P.E.R.C. No. 2000-5, Pemberton Tp

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of TOWNSHIP OF PEMBERTON, Petitioner, -and- Docket No. SN-99-67 PEMBERTON TOWNSHIP POLICEMEN'S BENEVOLENT ASSOCIATION, LOCAL 260, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, Barron & Gillespie, attorneys ¶

(Thomas M. Barron, on the brief) ¶

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

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

DECISION ¶

On March 10, 1999, the Township of Pemberton petitioned for a scope of negotiations determination. The petition seeks a determination that three proposals made by the Pemberton Township Policemen's Benevolent Association, Local 260 are not mandatorily negotiable and may not be submitted to interest arbitration for inclusion in a successor collective negotiations agreement. ¶

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

The PBA represents sergeants, patrol officers and detectives employed by the Township. The parties' most recent contract expired on December 31, 1998 and the PBA has petitioned for compulsory interest arbitration. ¶

The PBA has withdrawn its proposal concerning the Job Safety Committee. We thus do not consider that proposal. ¶

Article X of the parties' agreement is entitled Health and Welfare. Section H provides: ¶

H. The Township will provide an employee with twenty-five (25) years of continuous full time service, who is eligible for retirement, with continued health insurance. This provision will cover the employee only at the single person rate. ¶

The PBA has proposed the following as Article X(H): ¶

The employer will provide a retired employee with a minimum of twenty-five (25) years of credited services with the Police and Fire Retirement System (PFRS) continued health insurance. This provision will cover the employee only at the single person rate. However, the employee may upgrade the health benefit to a family plan and the cost difference between a single person rate and a family plan shall be paid by the retired employee at the group rate. ¶

The PBA has proposed the following as Article X(I): ¶

The employer will provide an employee who retires as a result of an in the line of duty injury, with continued health benefits as received while the employee was employed. ¶

The Township does not participate in the State Health Benefits Program. ¶

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 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] ¶

The parties' dispute involves only the first aspect of the Paterson test: do specific statutes preempt inclusion of the challenged provision in a successor agreement? To preempt negotiations over a mandatorily negotiable subject, a statute must expressly, specifically and comprehensively regulate that term and condition of employment, leaving no discretion for the parties to vary that condition through negotiations. Council of N.J. State College Locals, NJSFT-AFT/AFL-CIO v. State Bd. of Higher Ed ., 91 N.J. 18, 30 (1982); see also Bethlehem Tp. Bd. of Ed. and Bethlehem Tp. Ed. Ass'n, 91 N.J. 38 (1982). ¶

The employer argues that N.J.S.A . 40A:10-23 preempts negotiations. That statute provides: ¶

Retired employees shall be required to pay for the entire cost of coverage for themselves and their dependents at rates which are deemed to be adequate to cover the benefits, as affected by Medicare, of the retired employees and their dependents on the basis of the utilization of services which may be reasonably expected of the older age classification.... ¶

The employer may, in its discretion, assume the entire cost of such coverage and pay all of the premiums for employees a. who have retired on a disability pension or b. who have retired after 25 years or more of service credit in a State or locally administered retirement system and a period of up to 25 years with the employer at the time of retirement, such period of service to be determined by the employer and set forth in an ordinance or resolution as appropriate or c. who have retired and reached the age of 65 years or older with 25 years or more of service credit in a State or locally administered retirement system and a period of service of up to 25 years with the employer at the time of retirement, such period of service to be determined by the employer and set forth in an ordinance or resolution as appropriate, or d. who have retired and reached the age of 62 years or older with at least 15 years of service with the employer, including the premiums on their dependents, if any, under uniform conditions as the governing body of the local unit shall prescribe.... 1/ ¶

The employer specifically argues that N.J.S.A . 40A:10-23 grants it the sole discretion to define the minimum period of service with the employer for purposes of eligibility for retiree ¶

Note1/ N.J.S.A . 40A:10-23.1, 23.2 and 23.3 specify additional circumstances in which a public employer may pay for retiree health coverage. ¶

health benefits. That statute authorizes public employers to exercise discretion in setting eligibility requirements, but contains no statutory limitation on how such discretion must be exercised. The duty to negotiate over this issue is therefore not excused through statutory preemption. See In re Hunterdon Cty. and CWA, 116 N.J . 322, 331 (1989); Frankford Bd. of Ed., P.E.R.C. No. 98-60, 23 NJPER 625 (¶28304 1997). ¶

The employer next argues that an interest arbitrator may not rule on a proposal that would affect employees over whom the arbitrator has no jurisdiction. It cites Manalapan Tp., P.E.R.C. No. 98-136, 24 NJPER 269, 270 (¶29128 1998). We recently held that where an employer or a majority representative proposes to codify an existing uniform benefit, such a proposal would not affect other employees or create non-uniformity in retiree health benefits. Borough of Matawan, P.E.R.C. No. 99-107, 25 NJPER (¶1999). Where an employer or a majority representative proposes to change or institute provisions concerning employer payment of retiree health benefits under N.J.S.A . 40A:10-23, such a proposal must be made contingent upon the uniformity requirements of N.J.S.A. 40A-10-23 being met. Matawan; Ocean Tp ., P.E.R.C. No. 95-12, 20 NJPER 331 (¶25172 1994), aff'd 21 NJPER 324 (¶26208 App. Div. 1995). The concern that an interest arbitrator not issue an award that would bind another unit is addressed if any change in employer payments takes effect only when uniformity requirements are met. Matawan. ¶

The PBA asserts that the employer has paid for retiree health benefits for some employees who do not have 25 years of service with the employer and that therefore it does not seek a change in benefits. The employer asserts that the PBA proposes to change retiree health benefits and create non-uniformity. Absent a showing that all employees subject to the uniformity requirements of N.J.S.A . 40A:10-23 are currently eligible for retiree health benefits without any service requirement with this employer, we assume that the PBA's proposal, in some way, seeks to change the status quo. Accordingly, we find its proposal not mandatorily negotiable unless modified to clarify that it does not take effect until the uniformity requirements of N.J.S.A. 40A:10-23 are met. ¶

Finally, the employer argues that the uniformity provision in N.J.S.A . 40A:10-23 prohibits arbitration of the PBA's proposal for paid health benefits for employees who retire as a result of line of duty injuries. Consistent with our above ruling, this proposal is not mandatorily negotiable unless modified to clarify that it does not take effect until uniformity requirements are met. ¶

OrderORDER ¶

The PBA's proposals are not mandatorily negotiable unless modified to clarify that they do not take effect until the uniformity requirements of N.J.S.A. 40A:10-23 are met. ¶

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 ¶