H.E. NO. 98-10

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

BOROUGH OF BOGOTA,

Public Employer/Respondent,

-and-	Docket Nos. CO-H-97-276

CE-H-97-19, CE-H-97-20

PBA LOCAL 86,

Employee Representative/Respondent.

Appearances:

For the Respondent/Charging Party - Borough

Dorf & Dorf, attorneys

(Gerald L. Dorf, of counsel

Sandro Polledri, on the brief)

For the Respondent/Charging Party - PBA

Loccke & Correia, attorneys

(Joseph Licata, of counsel)

HEARING EXAMINER'S REPORT

AND RECOMMENDED DECISION

On February 19, 1997, Bogota PBA Local 86 filed an unfair practice charge with the Public Employment Relations Commission alleging that the Borough of Bogota committed an unfair practice within the meaning of N.J.S.A. 34:13A-5.4(a)(1), (3), (5) and (7)1/ when, in January 1997, it created a civilian dispatcher

1/	These subsections 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

Footnote Continued on Next Page

position and announced that dispatching duties which have been performed exclusively by police officers would now be done by civilian dispatchers. The Borough refused to negotiate over this change in terms and conditions of employment.

The PBA also sought an interim order restraining the Borough from unilaterally transferring unit work while the parties were in interest arbitration for a successor agreement. As Commission Designee, I executed that order pending a final Commission decision in this matter. Borough of Bogota, I.R. No. 97-18, 23 NJPER 352 (¶28165 1997) motions for stay and leave to appeal denied App. Div. Dkt. No. AM-1171-96T5.

On May 8, 1997, the Borough filed two unfair practice charges against the PBA. Each alleges that the PBA violated §5.4(b)(3) of the Act.2/ CE-97-19 alleges that the PBA refused to negotiate a health benefit proposal, and CE-97-20 alleges that the

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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."

2/	This subsection prohibits employee organizations, their representatives or agents from: "(3) Refusing to negotiate in good faith with a public employer, if they are the majority representative of employees in an appropriate unit concerning terms and conditions of employment of employees in that unit."

PBA refused to negotiate the use of civilian dispatchers. At the hearing (see below), CE-97-19 was deferred to the interest arbitration proceeding (T14). CE-97-20 specifically alleges that following the issuance of the interim relief order, the Borough wrote to the interest arbitrator expressing its willingness to negotiate over the transfer of dispatcher work to civilians. The PBA objected to the submission of this issue to the interest arbitrator since it was not included in the original submissions to the arbitrator. The interest arbitrator found that the civilian dispatcher issue was not timely raised and would not consider that issue in his decision (T14).

On May 19, 1997, a complaint and notice of hearing and an order consolidating cases was issued. A hearing was conducted on May 28, 1997. Both parties filed briefs by August 4, 1997.

FINDINGS OF FACT

1. The Bogota police force consists of 12 patrolmen, 3 sergeants, 2 lieutenants, 1 captain and a chief of police. PBA Local 86 represents all patrolmen, sergeants and lieutenants in the police force.

2. For over twenty years (T107), all police, fire and ambulance dispatching in the Borough has been performed by members of the police department. Sergeants and lieutenants regularly perform dispatch duties. The captain may do dispatch work once or twice a month.

3. On January 4, 1997, the Borough Mayor and Council adopted an ordinance creating the position of civilian dispatcher and on January 30, 1997 the ordinance passed on the second reading.

4. Juan Dominguez, Chair of the Police Committee since 1994, testified that using civilian dispatchers would get superior officers out on the street and thereby improve supervision, and provide an additional officer to be deployed as needed sixty or seventy percent of the time. It would also reduce the cost of overtime. At the interim relief proceeding, however, the Borough took the position that the ordinance was enacted for reasons of economy. According to the Certification of Dominguez,3/ the Borough has reduced the size of its department of public works by 50% by privatizing certain functions and restructuring its operation. Nevertheless, in early 1996, the Borough faced a financial short-fall of $107,900 and further it anticipated that State aid would be reduced by approximately $102,000 during that year. In light of this shortfall, the Mayor and Council waived their salaries for 1996 and 1997; the position of Borough Administrator was reduced from full-time to part-time; the planning board and board of adjustment were abolished and a joint planning/zoning board was established; the position of secretary to the building department/planning board was reduced from full to part-time and the Borough subcontracted work formerly done by an

3/	This certification was made part of the record (T115-T118).

accounts payable clerk and two custodians. These actions resulted in a savings of $375,000 in two years.

The average salary rate paid to Borough police officers is about $26.00 per hour. The Council found it could hire civilian employees to perform the same dispatch duties at a salary of approximately $8.50 per hour. There are times when officers were assigned dispatch duty while they are on overtime. Then, the rate is about $39.00 per hour.

Dominguez' Certification concludes, the implementation of a civilian dispatch unit would put more officers "on the street" at the same time the Borough would realize an over-all cost savings through the reduction of over-time costs.

