H.E. No. 84-6

Synopsis:

A Heariang Examiner recommends that the Public Employment Relations Commission find that the Respondent violated Subsection 5.4(a)(5) of the New Jersey Employer-Employee Relations Act when it refused to negotiate with the Charging Party regarding the Charging Party's contract language proposal for a "Replacements" clause, the purpose of which was to preserve unit work. The Commission and the courts have found in series of cases that identical language is mandatorily negotiable and does not constitute subcontracting within the meaning of IFPTE, Local 195 v. State of New Jersey, 88 N.J. 393 (1982). See, for example, County of Middlesex, P.E.R.C. No. 79-80, 5 NJPER 194 (1979), aff'd in part, rev'd. in part App. Div. Dkt. No. A-3564-78 (1980).

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 conclusion of law.

PERC Citation:

H.E. No. 84-6, 9 NJPER 506 (¶14207 1983)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

43.54 72.589

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- HE 84-006.pdf
Appellate Division:
Supreme Court:

H.E. NO. 84-6 1. H.E. NO. 84-6 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. 84-6 STATE OF NEW JERSEY BEFORE A HEARING EXAMINER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of BOROUGH OF ORADELL, Respondent, -and- Docket No. CO-83-87-71 SN-83-49 PBA LOCAL 206, Charging Party. Appearances: For the Borough of Oradell Grotta, Glassman & Hoffman, Esqs. (M. Joan Foster, Esq.) For PBA Local 206 Loccke & Correia, Esqs. (Richard D. Loccke, 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 October 7, 1982 by PBA Local 206 (hereinafter the A Charging Party @ or the A PBA @ ) alleging that the Borough of Oradell (hereinafter the A Respondent @ or the A Borough @ ) 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 on September 16, 1983 the Respondent refused to negotiate a A Replacements @ clause, which would prohibit the Respondent from replacing full-time police officers with non-police personnel, all of which is alleged to be a violation of N.J.S.A. 34:13A-5.4(a)(5) and (7) 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 14, 1983. The Complaint consolidated both the Unfair Practice Charge, supra, and a Petition for Scope of Negotiations Determination, the latter having been filed by the Respondent on December 20, 1982. Pursuant to the Complaint and Notice of Hearing, a hearing was held on June 13, 1982 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 8, 1983. An Unfair Practice Charge and a Petition for Scope of Negotiations Determination having been filed with the Commission, a question concerning alleged violations of the Act exists, and, after hearing, and after consideration of 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 Oradell is a public employer within the meaning of the Act, as amended, and is subject to its provisions. 2. PBA Local 206 is a public employee representative within the meaning of the Act, as amended, and is subject to its provisions. 3. On August 10, 1982 the PBA presented its proposals for a successor collective negotiations agreement to the Respondent, among which was the following proposal, A Replacements: @ A No full time employee covered by this Agreement shall be replaced by any non-police officer, part time or other personnel. No post presently filled by a full time employee covered by this Agreement shall be covered by any non-police officer, part time or other personnel. @ 4. At a negotiations meeting of the parties on September 16, 1982 the Respondent refused to negotiate with respect to the A Replacements @ proposal, supra, on the ground that it was a non- mandatory, illegal subject, i.e., a non-negotiable managerial prerogative. 5. The parties met again in collective negotiations on November 9, 1982 where no matters material to the instant Unfair Practice Charge were discussed. 6. After the filing of the instant Unfair Practice Charge on October 7, 1982 the Respondent filed its response on October 26. 7. On November 17, 1982 the Charging Party filed a Petition for Interest Arbitration and on December 7, 1982 the Commission appointed an Interest Arbitrator, J.J. Pierson, who scheduled a date for interest arbitration on January 13, 1983. 8. On December 20, 1982 the Respondent filed its Petition for Scope of Negotiations Determination. 9. The Charging Party rested on the forgoing essentially procedural findings of fact and the Respondent offered as its sole witness Chief of Police, William R. Ennis. 10. The Respondent = s Police Department consists of 22 employees, including the Chief, two of whom are Captains, five of whom are Sergeants and fourteen of whom are Patrolmen. The Borough is largely residential and the complement of the police force has essentially been the same for the past few years. 11. The Chief testified credibly that the impact of the A Replacements @ clause, supra, would occur in the event that there was a reduction-in-force and that he was required to dispense with his A traffic @ Patrolman, Rhynie Emmanuel. In the event of such a RIF, Emmanuel would have to be put back on patrol and, according to the Chief, his replacement would be a meter maid who would perform no police functions but would be involved solely in A traffic. @ Various police functions, presently being performed by Emmanuel, would not be performed by the meter maid and would have to be delegated to other members of the Police Department. 