In its Answer filed in this proceeding the Borough denied that it is engaging in the unfair practices alleged. ^3/ Hearing was held before the undersigned August 2 and 6, 1976 in Newark, New Jersey, at which time all parties were given an opportunity to examine witnesses, to present evidence and to argue orally. thereafter, briefs were filed by the Borough on September 13, 1976 and by the PBA on September 24, 1976. Upon the entire record in this case I make the following:

For some years prior to 1975, the police officers employed by the Borough had sought and were granted meetings with Borough officials at the beginning of each year to request specific improvements in the terms and conditions of their employment. The Borough took these requests under advisement and then adopted ordinances fixing salaries and other terms and conditions of employment for its police officers for the calendar year.

In January 1975, as in prior years, the police officers in a group submitted a written list of eleven pay raise proposals for 1975 to the Borough. However, unlike past years, by mid- February ^4/ the police officers had formed a formal employee organization and had retained a law firm to represent them in collective negotiations with the Borough.

By letter dated February 14, 1975 attorney Alfred G. Osterweil of the law firm of Osterweil and LeBeau advised the Mayor and Council of the Borough that they had recently been retained to represent PBA Local No. 102 (Hasbrouck Heights Unit) with regard to collective negotiations pursuant to the Public Employment Relations Act and sought an opportunity to discuss the issues and ultimately incorporate their resolutions in an agreement. Mr. Osterweil noted that the PBA had already submitted a list of certain economic proposals and the PBA would have at the meeting a list of non-economic proposals it would want incorporated into the collective bargaining agreement. There is no evidence in the record that the Borough replied to this letter. The PBA then petitioned for Certification of Representative in Docket No. RO-995 on March 7, 1975. After a consent election held on May 7, 1975, won by the PBA by a vote of 22 in favor with one against, with 23 eligible voters, the Commission by its Executive Director, Jeffrey Tener, on May 15, 1975 issued a Certification of Representative to PBA Local No. 102 (Hasbrouck Heights Unit) certifying the PBA as exclusive representative of all employees in a unit if all members of the Hasbrouck Heights Police Department including patrolmen, detectives, sergeants, lieutenants and captains, excluding chief and acting chief and supervisors within the meaning of the Act for the purposes of collective negotiations with respect to terms and conditions of employment. ^5/

Just prior to the certification, on May 13, 1975, the Borough approved an Ordinance # 1046 fixing the salary and compensation of all policemen. The Ordinance fixed salaries for policemen by rank from chief to patrolman incorporating a 6% increase, and longevity pay, holiday pay, overtime pay and other benefits for all officers other than the chief. Subsequent to the PBA certification, June 18, 1975 was scheduled for commencement of negotiations. On that occasion the PBA appeared by its committee and counsel, Messrs. Osterweil and Richard Loccke, and the Borough by two councilmen. The PBA presented a form agreement containing its non-economic proposals for the year 1975. The agreement contained blank spaces for economic terms and the PBA representatives advised that they sought the same economic demands which had previously been submitted to the Borough by the police officers in January 1975 prior to the certification. At each subsequent meeting held between the parties until April 1976 the PBA maintained its original economic demands.

No negotiations agreement had been achieved when on September 11, 1975 the PBA filed an Unfair Practice Charge against he Borough in Docket No. CO-76-70 alleging violations of N.J.S.A. 34:13A-5.4(a)(1) and (5)^6/ by failing to meet at reasonable times to negotiate, and by submitting for public referendum whether members of the police department shall receive salary and other benefits above those granted by the 1975 Salary Ordinance, and by failing, since mid June 1975, to be represented by a representative authorized to negotiate.