A day or two after Local 86 filed its unfair practice charge (February 19, 1997), Police Commission Dominguez called Sergeant Zelinsky, who is on Local 86's negotiating committee, at home. Dominguez was upset that the charge was filed and talked of the economic condition of the Borough and its tax base. Dominguez stated that Local 86's acts would prevent the Borough from saving money since the use of civilian dispatchers would save taxpayers the cost of overtime (T99-T100). Zelinsky responded that even though the charge was filed, the Borough and PBA could still negotiate. However, Dominguez responded that "at this point, we'll continue to litigate the issue" (T101, T152).

Sometime after February 6, 1997, Chief of Police Gary P. Kohles informed Sergeant Zelinsky that the Borough was hiring

civilian dispatchers as a means of saving money (T63). This testimony was never rebutted by the Borough and I so credit it.

I don't question Dominguez testimony at the hearing that hiring civilian dispatchers will improve supervision and give the department greater flexibility in assigning staff. However, I find that those reasons were not what motivated the Borough. As made clear in Dominguez's certification and in his telephone conversation with Zelinsky, the Borough was looking for ways to save money and using civilian dispatchers would accomplish that. Although Dominguez did state in his affidavit that the use of civilian dispatchers would put more officers on the street, there is no mention of improving supervision or staffing flexibility in either his Certification or his telephone conversation with Zelinsky. Similarly, Chief Kohles' statement to Sergeant Zelinsky reveals the state of mind of the Borough. I find that the creation of a civilian dispatcher corps was motivated for reasons of economy.

5. The City never asked Local 86 to negotiate (T65) and declined Zelinsky's offer to Dominguez of February 19. Although the Borough made a reference to its willingness to discuss/negotiate this issue, their attorney's letter of April 15, 1997 was the first time the Borough formally sought to include this issue in the interest arbitration which took place on May 13, 1997 (T67).

6. The Borough dispatchers received 14,535 calls in 1996. This works out to 1.6 calls per hour.

7. The Borough offered no testimony in support of its charge that Local 86 refused to negotiate, other than its letter to the interest arbitrator of April 15, 1997. The letter was written subsequent to the issuance of the interim relief decision I.R. 97-18. It offers to discuss/negotiate the transfer of dispatch work from the police officers unit to a civilian dispatcher unit. As discussed above, the arbitrator ruled that the introduction of this issue into interest arbitration was untimely, and he would not consider it.

ANALYSIS

Transferring unit work is mandatorily negotiable. However, when there is a reorganization of functions, a transfer of unit work is a managerial prerogative and non-negotiable. See City of Jersey City, P.E.R.C. No. 96-89, 22 NJPER 251 (¶27131 1996), app. pending App. Div. Dkt. No. A-006290-95T2, S. Ct. 44,268.

Here, the Board did not attempt to reorganize the City's work force to insure the efficient delivery of governmental services. Rather, the Borough began a transfer of unit work to employees who can be hired at a lower cost. The nature of the work remains the same. Transfers of unit work purely to effect economic savings is not a reorganization. Jersey City. The City is required to negotiate with the PBA before it can take such unilateral action. Moreover, the announcement of such an intended action constitutes an unfair practice. Township of Riverside, P.E.R.C. No. 95-7, 20 NJPER 325 (¶25167 1994).

A unilateral change of a term and condition of employment during the pendency of interest arbitration constitutes a violation of N.J.S.A. 34:13A-21.

During the pendency of proceedings before the arbitrator, existing wages, hours and other conditions of employment shall not be changed by action of either party without the consent of the other, any change in or of the public employer or employee representative notwithstanding; but a party may so consent without prejudice to his rights or position under this supplementary act.

As to the Borough's charge that the PBA refused to negotiate the transfer of unit work. N.J.A.C. 19:16-5.7 requires the parties to submit their final offer in interest arbitration at least 10 days before the hearing. Although the rule grants discretion to the arbitrator to relax this notice requirement, the Borough has not demonstrated that the interest of justice required the interest arbitrator to exercise such discretion. The Borough's attempt to include the transfer of unit work was untimely. County of Middlesex, P.E.R.C. No. 97-63, 22 NJPER 17 (¶28016 1996).

Accordingly, I recommend the Commission find the Borough of Bogota committed an unfair practice when without negotiations it attempted to transfer dispatch work to civilians and it refused to negotiate over this issue.

I further recommend the Commission find PBA Local 86 did not commit an unfair practice when it objected to the Borough's attempt to include this issue into the interest arbitration hearing.

RECOMMENDED ORDER

I recommend the Commission ORDER:

A. That the Borough of Bogota:

1.	Cease and desist from transferring the dispatch duties currently being performed by members of the police department who are represented by PBA Local 86 to employees outside the unit without negotiating with PBA Local 86. If the Borough seeks to negotiate such a transfer of work, such negotiations will take place independently from the current interest arbitration proceeding.

2. 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.

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

B. The Borough's unfair practice complaint (CE-H-97-20) that PBA Local 86 refused to negotiate in good faith concerning the issue of transfer of unit work is dismissed.

Edmund G. Gerber

Hearing Examiner

Dated: September 15, 1997

Trenton, New Jersey

WE WILL cease and desist from transferring the dispatch duties currently being performed by members of the police department who are represented by PBA Local 86 to employees outside the unit without negotiating with PBA Local 86.