P.E.R.C. No. 2011-5, Paterson

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of CITY OF PATERSON, Respondent, -and- Docket No. CO-2008-280 PATERSON POLICE PBA LOCAL 1, Charging Party. ______________________________ CITY OF PATERSON, Respondent, -and- Docket No. CO-2008-282 PATERSON POLICE PBA LOCAL 1 SUPERIOR OFFICERS ASSOCIATION, Charging Party. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission dismisses unfair practice charges filed by Paterson Police PBA Local 1 and Paterson Police PBA Local 1 Superior Officers Association against the City of Paterson. The charges allege that the City’s unilateral installation of cameras in the Police Department Radio Room without prior negotiations with the PBA and the SOA violated the New Jersey Employer-Employee Relations Act, specifically N.J.S.A. 34:13A-5.4a(1) and (5). The parties agreed to waive a hearing examiners report and recommended decision and submit stipulations of fact to the Commission for decision without a hearing. The Commission holds that a restriction on the employer’s right to install the surveillance cameras would significantly interfere with the determination of governmental policy of ensuring that employees are not fighting or sleeping in the radio room where 911 calls are received and police and fire services are dispatched. ¶

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 CITY OF PATERSON, Respondent, -and- Docket No. CO-2008-280 PATERSON POLICE PBA LOCAL 1, Charging Party. ______________________________ CITY OF PATERSON, Respondent, -and- Docket No. CO-2008-282 PATERSON POLICE PBA LOCAL 1 SUPERIOR OFFICERS ASSOCIATION, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, Adams, Stern, Gutierrez & Lattibouderre, attorneys (Adam Herman, of counsel and on the reply brief); Dorf & Dorf, attorneys (Gerald L. Dorf, on the brief) ¶

For the Charging Parties, Shaw, Perelson, May & Lambert, attorneys (Mark C. Rushfield, of counsel) ¶

DECISION ¶

On March 26, 2008, the Paterson Police PBA Local 1 and the Paterson Police PBA Local 1 Superior Officers Association filed unfair practice charges against the City of Paterson alleging that the unilateral installation of cameras in the Police Department Radio Room without prior negotiations with the PBA and the SOA violated the New Jersey Employer-Employee Relations Act, specifically N.J.S.A. 34:13A-5.4a(1) and (5).1/ The City and the Unions agreed to waive a hearing examiner's report and recommended decision and submit stipulations of fact to the Commission for decision without a hearing. Based on the stipulated facts, we dismiss the charge. ¶

On November 19, 2008, Complaints and an order of consolidation issued based on the unfair practice charges. On December 5, the City filed an Answer admitting the factual allegations. ¶

On July 24, 2009, representatives of the City and the SOA executed the following: ¶

STIPULATION2/ ¶

1. The City of Paterson ( “City” ) is a public employer. ¶

2. PBA Local 1 and PBA Local 1 Superior Officers Association are public employee representatives within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. ¶

3. The most recent collective bargaining agreements between the Parties expired on July 31, 2008. ¶

4. The successor collective bargaining agreements are currently the subject of interest arbitration. ¶

5. The Unions filed Unfair Practice charges against the City on March 26, 2008, Docket No. CO-2008-280 and Docket No. CO- 2008-282, respectively. ¶

6. The Unfair Practice charges allege that the City’s unilateral installation of cameras in the Police Department’s Radio Room ( “Radio Room” ) without prior negotiations constituted an Unfair Practice charge in violation of 5.4(a)(1) and (5) of the New Jersey Employer- Employee Relations Act, N.J.S.A. 34:13A-1 et seq. ¶

7. There are approximately 519 police officers employed by the City. ¶

8. The police officers work out of the Frank X. Graves Jr. Safety Complex located at 111 Broadway (the “Public Safety Complex” ). That building also houses the Taxi Commission and the DPW Engineering Department. ¶

9. The three (3) cameras, whose installation is the subject of the instant unfair practice charges ( “Cameras” ), were placed in the Communication Section (i.e., the “Radio Room” ). ¶

10. The Radio Room is located on the east side of the third floor of the Public Safety Complex. The following activities are performed in the Radio Room: ¶

• Receiving 911 and routine telephone calls regarding emergency and quality of life issues relating to both the police department and the fire department. There are approximately 150,000 such telephone calls per year. ¶

• Dispatching and receiving information from Paterson police units in the field. ¶

• Insure that police services are provided on a timely basis. ¶

• Guaranteeing adequate police coverage by managing the resources on the road. ¶

• Receiving telephone calls, computer messages and teletypes from the Federal Bureau of Investigation (FBI), the New Jersey State Police and other law enforcement agencies. ¶

• Transmitting police information and requests (by telephone, computer messages and teletypes) to the Federal Bureau of Investigation (FBI), the New Jersey State Police and other law enforcement agencies. ¶

11. The number of police personnel (which consists of both police officers and civilian personnel) in the Radio Room varies throughout the day. Attached is the most recent Monthly Detail for the Radio Room. It reflects the normal complement of the Radio Room.3/ ¶

12. The Radio Room is not open to the public. There is a sign on the Radio Room door that states, “Police Personnel Only.” In addition, there is a buzzer on the door to limit access to police and civilian personnel. ¶

