P.E.R.C. No. 2011-89, Rutgers University

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of RUTGERS, THE STATE UNIVERSITY OF NEW JERSEY, Petitioner, -and- Docket No. SN-2010-087 UNION OF RUTGERS ADMINISTRATORS, AMERICAN FEDERATION OF TEACHERS, AFL-CIO, Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission grants, in part, the request of Rutgers, The State University of New Jersey, for a restraint of binding arbitration of a grievance filed by the Union of Rutgers Administrators, American Federation of Teachers, AFL-CIO. The grievance asserts that a member of the negotiations unit was laid off for economic reasons and that her work was transferred to temporary employees not represented by the union. The Commission restrains arbitration to the extent the grievance challenges the decision of the University to use an automated system for Uniform Crime Report reporting and to the extent the grievance asserts that the assignment is unit work and permits arbitration of the remaining aspects of the grievance. ¶

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 RUTGERS, THE STATE UNIVERSITY OF NEW JERSEY, Petitioner, -and- Docket No. SN-2010-087 UNION OF RUTGERS ADMINISTRATORS, AMERICAN FEDERATION OF TEACHERS, AFL-CIO, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, McElroy, Deutsch, Mulvaney & Carpenter LLP, attorneys (John J. Peirano, of counsel and on the brief; James P. Lidon and Michael J. Dee, on the brief) ¶

For the Respondent, Loccke, Correia, Schlager, Limsky & Bukosky, attorney (Merick H. Limsky, of counsel and on the brief; Lauren P. Sandy, on the brief) ¶

DECISION ¶

On April 28, 2010, Rutgers, the State University of New Jersey, petitioned for a scope of negotiations determination. Rutgers seeks a restraint of binding arbitration of a grievance filed by the Union of Rutgers Administrators, American Federation of Teachers, AFL-CIO. The grievance asserts that a member of its negotiations unit was laid off for economic reasons and that her work was transferred to temporary employees not represented by the Union. We grant a partial restraint of arbitration. ¶

The parties have filed briefs and exhibits. Rutgers has filed certifications from Chief of Police Rhonda Harris and Lt. Richard Dinan who supervises the Communications section of the Rutgers Police Department. These facts appear. ¶

The Union represents Rutgers’ regularly employed, non- supervisory, administrative employees. Rutgers and the Union are parties to a collectively negotiated agreement effective from July 1, 2007 through June 30, 2011. The grievance procedure ends in binding arbitration. Article 20, “Layoff Notice,” layoff procedures including minimum and maximum notice and the ability of an employee to use paid leave in order to seek other employment prior to the effective date of the layoff. ¶

Since 1987, Sharon Cramer has been a civilian employee in the Rutgers Police Department. Prior to being laid off in December, 2008, she held the position “Public Safety Assistant I,” for five and one half years and was represented by the Union. ¶

As a PSA I, Cramer’s primary job duty was to manually review classify and code police reports. If a report involved an incident that was subject to Uniform Crime Reporting requirements, Cramer would mark the report with an appropriate UCR code, and keep a tally of UCR reports that Rutgers was required to submit to the State of New Jersey. Cramer would also keep track of incident reports for non-UCR events. These were categorized by type and location to aid Rutgers in determining the staffing and equipment needs of its police department. ¶

Cramer’s other duties were to review, for accuracy and spelling errors, a federally-mandated Daily Crime Log that was prepared by police dispatchers. Cramer was also the “Terminal Agency Coordinator,” responsible for the overall use and compliance with the National Crime Information System.1/ She also occasionally covered for the records clerk when that employee was absent, but before she was laid off, when the regular records employee was out, the office was closed. ¶

In 2006, Rutgers purchased a “Computer Aided Dispatch, Record Management System,” (CAD-RMS) designed to automatically code, for UCR purposes, calls for police assistance as soon as they are received by police department dispatchers. However, as of May 13, 2010, the date Lt. Dinan submitted his certification, the CAD-RMS was not yet operational and Rutgers was using temporary employees to manually enter the UCR codes. ¶

According to Harris, Cramer was given advance notice of the upcoming conversion to the CAD-RMS and that it would make many of her job duties obsolete. The Chief states that she urged Cramer to obtain more training so that she would be trained to perform other functions in the police department.2/ ¶

In the middle of 2008, based on budget shortfalls, the Chief determined it would be necessary to eliminate four positions: her administrative assistant; two vacant police officer positions; and Cramer’s PSA I post. The Chief states that because the bulk of Cramer’s job duties were being automated or transferred, the loss of that position would have the least impact on the department’s ability to provide services to the campus community. ¶

