H.E. NO. 80-49 1.
H.E. NO. 80-49
STATE OF NEW JERSEY
BEFORE A HEARING EXAMINER OF THE
PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the Matter of
TOWN OF KEARNY,
Respondent,
-and- Docket No. CO-79-289-37
KEARNY PBA LOCAL 21,
Charging Party.
Appearances:
For the Town of Kearny,
Cifelli & Davie, Esqs.
(Kenneth P. Davie, Esq.)
For Kearny PBA Local 21,
Schneider, Cohen & Solomon, Esqs.
(David Solomon, Esq.)
HEARING EXAMINER = S REPORT
AND RECOMMENDED DECISION
An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the A Commission @ ) on April 23, 1979 by Kearny PBA Local 21 (hereinafter the A Charging Party @ or the A PBA @ ) alleging that the Town of Kearny (hereinafter the A Respondent @ or the A Town @ ) 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: (1) on February 6, 1979 unilaterally changed the terms and conditions of employment of the members of the unit represented by the PBA by ordering a change in jackets that must be worn by the members and by ordering that the members must purchase the said jackets at considerable personal expense; (2) on February 15, 1979 informed the members of the unit represented by the PBA that the Respondent had unilaterally adopted a completely new set of rules and regulations, many of which intimately and directly affected and changed the terms and conditions of employment of the unit members; and (3) on April 1, 1979 unilaterally changed the terms and conditions of employment of the members of the unit represented by the PBA by ordering the members to wear name tags, which were purchased by the Respondent, and then by ordering the members to pay for the said name tags; 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 November 28, 1979. Pursuant to the Complaint and Notice of Hearing, hearings were held on February 26 and May 6, 1980 2/ in Newark, New Jersey, at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. Both parties filed post-hearing briefs by June 3, 1980.
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 this entire record, the Hearing Examiner makes the following:
FINDINGS OF FACT
1. The Town of Kearny is a public employer within the meaning of the Act, as amended, and is subject to its provisions.
2. The Kearny PBA Local 21 is a public employee representative within the meaning of the Act, as amended, and is subject to its provisions.
3. The most recent written collective negotiations agreement between the parties was that which was effective during the term January 1, 1976 through December 31, 1978 (J-1). 3/
4. An interest arbitration award was made for the calendar year 1979, but it is currently the subject of litigation between the parties (1 Tr. 7, 8). Also, the interest arbitration award covered Patrolmen only (1 Tr. 10, 11). 4/
5. Article VII, A Management of Town Affairs, @ which was not modified or changed by the 1979 interest arbitration award (1 Tr. 8), provides as follows:
A The Union recognizes that areas of responsibility must be reserved to the Employer of the local government as to serve the public effectively. Therefore, the right to manage the affairs of the Town and to direct the working forces and operations of the Town, subject to the limitations of this agreement, is vested in and retained by the Employer exclusively. @ (J-1, p.9).
6. Article XVIII, A Clothing Allowance, @ provides as follows:
A A clothing allowance in the amount of $325.00 shall be paid annually for the years 1976, 1977 and 1978 by the Town of Kearny to all employees covered by this Agreement. @ (J- 1, p.19).5/
7. Under date of December 4, 1978 the Chief of Police, Chester S. Potter, issued a directive to A all personnel, @ which advised that a moratorium had been declared on the purchase of leather jackets since the Police Department @ ...is presently considering a change to a nylon type of winter coat... @ (J-2).
8. Under date of February 6, 1979 Chief of Police Potter issued another directive to A all personnel, @ which advised that the A leather uniform winter coat is being phased out @ and that A a short nylon winter jacket has been selected to replace the leather coat @ and, finally, that all personnel are to A purchase the new type jacket as soon as possible @ (J-3). It was stipulated that this directive was to be implemented by September 1, 1979 and that the price of the new nylon jacket was $69.95 (1 Tr. 16). 6/
9. Also, under date of February 6, 1979 Chief of Police Potter issued a directive to all A commanding officers, @ which advised that the Police Department had purchased copies of the Department = s new rules and regulations and that each member of the Department was to be issued a copy (CP-2). Thereafter, each member of the Department who received a copy of the booklet signed a sheet so indicating (see attachments to CP-2).
10. The booklet containing the rules and regulations, supra , was received in evidence as Exhibit J-5. The booklet indicates that the said rules and regulations were issued pursuant to an Ordinance adopted on September 13, 1978 (J-5, p. 39). Pursuant to law, the said Ordinance was adopted after publication in the Kearny Observer, a weekly newspaper of general circulation (2 Tr. 7). 7/
11. Under date of February 21, 1979 counsel for the Charging Party sent a letter to the attorney for the Town, Norman Doyle, Esq., requesting copies of the newspaper advertisements notifying the public in connection with the adoption of the aforesaid Ordinance on the new Police Department rules and regulations (CP-3A). On March 14, 1979 Doyle responded by sending a letter to counsel for the Charging Party, in which Doyle advised that he was evidently in error in having indicated to counsel for the Charging Party in February 1979 that the said Ordinance had not at that time been adopted (CP-4 and 2 Tr. 5).
