P.E.R.C. No. 2009-60, Edison Tp

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of TOWNSHIP OF EDISON, Petitioner, -and- Docket No. SN-2009-025 POLICEMEN’S BENEVOLENT ASSOCIATION, LOCAL #75, INC. Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission grants, in part, the request of the Township of Edison for a restraint of binding arbitration of a grievance filed by Policemen’s Benevolent Association, Local #75, Inc. The grievance challenges counseling notices that were issued to a number of police officers. The Commission restrains arbitration to the extent the grievance challenges the issuance of the notices and permits arbitration over a claim that the officers were not advised as to acceptable levels of productivity that were the basis for issuing the counseling notices. ¶

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 TOWNSHIP OF EDISON, Petitioner, -and- Docket No. SN-2009-025 POLICEMEN’S BENEVOLENT ASSOCIATION, LOCAL #75, INC. Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, Ruderman & Glickman, P.C., attorneys (John A. Boppert, on the brief) ¶

For the Respondent, Klatsky Sciarrabone & De Fillippo, attorneys (David J. De Fillippo, on the brief) ¶

DECISION ¶

On November 12, 2008, the Township of Edison petitioned for a scope of negotiations determination. The Township seeks a restraint of binding arbitration of a grievance filed by Policemen’s Benevolent Association, Local #75, Inc. The grievance challenges counseling notices that were issued to a number of police officers. We restrain arbitration over the issuance of the notices, but permit arbitration over a claim that the officers were not advised as to acceptable levels of productivity that were the basis for issuing the counseling notices. ¶

The parties have filed briefs and exhibits. The Township has submitted a certification from its deputy police chief. The PBA has submitted a certification from its president. These facts appear. ¶

The PBA represents the Township’s patrol officers. The parties entered into a collective negotiations agreement effective from January 1, 2005 through December 31, 2008. The grievance procedure ends in binding arbitration. Article XXXV is entitled “Discipline, Discharge or Suspension.” It provides: ¶

A. No Employee shall be disciplined or discharged without just cause, except those officers who have probationary status. ¶

B. Probationary Employees may be discharged without cause during the first twelve (12) months of employment. ¶

Between August 28 and September 22, 2008, superior officers conducted individual counseling sessions with all patrol officers under their command. Each squad supervisor was given discretion to determine acceptable performance and productivity levels within his or her squad, and flexibility to conduct the counseling sessions accordingly. Officers with identified performance deficiencies would be counseled as to what areas needed improvement and provided with guidance on how to improve their performance. Officers who were counseled on improving their performance were afforded time to do so. Upon conclusion of the counseling, each officer was issued a Performance Notice documenting what was discussed in the counseling session. The type of counseling that was provided to each officer was listed at the top of the Notice. Squad supervisors would identify the nature of the counseling as “Recognition,” “Counseling,” or “Appraisal Interview.” Supervisors had the discretion to check more than one category. Discipline was not identified as a goal or a consequence of the counseling sessions. Many of the Notices reminded officers that productivity would be monitored in the future. The Performance Notices were placed in the employees’ personnel files and may be considered in assessing qualifications for future promotion. ¶

The evaluative basis of the counseling sessions was a review of the department’s Productivity Reports for the period January 1, 2008 through June 30, 2008. Those reports contain information on days worked, responses, investigative reports, motor vehicle accident investigation reports, motor vehicle stops, radar tickets, moving tickets, and other tickets. ¶

The PBA challenged the Performance Notices as lacking the requisite just cause under Article XXXV. The Township responded that the Notices are non-disciplinary in nature. The PBA demanded arbitration and this petition ensued. ¶

Our jurisdiction is narrow. Ridgefield Park Ed. Ass’n v. Ridgefield Park Bd. of Ed., 78 N.J. 144 (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. ¶

[Id. at 154] ¶

Thus, we do not consider the merits of the grievance or any contractual defenses the employer may have. ¶

As this dispute arises in the context of a grievance involving police officers or firefighters, arbitration will be permitted if the subject of the dispute is mandatorily or permissively negotiable. A subject is mandatorily negotiable if it is not preempted by statute or regulation and it intimately and directly affects employee work and welfare without significantly interfering with the exercise of a management prerogative. Paterson Police PBA No. 1 v. City of Paterson, 87 N.J. 78 (1981). A subject involving a management prerogative can still be permissively negotiable if agreement would not place substantial limitations on government’s policymaking powers. ¶

