H.E. NO. 99-23

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

CITY OF EAST ORANGE,

Respondent,

-and-	Docket Nos. CO-H-99-23, CO-H-99-30

CO-H-99-31, CO-H-99-32, CO-H-99-35

C.W.A.; EAST ORANGE FIRE OFFICERS

ASSOC.; PBA LOCAL #16; EAST ORANGE

SUPERIOR OFFICERS ASSOC.; FMBA LOCAL

NO. 23,

Charging Parties.

Appearances:

For the Respondent

McCormack & Matthews, attorneys

(Thomas M. McCormack, of counsel)

For the Charging Party, C.W.A.

Elaine Waller, Representative

For the Charging Party, Fire Officers Assoc.

Balk, Oxfeld, Mandell & Cohen, attorneys

(Gail Oxfeld Kanef, of counsel)

For the Charging Party, PBA Local #16

S.M. Bosco Associates

(Dr. Simon M. Bosco, Consultant)

For the Charging Party, Superior Officers Assoc.

S.M. Bosco Associates

(Dr. Simon M. Bosco, Consultant)

For the Charging Party, FMBA Local No. 23

Courter, Kobert, Laufer & Cohen, attorneys

(Fredric M. Knapp, of counsel)

HEARING EXAMINER'S REPORT AND RECOMMENDED DECISION

ON MOTION FOR SUMMARY JUDGMENT

Communications Workers of America (CWA), East Orange Fire Officers Association (FOA), PBA Local No. 16 (PBA), East Orange Superior Officers' Association (SOA), and FMBA Local No. 23 (FMBA) filed unfair practice charges against the City of East Orange (City) on July 24, 1998 (CO-99-23), August 3, 1998 (CO-99-30), August 3, 1998 (CO-99-31), August 3, 1998 (CO-99-32) and August 6, 1998 (CO-99-35),1/ respectively. The charges allege some or all violations of 5.4a(1), (2), (5) and (7) of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq.2/ The charging parties assert that the City unilaterally changed the longstanding practice of paying employees eligible to receive workers' compensation benefits at the rate of 100% of the employee's average weekly wages.

Additionally, the FMBA alleges that the City violated the Act when it unilaterally implemented an alternate duty policy to accommodate employees who are receiving workers' compensation

1/	On August 12, 1998, the FMBA amended its unfair practice charge to make technical corrections in their charge.

2/	These provisions 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. (2) Dominating or interfering with the formation, existence or administration of any employee organization. (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." Only the FMBA alleged violations of 5.4a(2) and (7) of the Act.

benefits and are medically able to perform some kind of work without prior notice or negotiations. However, the FMBA has not requested summary judgment on the unilateral implementation issue. Therefore, my decision does not address that issue.

Accompanying the charges filed by the FMBA and the FOA were applications for interim relief. On August 27, 1998, the Commission Designee restrained the City from implementing a portion of Resolution No. 1-236 which modified the level of payments made to employees eligible to receive workers' compensation benefits. He denied interim relief seeking to restrain the "alternate duty policy." City of East Orange, I.R. No. 99-4, 24 NJPER 459 (¶29212 1998).

A Consolidated Complaint and Notice of Hearing was issued on November 25, 1998. The City filed an Answer admitting the factual allegations of the charge. The City asserts the affirmative defenses of statutory preemption, managerial prerogative and failure to state a claim upon which relief can be granted.

Accompanying the charging parties' motions for summary judgment were briefs, exhibits and affidavits or certifications. On March 11, 1999, the City was given an extension of time to respond to the motions. The response was due on or about May 11, 1999. The City failed to file a response pursuant to N.J.A.C. 19:14-4.4.

N.J.A.C. 19:14-4.8 states:

(c) Within 10 days of service on it of the motion for summary judgment...the responding party shall serve and file its answering brief and affidavits, if any....

(d) If it appears from the pleadings, together with the briefs, affidavits and other documents filed, that there exists no genuine issue of material fact and that the movant...is entitled to its requested relief as a matter of law, the motion...for summary judgment may be granted and the requested relief may be ordered.

