, 48 (1978), citing NLRB v. Katz, 369 U.S. 736-47 (1962). Plainly, the wages and benefits herein involved constitute terms and conditions of employment, as to which any change would involve mandatory negotiations: Englewood Board of Education v. Englewood Teachers Association, 64 N.J. 1, 6 (1973). The Supreme Court of New Jersey has previously spoken on the obligation of a municipal employer to fund the obligations incurred as a result of statutory interest arbitration awards: City of Atlantic City v. Laezza, 80 N.J. 255, 267-270 (1979) and PBA Local 29 v. Town of Irvington, 80 N.J. 271, 296 (1979). It follows, in the opinion of the Hearing Examiner, that those obligations incurred by a municipality as a result of voluntary contract negotiations require the municipality to fund the agreement reached under the same constraints as if the agreement had been imposed by an interest arbitrator. The instant collective negotiations agreement (J-1) is a two-year agreement effective January 1, 1981 through December 31, 1982. There was apparently no problem in the implementation of J-1 for the year 1981. The Respondent was clearly on notice that it had an additional funding obligation under the agreement as of January 1, 1982. The Hearing Examiner finds and concludes that the Respondent was obligated to utilize all procedures available under N.J.S.A. 40A:4-1 et seq. in order to meet the contractual obligations mandated for the second year of the agreement, i.e., the fiscal and calendar year of 1982. The Charging Party correctly points out that under N.J.S.A. 40A:4-19 the Respondent had available to it a statutory procedure for funding the collective negotiations agreement on or shortly after January 1, 1982. This Subsection of Title 40A provides, in pertinent part, as follows: The governing body may and, if any contracts, commitments or payments are to be made prior to the adoption of the budget, shall, by resolution adopted prior to January 31 of the fiscal year, make appropriations to provide for the period between the beginning of the fiscal year and the adoption of the budget...5/ It appears clear to the Hearing Examiner that, since the Respondent had a contractual commitment as of January 1, 1982 to make payment of an additional salary increase to the members of the unit represented by the PBA together with the initiation of a prescription plan, N.J.S.A. 40A:4-19 should have been invoked. Thus, a resolution could have been adopted prior to January 31, 1982 appropriating such money as necessary to provide for the period from January 1, 1982 until the adoption of the 1982 municipal budget. It is true that prior agreements with the PBA had been of only one year duration. Nevertheless, as the Charging Party points out, multi-year contracts are commonplace in the municipal context. See Fereday & Meyer Co., Inc. v. Elizabeth Board of Public Works, 27 N.J. 218, 226 (1958). Thus, it was within the power and authority of the Respondent to fund the second year of J-1 in January 1982. The Local Budget Law, supra, provides that it can be done by resolution prior to January 31st. Accordingly, the Hearing Examiner finds and concludes that the Township violated Subsections (a)(1) and (5) of the Act by unilaterally changing terms and conditions of employment by not funding the second year of J-1 on or before January 31, 1982.6/ The Respondent Violated Subsections (a)(1) And (4) Of The Act When On July 1, 1982 The Mayor Advised The President Of The PBA That Because Of The Filing By The PBA Of An Unfair Practice Charge On June 30, 1982 The Township Would Not Issue Retroactive Salary checks To Members Of The PBA Unit The Commission has issued only one decision involving an alleged violation of Subsection (a)(4) of the Act, namely, Randolph Township Board of Education, P.E.R.C. No. 82-119, 8 NJPER 365 (1982); appeal pending, App. Div. Docket No. A-5077- 81T2 where a violation was found. The Commission in that case drew heavily on NLRB precedent (See 8 NJPER at 367). It is plain as a pikestaff to the instant Hearing Examiner that the Respondent violated Subsection (a)(4) of the Act when its Mayor on July 1, 1982 sent a letter to the PBA President advising him that because of the filing by the PBA of an Unfair Practice Charge the Township solicitor had advised the Township not to issue retroactive salary checks to members of the PBA unit (J-7). Not only did the Mayor make this statement in writing, but on the same day, July 1, 1982, the Township issued retroactive salary checks to superior officers of the Township = s Police Department and to two non-PBA members in the collective negotiations unit. Thus, the Township = s conduct was unmistakably illegal, in that it discriminated against PBA unit members for filing a A petition or complaint @ under the Act. The Hearing Examiner therefore concludes that the Township violated Subsections (a)(1) and (4) of the Act by the foregoing conduct on July 1, 1982. * * * Upon the entire record in this case, the Hearing Examiner makes the following: CONCLUSIONS OF LAW 1. The Respondent Township violated N.J.S.A. 34:13A- 5.4(a)(5), and derivatively 5.4(a)(1), when it failed in January 1982 to appropriate the necessary funds to make the payments due under the 1981-82 collective negotiations agreement. 2. The Respondent Township violated N.J.S.A. 34:13A- 5.4(a)(4), and derivatively 5.4(a)(1), when its Mayor on July 1, 1982 advised the President of the PBA that because of the filing of an Unfair Practice Charge on June 30, 1982 the Township would not issue retroactive salary checks to members of the PBA unit. RECOMMENDED ORDER The Hearing Examiner recommends that the Commission ORDER: A. That the Respondent cease and desist from: 1. Interfering with, restraining or coercing its employees in the exercise of the rights guaranteed to them by the Act, particularly, by failing to appropriate the funds necessary to make the payments due under the PBA = s collective negotiations agreement on and after January 1, 1982 or by withholding the issuance of retroactive salary checks to PBA unit members on and after July 1, 1982 because of the filing of an Unfair Practice Charge by the PBA on June 30, 1982. 