P.E.R.C. No. 2004-29, Keansburg Boro

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of BOROUGH OF KEANSBURG, Respondent, -and- Docket Nos. CO-H-2001-92 CO-H-2001-243 PBA LOCAL NO. 68, CO-H-2002-59 CO-H-2002-147 Charging Party. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission finds that the Borough of Keansburg violated the New Jersey Employer-Employee Relations Act by repudiating the grievance procedure it negotiated with P.B.A. Local No. 68 when it refused to implement grievance decisions sustained at steps one and two between August 2000 and November 2001, except for grievances sustained by the Chief of Police or Deputy Chief in favor of an immediate family member or grievances that were later withdrawn by the PBA and settled. ¶

This synopsis is not part of the Commission decision. It has been prepared for the convenience of the reader. It has been neither reviewed nor approved by the Commission. ¶

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of BOROUGH OF KEANSBURG, Respondent, -and- Docket Nos. CO-H-2001-92 CO-H-2001-243 PBA LOCAL NO. 68, CO-H-2002-59 CO-H-2002-147 Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, McElroy, Deutsch & Mulvaney, LLP, attorneys (Thomas P. Scrivo, of counsel; C. Michael Rowan, on the brief in support of exceptions) ¶

For the Charging Party, Klatsky & Klatsky, attorneys ¶

(David J. DeFillippo, of counsel) ¶

DECISION ¶

On October 16, 2000 and March 9, March 26, August 31 and November 29, 2001, PBA Local No. 68 filed four unfair practice charges and amendments to those charges alleging that the Borough of Keansburg violated the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq ., specifically 5.4a(1), (2), (3), (4), (5) and (7),1/ by refusing to implement a series of employer determinations at step one and two of the parties’ grievance procedure that sustained grievances filed by the PBA. The charges also allege that the employer violated the Act when its Acting Public Safety Director ordered that any grievance determinations by the Police Chief at step two would be tentative pending written approval by the Director. ¶

The Director of Unfair Practices consolidated the charges and issued a Complaint and Notice of Hearing. The employer’s Answer and amended Answers deny that it violated the Act, and contend that grievance determinations cannot violate State law or the collective agreement. ¶

On July 10, 2002, the PBA moved for summary judgment. On July 30, the employer filed a response and cross-motion for summary judgment. On August 5, the Commission Chair referred the motions to the Hearing Examiner. ¶

On March 3, 2003, the Hearing Examiner issued his decision on the motion and cross-motion. H.E. No. 2003-15, 29 NJPER 123 (¶39 2003). He granted the PBA’s motion for summary judgment on the allegation that the employer repudiated the parties’ collective negotiations agreement and therefore violated the Act when it refused to implement the grievance determinations issued at steps one and two, except he denied the motion as it pertained to grievances sustained by the Chief or Deputy Chief in favor of an immediate family member or to grievances that were eventually settled or withdrawn. ¶

The Hearing Examiner denied the PBA’s motion as it pertained to an allegation that the employer sought authorization from the New Jersey Department of Personnel to lay off eight unit members. He also denied the PBA’s motion as it pertained to the directive to the Chief not to issue final grievance determinations at steps one and two. ¶

The Hearing Examiner granted the employer’s cross-motion as it pertained to the direction to the Chief not to issue final grievance determinations. He otherwise denied the employer’s cross-motion. ¶

The matter was scheduled to proceed to hearing on the remaining allegations. On September 9, 2003, the Hearing Examiner granted the PBA’s request to withdraw the remaining allegations so that the Hearing Examiner’s decision would resolve all issues raised by the Complaint and the matter would be ripe for Commission review. ¶

On September 23, 2003, the employer filed exceptions. It argues that the Hearing Examiner erroneously rejected its argument that the PBA had an obligation to pursue all four steps of the grievance procedure before filing an unfair practice charge. The Borough also specifies how it believes the contract does not permit granting the grievances and asserts that the step one and two grievance determinations were the product of bias and collusion with the PBA. ¶

On September 25, 2003, the PBA filed a response and cross- exceptions. The PBA asserts that the employer’s exceptions are untimely, the Hearing Examiner correctly concluded that the employer repudiated the parties’ grievance procedure, the employer’s collusion allegation is nonsense, and the Hearing Examiner erred in granting the employer’s cross-motion limiting the Chief’s ability to resolve grievances. ¶

We have reviewed the record. We adopt and incorporate the Hearing Examiner’s undisputed findings of fact (H.E. at 8-18). ¶

The employer’s exceptions are untimely. On September 9, 2003, the Hearing Examiner informed the parties that his decision on the motion and cross-motion was now a Report and Recommended Decision to which exceptions could be filed within ten days. Exceptions were due on September 22. (Three days are added to the ten to allow for receipt of the Hearing Examiner’s letter.) See N.J.A.C . 19:10-2.1(b). Exceptions were not filed until September 23. We will not consider the exceptions. ¶

