P.E.R.C. No. 2008-68, NJ/State Judiciary (Camden)

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of NEW JERSEY STATE JUDICIARY (CAMDEN VICINAGE), Petitioner, -and- Docket No. SN-2008-037 PROBATION ASSOCIATION OF NEW JERSEY (CASE-RELATED PROFESSIONAL UNIT), Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission grants, in part, the request of the New Jersey State Judiciary (Camden Vicinage) for a restraint of binding arbitration of a grievance filed by the Probation Association of New Jersey (Case-Related Professional Unit). The grievance asserts that probation officers’ safety was jeopardized by the arrest of a probationer by parole officers outside the probation building. The Commission restrains arbitration over the grievance to the extent it challenges the Judiciary’s decision to assist other agencies. The Commission permits arbitration of the alleged severable safety issues. ¶

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 STATE JUDICIARY (CAMDEN VICINAGE), Petitioner, -and- Docket No. SN-2008-037 PROBATION ASSOCIATION OF NEW JERSEY (CASE-RELATED PROFESSIONAL UNIT), Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, Nancy M. Mahony, Staff Attorney, Office of Counsel to the Administrative Director, on the brief ¶

For the Respondent, Mark Cimino, attorney, on the brief ¶

DECISION ¶

On November 21, 2007, the New Jersey State Judiciary (Camden Vicinage) petitioned for a scope of negotiations determination. The Judiciary seeks a restraint of binding arbitration of a grievance filed by the Probation Association of New Jersey (Case- Related Professional Unit). The grievance asserts that probation officers’ safety was jeopardized by the arrest of a probationer by parole officers outside the Probation Department. We restrain arbitration over the grievance to the extent it challenges the Judiciary’s decision to assist other agencies in the arrest. We permit arbitration of the severable safety issues identified by PANJ. ¶

The parties have filed briefs and exhibits. The Judiciary has filed the certifications of Louis Narvaez, the chief probation officer and Toyia M. Walker, the assistant chief probation officer for the Camden Vicinage Adult Supervision Unit. PANJ has filed the certification of Peter Tortoreto, its first vice-president and Robyn Ghee, its local representative, and Sophia Peele, a senior probation officer. These facts are derived from the parties’ certifications. ¶

PANJ represents probation officers as well as certain other employees. The parties’ collective negotiations agreement is effective from July 1, 2004 through June 30, 2008. The grievance procedure ends in binding arbitration of alleged contractual violations. ¶

Article 2.1 is entitled Respect and Dignity. It requires that the parties endeavor to treat each other with mutual courtesy, dignity and respect. ¶

Article 25 is a Health and Safety provision. Article 25.1 is entitled Maintenance of the Workplace. It provides: ¶

(a) The Judiciary shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment. The Judiciary will discharge its responsibility for the development and enforcement of occupational safety and health standards to provide a safe and healthful environment in accordance with PEOSHA and any other applicable statutes, regulations or guidelines outlined in the New Jersey Administrative Code which pertains to health and safety matters. The Judiciary will provide a reasonably safe and healthful place of employment for all employees. ¶

(b) The parties agree to cooperate in maintaining and improving safe working conditions and health protection for the employees consistent with established safety standards and in the promotion of safety, safe working habits and good housekeeping throughout the work environment. Where reasonably possible, each employee will comply with all safety rules and regulations. ¶

Article 27 is entitled Maintenance and Terms and Conditions of Employment. It states that all existing practices shall remain unchanged. ¶

Joan Donegan-Werner is a senior probation officer in the Camden vicinage. She currently supervises a Megan’s Law caseload. On November 15, 2006, she was contacted about one of her probationers by Laura Schreck of the Home Electronic Monitoring Unit at the Parole Board. The probationer, referred to as R.E., is also on parole. He is classified as a Tier 3 sex offender and apparently due to a new arrest was to be equipped with a global positioning satellite device to track his whereabouts. The Parole Board had been trying to contact R.E. for five months and requested Donegan-Werner’s cooperation in contacting him so that it could serve him with papers about the device. Donegan-Werner told Schreck that R.E.’s next probation meeting was scheduled for the evening of November 29 at the Parkade Building. Donegan-Werner discussed the request with her supervisor who then discussed the matter with the assistant chief probation officer. She discussed the matter with Narvaez who directed her to contact Schreck’s supervisor to get more details about the request and to coordinate a plan. Walker states that Narvaez told her to make it clear that Probation was concerned about staff safety. Narvaez also stated that any plan that could potentially lead to an arrest inside the Probation Division had to include the County sheriff’s office since they were responsible for court house security. Parole told Walker that the plan was to serve R.E. with papers, not to make an arrest. Parole wanted to be called upon R.E’s arrival so that they could be there to serve him as he exited the Parkade Building.1/ Walker relayed these details to Narvaez who agreed to assist Parole. Walker advised Hart, Donegan-Werner, and the sheriff’s department. ¶

