On October 24, 1985, the Commission's Director of Representation issued a Notice of Hearing and granted the requested intervenor status to Local #88. On December 16, 1985 ^1/ and February 5, 1986, hearings were held in this matter, at which all parties were given opportunities to examine and cross-examine witnesses, to present evidence and to argue orally. The Petitioner and Local #88 filed their briefs in this matter, the last of which was received on May 8, 1986. ^2/

Based on the entire record in these proceedings, I make the following:

1/ On the first day of hearing, Local #88 moved to dismiss the petition as untimely filed under Commission rule N.J.A.C . 19:11-2.8(c)(2). I denied the motion finding that the contract bar rule cited was not necessarily applicable when a Petition for Certification of Representative raises the prospect of exclusion of employees from an existing unit to comport with the Act. I also noted that the Director of Representation issued the Notice of Hearing with full knowledge of the existence of the current collective agreement. I will not further treat this issue in my report, but depending upon the Commission rulings upon all issues presented, Local #88's arguments may merit Commission review.

2/ The date the briefs were due was established by mutual agreement of the parties.

2. The Policemen's Benevolent Association, Local #88, is an employee representative within the Act, is the majority representative of the employees in dispute, ^3/ and is subject to its provisions.

3. The West New York Police Supervisors Association, Inc. is a employee organization within the meaning of the Act and is subject to its provisions.

4. The West New York Police Department has the following employee complement: Chief of Police, two Deputy Chiefs (one position unfilled), six Captains, eight Lieutenants, 20 Sergeants, and 77 Patrolmen. Appointments to these positions are pursuant to Civil Service rules and regulations. (T1 at pp. 13-15; T2 at p. 45) ^4/

5. Both the Chief and the Deputy Chief work steady shifts from 8 a.m. to 4 p.m. and 4 p.m. to 12 midnight respectively. Most department members work one of three shifts of 8 a.m. to 4 p.m., 4 p.m. to 12 midnight, and 12 midnight to 8 a.m.. A normal shift

3/ The current collective agreement between Local #88 and the Town does not cover Deputy Chiefs, while the Petitioner seeks that title in its proposed unit. In view of the conclusions below, I find the issue to be moot.

4/ T1 refers to the transcript of December 16, 1986 and T2 refers to the transcript of February 5, 1986.

6. The captains serve as tour commanders and are in charge of the police station for their shift. Given the paramilitary structure of the department, in the absence of a captain, a lieutenant fulfills the captain's responsibility, a sergeant fulfills the lieutenant's responsibility, and the senior patrol officer fulfills the sergeant's responsibility (J-6; T1 at pp. 21-22; T2 at pp. 53-59).

7. On a normal shift the lieutenant serves as desk officer. The desk officer has a variety of responsibilities, including department of personnel, assignment of overtime, approval of personal days, and removal of officers from duty. (T1 at pp. 17-22, 45-47).

8. On a normal shift, the sergeant performs roll call, makes assignments to posts in accordance with the directives of the shift lieutenant, assigns radios and cars, and then assists and directs officers in the field as appropriate. The sergeants can

recommend patrolmen for training and can warn and/or write a report on a patrolman for substandard conduct (J-4; T1 at pp. 17-20, 27, 45, 81; T2 at pp. 58-61, 84-85).

9. All superior officers (sergeants and up) can recommend department employees for citations and commendations; all superiors can relieve employees from duty or take corrective action as necessary in the absence of a higher superior officer on duty; all superior officers can recommend discipline; and all superiors are responsible to counsel and/or report officers who are unfit for duty or who are off their assigned post. (T1 at pp. 21-22, 50-52, 57-58).

10. All ranks of superior officers have participated in the hiring process. Candidates eligible for hiring through Civil Service are interviewed by the chief and a superior officer of his choosing. One superior officer testified that he and the Chief evaluated candidates after interviews and then made a joint recommendation which was effectuated by the Director of Public Safety. The other superior officer who testified to involvement in the hiring process indicated that while he attended interviews, he never asked questions and did not have any other role in the interview other than observation. In a recent initiative resulting in the hiring of 17 patrolmen in January, 1986, that officer had also performed background checks on applicants, which the witness characterized as ministerial in nature (T1 at pp. 55-57, 77-78, 86-87; T2 at pp. 99-103).