At a subsequent negotiation meeting held between the parties on November 12, 1975 the Respondent = s attorney Ralph W. Chandless, read a memorandum from Mayor William H. Imken to the PBA = s negotiating committee and representatives. The Statement included the following remarks: A Following the adoption of the budget the police selected their PBA Local as their bargaining agent and thereby applied for negotiation of their original requests which they had previously informally made. Those negotiations have been adjourned from time to time and are now down for final action by the Mayor and Council at tonight = s meeting...We acknowledge the statutory right of all employees of the Borough, whether police or others, to seek additional salary or other benefits but we question the wisdom of the strict application of the Public Employment Relations Act in a town such as Hasbrouck Heights where every member of the governing body is personally acquainted with every one of its employees...the present proceedings brought against the Borough under the present Public Employment Relations Act causes us to think that our Police do not have confidence in our willingness to give them full justice by ordinance adopted each year after a public hearing of the taxpayers affected and that they are insecure in respect to their rights unless they have written contract negotiated, signed, sealed and delivered. @ The Mayor then noted that under the present financial crisis and budget laws it could not provide any additional salary increases or other fringe benefits, and, therefore, A there is nothing for us to negotiate. @ ^7/

On November 17, 1975 the parties met again in an exploratory conference on the charge in Docket No. CO-76-70 with a Commission staff member assigned. On that occasion the parties executed the following agreement:

A 1. The parties agree to meet not less than four times between this date and December 15, 1975 for the purpose of negotiating terms and conditions of employment.

2. If the parties do not reach agreement by December 12, 1975, they agree to meet with Mr. Ben Manney of the Public Employment Relations Commission who shall act as mediator.

3. The parties agree that upon agreement on all items, that negotiated agreement shall be reduced to writing and signed by the parties.

4. P.B.A. Local # 102 (Hasbrouck Heights Unit) agrees to withdraw case docketed as CO-76-70 without prejudice. @

Pursuant to the agreement the PBA immediately filed withdrawal request which was approved without prejudice the same date, November 17, 1975, by the Commission = s named designee, Executive Director, Jeffrey Tener. A subsequent meeting between the parties was held on December 12, 1975 attended by Chandless of the police negotiating committee, and committee members for the PBA. No settlement was achieved at this meeting and as a result of a subsequent request a mediator was assigned to the dispute by the Commission.

The Alleged Refusal to reduce to Writing
and to Sign a Negotiated Agreement

On April 29, 1976 the parties met with Mr. Leo Rose, Commission Staff Mediator. On this occasion, for the first time, the PBA proposed to withdraw all its pending proposals for calendar year 1975 and agreed to accept the terms and conditions of employment including wages that they received as employees in 1975. As testified by Mr. Seidel, the PBA requested A that all items, terms and conditions of employment be set forth in a written agreement for the parties to sign. @ Further, according to Mr. Seidel = s unrebutted testimony, the Borough refused to incorporate these terms in a written agreement or to sign such an agreement. Mr. Seidel restated his position during cross- examination in the following testimony:

Q. (Mr. Chadless A Didn = t this all come about April 29^th , 1976?

A. (Mr. Seidel) On April 29^th , 1976, we agreed out of frustration to take what we had gotten in 1975, if you would only write it down. That is what we agreed to, and you would not do it.

Q. (Mr. Chandless) And didn = t I say that B I characterized it as ridiculous and never been negotiated, haven = t I? The six percent was given to you by the Mayor and Council and never negotiated, was it? At no time was there any negotiation, was there?

A. (Mr. Seidel) There were meetings, we were there to negotiate in good faith. Apparently, there were no negotiations there.

Q. (Mr. Chandless) Didn= t you tell us that up until that date, there had been no negotiated agreement?

A. (Mr. Seidel) No agreement, sir, that = s what I said.

Q. (Mr. Chandless) No agreement, well, I mean been negotiated, no agreement had been negotiated up until that date and that date your lawyers demanded that we sign a contract with you establishing what you had gotten in the form of the salary increase given to everybody as a negotiated contract. Isn = t that what he demanded, sir?

A. (Mr. Seidel) Once again, he demanded - - he requested, as I recall, that the terms and conditions as they existed in 1975 be reduced to writing, which you refused to do.

Q. (Mr. Chandless) And substantially I told them that it was ridiculous because it had never been agreed upon up to that very moment, is that right? Isn = t that what I told them?

