P.E.R.C. No. 2006-36, NJ Transit

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of NEW JERSEY TRANSIT CORPORATION, Petitioner, -and- Docket No. SN-2006-021 P.B.A. LOCAL 304, Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission grants the request of New Jersey Transit Corporation for a restraint of binding arbitration of a grievance filed by P.B.A. Local 304. The grievance alleges that NJT violated the parties’ collective negotiations agreement when it created a new uniformed patrol unit and made assignments to that unit without allowing seniority bidding. The Commission concludes that the chief has a non- negotiable prerogative to select the officers he believes are best suited for team assignments and that bidding for these assignments is neither mandatorily nor permissively negotiable because it would substantially limit the employer’s prerogative to select team members based on management’s assessment of employee qualifications. ¶

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 NEW JERSEY TRANSIT CORPORATION, Petitioner, -and- Docket No. SN-2006-021 P.B.A. LOCAL 304, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, Peter C. Harvey, Attorney General of New Jersey (Sharon Price-Cates, Deputy Attorney General, on the brief) ¶

For the Respondent, Loccke & Correia, P.A., attorneys (Merick H. Limsky, on the brief) ¶

DECISION ¶

On August 16, 2005, New Jersey Transit Corporation ( “NJT” ) petitioned for a scope of negotiations determination. NJT seeks a restraint of binding arbitration of a grievance filed by P.B.A. Local 304. The grievance alleges that NJT violated the parties’ collective negotiations agreement when it created a new uniformed patrol unit and made assignments to that unit without allowing seniority bidding. ¶

The parties have filed briefs and exhibits. NJT has also filed certifications of Chief Joseph C. Bober and Captain Joseph Kelly. These facts appear. ¶

The PBA represents transit police officers below the rank of sergeant. The parties’ collective negotiations agreement is effective from July 1, 2002 through June 30, 2006. The grievance procedure ends in binding arbitration. ¶

Article I, the recognition clause, prohibits changing titles of negotiations unit positions for the purposes of removing such positions from the application of the contract’s rules. Article XXIII is entitled Advertisement and Selection of Positions. Section 1 requires that shift assignments be posted for selection and new positions be posted twice a year. Section 2 requires that shift assignments be based on fitness, ability and seniority. ¶

On November 23, 2004, Chief Bober issued an Administrative Order entitled JUSTICE Team. The order stated: ¶

The Office of the Chief of Police is currently seeking qualified applicants to serve in a newly formulated uniformed patrol unit known as the JUSTICE Team. JUSTICE is an acronym for Joint Uniformed Strategically Targeted Intelligence Centered Enforcement. All Sergeants and Police officers who are not on probation are eligible to apply. ¶

The JUSTICE Team will report to Lt. Joseph Kelly and will be assigned out of Police Headquarters. Officers will work in uniform and will be assigned to areas of concern on the transit system for the purpose of problem resolution and increased visibility. Officers will seek to solve problems and provide visibility to the commuting public through a high degree of community policing compounded with a zero tolerance of criminal and traffic offenses. Officers will patrol on foot, in RMP’s and on-board moving equipment as circumstances dictate. ¶

Interested officers should submit a resume or detailed statement of qualifications. In addition, each officer shall submit photocopies of two reports they have generated within the last 24 months. All materials shall be forwarded to Lt. Kelly’s office at Penn Plaza no later than December 8, 2004 at 1200 hours. ¶

As a first responder under the National Incident Management System, the NJT police department must address all issues of emergency preparedness designated by the Department of Homeland Security. The chief’s certification states that the creation of the JUSTICE team addresses, in part, the need for special response and preparedness in light of national Homeland Security policy and the heightened need for vigilance to protect mass transit service. Team members may be deployed anywhere in New Jersey at any time, on a moment’s notice. ¶

Given the special nature of the unit and his belief that special skills and traits were needed to ensure its effectiveness, the chief decided to make assignments based on an application and interview process rather than by posting and seniority bidding. The chief sought officers who were “highly motivated, highly productive, self starters disciplined with good communication-social skills, character traits that evidence adaptability to changing work demands and compliance with [department] internal rules and regulations.” ¶