When R.E. reported in the lobby the evening of November 29, 2006, Donegan-Werner, in the presence of Sheriff’s Officer Larry Robinson, telephoned Schreck to inform her. Robinson spoke with Schreck and she informed him that she and two other parole officers would handle R.E. outside the building. When R.E. exited the building, he resisted the parole officers and a scuffle ensued during which sheriff’s officers were injured and R.E. was arrested. ¶

Sophia Peele is a senior probation officer who was working the night of the arrest. She states that she heard noises and went to the window. She saw someone being arrested and heard him cry “help me, someone help me.” She later learned that the arrestee was a probationer. She was concerned about the arrest right outside the building and about the crowd of probationers and bystanders. She stated that after the arrest, tensions were high in the office, not only with the probation officers, but with the probationers as well. Peele stated that everyone agreed that having the arrest on the street, rather than indoors, created a greater risk. In her certification, Robin Ghee recalled several situations where clients were arrested by sheriff’s officers in the building without any problems occurring. Tortoreto agrees that the scuffle and the arrest could have escalated into a larger melee on the streets. He is concerned that these types of arrests could result in probationers associating probation reporting with being arrested. He fears this might cause them to be more on edge during reporting and could also result in their carrying weapons. He points out that probation officers are unarmed and have to take precautions so that they do not get harmed. Tortoreto states that there is no consistent policy among the vicinages for cooperating with other agencies or for making arrests. ¶

On February 7, 2007, PANJ filed a grievance about the November 29, 2006 incident. The grievance states: ¶

On Wednesday, November 30, 2006 Parole Agents were at the Probation Office at 5th and Market Streets attempting to serve a Probationer classified as a sex offender with papers directing him to have electronic monitoring due to this new arrest for a sex crime.2/ The Probationer was also under Probation supervision from Superior Court in the Camden County Vicinage. Two weeks prior the supervising Probation Officer sent an Email to her supervisor as well as the VCPO seeking clarification as to how this defendant was to be served with the Parole directive. No decision was given to the Officer in writing. However it was later learned that the Parole Agents were instructed by AVCPO Toyia Walker not to serve the papers in the Probation Office. Rather they were instructed to serve the defendant outside the office, in the dark of night and in a dangerous area with numerous defendants witnessing the event and eventual arrest and Aggravated Assault on two Sheriffs Officers as well. What is troubling to the Union is the lack of cooperation the Judiciary has given to the Parole Board, as well as to the directions given to the Sheriffs Officer that no arrests were to be made in the office for this defendant by the AVCPO. This decision(s) without the advice and cooperation of the supervising PO appears to seriously jeopardizing the safety of the personnel involved. In this case two Sheriffs Officers were injured and a riot could have ensued in the streets outside the Parkade building. Attempts have been made to rectify this problem but no relief has been offered nor has any policy been stated. Therefore, we have no choice but to file this formal action. ¶

As relief, the grievance seeks copies of all incident reports made to the chief probation officer to clarify the concerns about staff security. It also seeks the development of a policy and protocol for future requests for cooperation. ¶

The grievance was not resolved and a grievance hearing was held. The hearing officer found: ¶

The focus of PANJ-PCR’s grievance is the decision to serve R.E. outside the building rather than inside. PANJ-PCR suggests that the decision to serve R.E. outside was motivated by management’s concerns over potential liability associated with allowing service to be performed inside the Parkade Building. However, the credible evidence does not support their assertion. Nevertheless, even if management declined to permit service in the building, it would not affect the outcome of the case. ¶