12. On cross-examination the Chief acknowledged that his basic philosophy was not to replace police officers with non- police personnel, except in the case of the traffic patrolman (Emmanuel) in the case of a reduction-in-force, supra. The Chief acknowledged that he did not see the A Replacements @ clause as going beyond the efforts of the PBA to protect unit work. DISCUSSION AND ANALYSIS The Respondent argues that there is something unique about the Borough of Oradell = s Police Department, which sets it apart from other Police Departments and law enforcement agencies in the State. Thus, Respondent contends that it does not have to negotiate with respect to the PBA = s proposed contract language denominated as A Replacements @ (see Finding of Fact No. 3, supra). Notwithstanding a series of decisions of the Commission and the courts to the contrary, the Respondent would have the Hearing Examiner distinguish these decisions and recommend dismissal of the Complaint. The Hearing Examiner finds nothing unique about Oradell = s Police Department. As the Commission and the courts have held before, the Hearing Examiner finds that the contract language sought in Finding of Fact No. 3, supra, is not the language of subcontracting but rather the language of preservation of unit work. The first case in which identical language was construed by the Commission is County of Middlesex, P.E.R.C. No. 79-80, 5 NJPER 194 (1979), aff = d. in part, rev = d. in part App. Div. Docket No. A-3564-78 (1980). There, the Appellate Division noted that the contract proposal dealt A ...with the subject of protecting unit work from encroachment by nonunit employees...(The proposal)...does not > in any way inhibit the County from exercising its managerial right to assign PBA members to various tasks within their function as correction officers or to assign other employees to noncorrectional duties (but)...merely protects the legitimate interest of the PBA that unit work is not assigned to nonunit employees. = ... @ The Commission reached a similar decision in Rutgers, The State University, P.E.R.C. No. 82-20, 7 NJPER 505 (1981), aff = d. App. Div. Docket No. A-468-81T1 (1983) where the union sought to arbitrate a grievance challenging the assignment by Rutgers of work performed by members of the collective negotiations unit to employees in another negotiations unit of Rutgers = employees. The Commission held that this was not subcontracting within the meaning of IFPTE, Local 195 v. State of New Jersey, 88 N.J. 393 (1982) but involved a reassignment of work from members of one collective negotiations unit to another unit of the same employer. The Appellate Division squarely affirmed the Commission, noting that the Supreme Court in Local 195, supra, clearly distinguished subcontracting from reassigning and found that Rutgers = suggestion that there was no distinction is A ...clearly without merit... @ Finally, the Commission, as recently as June 27, 1983, issued a decision in Township of Washington, P.E.R.C. No. 83-166, 9 NJPER ___ (1983), which again confirmed that the identical language sought herein is mandatorily negotiable. The Commission cited County of Middlesex, supra, Rutgers, supra, and again distinguished Local 195, supra. Additionally, the Commission distinguished Belmar PBA Local No. 50 v. Belmar, 89 N.J. 255 (1982), which recognized that special police officers may be hired on a full-time or part-time basis up to a year in order to supplement the regular police force during periods of unusual demand for police services. The Commission noted that Belmar also holds that special police employees may not be employed on full-time basis as a subterfuge to avoid hiring regular police officers. The Commission also noted that the PBA = s proposal in Washington, which is identical to the instant proposal, does not prevent the Township from hiring and using special police officers when appropriate under Belmar. For all of the foregoing reasons, the Hearing Examiner finds and concludes that the Respondent has violated Subsection (a)(5) of the Act as alleged. However, the Hearing Examiner finds and concludes that the Charging Party has filed to adduce by a preponderance of the evidence proof that the Respondent violated subsection (a)(7) of the Act and, accordingly will recommend dismissal as to this allegation. Finally, the Hearing Examiner will recommend dismissal of the Petition for Scope of Negotiations Determination. * * * Upon the entire record in this case, the Hearing Examiner makes the following: CONCLUSIONS OF LAW 1. The Respondent violated N.J.S.A. 34:13A-5.4(a)(5) when it refused to negotiate in good faith with the Charging Party its proposal for contract language pertaining to A Replacements. @ 2. The Respondent did not violate N.J.S.A. 34:13A- 5.4(a)(7) by its conduct herein. 3. The Petition for Scope of Negotiations Determination must be dismissed. RECOMMENDED ORDER The Hearing Examiner recommends that the Commission ORDER: A. That the Respondent cease and desist from: 1. Refusing to negotiate with the Charging Party, upon demand, with respect to the Charging Party = s proposal for contract language with respect to @ Replacements @ (See finding of Fact No. 3, supra). B. That the Respondent take the following affirmative action: 1. Post in all places where notices 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. C. That the allegations that the Respondent violated N.J.S.A. 34:13A-5.4(a)(7) be dismissed in their entirety. D. That the Petition for Scope of Negotiations Determination be dismissed. /s/Alan R. Howe Hearing Examiner DATED: July 19, 1983 Trenton, New Jersey WE WILL NOT refuse to negotiate in good faith with PBA Local 206, upon demand, with respect to its proposal for contract language pertaining to the preservation of unit work, i.e., the proposed A Replacements @ clause. 1/ These Subsections prohibit public employers, their representatives or agents from: A (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. @ Docket No. Borough of Oradell (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 84-6 *****