A. (Mr. Seidel) I don = t recall that particular phrase, but certainly- -

Q. (Mr. Chandless) it was substantially that, wasn = t it?

A. (Mr. Seidel) You said something to that effect. @ (Tr. 54-55).

During further direct testimony Mr. Seidel noted that Mr. Chandless made several statements indicating that the Borough would not write anything down and stated A it = s not going to happen, It = s not going to be written down. @ Mr. Seidel further testified that Mr. Chandless said it was not in the best interest of the people and it was not right to tie over a governing body which may be elected in the future to a contract that was agreed to at this point or that point. Mr. Seidel added that Mr. Chandless also indicated that he did not agree with the A PERC statutes @ (sic) that the PBA was entitled to a written agreement.

The Terms of the Alleged Negotiated
Agreement

During the course of the hearing, the PBA adduced evidence and the parties entered stipulations placing in the record the major and representative terms and conditions of employment under which the unit employees were employed during 1975. In many cases, counsel for the parties were able to agree that certain terms and conditions of employment provided employees during the 1975 were part of the practice of the Borough which existed for some years past and were continued in 1975.

In other instances where the parties could not agree to the practice at issue, an employee in the unit, Robert Carscadden, a patrolman employed by the Borough for the last five years, testified, without contradiction, ^8/ to the fact that the unit employees enjoyed the benefits during 1975.

One exhibit, in particular, received in evidence as Charging Party = s Exhibit No 5 ( A C.P. 5"), itemizes those major representative benefits enjoyed by the unit employees during 1975. The PBA asserts that these benefits comprise representative substantive terms and conditions of employment affecting the subject employees for the period in question which it accepted on April 29, 1976 for inclusion in a collective negotiation agreement for 1975. They cover the subject matters of work scheduled: work day; paid holiday; medical insurance; personnel days off without loss of regular pay, clothing allowance; paid vacation days; days off without loss of regular pay for death in the immediate family; sick leave; longevity pay; overtime pay; advance notice of change of shift or normal tour; insurance for lawsuits arising out of the police officer = s employment; compensatory time off for in-service training scheduled on an employee = s own time; pick up and delivery at home by police car prior to start and after completion of day tour; payment for on and off-duty weapons and any mandatory change in equipment or uniforms; pay scale (including a 6% increase in salary effective January 1, 1975); time off without loss of regular pay for attendance at and reasonable travel time to and from PBA or Fraternal Order of Police conventions; right to work part-time jobs of their own choosing; and a grievance procedure (excluding disciplinary proceedings against an employee) culminating in a final review and determination by the Mayor and Council of the Borough, with right by the aggrieved employee to pursue the grievance by a plenary actions before a court of competent jurisdiction.

With respect to certain benefits included in the exhibit, testimony and stipulations served to modify the precise nature of the benefits provided by the Borough in 1975. As to sick leave, the parties stipulated that an employee seeking to utilize sick leave in 1975 was subject to appropriate discipline for misrepresentation of his need for such leave. Concerning insurance for suits for violation of civil rights arising out of the police officer = s employment, counsel for the PBA agreed to modify the description of the benefit in the exhibit (C.P. 5) to accord with the Borough counsel = s description of the Borough = s defense and indemnification^9/ of police officers (without insurance policy coverage) charged with a civil rights violation in a court suit not resolved until 1975. PBA counsel also withdrew the item of right to work part-time jobs of their own choosing from the exhibit (C.P.5) when testimony disclosed that the benefit was contingent on the consent of the Borough.

As to certain of the benefits provided during 1975, including work hours and tours, health insurance and indemnification in civil rights suits, Respondent counsel noted that the Borough reserved to itself the right to make changes in them. As to certain other benefits, including salary and certain fringe benefits, Borough counsel noted that with respect to the precise nature of the benefit, the Borough relied exclusively upon the Ordinance # 1046.

