P.E.R.C. No. 2005-12, Kearny

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of TOWN OF KEARNY, Respondent, -and- Docket No. CO-2003-173 KEARNY Council No. 11, Charging Party. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission finds that the Town of Kearny violated the New Jersey Employer-Employee Relations Act when it inserted language into the contract with Kearny Council 11 that had not been agreed to in negotiations. The Commission orders the Town to remove the inserted language, process grievances without the inclusion of the language, and post a notice of its violation. ¶

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 TOWN OF KEARNY, Respondent, -and- Docket No. CO-2003-173 KEARNY COUNCIL NO. 11, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, Ciffeli & Davey, attorneys ¶

(Kenneth Davie, of counsel) ¶

For the Charging Party, Zazzali, Fagella, Nowak, Kleinbaum & Friedman, attorneys ¶

(Paul L. Kleinbaum, of counsel) ¶

DECISION ¶

On May 10, 2004, the Town of Kearny filed exceptions to a Hearing Examiner’s report and recommendations. The Hearing Examiner found that the Town violated its duty to negotiate in good faith under the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq., specifically 5.4a(1) and (5), 1/ when its business administrator inserted language into Article XII of the parties’ contract without Council 11’s knowledge and consent. The Hearing Examiner recommended that the Town be ordered to remove the language from the contract, process grievances without that language, and post a notice of its violation. ¶

The unfair practice charge was filed by Kearny Council No. 11 on January 10, 2003. On June 16, a Complaint and Notice of Hearing issued. On July 20, the Town filed an Answer, asserting that the contract was signed with Council 11’s knowledge and consent. ¶

On October 15 and 16, 2003, Hearing Examiner Wendy L. Young conducted a hearing. The parties examined witnesses and introduced exhibits. They waived oral argument, but filed post- hearing briefs. ¶

On March 25, 2004, the Hearing Examiner issued her report and recommendations. H.E. No. 2004-13, 30 NJPER 152 (¶61 2004). On May 10, the Town filed exceptions. On June 7, the Association filed an answering brief urging adoption of the Hearing Examiner’s recommendations. ¶

N.J.S.A . 34:13A-5.3 requires both parties to negotiate in good faith. When an agreement is reached on terms and conditions of employment, it must be embodied in writing and signed. The duty to negotiate in good faith precludes either party from unilaterally inserting language into a final contract absent negotiations and agreement about that language. This prohibition applies here even if management thought it was simply clarifying existing contract language. It applies even if the added language does not substantively change the meaning of the parties’ agreement. The integrity of the negotiations process requires that parties reduce to writing and sign what they agreed to, nothing more and nothing less. ¶

We have reviewed the record. We adopt and incorporate the Hearing Examiner’s findings of fact, including her credibility determinations (H.E. at 2-18), with one modification noted below. 2/ We now summarize the key events and specifically respond to the Board’s exceptions. ¶

Crossing guards were formerly represented by Teamsters Local 97. In 1999, Council 11 was certified to represent them and it took over the Teamsters contract. Council 11 subsequently entered into a contract with a term of January 1, 2001 through December 31, 2003. That contract is the subject of this dispute. ¶

Article XII, entitled Pension, contains the following language. The underlined language is in dispute: ¶

2. Each employee shall be entitled, upon his/her retirement from employment with the Town of Kearny, for payment for unused accumulated sick leave, up to a maximum of forty-five (45) days at the prevailing wage rate ( as defined in the following example ) in effect at the time of such death or retirement, provided such payment is legal under the laws of the State of New Jersey. Accumulated sick days shall be evaluated as the years they were accumulated. ¶

EXAMPLE: ¶

1979-accumulated five (5) days @ $10.00 per day= $50.00 ¶

1981-accumulated five (5) days @ $15.00 per day= $75.00 ¶

Payment for accumulated sick time upon retirement would be equal to calculated amounts earned each year. In the above EXAMPLE, payment would add up to: ¶

$50.00 ¶

$75.00 ¶

$125.00 payment in full ¶

The wording in paragraph 2 is identical to that in the prior contract except for the underlined language. ¶

The parties had two negotiations sessions before entering into a memorandum of understanding on a salary increase, an insurance co-pay increase, and an extra personnel day. There was no discussion concerning any change to Article XII. ¶

The union’s general membership ratified the agreement and the Town Council adopted this resolution: ¶

The collective bargaining agreement between the Town and the Union is hereby extended for the period of January 1, 2001 to December 31, 2003 and all provisions therein are continued except as stated in the attached agreement. ¶

The attached memorandum of agreement codified the three agreed- upon changes. ¶

The business administrator prepared the first draft contract which was reviewed by Council 11 representatives. There was no change to Article XII. ¶

Council 11 representatives reviewed a draft contract again two days before signing; it did not contain any changes to Article XII. Council 11 representatives did not conduct a word- for-word review of the contract at the signing. The union discovered that the disputed language had been added to the contract after a crossing guard died and a dispute arose over the calculation of accumulated sick leave. A grievance challenging the leave calculation is pending and this litigation will decide whether the underlined language remains in the contract. An arbitrator will then decide the grievance and determine the wage rate to be applied to the accumulated sick leave of the deceased crossing guard. ¶