13. The Cameras can be seen by the naked eye. ¶

14. The Cameras capture digital images only. They do not capture audio signals. The system is activated only when there is movement in the Radio Room. ¶

15. The images are stored on a computer hard drive. ¶

16. The images are generally maintained for a minimum of 30 days, at which time they are recorded over. ¶

17. Prior to the time of the installation of Cameras in the Radio Room, Paterson Police Captain Troy Oswald, who was serving as the Captain in charge of Internal Affairs for the Paterson Police Department, attended a meeting with the City’s then Director of Police, Michael Walker, during which they spoke about problems in the Radio Room concerning police and civilian personnel in the Radio Room and specifically discussed both a case involving criminal complaints that a civilian employee and police officer had brought against each other arising from an alleged physical altercation between them in the Radio Room and allegations made by a police officer that civilian personnel, rank-and- file police officers and sergeants were occasionally sleeping while on duty in the Radio Room. ¶

18. Either on the occasion of the meeting between Captain Oswald and Director Walker described at paragraph 17 above or on the following day, in Captain Oswald’s presence, Director Walker summoned PBA President Steve Olimpio into his office and told him that because of problems in the Radio Room he wanted to put surveillance cameras in the Radio Room with an overhead view of the workstations of the police and civilian personnel working in the Radio Room. PBA President Olimpio objected to that action and suggested that Director Walker should remove police personnel from the Radio Room and that that would solve the problem. Director Walker disagreed and the meeting ended. ¶

19. Within about two weeks of the meeting attended by Director Walker, Captain Oswald and PBA President Olimpio described at paragraph 18 above, the Cameras were installed in the Radio Room. ¶

20. To date, the Cameras have been used in two (2) Internal Affairs cases. In one case, upon review of the video, the complaint was deemed a “sustained complaint” and is awaiting a hearing on charges against a police officer. In that first case, a sergeant claimed to his commanding officer that a police officer had refused to follow his order to go to her workstation in the Radio Room. Upon review, the video provided by the Cameras showed the sergeant and police officer interacting and the police officer then leaving the Radio Room. In the other case, a female police officer made allegations that a sergeant assigned to the Radio Room was engaging in harassment and retaliatory actions against her. Upon review, the video was determined to exonerate the sergeant and the complaint was deemed “unsustained.” ¶

21. The Cameras were installed only after the Unions were notified of the intended installation. ¶

22. The City did not negotiate with the Unions over the installation of the Cameras in the Radio Room. ¶

On August 21 and September 4, 2009, respectively, the City and the Unions filed briefs on the legal issues in the case. On September 30, the City’s new attorney filed a reply brief. The record was completed after the parties filed additional joint exhibits. ¶

The parties were advised that in waiving a hearing examiner’s report and recommended decision, the facts as stipulated, together with the joint exhibits, would constitute the complete record. Specifically, by entering into the Stipulation, the Unions have agreed that to the extent the stipulated facts are insufficient to sustain its burden of proof by a preponderance of the evidence, the Complaint may be dismissed. Similarly, the City has agreed that it too must rely upon the sufficiency of the stipulated record to sustain any affirmative defenses it has asserted or to rebut or disprove the existence of a prima facie case. ¶

N.J.S.A. 34:13A-5.3 prohibits a public employer from unilaterally establishing or changing mandatorily negotiable terms and conditions of employment. In addition, N.J.S.A. 34:13A-21 bars changes in terms and conditions of employment during the pendency of interest arbitration proceedings. Whether an employer has an obligation to negotiate turns on whether the term and condition of employment is mandatorily negotiable. N.J.S.A. 34:13A-5.3; Galloway Tp. Bd. of Ed. v. Galloway Tp. Ed. Ass'n, 78 N.J. 25 (1978). Mandatory negotiability, in cases where the subject is not preempted by a State statute or regulation, is determined by balancing the effect on employee work and welfare against any interference with the determination of governmental policy. Paterson Police PBA No. 1 v. City of Paterson, 87 N.J. 78 (1981). Only if the interference is significant will the subject be found to be not mandatorily negotiable. ¶

In a prior case between these same parties, we dismissed an unfair practice complaint alleging that the City was required to negotiate before installing overt (i.e. visible, as opposed to hidden), security cameras in areas inside and outside the City’s public safety complex. City of Paterson, P.E.R.C. No. 2007-62, 33 NJPER 143 (¶50 2007). We concluded that the installation of overt video cameras in the public safety building for the purpose of protecting people and property was not a mandatory subject of negotiations. The case focused on two interior cameras: one behind and above the front desk at the public safety complex showing a view from behind the desk officer and the main entrance to the hallway; and the other in a hallway near the Roll Call Room and Police Academy providing views of the hallway, the rear entrance from the police parking lot, a time clock used by police personnel to punch in and out, and a PBA bulletin board adjacent to the time clock. A separate room to monitor the cameras was established outside the Communications Division. ¶