The Alleged Coercive Conduct in Promising
Improved Benefits on the Condition that the

Employees forego Representation by Counsel
and a Written Agreement

Mr. Seidel testified that during the course of negotiation for a 1975 agreement suggestions were made that perhaps the employees could do better without representation by attorneys. Mr. Seidel further testified that A offers were made whereby if we accepted them without the contract... we would be given consideration along the lines of the proposals that we had made. @ Mr. Seidel added that this last statement had been made by Borough Commissioner Paglieri at a meeting before the entire Police Department prior to April 29, 1976 negotiation meeting but after the November 17, 1975 exploratory conference between the parties. Mr. Seidel state that Commissioner Paglieri brought out a chart indicating that we were low in all of the areas that we had made proposals, and then he indicated to us that these areas would be given consideration, but that they would not be put down in the form of a written contract. ^10/

As earlier noted, public employers (as well as employee organizations) may not refuse to reduce a negotiated agreement to writing and to sign such agreement (See N.J.S.A. 34:13A-5.4(a)(6) for employer = s obligation). This precise concern is also expressed in N.J.S.A . 34:13A-5.3 as follows:

A When an agreement is reached on the terms and conditions of employment, it shall be embodied in writing and signed by the authorized representatives of the public employer and majority representative. @

The initial question posed is whether, and to what extent, the Borough negotiated an agreement or reached an agreement on terms and conditions of employment. The PBA in its brief derives an agreement from the PBA = s acceptance on April 29, 1976 of certain offered benefit increases and the maintenance of the status quo in other areas encompassed by the general category of terms and conditions of employment. This is said to constitute a meeting of the minds and forms a contract. (See pages 10 and 11 of the PBA brief).

In order for the PBA = s acceptance of certain increased benefits and status quo in other areas to have ripened into a meeting of the minds, it must have been preceded by proposals made by the Borough during the course of negotiations for inclusion in an agreement. The facts in the instant record do not support the conclusion that the Borough during negotiations offered to conclude an agreement containing many of the substantive benefits included in C.P.5.

Certain of the benefits which had been incorporated in Ordinance #1046 fixing the salary and compensation of police officers had been the subject of negotiations at the negotiating table in November 1975. At a negotiation meeting during the month, the Borough counsel read a statement of the Mayor declining to give the police any salary increases or other fringe benefits in addition to those already adopted by ordinance. Thus, with respect to such items as salary and certain other fringes, the Borough, in effect, was relying upon its prior grant of a 6% salary increase and other benefits incorporated in its may 13, 1975 Ordinance as its best and final offer. ^11/ When on April 29, 1976, the PBA withdrew its salary and other demands and agreed to accept the benefits which the Borough had previously provided by Ordinance, among others, a true meeting of the minds took place at least with respect to those benefits covered by the Ordinance. The Borough = s last offer in this regard was accepted by the PBA.

With respect to all other benefits incorporated in C.P.5 and itemized at pages 7 and 8 of this report, supra, the PBA failed to sustain its burden of proof that the Borough at any time had offered that these other benefits granted by it in 1975 were subjects for negotiation with the PBA or for inclusion in a collective agreement. ^12/ On the contrary, particularly with respect to a number of them, at the hearing the Borough = s counsel indicated that its practices of granting certain benefits during 1975 were subject to the Borough = s discretion and reservaiton of right to modify, withdraw or revoke them. Such statement of position conflicts with the PBA @ s claim that by its offers of acceptance of the status quo on April 29, 1976, a meeting of the minds resulted by the terms of which the Borough agreed that its practices in all areas covered by C.P. 5 be incorporated in a writing requiring it to sustain them uniformly without change during 1975.

The preceding factual recital also makes clear that the Borough rejected the PBA = s acceptance of its final offer and grant of salary and certain other fringe benefits for inclusion in an agreement.

