H.E. NO. 84-5

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

BOROUGH OF SOMERVILLE,

Respondent,

-and-	Docket No. CO-83-137-70

SOMERVILLE BOROUGH PBA LOCAL 147,

Charging Party.

Appearances:

For the Borough of Somerville

Whipple, Ross & Hirsh, Esqs.

(Joseph P. Donohue, Esq.)

For the Charging Party

Arlyne K. Liebeskind, Consultant

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the "Commission") on November 30, 1982 by the Somerville Borough PBA Local 147 (hereinafter the "Charging Party" or the "PBA") alleging that the Borough of Somerville (hereinafter the "Respondent" or the "Borough") has 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 "Act"), in that the Respondent, after reaching a collective negotiations agreement with the Charging Party, unilaterally adopted a resolution on October 18, 1982, which denied retroactive salary payments to any employee who was voluntarily or involuntarily terminated prior to the date that retroactive salary checks were approved, but the said resolution excluded employees who retire, die or resign due to a job-related disability, which resulted in the non-payment of retroactive salary to two employees in the PBA unit who voluntarily resigned in August and September 1982, all of which is alleged to be a violation of N.J.S.A. 34:13A-5.4(a)(1) and (5) of the Act.1/

It appearing that the allegations of the Unfair Practice Charge, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on March 3, 1983. Pursuant to the Complaint and Notice of Hearing, a hearing was held on June 20, 1983 in Newark, New Jersey, at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. Oral argument was waived and the parties filed post-hearing briefs by July 11, 1983.

An Unfair Practice Charge 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.	The Borough of Somerville is a public employer within the meaning of the Act, as amended, and is subject to its provisions.

2.	The Sommerville Borough PBA Local 147 is a public employee representative within the meaning of the Act, as amended, and is subject to its provisions.

3.	The PBA's first collective negotiations agreement covered the year 1979. It was followed by a successor agreement for the year 1980 and 1981 (J-1). The 1982 agreement resulted from mediated interest arbitration and is reflected in an addendum to J-1 (J-2). Both J-1 and J-2 provide under "Salaries," that "all officers" shall receive the negotiated salary increase on a retroactive basis. (J-1, p. 4, 16; J-2, para. 2).

4.	Until the implementation of the 1982 addendum in October of that year only one member of the PBA unit had ever been denied retroactive salary payment.2/

5.	Effective May 1, 1982 Lieutenant Allan Van Horn, a member of the PBA unit, retired and after the settlement of the 1982 agreement (J-2) he received retroactive salary payment (CP-
2).

6.	Kenneth Medwick voluntarily resigned on August 27, 1982 and Robert Skove voluntarily resigned on September 17, 1982. Neither received retroactive salary payment which, if it had been paid, would have amounted to $1,323.65 for Medwick and $1,398.21 for Skove.

7.	The collective negotiations settlement, which occurred through the interest arbitration process, was consummated on September 13, 1982. Thereafter the settlement was ratified by the parties and the salary ordinance for the members of the PBA unit was adopted on November 15, 1982.

8.	Prior to the adoption of the salary ordinance for the Police Department, supra, the Borough adopted a resolution on October 18, 1982, which provided that any employee who either voluntarily or involuntarily terminated prior to the time that retroactive salary checks were approved would not receive a retroactive salary check. The resolution exempted employees who retire, die or resign because of a job-related disability (J-3).

9.	Robert N. Del Vecchio, the President of the PBA, testified without contradiction that in October 1982, prior to the adoption of J-3, supra, he had a conversation with James Sutphen, a Borough Councilman, wherein Sutphen stated that the pending resolution had nothing to do with the PBA or the Police Department, indicating that it was only to apply to seasonal or part-time employees such as in the Department of Public Works.

10.	Robert Skove, who was a member of the PBA negotiating committee in 1982,3/ testified without contradiction that on or about September 1, 1982 he went to the Borough Hall and was informed that the Borough was in the process of adopting a resolution that may or may not affect him. On the same date he spoke to the Borough Clerk-Administrator, Ralph D. Sternadori, and the Mayor, George Guristic, both of whom explained the proposed resolution and told Skove that it was designed for part-
time seasonal employees and that he, Skove, would receive his retroactive salary check.4/ On the same day, or the next day, Skove also spoke to Councilman Sutphen, who reassured Skove that he would receive his retroactive salary check.

11.	Neither Medwick nor Skove received a retroactive salary check after the adoption of the ordinance for the Police Department on November 15, 1982, supra.