The security of the courthouse facilities in the Camden Vicinage is the statutory responsibility of the Camden County Sheriff. N.J.S.A. 2B:6-1(d). If the Sheriff’s Department determined that serving R.E. outside constituted a threat to security, it could have voiced those concerns. Sgt. Robinson’s comment that he may have done things differently does not in and of itself rise to the level of a security concern. There is no evidence that the Sheriff’s Department determined that Parole’s decision to serve R.E. outside of the building presented a risk to security. ¶

Because the service of R.E. was performed by Parole outside of the Parkade Building, I find that the situation did not violate Article 25 of the Agreement. The Vicinage’s involvement in this matter was limited to notifying Parole of R.E.’s presence in the building. It was not directly involved in the service of papers on R.E. Therefore, I find that the Vicinage did not violate Article 25 of the Agreement. ¶

As to the alleged violation of Article 27, I find that the union did not articulate a basis for its claim. Accordingly, I find no violation of that provision. In addition, I find that during management’s decision making process in this matter, the managers conducted themselves appropriately and in accord with the respect and dignity provision of the Agreement. I further find that management did not violate the principles of fundamental fairness. ¶

In light of this situation, PANJ-PCR asserts that management should adopt a policy or protocol concerning similar actions by law enforcement agencies. The adoption of such a policy is a managerial decision that is not governed by the terms of the Agreement. Accordingly, any decision by management to adopt, or not adopt, such a policy does not constitute a violation of the Agreement. ¶

On October 5, 2007, PANJ demanded arbitration. This petition ensued. ¶

We consider the negotiability of this dispute in the abstract and express no opinion about the merits of the grievance or any contractual defenses the Judiciary may have. Ridgefield Park Bd. of Ed. v. Ridgefield Park Ed. Ass’n, 78 N.J. 144, 154 (1978). ¶

Local 195, IFPTE v. State, 88 N.J. 393 (1982), sets forth the traditional balancing test for determining whether a subject is mandatorily negotiable: ¶

[A] subject is negotiable between public employers and employees when (1) the item intimately and directly affects the work and welfare of public employees; (2) the subject has not been fully or partially preempted by statute or regulation; and (3) a negotiated agreement would not significantly interfere with the determination of governmental policy. To decide whether a negotiated agreement would significantly interfere with the determination of governmental policy, it is necessary to balance the interests of the public employees and the public employer. When the dominant concern is the government’s managerial prerogative to determine policy, a subject may not be included in collective negotiations even though it may intimately affect employees’ working conditions. [Id. at 404-405]3/ ¶

The Judiciary argues that arbitration should be restrained because it is preempted by Supreme Court rules that grant the assignment judge and the trial court administrator the authority to administer the courts, and the vicinage chief probation officer the authority to manage probation services. It argues that arbitration would interfere with its managerial prerogative to determine when and under what circumstances it is appropriate to assist another agency or issue a policy concerning safety and security in the courts. The Judiciary argues that the probation officer’s assistance to Parole was brief and limited and did not intimately and directly affect the probation officers’ work or welfare. The Judiciary also states that it has not engaged in any pattern of accommodating outside agencies or established any future assistance that will intimately affect probation officers’ work and welfare. The Judiciary argues that the chief probation officer’s decision to assist the Parole Board is a managerial prerogative that is neither negotiable nor arbitrable. ¶

PANJ argues that arbitration should not be restrained because there are severable negotiable issues and the subject has not been preempted by statute or regulation. PANJ argues that the certifications, based on professional experience, show that the incident could have escalated into a larger event involving other probationers. PANJ also argues that other vicinages have procedures for facilitating the arrest of a probationer, but that there are no consistent procedures for all vicinages. Finally, PANJ argues that even if there are governmental policy considerations, there are health and safety issues of the employees that can be addressed in arbitration and that consideration of possible remedies can be addressed post- arbitration. ¶

The Judiciary’s interest in assisting law enforcement agencies and in deciding the manner in which such assistance is rendered outweighs the interests of the probation officers.4/ Allowing arbitration over how, when and what types of services the Judiciary performs would intrude too greatly into its managerial prerogatives. See Jersey City v. Jersey City POBA, 154 N.J. 555 (1998) (public entities should be granted broad discretion in rendering police functions); North Plainfield Borough, P.E.R.C. No. 98-76, 24 NJPER 27 (¶29015 1997) (union’s proposal that certain “non-emergency” work not be performed after 10:00 p.m. barred the performance of certain assignments and infringed too heavily on managerial prerogatives); Sea Isle City, P.E.R.C. No. 96-83, 22 NJPER 240 (¶27125 1996) (contract proposal setting staffing levels and requiring the employment of officers to ensure public safety significantly interfered with employer’s prerogatives). ¶