12. Under date of April 9, 1979 Chief of Police Potter issued a A General Order, @ which advised that effective April 13, 1979 the wearing of a name tag would be mandatory. Further, Chief Potter stated that in order to insure uniformity, the name tags were being secured for all members of the Department at a cost of $4.00 each, but the payment need not be made A ...until May 4, 1979 when the clothing allowance checks are issued. @ (J- 4).
13. The PBA was not formally given notice by the Town of any of the actions of the Town with respect to the nylon jackets, the name tags or the new rules and regulations, nor did the Town offer to negotiate with the PBA on these matters. The PBA did, however, formally protest the change in jackets and threatened to file a charge of unfair practices with respect thereto (CP-1, supra).
THE ISSUE
Did the Respondent Town violate the Act when, without notice to or negotiations with the PBA, it unilaterally: (1) changed the jackets worn by members of the PBA and required the said members to make payment therefor; (2) required the wearing of name tags by members of the PBA and also required payment therefor; and (3) adopted new rules and regulations? DISCUSSION AND ANALYSIS The Town did not violate the Act when, without notice to or negotiations with the PBA, It unilaterally changed the jackets and required the wearing of name tags by members of the PBA and required them to make payment therefor.
The Charging Party, citing City of Trenton, P.E.R.C. No. 79- 56, 5 NJPER 112 (1979), contends that the determination of police uniforms is a permissive subject of negotiations, and that the effect or impact or proposed changes in police uniforms is a mandatorily negotiable term and condition of employment. The Charging Party makes clear that it is not complaining about the uniform change itself, in fact indicating that the change is A beneficial, @ but the Charging Party complains that the unilateral change in uniform diminishes A ...the monies received by the members pursuant to the collective bargaining agreement. @ The Charging Party asks that the Town be required to negotiate regarding the purchase of new uniforms during the next round of collective negotiations and that the Town be prohibited from imposing this additional expense upon unit members during the existence of the current agreement. 8/
The Town argues that the entire matter of the change of jackets and the requirement of name tags is the exercise by it of a managerial prerogative as to which negotiations are not required, it being an illegal subject. 9/ The Town points to the fact that the members of the PBA were not required to make payment for the jackets and name tags until the clothing allowance checks were issued in May 1979 and, additionally, it points out that the PBA members are not required to return any unused clothing allowance monies to the Town.
The Hearing Examiner finds and concludes that the Town did not violate the Act when it made the decision to change the jacket from leather to nylon without notice to or negotiations with the PBA, and further required that the cost of $69.95 per jacket be financed from each members = clothing allowance. The same finding and conclusion applies to the name tags, which cost $4.00 each.
In so finding and concluding, the Hearing Examiner has taken cognizance of the annual clothing allowance provided for in the agreement, which was $425.00 for Patrolmen in 1979 and presumably was $325.00 for Superior Officers in 1979 since the latter were not the subject of the interest arbitration award. 10/ It seems eminently reasonable to require that a total expenditure of $73.95 be charged against the annual clothing allowance, especially under the circumstances of payment not having had to be made until the clothing allowance checks were received in May 1979. Further, the expenditure of $73.95 did not significantly deplete the annual clothing allowance for that year. In other words, the Hearing Examiner is persuaded that although the decision on jackets and name tags had an economic impact , which would ordinarily be subject to mandatory negotiations, a negotiations obligation is obviated herein by the provision in the agreement for a clothing allowance, which was not significantly depleted for the year 1979 by the expense involved herein.
Since the matter of police uniforms is a permissive subject of negotiations under City of Trenton, supra , the PBA is free to negotiate the matter of the clothing allowance in its next round of collective negotiations in order to offset the 1979 expense for jackets and name tags. This seems an adequate remedy as to any impact which may have resulted from the Town = s decision on uniforms in 1979.
Thus, the Hearing Examiner will recommend dismissal as to the jacket and name tag aspects of the charge of unfair practices.
The Town did not violate the Act when, without notice to or negotiations with the PBA, it unilaterally adopted new rules and regulations.