We stated that: ¶

[T]he installation of overt video cameras in this public safety building for the purpose of protecting people and property is not a mandatory subject of negotiations. Whether the public is able to enter the monitored areas inadvertently or with permission is not a controlling fact. The employer has a significant interest in monitoring access to its public safety complex because it is not currently capable of excluding the public from most non-private areas of the building and grounds. That interest outweighs the employees’ interest in not having their actions observed and recorded in those non- private areas. The cameras are not installed in private areas such as bathrooms, break rooms, locker rooms or offices, where employee privacy interests would be greater. Given the restrictions on the City’s ability to prevent the public from entering many areas of the complex, prohibiting installation of the cameras in non-private areas would significantly interfere with the City’s ability to secure its public safety building. ¶

[33 NJPER at 144]. ¶

The dispute in the present case involves the installation of three visible security cameras in the Radio Room of the Public Safety Complex, a work area that is not accessible to the public. Unlike the prior case, the three cameras in the Radio Room do not provide views of areas that are either open to the public, or where the public can gain access, either authorized or unauthorized. Instead they observe the activities of police and civilian personnel assigned to work in the Radio Room. ¶

The City argues that there were three cornerstones to the Hearing Examiner’s decision in Paterson and that each applies here. We begin by clarifying that it is our final administrative decision, not the Hearing Examiner’s report and recommendations that establishes the framework for our analysis. ¶

First, the City states that the cameras in both cases were overt. That is true and that was a factor in our analysis in Paterson. However, employees have an interest in negotiating over both overt and covert cameras. In Paterson, the employees’ interest was outweighed by the City’s significant interest in monitoring access to its public safety complex because the City was not currently capable of excluding the public from most non-private areas of the building and grounds. ¶

Second, the City states that the cameras were not installed in any area where police officers have a reasonable expectation of privacy. This was not a component of our analysis in Paterson. In Paterson, we noted that the cameras were not installed in private areas such as bathrooms, break rooms, locker rooms or offices, where employee privacy interests would be greater. Here, the cameras were installed in what is essentially the employees’ office. The employees’ interest in not being video recorded every minute of the workday is the same whether the employee works alone in an office or works with others. This case involves non-public areas without the security concerns that outweighed the employees’ privacy interests in Paterson. ¶

Third, the City states that the unfair practice charge challenges the installation of the cameras, not the impact or effect of the installation. The City further states that the cameras serve the same function as would be served by supervisors in person in the Radio Room. ¶

The PBA argues that “employees have a significant interest in being able to preserve their dignity and avoid embarrassment by being able to attempt, unobserved, to scratch an itch, close a zipper, yawn, pick a scab or engage in the myriad other petty and personal activities humans commonly engage in at their work station when they are apparently not being observed by coworkers or supervisors; without their actions being subject to around the clock surveillance and videotaping.” Brief at 7 n. 3. Our responsibility is to balance those employee interests against the employer’s interests in each particular case. Jersey City v. Jersey City POBA, 154 N.J. 555 (1998). In this case, the employer’s interest involves two common examples of workplace misconduct: two employees got into a physical altercation and other employees were alleged to have been sleeping while on duty. However, what makes this case different is that it involves a Radio Room where 911 calls are received and police and fire services are dispatched. The employer has a significant interest in making sure that employees are not fighting or sleeping in the Radio Room. Any delay in the delivery of services could have serious public health or safety implications. Thus, under these facts, a restriction on the employer’s right to install the surveillance cameras would significantly interfere with the determination of governmental policy. We note that the employer has recognized that this case involves a challenge to the installation of the cameras, not the impact of the installation on negotiable terms and conditions of employment. Contrast In the Matter of Amalgamated Transit Union, Local 1342 and Niagara Frontier Transit Metro System, Inc., 36 NYPER (LRP) P3036, 2003 NYPER (LRP) 142 (New York Public Employment Relations Board concludes that employer violated the Public Employees’ Fair Employment Act when it refused to bargain the impact of the installation of video cameras on buses and the use of the video tape obtained from the cameras in disciplinary proceedings). Under all these circumstances, we conclude that the employer did not have an obligation to negotiate before installing the cameras in the Radio Room. ¶

OrderORDER ¶

The Complaint is dismissed. ¶

BY ORDER OF THE COMMISSION ¶

Commissioners Eaton, Fuller, Krengel, Voos and Watkins voted in favor of this decision. None opposed. Commissioner Colligan recused himself. ¶

ISSUED: August 12, 2010 ¶

Trenton, New Jersey ¶

Note1/ These provisions prohibit public employers, their representatives, and agents from: “(1) Interfering with, restraining, or coercing employees in the exercise of 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/ An introductory paragraph reads: ¶

The City of Paterson ( “City” ) and PBA Local 1 and PBA Local 1 Superior Officers Association ( “Unions” ), collectively “Parties” agree to the below delineated stipulated facts. The parties agree that the inclusion of a stipulated fact does not constitute agreement that the stipulated fact is relevant. ¶

3/ Exhibit J-11 shows the personnel assignments to the Communications Section for July 26 to August 22, 2009 on all three shifts. It shows staffing levels per shift of between 14 to 18 personnel. On each shift there are between 5-7 police officers, 2-3 “police assistants” and 7-9 civilian employees. ¶