The Township argues that arbitration should be restrained because the grievance challenges the criteria for evaluation and the Township’s enforcement of traffic laws, two areas outside the scope of negotiations. The PBA responds that Performance Notices are disciplinary in nature and therefore subject to binding arbitration. In addition, the PBA argues that it may challenge the Notices on the basis that officers were not advised as to the acceptable levels of productivity. On that latter issue, the Township replies that the Township’s evaluation criteria are neither arbitrary nor unknown. ¶

An employer has a non-negotiable right to select the criteria for evaluating its employees. See Bethlehem Tp. Bd. of Ed. and Bethlehem Tp. Ed. Ass’n, 91 N.J. 38 (1982); Bridgewater Tp. and PBA Local 174, 196 N.J. Super. 258 (App. Div. 1984). In particular, a law enforcement agency has a managerial prerogative to use the number of traffic stops and tickets written as evaluation criteria. Plainsboro Tp., P.E.R.C. No. 2009-26, 34 NJPER 380 (¶123 2008); Washington Tp., P.E.R.C. No. 2005-15, 30 NJPER 404, 406 n.1 (¶130 2004). ¶

However, if an employer issues a reprimand to an employee for failing to meet performance criteria, that reprimand may be challenged in binding arbitration. Under N.J.S.A. 34:13A-5.3, public employers and the majority representatives of their police officers may agree to arbitrate minor disciplinary disputes, but not major disciplinary disputes.1/ Minor discipline includes reprimands and suspensions or fines of five days or less unless the employee has been suspended or fined an aggregate of 15 or more days or received more than three suspensions or fines of five days or less in one calendar year. Monmouth Cty. and CWA, 300 N.J. Super. 272 (App. Div. 1997). ¶

In Holland Tp. Bd. of Ed., P.E.R.C. No. 87-43, 12 NJPER 824 (¶17316 1986), aff’d NJPER Supp.2d 183 (¶161 App. Div. 1987), we set forth our approach for determining whether a document critical of employee performance is an non-arbitrable evaluation or an arbitrable reprimand. ¶

We realize that there may not always be a precise demarcation between that which predominantly involves a reprimand and is therefore disciplinary within the amendments to N.J.S.A. 34:13A-5.3 and that which pertains to the Board’s managerial prerogative to observe and evaluate teachers and is therefore non-negotiable. We cannot be blind to the reality that a “reprimand” may involve combinations of an evaluation of teaching performance and a disciplinary sanction; and we recognize that under the circumstances of a particular case what appears on its face to be a reprimand may predominantly be an evaluation and vice-versa. Our task is to give meaning to both legitimate interests. Where there is a dispute we will review the facts of each case to determine, on balance, whether a disciplinary reprimand is at issue or whether the case merely involves an evaluation, observation or other benign form of constructive criticism intended to improve teaching performance. While we will not be bound by the label placed on the action taken, the context is relevant. Therefore, we will presume the substantive comments of an evaluation relating to teaching performance are not disciplinary, but that statements or actions which are not designed to enhance teaching performance are disciplinary. ¶

Here, as in Plainsboro, the counseling sessions and Performance Reports were not designed to penalize officers for past conduct, but to notify them of performance deficiencies and to remind them to be more diligent in certain areas in the future. Also, as in Plainsboro, the Notices neither note a failure to improve nor impose discipline. Thus, the Notices are not reprimands and thus may not be challenged as unjust minor discipline in binding arbitration. The fact that these evaluative documents may be used in future promotional decisions does not alter our analysis. Evaluations are often used for that purpose. See, e.g., State of New Jersey (OER), P.E.R.C. No. 89-8, 14 NJPER 512 (¶19216 1988). ¶

Finally, the PBA may arbitrate its claim that officers were not notified of the acceptable levels of productivity. An agreement to provide notice of evaluation criteria is procedural and would not substantially limit the Township's policymaking powers. Howell Tp., P.E.R.C. No. 96-60, 22 NJPER 103 (¶27053 1996). Thus, an alleged breach of such an agreement may be submitted to binding arbitration. ¶

OrderORDER ¶

The request of the Township of Edison for a restraint of binding arbitration is granted to the extent the grievance contests the use of counseling sessions and the issuance of Performance Notices. The request is denied to the extent the grievance alleges that officers were not notified of the acceptable levels of productivity. ¶

BY ORDER OF THE COMMISSION ¶

Chairman Henderson, Commissioners Buchanan, Fuller and Joanis voted in favor of this decision. Commissioner Watkins voted against this decision. Commissioner Colligan recused himself. Commissioner Branigan was not present. ¶

ISSUED: April 30, 2009 ¶

Trenton, New Jersey ¶

Note1/ Termination in non-civil service jurisdictions for non- criminal conduct occurring after June 1, 2009 may be submitted to binding arbitration. N.J.S.A. 40A:14-210. ¶