P.E.R.C. No. 2000-4, Belmar Boro

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of BOROUGH OF BELMAR, Petitioner, -and- Docket No. SN-99-45 P.B.A. LOCAL 50, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, Ruderman & Glickman, P.C., attorneys ¶

(Joel G. Scharff, on the brief) ¶

For the Respondent, Loccke & Correia, P.A., attorneys ¶

(Charles E. Schlager, Jr., on the brief) ¶

DECISION ¶

On December 24, 1998, the Borough of Belmar petitioned for a scope of negotiations determination. The petition seeks a restraint of binding arbitration of a grievance filed by P.B.A. Local 50. The grievance contests the denial of a light duty assignment to an injured police officer. ¶

The parties have filed briefs and exhibits. These facts appear. ¶

The PBA represents patrol officers, detectives, sergeants, lieutenants and captains. The Borough and the PBA are parties to a collective negotiations agreement. The grievance procedure ends in binding arbitration. ¶

The Borough is self-insured for workers' compensation purposes. The Borough has permitted injured employees to return to work in civilian, non-police department jobs so that workers' compensation benefits do not have to be paid. The Borough asserts that it does not have a general policy giving any injured employee to a light duty assignment. The Borough acknowledges that officers injured in off-duty accidents have been permitted to work where (1) the restrictions imposed by the injuries did not impair their job performance, or (2) where there was a vacancy in a civilian or uniformed position which they could perform. The Borough cites a similar situation about 10 years ago involving Officer Joseph J. Byrne, Jr. Approximately one week before his return to work from a heart problem, he was permitted to fill in for the Borough's temporarily absent file clerk. ¶

The PBA asserts that the Borough has had a past practice of allowing injured police officers to perform available law enforcement assignments until they are able to return to regular duty. ¶

On September 8, 1998, Byrne informed the chief that he had injured his arm while on vacation and that his physician had advised him that he would not be able to perform his regular duties until two to three weeks after his vacation ended. Byrne requested that after his vacation ended, he be provided with light duty. The chief denied Byrne's request stating, "we do not have light duty posts in the Belmar Police Department; hence, any time you are unable to perform your duties during this injured period of time will come from your sick leave." ¶

On September 13, 1998, the PBA grieved the denial of Byrne's request, alleging that the denial violated Article VI (sick leave) of the parties' agreement. The grievance asserted that other injured officers were given light duty during their recuperations. ¶

On September 17, 1998, the chief responded that the department did not have light duty posts for officers who are injured off duty. He noted that other employees who had performed light duty while injured were on workers' compensation and the Borough's workers' compensation doctor had allowed them to perform administrative duties. He requested clarification as to the section of Article VI that was allegedly violated, but denied the grievance based on the facts presented. ¶

On September 24, 1998, the Mayor and Council denied the grievance. On October 13, the PBA demanded arbitration over the Borough's alleged "failure to allow an injured police officer to perform light duty as the Borough permits other officers." This petition ensued. ¶

Our jurisdiction is narrow. Ridgefield Park Ed. Ass'n v. Ridgefield Park Bd. of Ed., 78 N.J . 144, 154 (1978), states: ¶

The Commission is addressing the abstract issue: is the subject matter in dispute within the scope of collective negotiations. Whether that subject is within the arbitration clause of the agreement, whether the facts are as alleged by the grievant, whether the contract provides a defense for the employer's alleged action, or even whether there is a valid arbitration clause in the agreement or any other question which might be raised is not to be determined by the Commission in a scope proceeding. Those are questions appropriate for determination by an arbitrator and/or the courts. ¶

Thus, we cannot consider the merits of the grievance or any contractual defenses the employer may have. ¶

The scope of negotiations for police officers and firefighters is broader than for other public employees because N.J.S.A . 34:13A-16 provides for a permissive as well as a mandatory category of negotiations. Paterson Police PBA Local No. 1 v. Paterson, 87 N.J . 78 (1981), outlines the steps of a scope of negotiations analysis for police officers and firefighters: ¶