11. Seven witnesses testified at the hearing and only one discharged employee was referenced throughout all of the testimony. As to that employee the process was as follows: A patrolman was accused of taking money from a citizen. Based on the complaint, a sergeant arrested the patrolman and brought the patrolman to police headquarters. At headquarters the patrolman was read his rights by a lieutenant. The Chief of Police directed that the officer be relieved of duty. In addition to the citizen complaint, departmental charges were filed against the patrolman by the chief of police. The patrolman was subsequently discharged from the department (T1 at pp. 53-55, 75-76, 83-85).

12. Departmental discipline is both informal and formal. Informal discipline occurs when a superior officer detects a problem with the performance of a subordinate and counsels that subordinate. Such discipline is contemporaneous with the conduct in question and does not proceed to any higher level. A superior can also initiate formal discipline by writing a report on a subordinate for an infraction. The report, which may contain a specific recommendation for discipline, is forwarded through the chain of command up to the Chief of Police. Only the Chief can dock days from an officer or suspend an officer or proffer departmental charges. On an emergent basis, any superior officer can remove a subordinate from duty. A lengthy suspension and/or discharge may be appealed to the Director of Public Safety (T1 at pp. 52-54, 57-58, 74-77; T2 at pp. 55-61 and 90-91).

13. There is no formal periodic evaluation process in the West New York Police Department (T1 at pp. 45 and 96).

14. Local #88 has represented patrolmen and superior officers for at least 26 years. During the 1960's and prior to the passage of the Act in 1968, Local #88 selected their representatives for the Police and Fire Council. That Council held discussions with representatives of the Town of West New York. Such discussions led to proposed agreements which were ratified by the Local #88 membership each year from 1961 through 1967. In 1960 and 1968, no agreements were reached, and proposed salary schedules were placed on a public referendum pursuant to N.J.S.A. 40:46-26-28^5/ and adopted by the electorate. The agreements and/or referendum proposals included both salary and sick day proposals. In 1971, the PBA and the Town executed their first formal contract and have had consecutive agreements since then. (T1 at pp. 64-69; T1 at pp. 6-8).

15. A superior officer may not hold an office within the Local #88 but may serve on its committees. Superior officers have frequently been represented on the negotiations team. Superior officers have not always been allowed to vote for ratification of contracts or otherwise vote in Local #88 meetings on many matters. Local #88 President Ibrahim Jardines testified that voting at PBA meetings depends on whether or not one's rank is affected by the

5/ These statutory provisions were repealed in 1971 (L. 1971, c. 200, N.J.S.A . 40A:9-175)

16. The current collective agreement between the Town and Local #88 covers all titles in the Police Department from patrolman through captain. The agreement provides for equal benefits for all titles, except that one receives three more vacation days for each rank up from patrolman. Salary increases throughout the three-year agreement are based upon percentage increases for each year for all employees (Exhibit J-1).

17. The structure of the West New York Police Department is substantially unchanged for the last 33-1/2 years (T2 at pp. 63-64).

18. The Town was represented by counsel throughout these proceedings. Counsel stated on the record that the Town took no position with respect to the petition and would "defer to the decision of PERC." (T2 p. 104).

N.J.S.A . 34:13A-5.3 provides that supervisors "having the power to hire, discharge, discipline or to effectively recommend the same..." shall not be "represented by an employee organization that admits non-supervisory personnel to membership...." The exceptions to this rule will be discussed in Section II of this decision.

I find that the superior officers employed by the Town of West New York are supervisors within the above definition. While their involvement in the hiring and discharge of personnel is not substantive (see Finding of Fact Numbers 10 and 11--the Chief of Police and the Director of Public Safety are only critical individuals in these processes), most superior officers in West New York have an effective role in the discipline of personnel. ^6/ The patrol sergeants on the force are clearly first level supervisors who exercise considerable discretion in deciding whether to initiate informal (i.e. oral warnings) or formal (i.e. written reports forwarded through the chain of command) discipline of patrolmen (see

6/ While a number of superior officers have strictly office functions (see Finding of Fact Number 5) and do not supervise anyone, it would be disruptive in a department of this size to consider splitting representation status amongst superior officers. Thus, since the majority of superiors do have supervisory functions, I recommend that all supervisors be grouped together for representational purposes. Compare Borough of Avalon, P.E.R.C. No. 85-108, 10 NJPER 207 (& 15102 1984), where the Commission split the representational status of a particular title in a small negotiations unit.