Accordingly, and based upon the foregoing, I conclude that the Borough has failed and refused to embody in a writing and to execute an agreement incorporating those terms and conditions of employment, ^13/ including salary, longevity pay, holiday pay,^{14 /} overtime pay and clothing allowance which were the subject of negotiations and which constituted the final offer of the Borough made on November 12, 1975 and accepted by the PBA on April 29, 1976. I further conclude that the Borough = s failure and refusal to reduce to writing and to execute an agreement incorporating the salary and fringe benefits enumerated constitutes a violation of N.J.S.A. 34:13A-5.4(a)(6),^15/ but not of (a)(7). ^16/

Counsel for the Borough in his brief argues that there is no duty imposed on a municipality to negotiate written polices in respect to grievances under N.J.S.A . 34:13A-5.3. While I have not found that the Borough offered to include its 1975 grievance practices in a writing, and so have recommended dismissal of that portion of the PBA = s (a)(6) allegation, I deem it important to comment on the Borough = s contentions. Said counsel relies in support of his argument upon the fact that by virtue of N.J.S.A. 40A:9-165, only those matters contained in a municipal ordinance may be the subject of a negotiated agreement concerning terms and conditions of employment. Title 40A, adopted in 1971, is silent as to employee and employee organization rights appearing in the Public Employment Relations Act of 1968, (P.L. 1968, C. 303). The argument runs that since Title 40A was enacted after Chapter 303, does not expressly reserve employee rights under C. 303, a repeal of its powers and authority thereunder may not be implied and, accordingly, the Borough = s authority under Title 40A is supreme. This argument fails to accept the existence of P.L. 1974, Chapter 123 which modified and amended the original 1968 statue some year after the municipality was granted specific authority, by ordinance, to fix terms, salary, wages or compensation to be paid its employees. ^17/ It is a well settled rule of statutory construction that the Legislature is charged with knowledge of its prior enactments, Brewer v. Porch, 53 N.J . 167 (1969). In addition where there is a conflict the more recent statute will govern. State v. Roberts, 21 N.J . 552, 555 (1956). Furthermore, and contrary to the Borough counsel, Dunellen Board of Education v. Dunellen Education Assn., 64 N.J . (1973) did recognize the statutory responsibility of public employers - - in the case before it, local board of education - - to negotiate in good faith with representatives of their employees A with respect to those matters which intimately and directly affect the work and welfare of their employees. @ Id. at 25. See also Lullo v. I.A.F.F., 55 N.J . 400 (1970). Surely, grievance procedures, to which the Legislature expressly addressed itself in both C. 303 and C. 123, ^18/ is such a matter.

The municipality = s authority under N.J.S.A . 40A:9-165 to enact a Salary ordinance may be viewed as a valid act necessary for the proper exercise by a municipality of its authority but an act which will normally follow negotiation of those terms and conditions of employment including salary, wages and other fringe benefits negotiated to agreement between a municipality and the majority representative of its employees. In this regard the failure of a municipality to take such action by ordinance cannot be asserted as a defense to its failure to enter a negotiated agreement. As stated by the Commission in the analogous context of the Board of Education = s authority under Title 18A in Bergenfield Board of Education , P.E.R.C. No. 90 at page 11 of its Decision and Order:

A The Respondent also argues that since a board of education performs its official functions through the vehicle of adopting resolutions by formal vote at public meetings pursuant to Title 18A, and no such action has taken place herein, no binding collective agreement has yet been reached by the parties. This contention completely lacks merit. The failure of the Respondent to take such official action is precisely why the instant proceeding was commenced and is precisely that which we are hereby remedying. @

See also, In re Cliffside Park Board of Education , P.E.R.C. No. 77-2 (1976) where the Commission rejected an employer contention that provisions for personal leave, vacations, sick leave, holidays and the like in its policy [manuel] manual satisfies the obligation, if any to negotiate such items. The authority of the municipality is thus not inconsistent with its negotiating duty under the Act and the Borough counsel = s contrary conclusion is improper.

