P.E.R.C. No. 2000-8, Passaic City

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of CITY OF PASSAIC, Petitioner, -and- Docket No. SN-99-78 P.B.A. LOCAL 14, 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 April 12, 1999, the City of Passaic petitioned for a scope of negotiations determination. The City's petition seeks a determination that an existing contract provision is not mandatorily negotiable and may not be submitted to interest arbitration for inclusion in a successor collective negotiations agreement between the City and P.B.A. Local 14. ¶

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

The PBA represents all full-time members of the police department, except the chief and deputy chief. The parties' collective negotiations agreement expired on December 31, 1998. The parties are in negotiations for a successor agreement and the PBA has petitioned for interest arbitration. ¶

Paterson Police PBA No. 1 v. Paterson, 87 N.J . 78 (1981), outlines the 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 only consider whether the provision is mandatorily negotiable. We do not decide whether contract proposals concerning police officers are permissively negotiable since the employer need not negotiate over such proposals or consent to their retention in a successor agreement. Town of West New York, P.E.R.C. No. 82-34, 7 NJPER 594 (¶12265 1981). ¶

Article XXII is entitled Replacements and provides: ¶

No full-time Employee covered by this Agreement shall be replaced by any non-Police, part-time or other personnel. ¶

No post presently filled by a full-time Employee covered by this Agreement shall be filled by any non-Police, part-time or other personnel without prior negotiations. ¶

The City asserts that this provision interferes with its prerogative to organize the police department and assign personnel. It states that the provision does not include language which allows the City to replace police employees with civilian personnel when the City needs to deploy the police officers to investigate crimes and apprehend criminals. The City relies on Jersey City v. Jersey City POBA, 154 N.J. 555 (1998), and Borough of Bogota, P.E.R.C. No. 99-77, 25 NJPER 129 (¶30058 1999), app. pending App. Div. Dkt. No. A-003714-98T2. ¶

The PBA asserts that Jersey City did not eliminate the negotiability of unit work protections, but stated that the facts of each case must be weighed by applying the balancing test in State v. Local 195, IFPTE, 88 N.J . 393 (1982). The PBA further asserts that the City merely wants to remove a clause preserving unit work. ¶

The City responds that it would have no objection to inclusion of the clause if the phrase "[e]xcept as to matters involving civilianization of positions" was inserted before each of the two sentences. ¶

The unit work rule provides that an employer must negotiate before using non-unit employees to do work traditionally performed by unit employees alone. Jersey City, 154 N.J . at 575. The object is to provide the union with at least an opportunity to negotiate an acceptable alternative, one that would not result in loss of jobs and reduction in union membership. Id. at 576. ¶

The contract provision that the PBA seeks to include in a successor agreement is a typical unit work provision. It prohibits the use of non-unit personnel to fill positions traditionally filled by full-time unit employees. ¶

There are circumstances where such a provision would be enforceable. For example, special police officers may be used to assist the local police force, but the Legislature has prohibited using them to replace or substitute for full-time, regular police officers or to diminish the number of full-time officers. N.J.S.A. 40A:14-146.16b; City of Egg Harbor City , P.E.R.C. No. 98-95, 24 NJPER 114 (¶29057 1998). An article like the one in dispute could be invoked to contest the use of special police hired to replace or substitute for full-time, regular police officers. In addition, we have had cases where the desire to provide police coverage at reduced cost did not, as a matter of law, permit an employer to abrogate an alleged contractual commitment to use full-time rather than part-time police officers to perform police duties. See, e.g., City of Egg Harbor City , P.E.R.C. No. 98-128, 24 NJPER 228 (¶29108 1998); see also Borough of Belmar, P.E.R.C. No. 89-73, 15 NJPER 73 (¶20029 1988), aff'd ¶

NJPER Supp .2d 222 (¶195 App. Div. 1989); Borough of Paramus , P.E.R.C. No. 86-17, 11 NJPER 502 (¶16178 1985). Compare N.J.S.A . 40A:14-146.8. An article like the one in dispute could be invoked to contest the use of part-time police officers rather than full-time police officers to perform police duties at a lower cost. ¶

However, there are other circumstances where such a unit work provision would not be enforceable. For example, applying the negotiability balancing test to the circumstances of that case, Jersey City held that the employer had a managerial prerogative to reorganize its police department to combat crime by increasing the number of police officers in field positions. A provision like Article XXXVII would not have defeated the employer's right to civilianize the positions in that case. Under those circumstances, a contractual work preservation provision would not have been enforceable. And we applied Jersey City in holding that the employer had a managerial prerogative to civilianize dispatching services. Borough of Bogota . A work preservation clause would not have affected application of the negotiability balancing test to the facts of that case or changed its result. See Local 195. ¶

The City acknowledges that the disputed language can relate to legitimate unit work issues, but asserts that it also prohibits the City from exercising its managerial prerogative to replace officers in positions which may be civilianized. It has therefore proposed alternate contract language that recognizes that some unit work disputes are not mandatorily negotiable and excludes them from contractual protection. However, its argument that the alternative contract language is required as a matter of law is too broad and would sweep in disputes that are mandatorily negotiable. Jersey City held that a particular type of civilianization decision was a managerial prerogative. But it stated that the balancing test must be applied to each dispute, leaving open the possibility that there might be a civilianization dispute where the balance tips in favor of negotiability. ¶

The PBA's proposal and the City's counterproposal point out the difficulty of crafting a contract clause that will protect unit work where permissible, but specify where that protection would significantly interfere with governmental policy determinations. Accordingly, we reaffirm that this type of work preservation clause is mandatorily negotiable in the abstract, but for police officers, the clause must specify that it is subject to the employer's right to civilianize for demonstrated governmental policy reasons. This result balances the employees' interest in protecting unit work where lawful and the employer's interest in protecting governmental policy. ¶

OrderORDER ¶

Article XXII is not mandatorily negotiable unless modified to specify that it is subject to the employer's right to civilianize for demonstrated governmental policy reasons. The clause is otherwise mandatorily negotiable. ¶

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 ¶