P.E.R.C. No. 2000-10, Jersey City

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of CITY OF JERSEY CITY, Respondent, -and- Docket No. CO-H-97-106 JERSEY CITY POLICE SUPERIOR OFFICERS ASSOCIATION, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, Martin R. Pachman, P.C., attorneys ¶

(Robin T. McMahon, of counsel) ¶

For the Charging Party, Klausner, Hunter & Rosenberg, attorneys (Stephen B. Hunter, of counsel) ¶

DECISION ¶

On October 1, 1996, the Jersey City Police Superior Officers Association filed an unfair practice charge against the City of Jersey City. The charge alleges that the employer violated the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq., specifically 5.4a(1) and (5), 1/ when it unilaterally shifted certain law enforcement unit work performed ¶

Note1/ 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. (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." ¶

by Deputy Chief Peter Behrens and Captain Thomas Leigh to non-unit, civilian employees. ¶

On October 6, 1998, a Complaint and Notice of Hearing issued. The City filed an Answer denying that it had violated the Act and asserting that its actions constituted inherent policy determinations that would be impermissibly hampered by negotiations. ¶

On November 9, 1998, Hearing Examiner Edmund G. Gerber conducted a hearing. The parties examined witnesses and introduced exhibits. They waived oral argument, but filed post hearing briefs. ¶

On January 8, 1999, the Hearing Examiner recommended dismissing the Complaint. H.E. No. 99-15, 25 NJPER 105 (¶30045 1999). He found that the City civilianized the work performed by the superior officers for primarily operational rather than economic reasons. Applying City of Jersey City v. Jersey City P.O.B.A., 154 N.J . 555 (1998), he concluded that the City had no obligation to negotiate with the Association over using civilian employees to perform work previously done by Behrens and Leigh. ¶

On February 5, 1999, the Association filed exceptions. On February 17, the City filed an answering brief urging adoption of the Hearing Examiner's recommendation and asserting that the allegation regarding Leigh is untimely. ¶

We have reviewed the record. We adopt the Hearing Examiner's findings of fact (H.E. at 2-8) including those based on his crediting of the testimony of police director Michael Moriarity. The differences in the testimony between Moriarity and the two officers concerning the nature of their jobs and their place in the law enforcement process are largely differences of opinion rather than fact. We reject the Association's exceptions based on those differing perspectives. We adopt the Hearing Examiner's recommendation to dismiss the Complaint for the reasons set forth in this decision. ¶

Jersey City held that this employer had a managerial prerogative to reorganize its police department to combat crime by increasing the number of police officers in field positions. The Association argues that the facts of this case distinguish it from Jersey City . It has filed three main exceptions in support of that contention: (1) the City's economic savings resulting from the civilianization of the posts held by Leigh and Behrens were the primary, if not exclusive reason for civilianization; (2) the duties of the positions involved critical law enforcement functions that could not be performed by civilians; and (3) civilianization did not implicate any managerial prerogatives nor did it result in the assignment of additional police to patrol positions. ¶

The Hearing Examiner addressed these contentions. H.E. No. 99-15 at 9. We accept his finding that the City acted for primarily operational reasons and that the assessment as to whether a position previously assigned to a law enforcement officer could be performed by a civilian was a managerial judgment. 2/ These operational and managerial decisions were the exercise of the employer's managerial prerogatives. On this record, the City had no obligation to negotiate before transferring Leigh and Behrens to positions in the patrol division and filling their former posts with civilian employees. 3/ ¶

OrderORDER ¶

The Complaint is dismissed. ¶

BY ORDER OF THE COMMISSION ¶

Millicent A. Wasell ¶

Chair ¶

Chair Wasell, Commissioners Buchanan, Madonna, McGlynn, Muscato and Ricci voted in favor of this decision. Commissioner Boose was not present. ¶

DATED: July 29, 1999 ¶

Trenton, New Jersey ¶

ISSUED: July 30, 1999 ¶

Note2/ The Hearing Examiner focused on the City's overall costs in assessing whether the motivation for the personnel moves was economic. Even assuming that the City realized the savings portrayed by the Association, we agree with the Hearing Examiner that the City's reasons were primarily operational. ¶

3/ Because we find that the City had no obligation to negotiate over these personnel moves, we need not deal with its contention that the portion of the Complaint related to Leigh was untimely. ¶