THE ISSUE

Did the Respondent violate Subsections (a)(1) and (5) of the Act when it unilaterally and without negotiations with the PBA adopted a resolution on October 18, 1982, which mandated that those individuals who have voluntarily or involuntarily terminated their employment prior to the issuance of "retro-
checks" should not receive same?

DISCUSSION AND ANALYSIS

The Respondent Did Not Violate The

Act By Adopting A Resolution On

October 18, 1982 Regarding "Retro-

Checks" Since The Resolution Merely

Memorialized A Long-Standing Past

Practice Of Which The PBA Had Or

Should Of Had Knowledge

But for the introduction in evidence of Exhibits CP-3, R-1 and R-2 the Hearing Examiner might well have concluded that when the Respondent adopted the resolution of October 18, 1982 it violated the Act by having acted unilaterally and having failed to negotiate with respect to a term and condition of employment, namely, the eligibility of recently separated employees to receive retroactive salary checks after the consummation of a successor collective negotiations agreement. However, an examination of Exhibits R-1 and R-2, together with CP-3, indicates clearly that there has been a longstanding past practice, dating back to 1977, of non-payment of retroactive salary checks to individuals who have voluntarily or involuntarily terminated their employment with the Respondent prior to the adoption of the annual salary ordinance.

Although only one PBA unit member appears among the employees listed on R-1, this employee, George Malast, who terminated on February 13, 1979, was not paid retroactive salary in the year 1979 and, by his own admission, did not pursue the matter with the PBA. The Hearing Examiner finds that the PBA either knew or should have known of the fact that Malast did not receive a retroactive salary check as a direct result of his having terminated prior to the adoption of the annual salary ordinance.

In the context of the foregoing facts, the October 18, 1982 resolution by the Borough merely memorialized a longstanding practice and, thus, did not change unilaterally a term and condition of employment. In support of this conclusion the Hearing Examiner observes that past practice and custom are relevant and controlling where the collective negotiations history indicates that an ambiguity exists as a result of the provisions of the agreements or by implication or silence: Kearny PBA Local 21 v. Town of Kearny, 81 N.J. 208, 221 (1979) and Sayreville Education Association v. Sayreville Board of Education, App. Div. Docket No. A-373-80T4 (1981). As the Court said in Sayreville:

"...the past practices and customs of the local Board of Education regarding reimbursement for materials purchased during a professional workshop day were just as much a part of the collective bargaining agreement as if specifically expressed therein..." (Slip, p. 5).

See also, New Brunswick Board of Education, P.E.R.C. No. 78-
47, 4 NJPER 84, 85 (1978), aff'd. App. Div. Docket No. A-2450-77 (1979) and Sayreville Board of Education, P.E.R.C. No. 83-105, 9 NJPER 138, 140 (1983).

The Hearing Examiner is persuaded that the phrase "all officers" in both J-1 and J-2 is ambiguous as to the question of whether or not Medwick and Skove are within the orbit of coverage. Thus, resort to past practice is both proper and relevant. As found above, CP-3, R-1 and R-2 support the conclusion that the past practice in collective negotiations between the Respondent and the PBA has been that individuals who terminate before the issuance of retroactive salary checks are not within the orbit of eligibility.

Finally, the Hearing Examiner does not find probative the uncontradicted testimony of Del Vecchio and Skove regarding conversations with Mayor Guristic, Councilman Sutphen and Clerk-
Administrator Sternadori in the fall of 1982 since the statements attributed to them were made on an informal basis and cannot be binding upon the Borough. It is the formal actions of the Mayor and Council in adopting ordinances and resolutions that constitute binding and legal actions of the Borough, as to which they are accountable. The resolution of October 18, 1982 (J-3) represents the action of the Borough with respect to the issuance of "retro-checks" and allows of no exception as to Skove.

Accordingly, the Hearing Examiner will recommend dismissal of the allegations that the Respondent violated Subsections (a)(1) and (5) of the Act by its adoption of the resolution of October 18, 1982.

* * *

Upon the foregoing, and upon the entire record in this case, the Hearing Examiner makes the following:

CONCLUSION OF LAW

The Respondent did not violate N.J.S.A. 34:13A-5.4(a)(1) and (5) when it adopted a resolution on October 18, 1982, the effect of which was to deny retroactive salary payments to Kenneth Medwick and Robert Skove.

RECOMMENDED ORDER

The Hearing Examiner recommends that the Commission ORDER that the Complaint be dismissed in its entirety.

/s/Alan R. Howe

Hearing Examiner

DATED:	July 18, 1983

Trenton, New Jersey