Superior officers above sergeant in the chain of command rarely observe patrolmen in the field, but have the authority to take action on the recommendation of sergeants and/or complaints from the public (Finding of Fact Numbers 7-12). As in other sizeable police departments, the quasi-military structure of the West New York Police Department vests greater disciplinary authority as one proceeds through the chain of command; while only the Chief of Police can proffer changes or take formal discipline, superior officers are key actors in the process leading to (or away from) such action.

II. Established Practice

Having concluded that the superior officers employed by the Town are supervisors within the meaning of the Act, I proceed to consider whether "established practice," under N.J.S.A . 34:13A-5.3, exists which would permit those employees to continue to be represented by Local #88 in a unit with patrolmen. ^7/ In West Paterson Board of Education , P.E.R.C. No. 77 (1973), the Commission

7/ While "prior agreement or special circumstances" can also permit supervisors to be included in units with non-supervisors pursuant to N.J.S.A. 34:13A-5.3, neither was asserted or proven at the hearing.

an organization regularly speaking on behalf of a reasonably well-defined group of employees seeking improvement of employee conditions and resolution of differences through dialogue (now call negotiations) with an employer who engaged in the process with an intent to reach agreement.

The requisites of established practice have been demonstrated in this case. Two witnesses testified that the PBA appointed representatives to the Police and Fire Council throughout the 1960's, and that from 1961-68 the Council negotiated agreements for police patrolmen and superior officers which were ratified by the Local #88 membership and implemented by the Town. In 1960 and 1968, when the parties could not reach agreement, the two witnesses testified that salary schedules were voted on through public referenda consistent with statute (see Finding of Fact No. 6).

While no memoranda of agreement or salary ordinances were submitted in support of established practice, the testimony reviewed above was unrebutted and highly credible. One witness was totally unprepared for the topic, answering my questions in the pre-68 area, and the other witness testified to the same facts on a separate day of hearing. Moreover, the use of the statutory public referendum option indicates that the PBA employed the most sophisticated negotiations scheme available to police employees at that time, and did so whenever they could not reach agreement with the Town. Indeed, the record does not indicate a single example of unilateral employer implementation of a salary schedule by the Town during the

1960's. ^8/ Finally, it is undisputed that the structure of the Police Department has not changed in over 30 years, and that superior officers perform similar functions to those performed prior to the passage of the Act (Finding of Fact #16). ^9/ I conclude that the PBA, on the record presented, had an established practice of negotiations with the Town within the meaning of ' 5.3 of the Act.

III. Conflict of Interest

The principles of conflict of interest were established by the New Jersey Supreme Court in Board of Education of West Orange v. Wilton, 57 N.J. 404 (1971).

In Wilton, the Court held:

If performance of the obligations or powers delegated by the employer to a supervisory employee whose membership in the unit is sought creates an actual or potential substantial conflict between the interests of a particular supervisor and the other included employees, the community of interest required for inclusion of such supervisors is not present....While a conflict of interest which is de minimis or peripheral may in certain circumstances be tolerable, any conflict of greater substance must be deemed opposed to the public interest. 57 N.J. at 425-426.

The Commission had numerous opportunities to apply these concepts in the police setting shortly after the Wilton decision issued, and noted the unique nature of police services:

8/ Compare City of Camden (Police Officers), P.E.R.C. No. 53 (1971), where evidence of unilateral employer implementation precluded a finding of established practice.

9/ Compare Borough of Metuchen, D.R. No. 84-3, 9 NJPER 524 ( & 14212 1983), where, notwithstanding the existence of established practice, the Lieutenant of Operations was clarified out of the unit because his functions had changed significantly from the pre-68 duties.