Borough counsel also contends that the unfair practice charge is time-barred because filed more than six months after the alleged unfair practice occurred. ^19/ Counsel = s reliance is misplaced. The unfair practice alleged relates to the Borough = s failure to reduce a negotiated agreement to writing in violation of (a)(6). The evidence which the PBA adduced shows that that conduct did not take place until April 29,1976. Prior thereto the parties had held a series of meetings pursuant to the November 17, 1975 agreement that they would meet and upon agreement reduce their negotiated agreement to writing. The PBA makes no claim and the evidence fails to show any negotiated agreement prior to April 29, 1976. Inasmuch as the PBA = s charge if May 5, 1976, followed on the heels of the April 29 meeting there is no basis for the claim of statutory bar. In the same vein, Borough counsel also asserts that the allegation of the Borough= s misconduct from the inception constitutes a single claim of wrongdoing. Under a well recognized principle of law, counsel urges that the PBA was thus obliged to seek its entire relief in the initial charge and could not fragment the litigation by withdrawing one charge and filing another. Counsel = s statement of the law as applied to the instant transaction is incorrect. The allegations employed by the PBA in each of the two charges - the initial charge which was withdrawn without prejudice as a result of the November 17, 1975 agreement and the subsequent charge upon which the instant complaint issued-constitute separate allegations of wrongdoing. The initial claim encompassed a general refusal to negotiate under (a)(5) by various acts and conduct including failure to meet, submissions of subjects to public referendum and failure to negotiate through an authorized representative. The PBA voluntarily withdrew that charge on the basis of an understanding regarding further meetings and an agreement to incorporate any agreement arrived at in a written document. It was only some five months later that the PBA alleged a separate and distinct allegation under (a)(6) of failure and refusal to embody a negotiated agreement in writing based upon conduct alleged to have occurred subsequent to withdrawal of the initial charge. Each of these two subsections are concerned with different conduct and to remedy their violations, different and distinct forms of relief are normally provided. Counsel = s argument is thus without merit.

The Borough = s Promise of Benefit

The record discloses that during the course of negotiations suggestions were made by Borough representatives that the police officers could do better without representation by attorneys and, in particular, by Commissioner Pagliei that their proposals would be treated in a more favorable light if the PBA ceased its insistence on a written contract. Borough counsel failed to cross-examine as to this testimony and the Borough failed to offer any evidence to contradict it. Accordingly, I credit the testimony of Police Lieutenant Seidel in this regard.

Traditionally, in the private sector, attempts by one party to the negotiation process to interfere with the selection of a bargaining representative have been viewed as interference and coercion with the rights of the other party to the negotiations. NLRB v. Deena Artware, Inc., 30 LRRM 2479, 2483 (C.A. 6, 1952), cert. den., 31 LRRM 2444 (U.S. Sup. Ct., 1953): NLRB v Local 294, Teamsters , 47 LRRM 2089 (C.A. 2, 1960).^20/

The Borough = s further offer to give favorable consideration to PBA demands provided no contract was entered is consistent with its refusal to reduce the salary and related fringe benefit agreement to writing. By means of such conduct, the Borough has further interfered with, restrained and coerced its police officers in their right, protected by N.J.S.A. 34:13A-5.3 of the Amended Act, to assist an employee organization - in this case the PBA - in its efforts to see a negotiated agreement in writing. By such conduct as alleged the borough has violated N.J.S.A. 34:13A-5.4(a)(1) and I will recommend the Commission so find. Such conduct, however, fails to support a violation of Subdivision (a)(2). By such conduct, the Borough has not engaged in acts dominating or interfering with the formation, existence or administration of the PBA. ^21/

Affirmatively, I shall recommend that the Respondent forthwith, upon demand by the PBA, reduce the subject matters covered by Borough Ordinance # 1046 to writing, incorporating them in a collective negotiation agreement covering the period from may 15, 1975 and including December 31, 1975, ^22/ sign the collective negotiation agreement so prepared, and give retroactive effect to the terms and conditions of that agreement. ^23/ I will also order the Respondent to post an appropriate notice to its employees in the form annexed.

B. By promising improved benefits to those police officers represented by the PBA on the condition that the PBA cease negotiations representation by attorneys and its insistence upon a written agreement, during the period from November 17, 1975 to April 29, 1976, as found herein, respondent has engaged in unfair practices within the meaning of the N.J.S.A. 34:13A-5.4(a)(1).