First, it must be determined whether the particular item in dispute is controlled by a specific statute or regulation. If it is, the parties may not include any inconsistent term in their agreement. [ State v. State Supervisory Employees Ass'n, 78 N.J . 54, 81 (1978).] If an item is not mandated by statute or regulation but is within the general discretionary powers of a public employer, the next step is to determine whether it is a term or condition of employment as we have defined that phrase. An item that intimately and directly affects the work and welfare of police and firefighters, like any other public employees, and on which negotiated agreement would not significantly interfere with the exercise of inherent or express management prerogatives is mandatorily negotiable. In a case involving police and firefighters, if an item is not mandatorily negotiable, one last determination must be made. If it places substantial limitations on government's policymaking powers, the item must always remain within managerial prerogatives and cannot be bargained away. However, if these governmental powers remain essentially unfettered by agreement on that item, then it is permissively negotiable. ¶

[87 N.J. at 92-93; citations omitted] ¶

We will not restrain arbitration of a grievance involving police officers unless the alleged agreement is preempted or would substantially limit government's policymaking powers. Preemption is not at issue here. ¶

The Borough asserts that the grievance seeks to compel it to create a light duty assignment for Byrne to avoid his having to use sick time. It claims that at the time of Byrne's recent injury, no light duty posts existed. Alternatively it argues that even if a position had been available, the PBA has not "presented an acceptable grievance within the limited scope of disputes allowed by the Commission to proceed to arbitration." ¶

The PBA acknowledges that the Borough has a managerial prerogative to establish, create and rescind a light duty policy; but it asserts that its grievance seeks only to have the Borough define, describe and memorialize its existing "light duty" policy to prevent it from being applied arbitrarily. It asserts that an arbitrator may determine whether the Borough's denial of Byrne's request for light duty violated that policy. The PBA cites Franklin Tp., P.E.R.C. No. 95-105, 21 NJPER 225 (¶26143 1995), in which arbitration was allowed where the grievance challenged a light-duty policy limiting eligibility to officers injured on the job. ¶

We have restrained arbitration of grievances demanding that an employer create light duty assignments. City of Camden, P.E.R.C. No. 93-3, 18 NJPER 392 (¶23177 1992); Montgomery Tp ., P.E.R.C. No. 89-22, 14 NJPER 574 (¶19242 1988); City of Camden , P.E.R.C. No. 83-128, 9 NJPER 220 (¶14104 1983). But we have declined to restrain arbitration of grievances asserting that employees were denied available light duty assignments for which they were qualified. City of Englewood, P.E.R.C. No. 94-114, 20 NJPER 257 (¶25128 1994); City of Englewood , P.E.R.C. No. 93-110, 19 NJPER 276 (¶24140 1993). Such claims are at least permissively negotiable. Where a light duty policy is acknowledged to exist, we have allowed arbitration of disputes where the employer asserted no position then existed, or that such positions were not available to officers injured off-duty. See, respectively, Ewing Tp., P.E.R.C. No. 97-9, 22 NJPER 283 (¶27153 1996) and Franklin Tp. ¶

The Borough acknowledges that it has made light duty available in the past to officers who were injured. But the Borough denies that Byrne is eligible for light duty or that any such jobs are available. As this employer has already decided in favor of having light duty for some employees, arbitration over whether it applies to off-duty injuries, or whether a light duty post is presently available, would not substantially limit any policy goal. Franklin Tp. ¶

OrderORDER ¶

The request of the Borough of Belmar for a restraint of binding arbitration is denied. ¶

BY ORDER OF THE COMMISSION ¶

Millicent A. Wasell ¶

Chair ¶

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

DATED: July 29, 1999 ¶

Trenton, New Jersey ¶

ISSUED: July 30, 1999 ¶