I find that the record does not contain a single example of actual substantial conflict. As noted in Finding of Fact No. 11, all seven witnesses could only recall one example of an employee who was discharged from the department. In that situation, a variety of superior officers acted consonant with their responsibilities to the Town, and the employee was ultimately discharged. It is also noteworthy that, as in all cases of serious discipline, charges against the employee were proffered by the Chief of Police. The reservation of that responsibility by the Chief, who is not represented by Local #88, drastically reduces the likelihood of conflict of interest. Moreover, the lack of a formal evaluation system (Finding of Fact No. 13) eliminates another area where the

Commission has previously found conflict of interest to bar continuation of a mixed unit of supervisors and non-supervisors. See e.g. Ridgewood Bd. of Ed. and Ridgewood Ed. Assn ., D.R. No. 80-33, 6 NJPER 209 ( & 11102 1980); Bd. of Ed. of Paramus and Ed. Assn. of Paramus, NJEA, D.R. No. 82-7, 7 NJPER 556 (& 12247 1981).

Superior officers do initiate discipline against subordinates (see Finding of Fact Numbers 8 and 12), and this certainly creates potential conflict of interest between the obligations of the superior officers to their employer and the obligations of the superior officers to their fellow unit members. In addition, a number of requirements in the Police Department Manual (Exhibit J-2) noted in the Petitioner's brief (at pp. 3-5) suggest potential conflict. However, as noted above, the Commission has consistently held that where established practice has been demonstrated, potential conflict will not preclude a mixed unit: actual conflict must be demonstrated on the record. There is simply no testimony by any witness indicating a compromise of interest or significant detriment to the rights of the Town or Local #88 because of the conduct of a superior officer in a particular disciplinary situation. While the Petitioner raises the possibility of "the difficult situation of initiating discipline with respect to one of the members of the same bargaining unit...," (Petitioner's Brief at p. 12), the Director of Representation has held that "[s]peculation as to future contingencies is not a compelling consideration given the evidence as to the history of the parties'

relationship." City of Trenton , D.R. No. 83-33, 9 NJPER 582 ( & 14172 1983).

Indeed, I find the Town's record silence in this area to be extremely compelling. The Town was represented by counsel throughout the hearings and had the opportunity, in an investigatory setting, to present evidence as to conflict of interest. Since the essence of conflict is divided loyalty, I find that, by its failure to present evidence of actual conflict, the Town does not perceive actual conflict of interest here. Given the absence of direct evidence of actual conflict, together with the presence of an employer who does not assert that actual conflict exists, I conclude that no actual conflict of interest exists which would compel the removal of superior officers from the negotiations unit represented by Local #88 given the established practice demonstrated.

IV. Severance

In addition to the positions reviewed above, the Petitioner maintains that superior officers in the Police Department should be removed from the existing negotiations unit under traditional severance standards. ^10/ The Commission established the standard for severance of a group of employees from an established negotiations unit in In re Jefferson Twp. Bd. of Ed., P.E.R.C. No. 61 (1971):

10/ While this argument must normally be brought in a timely representation petition under N.J.A.C . 19:11-2.8(c)(2), I allowed testimony and documents at hearing, over objections of Local #88, for reasons of judicial economy (T1 at pp. 30-31). See also Footnote 1, supra.

Together with the current and prior contract history, the responsible representation of the superior officers by Local #88 is supported by the following facts noted in Finding of Fact No. 15:

1. Local #88 has repeatedly included superior officers on its collective negotiations team.

2. Local #88 has represented superior officers in grievance proceedings.

3. Local #88 allows superior officers to vote on most matters, including contract ratification votes.

While it is true that superior officers cannot run for office nor vote for candidates for office in Local #88, this fact, when viewed together with other relevant severance criteria reviewed

above, does not compel severance of these employees. In this regard, the Commission has ruled that a majority representative cannot collect agency shop fees from unit members who cannot run for office, but declined to find prohibition from office to be a per se violation of law. City of Jersey City , P.E.R.C. No. 83-32, 8 NJPER 563 ( & 13260 1982), App. Div. Docket No. A-768-82T1, appeal dismissed 7/22/83. The Commission held that, absent legislation committing review of such internal union rules to Commission discretion, the Commission would not interfere with the rules and regulations of voluntary organizations. See also Calabrese v. PBA Local No. 76, 157 N.J. Super . 139 (Law Div. 1978). Based on this precedent, and under the totality of circumstances reviewed above, I find that the Commission's severance standards have not been met.

Mark A. Rosenbaum
Hearing Officer


Dated: July 25, 1986
Trenton, New Jersey