The Charging Party argues that since the rules and regulations that the Town adopted by ordinance on September 13, 1978 contained such provisions as bereavement leave, sick leave and police officer safety, the rules and regulations involved terms and conditions of employment, which are mandatorily negotiable. 11/
The Town contends that both the decision to promulgate new rules and regulations and the content of any such rules and regulations constitute the exercise of a managerial prerogative, which is beyond the pale of collective negotiations since it is an illegal subject, citing Ridgefield Park, supra , and other related decisions of the courts. Additionally, the Town contends that the Charging Party is time-barred under Section 5.4(c) of the Act inasmuch as the Unfair Practice Charge was not filed until April 23, 1979 while the rules and regulations were adopted by ordinance on September 13, 1978, i.e., the charge was filed more than six months after the adoption of the ordinance. 12/
The Hearing Examiner finds and concludes that the six-month limitation defense is valid and controlling in the disposition of this aspect of the Complaint. The Unfair Practice Charge was not filed until seven months and 10 days after the adoption of the ordinance on September 13, 1978. The PBA clearly had actual or constructive notice of the adoption of the ordinance by virtue of its having been advertised in the Kearny A Observer, @ a weekly newspaper of general circulation, and by the fact that the ordinance was physically posted in the Town Hall. Further, the printed booklets were distributed to the members of the PBA on February 6, 1979, which constituted actual notice to each member of the PBA. If a charge had been filed immediately after the distribution of the booklets it would have been well within the six-month limitation requirement of Section 5.4(c) of the Act. There is no evidence whatever that the Charging Party was A prevented @ from filing a timely charge within the meaning of Section 5.4(c), and since no A equitable considerations @ 13/ exist there is, thus, no reason to excuse the imposition of the six month limitation.
Therefore, the Hearing Examiner must dismiss the rules and regulations aspect of the Complaint since it is time-barred under the six-month limitation provision of Section 5.4(c) of the Act.
* * * *
Based upon the foregoing, and the entire record in this case, the Hearing Examiner makes the following:
CONCLUSIONS OF LAW
The Respondent Town did not violate N.J.S.A . 34:13A- 5.4(a)(1) and (5) when it unilaterally, without notice to or negotiations with the PBA, changed the jackets and required the wearing of name tags by members of the PBA and also required them to make payment therefor from the annual clothing allowance and, further, adopted new rules and regulations more than six months prior to the filing of the Unfair Practice Charge. RECOMMENDED ORDER It is hereby ORDERED that the Complaint be dismissed in its entirety.
________________________________
Alan R. Howe
Hearing Examiner
Dated: June 4, 1980
Trenton, New Jersey
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. (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. @
2/ The hearing was originally scheduled for December 26 and 27, 1979, but was rescheduled at the request of counsel for the Respondent and, due to a conflict in the schedules of all parties, including the Hearing Examiner, the first mutually agreeable date was February 26, 1980. The hearing was essentially concluded on this date but, due to a problem with certain post-hearing exhibits, counsel for the Charging Party requested by letter dated March 21, 1980 that the record by reopened and the first mutually date thereafter was May 6, 1980 when the hearing was concluded and the record closed.
3/ It was stipulated that Article I, Section 2 of this agreement, which defines the scope of recognition, covers all Patrolmen, Sergeants and Lieutenants (1 Tr. 6).
4/ The apparent reason for limiting the interest arbitration to Patrolmen only is the pendency before the Commission of a Unit Clarification Petition, which was filed by the Town with respect to the Superior Officers (1 Tr. 6,7,10,11).
5/ This provision was modified by the 1979 interest arbitration award for Patrolmen only in that the amount of the allowance was increased from $325.00 to $425.00 (1 Tr.8-10).
6/ This directive was challenged as a violation of the Act in a letter dated February 21, 1979 from counsel for the Charging Party to counsel for the Respondent (CP-1).
7/ Ordinances are also posted on a bulletin board in the Town Hall (2 Tr. 7).
8/ It is noted that the Charging Party makes the same argument with respect to name tags as it does with respect to the jackets, i.e., the Charging Party = s concern about the expense of both items being charged to the clothing allowance under the agreement (see Charging Party = s Brief, pp. 5, 6).
9/ The Town cites Ridgefield Park Education Association v. Ridgefield Park Board of Education , 78 N.J. 144, 156, 163 (1978) and related court cases (see Town = s Brief, pp. 4-8).
10/ See Findings of Fact Nos. 4 and 6, supra.
11/ The Charging Party cites Section 5.3 of the Act, which provides, in part, that: A ...Proposed new rules or modifications of existing rules governing working conditions shall be negotiated with the majority representative before they are established... @
12/ The Charging Party counters, with respect to the six-month limitation defense, that the printed booklets were not distributed to the members of the PBA until February 6, 1979 and that the attorney for the Town indicated in February 1979 that he was unaware that the ordinance in question has been adopted (see Finding of Fact Nos. 10 and 11, supra).
13/ For a discussion of A equitable considerations @ see Kaczmarek v. New Jersey Turnpike Authority, 77 N.J . 329, 337, 338, 340 (1978).
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