Kelly, then a lieutenant, was put in charge of receiving resumes, statements and other materials from applicants for the team. Five sergeants and 31 patrol officers applied. Kelly interviewed the candidates, reviewed personnel and disciplinary records, and contacted each officer’s commanding officer. He presented 15 candidates to the chief; he certified that he considered the team’s high visibility, community policing responsibility, and commuter contact needs as well as the personal characteristics specified by the chief. 1/ The chief selected six officers for the team. ¶

The JUSTICE team is intended to be a tactical unit. Team members are being trained in these areas: Civil Disorder; Land Transportation – - Anti-Terrorism; Coast Guard; Level A Hazmat; Long Rifle/Shot Gun; and First Aid Tactical. ¶

On March 11, 2005, the PBA filed a grievance asserting that the employer had created the team to evade the contract and thus violated Article I and past practice. The grievance seeks to have the team positions put up for bid. The chief denied the grievance and the PBA demanded arbitration. An arbitration hearing was held, but the parties agreed to hold further proceedings in abeyance until a scope petition could be decided. This petition ensued. ¶

Our jurisdiction is narrow. Ridgefield Park Ed. Ass'n v. Ridgefield Park Bd. of Ed., 78 N.J . 144, 154 (l978), 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 do not consider the merits of the grievance or any contractual defenses the employer may have. ¶

Paterson Police PBA No. 1 v. City of Paterson, 87 N.J . 78, 92-93 (1981), outlines the steps of a scope of negotiations analysis for police officers and firefighters. Arbitration will be permitted if the subject of the dispute is mandatorily or permissively negotiable. See Middletown Tp., P.E.R.C. No. 82-90, 8 NJPER 227 (¶13095 1982), aff’d NJPER Supp.2d 130 (¶111 App. Div. 1983). Paterson bars arbitration only if the agreement alleged is preempted or would substantially limit government’s policymaking powers . No statute or regulation is asserted to preempt negotiations. ¶

In New Jersey Transit , P.E.R.C. No. 97-127, 23 NJPER 304 (¶28139 1997), we restrained arbitration of a grievance asserting that the previous police chief violated seniority bidding provisions when she made assignments to a new Mobile Enforcement Unit. The chief created that unit to “provide highly visible uniformed teams that will concentrate in problem areas in bus operations” and picked officers who had experience in bus operations and enforcement of motor vehicle laws and who had a demonstrated appreciation of and dedication to the Department’s community policing philosophy. We stated: ¶

Public employers have a non-negotiable prerogative to assign employees to meet the governmental policy goal of matching the best qualified employees to particular jobs. See, e.g., Local 195, IFPTE v. State, 88 N.J . 393 (1982); Ridgefield Park. Cf. New Jersey Transit Corp ., P.E.R.C. No. 96-78, 22 NJPER 199 (¶27106 1996). The employer required special skills and characteristics in seeking officers to start up the MEU and it chose among the applicants accordingly. An arbitrator may not second-guess those assessments. [ Id. at 305] ¶

We follow this New Jersey Transit analysis in this case. The JUSTICE team has been given special responsibilities for emergency preparedness and vigilance and the chief has a non- negotiable prerogative to select the officers he believes are best suited for team assignments. Bidding for team positions is neither mandatorily nor permissively negotiable because it would substantially limit the employer’s prerogative to select team members based on management’s assessment of employee qualifications. We will accordingly restrain arbitration. ¶

OrderORDER ¶

The request of the New Jersey Transit Corporation for a restraint of binding arbitration is granted. ¶

BY ORDER OF THE COMMISSION ¶

Chairman Henderson, Commissioners DiNardo and Watkins voted in favor of this decision. Commissioner Buchanan opposed. Commissioners Fuller and Katz were not present. ¶

ISSUED: November 22, 2005 ¶

Trenton, New Jersey ¶

Note1/ According to the PBA’s brief, Kelly stated at an arbitration hearing that the positions did not require special skills or experience. No transcript or certification was submitted to support this assertion. ¶