The Hearing Examiner determined that Council 11 proved that it did not know about, and never agreed to, the disputed addition to Article XII. The Hearing Examiner believed the testimony of Council 11’s witnesses and found that testimony consistent with the lack of any documentation to support the Town’s assertion that the parties had agreed to add the disputed language. The Hearing Examiner’s conclusion was based largely on her assessment of the credibility of both parties’ witnesses and we will not disturb credibility determinations absent compelling circumstances not present here. Salem Cty., P.E.R.C. No. 87-122, 13 NJPER 294 (¶18124 1987); Clark Tp ., P.E.R.C. No. 80-117, 6 NJPER 186 (¶11089 1980); see also N.J.S.A . 52:14B-10(c) (agency head may not reject or modify any findings of fact as to issues of credibility of lay witness testimony unless it is first determined from a review of the record that the findings are arbitrary, capricious or unreasonable or are not supported by sufficient, competent, and credible evidence in the record). ¶

The Town asserts in its first exception that Council 11 failed to prove its allegation that the Town surreptitiously changed the contract; in particular, that Council 11 did not meet its burden of presenting clear and convincing evidence that the business administrator willfully and deliberately changed the contract. It contends that Council 11 did not prove that the administrator acted with specific intent to deceive Council 11 and that the Hearing Examiner improperly redefined the Complaint. ¶

We need not determine whether the business administrator added the language with an intent to deceive Council 11 or whether he simply added it to clarify an article he thought needed clarification. The charge alleges that the language was added without agreement and that suffices to allege a violation of the Act. Council 11 proved that the language was added. ¶

The Town’s second exception asserts that the Hearing Examiner improperly attributed the word “specific” to the recollections of Council 11 witnesses while at the same time discounting the testimony of the Town’s witnesses as general. For example, the Town claims that its witnesses were penalized for not taking notes at informal meetings during the summer of 2001 yet Council 11 witnesses also took no notes. However, Council 11’s witnesses testified and the Hearing Examiner found that there were no meetings and no agreement to modify Article XII. One would not expect notes if there were no such meetings and no such agreement. ¶

As part of its second exception, the Town also asserts that the Hearing Examiner shifted the burden of proof to the Town to prove that the parties negotiated the six words in question, when the burden should be on Council 11 to prove that the parties did not. We conclude that the Hearing Examiner properly placed the burden on Council 11 to prove that the employer’s conduct violated its duty to negotiate in good faith by inserting language in the contract that had not been discussed or agreed to. ¶

The Town’s third exception asserts that the Hearing Examiner improperly limited the review of the nature and extent of the parties’ negotiations. The Town claims that the economic issues were not the sole matters negotiated and that the parties agreed that a number of language issues had to be changed. The Hearing Examiner, in fact, found that a number of corrections were agreed to and incorporated into a final contract. What was not agreed to, however, was a change in Article XII. ¶

As part of that exception, the Town argues that the Hearing Examiner had no basis to find a violation given her statements that any substantive changes in the contract would have had to have been with Council 11’s consent yet she was not deciding whether the disputed language makes a substantive difference gave her no basis to find a violation of the Act. We agree with the Hearing Examiner that it is for an arbitrator to decide the import of the accumulated sick leave provision and that the disputed language does not belong in the current contract absent an agreement to place it there. ¶

The Town’s final exception is that the Hearing Examiner improperly recommended deleting the language from the agreement, an extraordinary step unsupported by the proofs. We hold that the remedy of deleting the language is both supported by the facts and necessary to remedy the violation of the Town’s negotiations obligation. ¶

The Town produced two draft contracts without the disputed change and submitted them to Council 11 for review. Council 11 never saw any other draft with language added to Article XII. Union representatives reviewed the final draft contract word-for- word two days before it was signed, and testified that they found no change to Article XII. The Hearing Examiner credited their testimony, testimony that is consistent with the documentary record. Accordingly, the facts prove that the Town violated is negotiations obligation by placing language in Article XII. The logical remedy for this violation is to order the Town to remove the disputed language and to process the grievance without inclusion of that language. This remedy appropriately puts the parties back to where they would have been absent the employer’s insertion of the language. ¶

OrderORDER ¶

The Town of Kearny is ordered to: ¶

A. Cease and desist from: ¶

1. Interfering with, restraining or coercing its employees in the exercise of the rights guaranteed to them by the Act, particularly by inserting language into the contract with Kearny Council 11 that had not been agreed upon in negotiations. ¶

2. 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, particularly by inserting language into the contract with Kearny Council 11 that had not been agreed upon in negotiations. ¶

2. Take this action: ¶

1. Remove the phrase “as defined in the following example” from Article XII of the parties’ contract. ¶

2. Process grievances regarding Article XII without the inclusion of that language. ¶

3. 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. ¶

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

BY ORDER OF THE COMMISSION ¶

Lawrence Henderson ¶

Chairman ¶

Chairman Henderson, Commissioners Buchanan, DiNardo, Katz and Watkins voted in favor of this decision. Commissioner Mastriani abstained. Commissioner Sandman abstained from consideration. None opposed. ¶

DATED: August 12, 2004 ¶

Trenton, New Jersey ¶

ISSUED: August 13, 2004 ¶

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. (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.” ¶

2/ The Hearing Examiner found that a personnel technician took home the July 12 draft of the contract. R-1 is the copy she marked up, but it is a different version than the July 12 draft. We modify the facts to reflect that difference. ¶