C. The Respondent, by the above-described acts, has not dominated or interfered with the formation, existence or administration of any employee organization and has not violated any of the rules and regulations established by the Commission, and has not thereby engaged in unfair practices within the meaning of N.J.S.A. 34:13A-5.4(a)(2) and (7).

A. Cease and desist from:

1. Failing or refusing to reduce to writing and to sign a collective negotiation agreement for 1975 with PBA Local 102 (Hasbrouck Heights Unit) incorporating the terms agreed to orally on April 29, 1976, comprising the subjects contained in a Borough Ordinance # 1046, adopted May 13, 1975.

2. Promising improved benefits in terms and condition of employment provided the employees represented by PBA Local 102 (Hasbrouck Heights Unit) refrain from representation in negotiations by their attorneys and from their insistence upon a written contract incorporating such terms and conditions of employment.

B. Take the following affirmative actions:

1. Upon demand by PBA Local 102 (Hasbrouck Heights Unit), reduce to writing forthwith and sign the collective negotiation agreement described above, effective May 15, 1975 to December 31, 1975.

2. Upon the execution of the aforesaid agreement, give retroactive effect to the provision thereof to January 1, 1975.

3. Post at its Police Department Headquarters in Hasbrouck Heights, New Jersey, copies of the attached marked A Appendix A @ . Copies of said notices on forms to be proved by the Chairman of the Public Employment Relations Commission, shall, after being duly signed by Respondent = s representative, be posted by said Respondent immediately upon receipt thereof, and maintained by it for a period of at least sixty (60) consecutive days thereafter including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by said Respondent to ensure that such notices are not altered, defaced or covered by any other material.

4. Notify the Commission, in writing, within twenty (20) days of receipt of this order of the steps the said Respondent has taken to comply herewith.

_________________________
Robert T. Snyder

Hearing Examiner

DATED: Trenton, New Jersey

1/ These subsections prohibit public employers from (1) @ Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by [the Act] @ and (2) A Dominating or interfering with the formation, existence or administration of any employee organization. @

2/ These subsections prohibit public employers from (6) @ Refusing to reduce a negotiated agreement to writing and to sign such agreement @ and (7) A Violating any of the rules and regulations established by the commission. @

3/ Inasmuch as the Borough= s answer failed to specifically admit, deny or explain each of the facts alleged in the Complaint, in accordance with the requirement of Section 19:14-3.2 of the Commission = s Rules, an opportunity was provided, without objection, to the Borough = s attorney at the outset of the hearing to answer orally on the record each of the factual allegations contained in the Complaint. Thus, the Borough = s written Answer was supplemented by oral responses which appear early in the transcript of the first day = s hearing.

4/ On January 20, 1975, Chapter 123 of the Laws of 1974 became effective, amending and supplementing the New Jersey Employer-Employee Relations Act, P.L. 1968, Chapter 303. Among other amendments adopted was one providing the Commission with grant of authority to prevent specified unfair practices by both public employers and employee organizations, including, inter alia , a refusal on the part of an employer to negotiate in good faith with a majority representative of employees in an appropriate unit concerning terms and conditions of their employment (C. 34:13A-5.4(a)(5)) and such other unfair practices as the PBA has alleged in the instant complaint (see footnotes 1 and 2, supra).

5/ There is no question, and neither party disputes, that the PBA is an employee organization within the meaning of N.J.S.A . 34:13A(e) and the Borough is a public employer within the meaning of N.J.S.A. 34:13A-3(c).

6/ Subsection (1) has already been described in footnote 1. Subsection (5) prohibits, in pertinent part, public employers from A 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... @

7/ The Mayors= statement also included a rejection of the PBA = s demand for binding arbitration.

8/ No testimony was offered by the Borough in support of its defenses, to be discussed, infra, reliance being placed, instead, upon responses elicited during cross-examination from the PBA = s witnesses, Messrs, Seidel and Carscadden, and exhibits it introduced into evidence.

