P.E.R.C. No. 2003-2, Union Cty Sheriff

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of UNION COUNTY SHERIFF, Petitioner, -and- Docket No. SN-2002-50 P.B.A. LOCAL NO. 108, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, Schenk, Price, Smith & King, LLP, attorneys (Kathryn V. Hatfield, on the brief) ¶

DECISION ¶

On April 12, 2002, the Union County Sheriff petitioned for a scope of negotiations determination. The petition seeks a restraint of binding arbitration of a grievance filed by P.B.A. Local No. 108. The grievance asserts that the reassignment of an officer from a detective position to a sheriff's officer position was disciplinary. ¶

The employer has filed a brief, exhibits and the certification of Sheriff Ralph Froehlich. The PBA did not file a brief. These facts appear. ¶

The PBA represents all sheriffs officers below the rank of sergeant. The parties' collective negotiations agreement is effective from January 1, 2001 through December 31, 2004. This grievance arose under the 1998-2000 agreement. The grievance procedure ends in binding arbitration. ¶

The parties' agreement contains a Management Rights clause. This clause vests the Sheriff with the right to determine the qualifications for continued employment, dismissal, demotion, promotion, transfer and to discipline for just cause. The Sheriff also has the right to determine work schedules, duties, responsibilities and assignments of all employees. ¶

The agreement also contains a clause concerning sheriff's detectives. It provides that the Sheriff may assign up to fifteen sheriff's officers as detectives, detectives shall perform assigned investigative duties, and detectives shall serve solely at the pleasure of the Sheriff. ¶

The Sheriff certifies that assignment as a detective does not connote any rank or promotion. He states that over the years he has assigned many sheriff's officers to detective and then reassigned them back to the sheriff's officer position. ¶

On June 6, 2001, Sheriff's Officer Virginia Fanelli was temporarily reassigned from a detective position to the position of sheriff's officer in charge of monitoring the front entrance to the court house. The Sheriff states that he made this decision based on his evaluation of staff needs and employee qualifications. ¶

On June 11, 2001, Fanelli was permanently reassigned from a detective position to the sheriff's officer position. The Sheriff states that this decision was made due to his staffing needs and his goal of matching the best qualified employee to a particular job. ¶

On June 11, 2001, the PBA filed a grievance. The grievance contests Fanelli's reassignment. It states that Fanelli was charged with numerous violations of rules and regulations and received a 30-day suspension that ended on June 6, but that this discipline did not include loss of her detective badge. The grievance alleges that Fanelli's reassignment constituted discipline without just cause. ¶

On June 14, 2001, the Sheriff denied the grievance. He stated that his action was a reassignment, not discipline, and that therefore the grievance is without merit. ¶

The PBA demanded arbitration. 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 contractual merits of this grievance or any contractual defenses the employer may have. ¶

The scope of negotiations for police officers and firefighters is broader than for other employees. Paterson Police PBA Local No. 1 v. City of Paterson, 87 N.J . 78 (1981), sets forth these negotiability tests: ¶

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 employer argues that based on well-settled case law, a reassignment or transfer of a police officer may not be arbitrated, even if it is disciplinary. We agree. ¶

In Borough of New Milford, P.E.R.C. No. 99-43, 25 NJPER 8 (¶30002 1998), we held that, as enacted in 1982 and as construed in State Troopers Fraternal Ass'n v. State, 134 N.J . 393 (1993), the discipline amendment to N.J.S.A . 34:13A-5.3 did not apply to any disciplinary disputes involving police officers. The 1996 amendment to section 5.3 authorizes agreements to arbitrate minor disciplinary disputes, but that authorization does not extend to reassignments of police officers. Police officers who believe that they have been unjustly reassigned as a form of discipline must file a Superior Court action in lieu of prerogative writ. Monmouth Cty. v. CWA, 300 N.J. Super. 272, 289 (App. Div. 1997). 1/ ¶

OrderORDER ¶

The request of the Union County Sheriff's Office for a restraint of binding arbitration is granted. ¶

BY ORDER OF THE COMMISSION ¶

Millicent A. Wasell ¶

Chair ¶

Chair Wasell, Commissioners Buchanan, Katz, McGlynn, Muscato and Ricci voted in favor of this decisions. None opposed. Commissioner Sandman was not present. ¶

DATED: July 25, 2002 ¶

Trenton, New Jersey ¶

ISSUED: July 26, 2002 ¶

Note1/ Borough of Dumont, P.E.R.C. No. 98-111, 24 NJPER 168 (¶29083 1998), was issued before New Milford and accepted the employer's concession for purposes of that decision that a disciplinary reassignment would be legally arbitrable. New Milford considered that issue fully and rejected that position. ¶