A party seeking a motion for summary judgment claims there is no genuine issue of material fact and that it is entitled to judgment on the undisputed facts and applicable law. See, generally, N.J.A.C. 1:1-12.5 and R. 4:46-2(c). In considering a motion for summary judgment, all inferences must be drawn against the moving party and in favor of the party opposing the motion. The motion must be denied if a genuine issue of material fact exists. Brill v. Guardian Life Insurance Co. of America, 142 N.J. 520 (1995). In determining whether a genuine issue of material fact exists, the factfinder must weigh whether the competent evidence presented, viewed in light most favorable to the party opposing the motion, is sufficient to permit a rational factfinder to resolve the disputed issue in favor of the party opposing the motion. Id., at 540. In order to defeat the motion, the party opposing the motion must demonstrate that a genuine issue of material fact exists -- i.e., has the opposing party made a sufficient showing, based on all the competent evidence submitted on the motion and giving that party all legitimate inferences permissible from that evidence, to require submission of the issue to the factfinder in a plenary hearing. R. 4:46-2. A motion for summary judgment should be granted with caution and may not be substituted for a plenary trial. Baer v.

Sorbello, 177 N.J. Super. 182 (App. Div. 1981); Essex Cty. Ed. Serv. Comm., P.E.R.C. No. 83-65, 9 NJPER 19 (¶14009 1982); N.J. Dept. of Human Services, P.E.R.C. No. 89-54, 14 NJPER 695 (¶19297 1988).

Where the party opposing the motion for summary judgment submits no affidavits or documentation contradicting the moving party's affidavits and documentation, then the moving party's facts may be considered as true, and there would be no genuine issue of material fact, unless it was raised in movant's pleadings. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67 (1954). In this matter, the Respondent has not filed a response or submitted any affidavits or documentation in opposition to or contradicting argument or affidavits submitted by charging parties.

Accordingly, based upon the foregoing and in reliance upon the record documents submitted to date in this matter, I make the following:3/

FINDINGS OF FACT

(1) The City of East Orange is a public employer within the meaning of the Act, is subject to its provisions and is the employer of the employees involved in this matter.

(2) The CWA, FOA, PBA, SOA and FMBA are employee organizations within the meaning of the Act, are subject to its

3/	The documents in the hearing/motion record in this matter are: (C-1) Consolidated Complaint and Notice of Hearing (including the unfair practice charges with attachments); (C-2a) Charging Parties' Motions for Summary Judgment (with affidavits and exhibits attached); and (C-2b) Charging Parties' Briefs in Support of Motion.

provisions and are the statutory majority representatives of collective negotiations units of various non-uniformed employees, police officers, police superiors, firefighters and fire superiors employed by the City of East Orange.

(3) The City and CWA are parties to a collective negotiations agreement effective from January 1, 1997 to December 31, 1999. The City and the FOA are parties to a collective negotiations agreement which expired on June 30, 1996 and are currently in negotiations for a successor agreement. The City and the PBA and the SOA are parties to collective negotiations agreements which expire on June 30, 1999. The City and the FMBA are parties to a collective negotiations agreement which expired on December 31, 1995. The City and FMBA are in interest arbitration. The change in payments for employees eligible to receive workers' compensation benefits has not been raised by either party in the interest arbitration.

(4) On June 24, 1998, without prior negotiation or notice to the charging parties, the City adopted Resolution No. 1-236 which provides in pertinent part that:

...in conformity with the State of New Jersey's personal administrative model, our worker's compensation payout for eligible employees shall be seventy (70%) percent of average weekly wages, effective July 1, 1998...

(5) The City's long standing practice was to compensate employees eligible to receive workers' compensation benefits at the rate of 100% of the employee's average weekly wages.

ANALYSIS

There are no material facts in dispute. The City unilaterally changed the level of workers' compensation benefits from 100% to 70% of average weekly wages and, in one instance, changed the level of benefits during interest arbitration.4/ Summary judgment will be granted it movants are entitled to relief as a matter of law. Brill, supra.