In late July 2008, Cramer was advised that her job would end on December 15 and was informed of her recall rights and her right to seek employment elsewhere within the University. ¶

In August 2008, the Union filed a grievance challenging Cramer’s layoff. The grievance was heard and denied by Rutgers at the various steps of the grievance procedure. On November 18, 2008, the Union demanded arbitration. This petition ensued. ¶

Our jurisdiction is narrow. Ridgefield Park Ed. Ass'n v. Ridgefield Park Bd. of Ed., 78 N.J. 144, 154 (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. ¶

Thus, we do not consider the contractual merits of this grievance or any contractual defenses the employer may have. We specifically do not determine whether, during the processing of the grievance, the Union abandoned claims that the employer violated particular provisions of the parties’ agreement. Nor do we entertain arguments that the parties have not agreed to submit all or parts of this grievance to binding arbitration.3/ ¶

The unit work rule provides that an employer must negotiate before using non-unit employees to do work traditionally performed by negotiations unit employees alone. In City of Jersey City v. Jersey City POBA, 154 N.J. 555 (1998), the New Jersey Supreme Court stated that the unit work rule typically applies to require negotiations before workers in a negotiations unit are replaced by workers outside the negotiations unit. The objective of the rule is to provide a majority representative with an opportunity to negotiate over an acceptable alternative that would avoid a loss of jobs or a reduction in union membership. Id. at 576. However, the Court also ruled that the unit work rule cannot be applied on a per se basis. Instead, the negotiability balancing test set forth in Local 195, IFPTE v. State, 88 N.J. 393 (1982), must be applied to the facts of each particular unit work claim.4/ ¶

Local 195 states at 404-405: ¶

[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. ¶

There is no preemption argument so we will proceed to balance the parties’ interests. ¶

The Union claims that the TAC work performed by Cramer has been given to a dispatcher, employed in a different collective negotiations unit and that the UCR coding work has been given to non-unit temporary employees. It asserts that both actions transferred work from employees in its negotiations unit to other Rutgers employees. It also generally asserts that Rutgers did not follow pertinent procedures in effectuating Cramer’s layoff. ¶

Rutgers asserts that it laid Cramer off for interrelated budgetary and operational reasons associated with the change from the manual entry of UCR codes to the automated CAD-RMS method of compiling this significant data on campus crime. It maintains that the TAC assignment has traditionally been the work of dispatchers in the Communications section of its police department. It contends that the Union does not have standing to contest its assignment of work to temporary, unorganized employees and that it cannot seek the layoff of temporary employees based on an assertion of a procedural claim. Other than to argue that the issue was waived, Rutgers does not contest the negotiability of a claimed violation of Section 20 of the agreement concerning payment of unused vacation time. ¶

The Union has not submitted certifications that contest or contradict the statements made by Chief Harris or Lt. Dinan. ¶

Accordingly, we find that Lt. Dinan’s statement that a dispatcher in the Communications section is normally assigned to be the TAC is undisputed. It is further supported by Cramer’s employment history showing she became the TAC when she was employed as a dispatcher, even though she retained that assignment when she became a PSA I, a job in a unit separate from the one that includes dispatchers. As there appears to be no dispute that the position of TAC is not traditionally the work of the negotiations unit that includes Cramer’s position, we restrain arbitration over this portion of the grievance.5/ ¶

With respect to the UCR classification and coding duties, we initially observe that Rutgers’ intention to handle UCR reporting by using the CAD-RMS automated method is the type of change that involves a reorganization of the way it performs police department functions and was not made solely to save labor costs. See Rutgers, the State University, P.E.R.C. No. 2003-70, 29 NJPER 158 (¶46 2003) (operational needs underlying temporary shift of work from an HVAC engineer to maintenance mechanics, who were represented by different union in separate negotiations unit, outweighed the interests of the representative of the HVAC employee in preserving unit work, where no change was made to unit employees’ hours and workload and no layoffs or job eliminations occurred). ¶

However, the certifications filed by Rutgers establish that, at the time of Cramer’s layoff and for at least 17 months thereafter, the CAD-RMS method was not operational and manual UCR coding of calls for police assistance was performed by at least one temporary employee who was not a member of the collective negotiations unit. The certifications filed by Rutgers establish that the coding and classification (for both UCR and non-UCR) calls, constituted the bulk of Cramer’s PSA I work load. The certifications do not compare the volume of the classification and coding work done by temporary employees after Cramer was laid off to the amount of such work Cramer performed as a PSA I. ¶