9/ The Borough counsel stated that the Respondent provided insurance coverage A for everything except violation of civil rights. @

10/ As earlier noted, the Respondent called no witnesses and it offered no refutation to Mr. Seidel = s testimony.

11/ While the Mayor= s statement did not offer to include the terms of the ordinance in a written agreement, in fact questioned the PBA = s request for a written contract, since it was made during the course of negotiations undertaken pursuant to the Amended Act, the Borough must be deemed to have made its offer in contemplation that if any agreement resulted it would be reduced to writing. Indeed, within a week following the reading of the Mayor = s statement, the Borough executed a document recognizing its responsibility to reduce a negotiated agreement to writing.

12 / While the Borough may have engaged in conduct in this respect and others raising question as to its compliance with the negotiation obligation in accordance with N.J.S.A . 34:13A-5.4(a)(5), there is no allegation before the undersigned charging the Borough with a violation thereunder.

13 / (Terms and Conditions)

All of these subjects involving compensation are A matters directly and intimately affecting [the employees = ] working terms and conditions @ , Burlington County College Faculty Assn. v. Board of Trustees, 64 N.J . 10, 14 (1973) and are A ...terms and conditions of employment within the contemplation of the Employer-Employee Relations Act. @ The Board of Education of the City of Englewood v. Englewood Teachers Assn., 64 N.J. 1, 6-7 (1973).

14/ While the Ordinance is silent as to the ten paid holidays, the Borough = s counsel agreed that the ten holidays comprise New Year = s Day, Washington Birthday, Lincoln = s Birthday, Easter, Memorial Day, Independence Day, Labor Day, Columbus Day, Thanksgiving Day and Christmas. The parties = agreement should accordingly incorporate these ten days as the paid holidays.

15 / See In re Bergenfield Board of Education, P.E.R.C. No. 90, 1 NJPER 44 (1975) and In re East Brunswick Board of Education , P.E.R.C. No. 77-6 (1976).

16/ The Borough = s conduct has been found herein to violate subdivision (a)(6) in haec verba . The PBA has failed to show what precise rule of the Commission has been violated by the Borough = s conduct in this regard and its counsel stated that the 9a)(7) allegation merged with the (a)(6) allegation. In the absence of any supporting evidence or applicable rule, and as the conduct is fully proscribed by subsection (a)(6) of the Amended Act I will recommend dismissal of the allegation alleging violation of (a)(7).

17 / N.J.S.A. 34:13A-8.1 now provides, in pertinent part, A ...nor shall any provision hereof annul or modify any pension statute or statutes of this State. [Emphasis added]

18/ N.J.S.A. 34:13A-5.3 provides, in pertinent part:

A Public Employers shall negotiate written policies setting forth grievance procedures by means of which their employees or representatives of employees may appeal the interpretation, application or violation of policies, agreements, and administrative decisions affecting them, provided that such grievance procedures shall be included in any agreement entered into between the public employer and the representative organization. @

19/ See N.J.S.A. 34;13A-5.4(c).

20/ The experience and adjudications under the similar National Labor Relations Act are accepted as an intended guide for the administration of the New Jersey Employer-Employee Relations Act. Lullo v. I.A.F.F., 55 N.J. 409 (1970).

21/ See In re Hoboken Board of Education, P.E.R.C. No. 77-5 (1976).

22/ Inasmuch as the PBA did not become the certified representative of the unit employees until May 15, 1975, and I find the evidence of its recognition for purposes of negotiations on behalf of the employees prior thereto to be inadequate and unsubstantiated, the agreement may only encompass the period of its proven representative status in 1975.

23 / Since the Borough by terms of the Ordinance made the benefits retroactive to January 1, 1975, I find that its last offer to the PBA made at the parties = meeting of November 12, 1975 encompassed retroactivity of the terms, and, accordingly, I have provided that the parties = agreement shall likewise give full effect to this offer, including the retroactivity of its terms to January 1, 1975.