There are several legal issues for consideration. The Commission has held that changes in employment conditions must be addressed through the collective negotiations process. N.J.S.A. 34:13A-5.3. Unilateral action is destabilizing and contrary to the express requirements of the Act. Galloway Tp. Bd. of Ed. v. Galloway Tp. Ed. Ass'n, 78 N.J. 25, 48 (1978), Tp. of Middletown, P.E.R.C. No. 98-77, 24 NJPER 28 (¶29016 1997). Any change in employees' terms and conditions of employment imposed without negotiations violates 5.4a(5) and derivatively a(1) of the Act.

The issue of paying in excess of workers' compensation payments for employment related injuries and disabilities is mandatorily negotiable. Morris Cty., P.E.R.C. No. 79-2, 4 NJPER 304 (¶4153 1978), aff'd NJPER Supp.2d 67 (¶49 App. Div. 1979); Riverside Tp., H.E. No. 95-1, 20 NJPER 303 (¶25152 1994) adopted P.E.R.C. No. 95-7, 20 NJPER 325 (¶25167 1994). Thus, the City's affirmative

4/	The FMBA and City were in interest arbitration for a successor agreement at the time that Resolution No. 1-236 was adopted.

defense of managerial prerogative raised in its Answer to the Complaint must fail.

Here, charging parties enjoyed a well-established past practice of receiving 100% of average weekly salary for employees eligible to receive workers' compensation. Where an existing working condition is changed, such a change triggers the duty to negotiate under section 5.3 of the Act. To prove a violation, absent an applicable defense, the majority representative need show only that the employer changed an existing employment condition without first negotiating. Middletown at 30.

When the City adopted Resolution No. 1-236 reducing payment to 70% of average weekly salary for employees eligible to receive workers' compensation benefits, it unilaterally changed employees terms and conditions of employment. This change imposed without negotiations violates sections 5.4a(5) and derivatively 5.4a(1) of the Act.

In its Answer the City asserted that N.J.S.A. 34:15-12(a) preempts negotiations. That statute provides that employees temporarily disabled by injury shall be paid workers' compensation benefits of 70% of the employees' weekly wages received at the time of the injury, to a maximum of 75% of the average weekly wages earned by employees covered by unemployment compensation law. N.J.S.A. 34:15-12(a). A statute or regulation will not preempt negotiations unless it sets a term and condition of employment specifically, expressly, and comprehensively and thereby eliminates

an employer's discretion to vary it. Bethlehem Tp. Bd. of Ed. v. Bethlehem Tp. Ed. Ass'n, 91 N.J. 38, 44 (1982); State v. State Supervisory Employees Ass'n, 78 N.J. 54, 80-82 (1978). In the instant matter, N.J.S.A. 34:15-12(a) only sets mandatory payments for temporary disability benefits under workers compensation. That statute does not address payments in excess of workers' compensation benefits. Since the Commission held in Morris that payments in excess of the statute are negotiable, the City's preemption argument is defeated.

Next, I consider whether the change in the level of benefits occurring during the pendency of interest arbitration constitutes any additional violations of the Act.

N.J.S.A. 34:13A-21 provides:

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.

It is undisputed that the change in level of benefits effectuated by the adoption of Resolution No. 1-236 occurred during interest arbitration proceedings between the City and the FMBA and without the consent of the FMBA. A unilateral change in terms and conditions of employment during any stage of the negotiations process has a chilling effect on employee rights guaranteed under the Act and undermines labor stability. Galloway Tp. Bd. of Ed. v. Galloway Tp. Ed. Ass'n., 78 N.J. 25 (1978). Further, 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. Consequently, this unilateral change in a term and condition of employment without the consent of the FMBA constitutes a violation of 5.4a(5) and derivatively 5.4a(1) of the Act.