It is undisputed that prior to the decisions to shift to the CAD-RMS method, 75% of Cramer’s duties involved UCR/non-UCR classification and coding and the compilation of statistical data concerning the various types of service calls received by the Rutgers Police Department. Rutgers has conceded that the automated system was not fully operational when Cramer was laid off and for a substantial period thereafter. That work has been assigned to temporary employees. ¶

As Cramer was represented by the Union, and Rutgers has not asserted that these functions were performed by any other employees prior to Cramer’s layoff, the Union’s claim that Rutgers has shifted work to non-unit employees presents a mandatorily negotiable and arbitrable issue. See Flemington- Raritan (grievance alleging summer work performed by computer teachers was reassigned to administrators and paid student interns to save money was arbitrable unit work claim); Mercer Cty. Special Services School Dist., P.E.R.C. No. 2011-25, 36 NJPER 355 (¶138 2010) (grievance challenging employment of out of district psychiatrist to perform summer work previously performed by in-district psychologist was arbitrable unit work claim). And, unlike Rutgers, P.E.R.C. No. 2003-70, the shifting of the unit work was preceded by the layoff of a unit employee. ¶

Weighing the competing interests, we find that until the CAD-RMS is fully operational, the Union’s interest in preventing the work of its collective negotiations unit from being shifted to non-unit employees outweighs Rutgers’ interests, which, as set forth in Chief Harris’ certification, involve a substantial effort to reduce costs. We will allow an arbitrator to determine if the performance of this work by temporary employees after Cramer was laid off until the CAD-RMS became fully operational violated the agreement. Rutgers may submit evidence at arbitration concerning the date that the CAD-RMS system became fully operational and when it no longer needed temporary workers to manually code UCR service calls. If the arbitrator sustains the grievance, but also identifies the date when the changeover occurred, no relief may be ordered from that date forward. ¶

The letter advising Cramer of her layoff mentions recall rights and the opportunity to seek other Rutgers employment. The Union argues that Rutgers violated layoff procedures. Other than the claim that Cramer was not paid for unused vacation time, the Union does not state what other procedures were violated. We determine abstract issues of negotiability and do not determine whether the parties’ agreement addresses the subject of the grievance. In general, layoff procedures are mandatorily negotiable. See City of Jersey City, P.E.R.C. No. 85-78, 11 NJPER 84 (¶16037 1985). The Union may arbitrate a claim that Rutgers violated layoff procedures. ¶

OrderORDER ¶

The request of Rutgers, the State University of New Jersey, for a restraint of binding arbitration is granted to the extent the grievance challenges the decision to use CAD-RMS for automated UCR reporting, and to the extent the grievance asserts that the TAC assignment is unit work. The request is otherwise denied. ¶

BY ORDER OF THE COMMISSION ¶

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

ISSUED: June 30, 2011 ¶

Trenton, New Jersey ¶

Note1/ Lt. Dinan relates that Cramer first became TAC while working as a dispatcher and kept those duties as PSA I, even though the TAC is normally part of the Communications Department. Lt. Dinan certifies that he moved that duty back to Communications before Cramer was laid off. Dispatchers are represented by AFSCME Local 1761 in another collective negotiations unit. See Rutgers, The State University and AFSCME, P.E.R.C. No. 82-20, 7 NJPER 505 (¶12224 1981), aff'd NJPER Supp.2d 132 (¶113 App. Div. 1983). ¶

2/ The certification does not specify what duties would have been available for Cramer to perform had she received additional training. ¶

3/ N.J.S.A. 34:13A-5.3, as amended by L. 2005, c. 380 provides: ¶

In interpreting the meaning and extent of a provision of a collective negotiation agreement providing for grievance arbitration, a court or agency shall be bound by a presumption in favor of arbitration. Doubts as to the scope of an arbitration clause shall be resolved in favor of requiring arbitration. ¶

4/ The Union, citing City of Paterson and Paterson Police PBA, 87 N.J. 78 (1981) asserts that the grievance may proceed to arbitration if its subject is either mandatorily or permissively negotiable. Although Cramer worked in Rutgers Police Department she was a civilian employee. Paterson establishes the scope of negotiations only for police officers and fire fighters. To be arbitrable, this grievance must involve mandatorily negotiable issues. ¶

5/ Had there been a dispute over whether the TAC assignment was the exclusive work of the unit represented by the Union, we would have allowed that issue to go to arbitration. See Flemington-Raritan Bd. of Ed. and Flemington-Raritan Ed. Ass’n, P.E.R.C. No. 2011-28, 36 NJPER 363 (¶141 2010), aff’d., 37 NJPER ____ (¶2011). ¶