N.J.S.A . 34:13A-5.3 requires public employers to negotiate grievance procedures by means of which their employees or representatives of employees may appeal the interpretation, application or violation of policies, agreements, and administrative decisions. Such grievance procedures shall be utilized for any dispute covered by the terms of the collective negotiations agreement. Ibid. ¶

N.J.S.A . 34:13A-5.4a(5) makes it an unfair practice for a public employer to refuse to negotiate in good faith with a majority representative or to refuse to process grievances presented by the majority representative. We have previously held, in similar circumstances, that an employer’s refusing to honor the binding decision of its grievance representative constitutes a refusal to negotiate in good faith, and, in particular, an unjustifiable refusal to honor the grievance procedures it negotiated for the resolution of contractual disputes. Passaic Cty. (Preakness Hosp.), P.E.R.C. No. 85-87, 11 NJPER 136 (¶16060 1985); see also AFSCME, District Council 90 v. Dauphin Cty., 32 PPER 25 (¶32007 2000). That principle applies here. ¶

The employer’s reliance on the fact that the PBA had a right to appeal decisions it did not agree with is misplaced. Once the employer’s designated representative issued decisions the PBA agreed with, the PBA had no reason to pursue any of the grievances. ¶

The employer later ordered that the Chief not issue any binding decisions without clearance from his superiors. The Hearing Examiner found that such action was lawful and protected the employer from further decisions it did not agree with. We reject the PBA’s exception to that determination. Step two of the grievance procedure provides: ¶

If the grievance is not settled at the first step, the grievant may make a written request for a second step meeting within five calendar days after the answer at the first step. The Chief of Police shall set a meeting within five calendar days after the request or for such time as is mutually agreeable. Said second step meeting shall be between the Chief of Police with the Association representative or the Association attorney, if requested by the grievant. The Chief of Police’s answer to the second step shall be delivered to the Association within five calendar days after the meeting. ¶

The employer ordered the Chief to no longer issue any “ultimate” settlements without prior written approval. That edict does not appear to repudiate the terms of the parties’ grievance procedure and thus did not violate the Act. ¶

Finally, we note that the employer argued that the grievances were not meritorious. The Hearing Examiner discussed those contractual defenses at length. We need not address them because, as the Hearing Examiner stated, the contractual merits of the grievances are not relevant to the issue of whether the employer repudiated the grievance procedure. Having found that it did so, we adopt the Hearing Examiner’s recommendations. ¶

OrderORDER ¶

The Borough of Keansburg is ordered to: ¶

A. Cease and desist from: ¶

1. Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by the Act, particularly by repudiating the grievance procedure it negotiated with PBA Local No. 68 when it refused to implement grievance decisions sustained at steps one and two between August 2000 and November 2001, except for grievances sustained by the Chief of Police or Deputy Chief in favor of an immediate family member or grievances that were later withdrawn by the PBA and settled. ¶

2. Refusing to negotiate in good faith with the PBA concerning terms and conditions of employment, particularly by repudiating the grievance procedure it negotiated with PBA Local No. 68 when it refused to implement grievance decisions sustained at steps one and two between August 2000 and November 2001, except for grievances sustained by the Chief of Police or Deputy Chief in favor of an immediate family member or grievances that were later withdrawn by the PBA and settled. ¶

B. Take this action: ¶

1. Post in all places where notices to employees are customarily posted, copies of the attached notice marked as Appendix "A." Copies of such notice shall, after being signed by the Respondent's authorized representative, be posted immediately and maintained by it for at least sixty (60) consecutive days. Reasonable steps shall be taken to ensure that such notices are not altered, defaced or covered by other materials. ¶

2. Within twenty (20) days of receipt of this decision, notify the Chair of the Commission of the steps the Respondent has taken to comply with this order. ¶

The remaining allegations in the Consolidated Complaint are dismissed. ¶

BY ORDER OF THE COMMISSION ¶

Millicent A. Wasell ¶

Chair ¶

Chair Wasell, Commissioners Buchanan, DiNardo, Mastriani, Ricci and Sandman voted in favor of this decision. None opposed. Commissioner Katz was not present. ¶

DATED: November 17, 2003 ¶

Trenton, New Jersey ¶

ISSUED: November 18, 2003 ¶

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; (2) Dominating or interfering with the formation, existence or administration of any employee organization; (3) Discriminating in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage employees in the exercise of the rights guaranteed to them by this act; (4) Discharging or otherwise discriminating against any employee because he has signed or filed an affidavit, petition or complaint or given any information or testimony under 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; (7) Violating any of the rules and regulations established by the commission.” ¶