The FMBA also alleges a violation of 5.4a(7) which prohibits violating the rules and regulations established by the Commission. Nothing in the FMBA charge refers to any rule or regulation which has been violated. The only reference is to N.J.S.A. 34:13A-21. That reference is to a statute, not to a rule. Thus, I do not find a violation of 5.4a(7).

Finally, the FMBA alleges a violation of 5.4a(2) of the Act. Commission cases dealing with 5.4a(2) claims generally involve organizational rights or the actions of an employee with a conflict of interest caused by his membership in a union and his position as an agent of an employer. Union Cty. Reg. Bd. of Ed., P.E.R.C. No. 76-17, 2 NJPER 50 (1976); Middlesex Cty (Roosevelt Hospital), P.E.R.C. No. 81-129, 7 NJPER 266 (¶12118 1981); Camden Cty. Bd. of Chosen Freeholders, P.E.R.C. No. 83-113, 9 NJPER 156 (¶14074 1983). While motive is not an element of a 5.4a(2) offense, there must be a showing of pervasive employer control or manipulation of the employee organization itself. New Brunswick Tp. Bd. of Ed., P.E.R.C. No. 80-122, 6 NJPER 193 (¶11095 1980). I do not find that the unilateral change in the level of benefits for employees eligible for workers' compensation as a whole without a showing that

the acts complained of actually interfered with or dominated the FMBA, constitutes a 5.4a(2) violation.

CONCLUSIONS OF LAW

1. The City violated N.J.S.A. 34:13A-5.4a(1) and a(5) by unilaterally reducing the level of payment made to employees eligible to receive workers' compensation benefits and by reducing the level of payment during interest arbitration proceedings without the consent of the FMBA.

2. The City did not violate 5.4a(2) and 5.4a(7) of the Act.

RECOMMENDED ORDER

I recommend that the Commission ORDER:

A. That the City of East Orange cease and desist from:

1. Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by the Act, particularly by reducing the level of payment made to employees eligible to receive workers' compensation benefits from 100% of average weekly salary to 70% of average weekly salary and by reducing the level of payment during interest arbitration proceedings without the consent of the FMBA.

2. Refusing to negotiate in good faith with the Communications Workers of America, the East Orange Fire Officers Assoc., P.B.A. Local #16, the East Orange Superior Officers Assoc., and FMBA Local No. 23 particularly by reducing the level of payment made to employees eligible to receive workers' compensation benefits

from 100% of average weekly salary to 70% of average weekly salary and by reducing the level of payment during interest arbitration proceedings without the consent of the FMBA.

B. That the City take the following action:

1. Rescind that portion of Resolution No. 1-236 which modifies the level of payment made to employees eligible to receive workers' compensation benefits.

2. Make whole employees who sustained losses as a result of the reduction in level of benefits.

3. Post in all places where notices to employees are customarily posted, copies of the attached notice marked as Appendix "A." Copies of such notice shall, after being signed by the Respondent's authorized representative, be posted immediately and 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.

4. Notify the Chair of the Commission within twenty (20) days of receipt what steps the Respondent has taken to comply with this order.

C. That the 5.4a(2) and 5.4a(7) allegations be dismissed.

Wendy L. Young

Hearing Examiner

DATED:	June 21, 1999

Trenton, New Jersey

!!@GH0!!!@BT0!!!/120!!!@LN20!

WE WILL cease and desist from interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by the Act, particularly by unilaterally reducing the level of payment made to employees eligible to receive workers' compensation benefits from 100% of average weekly salary to 70% of average weekly salary and by reducing the level of payment during interest arbitration proceedings without the consent of the FMBA.

WE WILL cease and desist from 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, particularly by unilaterally reducing the level of payment made to employees eligible to receive workers' compensation benefits from 100% of average weekly salary to 70% of average weekly salary and by reducing the level of payments during interest arbitration proceedings without the consent of the FMBA.

WE WILL rescind that portion of Resolution No. 1-236 which modifies the level of payment made to employees eligible to receive workers' compensation benefits.

WE WILL make whole employees who sustained losses as a result of the reduction in level of benefits.