2. Discriminating against employees because of the signing or filing of an affidavit, petition or complaint under the Act, particularly, by refusing to make payment of retroactive salary checks to members of the PBA unit on and after July 1, 1982 because of the filing of an Unfair Practice Charge by the PBA on June 30, 1982. 3. Refusing to negotiate in good faith with the PBA concerning the terms and conditions of employment of PBA unit members, particularly, by failing to appropriate the funds necessary to make the payments due under the PBA = s collective negotiations agreement on and after January 1, 1982. B. That the Respondent take the following affirmative action: 1. Forthwith make payment to all affected PBA unit members of interest from January 1, 1982 to July 15, 1982 at the rate of 12% per annum on the gross amount of the retroactive salary checks issued on or about July 15, 1982.7/ 2. Post in all places where notices to employees are customarily posted, copies of the attached notice marked as Appendix A 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 by the Respondent to insure that such notices are not altered, defaced or covered by other materials. 3. Notify the Chairman of the Commission within twenty (20) days of receipt what steps the Respondent has taken to comply herewith. C. That the Subsection (a)(2), (3), (6) and (7) allegations in the Complaint be dismissed in their entirety. /s/Alan R. Howe Hearing Examiner DATED: March 16, 1983 Trenton, New Jersey WE WILL NOT interfere with, restrain or coerce our employees in the exercise of the rights guaranteed to them by the Act, particularly, by failing to appropriate the funds necessary to make the payments due under the PBA = s collective negotiations agreement on and after January 1, 1982 or by withholding the issuance of retroactive salary checks to PBA unit members on and after July 1, 1982 because of the filing of an Unfair Practice Charge by the PBA on June 30, 1982. WE WILL NOT discriminate against our employees because of the signing or filing of an affidavit, petition or complaint under the Act, particularly, by refusing to make payment of retroactive salary checks to members of the PBA unit on and after July 1, 1982 because of the filing of an Unfair Practice Charge by the PBA on June 30, 1982. WE WILL NOT refuse to negotiate in good faith with the PBA concerning the terms and conditions of employment of PBA unit members, particularly, by failing to appropriate the funds necessary to make the payments due under the PBA = s collective negotiations agreement on and after January 1, 1982. WE WILL forthwith make payment to all affected PBA unit members of interest from January 1, 1982 to July 15, 1982 at the rate of 12% per annum on the gross amount of the retroactive salary checks issued on or about July 15, 1982. 1/ These Subsections prohibit public employers, their representatives or agents from: A (1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this Act. (2) Dominating or interfering with the formation, existence or administration of any employee organization. (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. (4) Discharging or otherwise discriminating against any employee because he has signed or filed an affidavit, petition or complaint or given any information or testimony under 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. (6) Refusing to reduce a negotiated agreement to writing and to sign such agreement. (7) Violating any of the rules and regulations established by the commission. @ 2/ Under date of June 17, 1982 counsel for the PBA advised the Township of his representation and protested the failure of the Township to A implement @ the collective negotiations agreement (J-3). Thereafter, correspondence ensued between the parties up to the date of the filing of the original Unfair Practice Charge on June 30, 1982 (J-3 through J-6). 3/ The Township had on July 1, 1982 adopted Ordinance No. 82- 205, which was introduced on June 17, 1982, and which provided for the annual salaries of Township employees, including members of the PBA, for the year 1982 (J-11). 4/ The stipulated record does not, in the opinion of the Hearing Examiner, support the allegations in the Unfair Practice charge, as amended, that the Respondent violated Subsections (a)(2), (3), (6) and (7) of the Act. In particular, with respect to Subsection (a)(3), there is not involved herein the exercise by any employee in the unit of protected activity, as to which the Township was motivated to withhold contractual benefits: Compare East Orange Public Library v. Taliaferro, 180 N.J. Super. 155 (App. Div. 1981) and Commercial Township Board of Education, P.E.R.C. No. 83-25, 8 NJPER 550 (1982), appeal pending App. Div. Docket No. A-1642-82T2. Accordingly, the Hearing Examiner will recommend dismissal of the foregoing allegations in the Unfair Practice Charge, as amended. 5/ The Hearing Examiner need not consider the provision of N.J.S.A. 40A:4-20, which provides the mechanism for emergency appropriations, since plainly the funding of the agreement for the year 1982 did not involve an A emergency. @ 6/ The Hearing Examiner will recommend the payment of interest on the gross amount of the retroactive salary checks issued to PBA members for the period January 1, 1982 through July 15, 1982, the latter date being the date on which the checks were issued. 7/ See Salem County Board for Vocational Education v. McGonigle, P.E.R.C. No. 79-99, 5 NJPER 239 (1979), aff = d. in part and remanded App. Div. A-3417-78 (1980) and Bd. of Ed. of Borough of Oakland, P.E.R.C. No. 82-125, 8 NJPER 378 (1982), appeal pending App. Div. Docket No. A-4975-81T3. Docket No. Manchester Township (Public Employer) Date: By: This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced or covered by any other material. If employees have any question concerning this Notice or compliance with its provisions, they may communicate directly with the Public Employment Relations Commission, 495 West State Street, PO Box 429, Trenton, NJ 08625-0429 (609) 984-7372 APPENDIX A A @ ***** End of HE 83-29 *****