P.E.R.C. No. 2011-86, Newark

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of CITY OF NEWARK, Petitioner, -and- Docket No. SN-2010-102 JNESO DISTRICT COUNCIL 1, IUOE/AFL-CIO, Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission grants, in part, a petition for scope of negotiations determination filed by the City of Newark seeking a restraint of binding arbitration of a grievance filed by JNESO District Council 1, IUOE, AFL-CIO. The grievance asserts that the City made changes to Tasks and Standards for Head Clinic Nurses without negotiations. The Commission restrains arbitration to the extent the grievance challenges the changed Tasks and Standards and permits arbitration over negotiable severable issues regarding pay rates, training, safety and hours of work. ¶

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 NEWARK, Petitioner, -and- Docket No. SN-2010-102 JNESO DISTRICT COUNCIL 1, IUOE/AFL-CIO, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, Julien X. Neals, Corporation Counsel (Mellissa L. Longo, on the brief) ¶

For the Respondent, Kroll Heineman, attorneys (Curtiss T. Jameson, on the brief) ¶

DECISION ¶

On May 25, 2010, the City of Newark petitioned for a scope of negotiations determination. The City seeks a restraint of binding arbitration of a grievance filed by JNESO District Council 1, IUOE/AFL-CIO. The grievance asserts that the City made changes to Tasks and Standards for Head Clinic Nurses without negotiations. We grant a restraint of arbitration to the extent the grievance challenges the changed Tasks and Standards. We decline to restrain arbitration over potential severable issues regarding pay rates, training, safety and hours of work that may flow from the changed Tasks and Standards. ¶

The parties have filed briefs and exhibits. These facts appear. ¶

JNESO is the majority representative for a negotiations unit including Public Health Nurses, Clinic Nurses, Public Health Nurse Pediatrics, Pediatric Nurse Practitioners, Nurse Practitioners of Sexually Transmitted Diseases, Head Clinic Nurses and Public Health Nurse Supervisors. The City and JNESO are parties to a collective negotiations agreement with a term of January 1, 2008 through December 31, 2011. The grievance procedure ends in binding arbitration. Article XVI, “Employee Performance”, reads in pertinent part as follows: ¶

B. The Union recognizes that it is the City’s responsibility to determine levels of performance for its employees, and to establish standards and methods to provide services to the public in the most efficient manner possible. ¶

C. Pursuant to Civil Service Rules and Regulations and standards for acceptable levels of performance may be established and Employees evaluated by the City in relation to the duties and responsibilities of each job. ¶

Head Clinic Nurse is a Civil Service title. A document labeled Tasks and Standards describes both general areas of responsibility (“Critical Task”) and specific duties (“Standards”) within each Critical Task for Head Clinic Nurses. In 2009, the City changed the Tasks and Standards from those identified in 2008. In July 2009, JNESO filed a grievance asserting that the City changed the Tasks and Standards without negotiations in violation of Articles I, XVI and any other applicable provisions of the Agreement. The grievance was denied and ultimately submitted to binding arbitration. ¶

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. ¶

Local 195, IFPTE v. State, 88 N.J. 393 (1982), articulates the standards 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] ¶

The City argues that it has a non-negotiable right to assign new duties if the new duties are incidental or within the purview of an employee’s job description and normal duties and functions. JNESO responds that even if the City has a non-negotiable right to assign new duties, there are severable issues that are negotiable such as pay rates, training, safety and hours of work relating to the changed duties. ¶

A public employer has a managerial prerogative to assign employees’ job duties related to their normal job functions. See In re Rutgers University, P.E.R.C. No. 84-45, 9 NJPER 663 (¶14287 1983) (energy management control technicians assigned electrical work); In re City of Camden, P.E.R.C. No. 83-116, 9 NJPER 163 (¶14077 1983) (firefighters assigned to close fire hydrants and respond to civil emergencies); In re Mercer County Park Commission, P.E.R.C. No. 81-43, 6 NJPER 491 (¶11250 1980)(park police assigned to check oil and change flat tires on their police cars). In the instant matter, the 2008 Tasks and Standards contained five Critical Tasks with 18 subsets of Standards. The 2009 Tasks and Standards contained seven Critical Tasks and 43 subsets of Standards. However, four of the seven Critical Tasks are substantially similar to Critical Tasks that existed in 2008. There are three new Critical Tasks identified for 2009. The first is “Critical Task #3" which is “[e]nsures compliance with the Health Insurance Portability Act regulations.” Standards listed under this Critical Task relate to maintaining the privacy of patient information. The second is “Critical Task #6" which is “[f]acilitates Customer Services.” Standards pursuant to this Critical Task involve providing customer service in a timely manner and conveying an appropriate image and conduct. The third is “Critical Task #7" which is “[e]nsures compliance with Department of Child and Family Well-Being Safety Protocol.” Standards relating to this Critical Task relate to maintaining current knowledge of safe practices and following safety procedures and reporting unsafe conditions. The three new Critical Tasks and the related Standards stem from the normal job functions of a Head Clinic Nurse as reflected by the Civil Service job description for Head Clinic Nurse. Moreover, the Civil Service job description contains the following note: ¶

NOTE: The definition and examples of work for this title are for illustrative purposes only. A particular position using this title may not perform all duties listed in this job specification. Conversely, all duties performed on the job may not be listed. ¶

Accordingly, the City’s assignment of new Tasks and Standards for 2009 fall within its managerial prerogative to assign unit employees job duties related to their normal job functions and is not negotiable. In re Rutgers University. However, the exercise of managerial prerogatives often affect terms and conditions of employment that are severable from the policy decision and are thus subject to negotiations and arbitration. See Elizabeth and Elizabeth Fire Officers Ass'n, Local 2040, IAFF, P.E.R.C. No. 84-75, 10 NJPER 39 (¶15022 1983), aff'd 198 N.J. Super. 382, 385-386 (App. Div. 1985). Negotiations and/or arbitration over JNESO’s concerns about pay rates, training, safety and hours of work are severable from the policy decision to change the Tasks and Standards and would not interfere with the City’s managerial prerogative. Monroe Tp. Bd. of Ed., P.E.R.C. No. 85-6, 10 NJPER 494 (¶15224 1984). Accordingly, we grant a restraint of arbitration to the extent JNESO’s grievance challenges the changed Tasks and Standards. We decline to restrain arbitration over severable claims asserting negotiations were required over changes in pay rates, training, safety and hours of work.ORDER The request of the City of Newark for a restraint of binding arbitration is granted to the extent JNESO’s grievance challenges the changed Tasks and Standards. The request for a restraint of arbitration is denied over potential severable issues involving pay rates, training, safety and hours of work that may flow from the changed Tasks and Standards. ¶

OrderBY ORDER OF THE COMMISSION ¶

Chair Hatfield, Commissioners Bonanni, Colligan, Krengel and Voos voted in favor of this decision. None opposed. Commissioner Eskilson recused himself. Commissioner Wall was not present. ¶

ISSUED: June 30, 2011 ¶

Trenton, New Jersey ¶

Appendix ¶

-Civil Service Job Description for Head Clinic Nurse ¶

-2008 Tasks and Standards for Head Clinic Nurse ¶

-2009 Tasks and Standards for Head Clinic Nurse ¶