We will, however, permit arbitration over the severable safety issues that have been raised by PANJ in its brief. New Jersey State Judiciary (Atlantic/Cape May Vicinage), P.E.R.C. No. 2008-39, 34 NJPER 4(¶2 2008) (restraining arbitration over the Judiciary’s decision to restrict court house access after hours, but permitting arbitration over severable employee health, safety and compensation issues); State of New Jersey, P.E.R.C. No. 99-66, 25 NJPER 94 (¶30041 1999) (safety issues were severable from non-negotiable decision of the employer to privatize medical services); State of New Jersey, P.E.R.C. No. 86-11, 11 NJPER 457 (¶16162 1985) (while staffing levels were not negotiable, contractual commitment to a safe workplace was negotiable). We will not speculate over the appropriateness of remedies that may be awarded by an arbitrator, but we are not convinced that should a violation be found, there are no remedies that would not significantly interfere with the Judiciary’s managerial prerogative to determine policy. Should the arbitrator issue a remedy that the Judiciary believes would significantly interfere with its ability to determine how to assist law enforcement agencies, it may re-file its scope petition. Deptford Tp., P.E.R.C. No. 81-84, 7 NJPER 88 (¶12034 1981). ¶

OrderORDER ¶

The New Jersey State Judiciary’s request for a restraint of binding arbitration is granted to the extent the grievance challenges its decision to assist law enforcement agencies and the manner in which such assistance is rendered. The request is denied to the extent the grievance seeks to arbitrate severable safety issues. ¶

BY ORDER OF THE COMMISSION ¶

Chairman Henderson and Commissioners Branigan, Buchanan, Fuller, Joanis and Watkins voted in favor of this decision. None opposed. ¶

ISSUED: June 26, 2008 ¶

Trenton, New Jersey ¶

Note1/ In his certification, Tortoreto states that the Parkade Building is a dilapidated office building with a connected parking garage located in Camden. He has cautioned probation officers for their own safety not to go out on the street at night to smoke or get fresh air. He states that probationers often mill around outside before and after their appointments. He states that others also mill around outside and it is not uncommon to find empty crack cocaine bags and heroin syringes laying around. ¶

2/ The grievance states that the incident occurred on November 30, 2006. However, the rest of the record reflects that it occurred on November 29th. ¶

3/ The parties’ contract’s Preamble recognizes a 1994 “Letter of Agreement between the New Jersey Judiciary and the Labor Representatives of the Employees in the New Jersey Judiciary.” That agreement specifies that the scope of negotiations covering Judicial employees shall include only the following subjects, and only to the extent they are not preempted by State statute or regulation, and subject to the Judicial Employees Unification Act: ¶

(1) salary, wages and all other forms of economic compensation; ¶

(2) health benefits; ¶

(3) leave time (both paid and unpaid) and holidays; ¶

(4) the economic impact of the hours worked; ¶

(5) grievance procedures and disciplinary appeals, including binding arbitration, subject to the provisions of Section 8 of this Letter of Agreement; ¶

(6) safety and health; ¶

(7) payroll deductions including union dues and representation fees; ¶

(8) procedural aspects of employee performance evaluations, promotions, layoffs and subcontracting; ¶

(9) procedural aspects of inter-county transfers and reassignments, including superseniority for union representatives; ¶

(10) any other subjects which the Supreme Court may, from time-to-time, establish, upon petition of a majority representative, under rules established by the Court; ¶

(11) Any matter negotiated and made part of a contract which takes effect on or after January 1, 1995 that is not within the ten scope of negotiations topics set forth above shall have the same force and effect, for that contract only, and only for the life of that contract, as if it had been permitted under those topics. ¶

4/ Since we find the third standard of the negotiability test to be dispositive, we need not decide whether the Judiciary’s interest in this case is preempted by the New Jersey Constitution, statutes and court rules to which it cites. ¶