P.E.R.C. No. 2015-27, Bergen Cty Sheriff's Office

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of BERGEN COUNTY SHERIFF’S OFFICE, Petitioner, -and- Docket No. SN-2014-057 OFFICE AND PROFESSIONAL EMPLOYEES INTERNATIONAL UNION, LOCAL 32, Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission grants the request of the Bergen County Sheriff’s Office for a restraint of binding arbitration of a grievance filed by the Office and Professional Employees International Union, Local 32. The grievance contests the assignment of non-unit members to perform radio dispatcher/operations which had previously been performed by Local 32 employees as overtime work. The Commission holds that this case involves the County’s non-negotiable managerial prerogative to deploy its workforce to respond to emergent conditions involving unforseen call volume surges of short duration. ¶

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 BERGEN COUNTY SHERIFF’S OFFICE, Petitioner, -and- Docket No. SN-2014-057 OFFICE AND PROFESSIONAL EMPLOYEES INTERNATIONAL UNION, LOCAL 32, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, C. Elston & Associates, LLC, attorneys (Cathlene Y. Banker, of counsel) ¶

For the Respondent, Mets Schiro & McGovern, LLP, attorneys (Kevin P. McGovern, of counsel) ¶

DECISION ¶

On January 24, 2014, the Bergen County Sheriff’s Office filed a scope of negotiations petition. The County seeks a restraint of binding arbitration of a grievance filed by the Office and Professional Employees International Union, Local 32. The grievance asserts that the County violated the parties’ collective negotiations agreement (CNA) when it scheduled non- bargaining unit employees to perform radio dispatcher/operations unit work which had previously been performed by Local 32 employees as overtime assignments. We restrain arbitration. ¶

The County filed briefs, exhibits, and the certification of Michael Bradley, a Sheriff’s Office Inspector and direct unit commander of the dispatching area. Local 32 filed a brief, exhibits, and the certification of Kevin P. McGovern, its counsel. These facts appear. ¶

Local 32 represents a unit of all white and blue collar employees of the Bergen County Sheriff’s Office, excluding police, supervisors, and seasonal and per diem employees. The County and Local 32 are parties to a CNA effective from January 1, 2007 through December 31, 2011. The grievance procedure ends in binding arbitration. ¶

Article 12, paragraph B.2.(k) of the CNA states: ¶

Employer reserves the right to use any qualified employee to work an overtime assignment as long as the overtime is offered to all employees working in that title first, and all such employees refuse the overtime. ¶

The County’s main 24-hour manned dispatching area is called “Sheriff’s Operations” and is staffed with at least one Sheriff’s Officer-Supervisor and generally 1-2 dispatchers who may be sworn or civilian personnel. There are a total of five civilian dispatchers employed by Sheriff’s Operations with the job title of “Radio Dispatcher.” Bradley certifies that sworn personnel in the titles of Sheriff’s Officer and Sheriff’s Investigator perform, in addition to their core law enforcement duties, supportive duties that include dispatching functions. Sworn personnel may be assigned to Sheriff’s Operations dispatcher duties in the following situations: an injured officer temporarily assigned to light duty (but this does not displace a civilian dispatcher); and when unforseen call volume surges occur, usually of short duration (lasting several minutes to approximately an hour) so a sheriff’s officer or investigator is reassigned to dispatching duties for the duration of the call surge (this is done instead of calling in a civilian dispatcher to work overtime). Sworn personnel assigned to Sheriff’s Operations perform the same job duties of Radio Dispatchers; however, only sworn personnel are authorized to release vehicle impounds, take citizen or internal affairs complaints, or perform law enforcement duties. ¶

A majority of dispatcher call volume occurs between 9 a.m. and 7 p.m. when two Radio Dispatchers are typically scheduled. When Radio Dispatchers are requested or ordered to work overtime, such requests or orders are typically made when there are prescheduled events such as warrant sweeps, statewide safe surrender programs, mutual aid requests, and large scale events. Depending on the circumstances, overtime opportunities are either assigned to a Radio Dispatcher who remains on duty after his/her shift, or are assigned to a Radio Dispatcher based on seniority. No sworn personnel assigned to Sheriff’s Operations are ever offered or assigned overtime to perform dispatching duties. ¶

On July 18 and October 24, 2012, Local 32 filed a grievance and amended grievance asserting that the County violated overtime provision of the parties’ CNA by scheduling non-bargaining unit employees to cover overtime dispatching assignments before offering overtime assignments to bargaining unit members. As a remedy Local 32 seeks for the County to immediately follow the overtime assignment procedure in the CNA, cease scheduling non- unit employees for dispatch duties before offering overtime opportunities to civilian dispatchers, and make whole any unit members who were denied overtime assignments. ¶

In a November 5, 2012 letter denying the grievance, Executive Undersheriff Steven Librie stated: ¶

The assignments in question have been covered by on-duty Sheriff’s Officers. No overtime was authorized for said assignments. Article 12, Section B - Overtime 2(k) provides that overtime be offered to all employees working in that title first and that if all such employees refuse the overtime then any qualified employee may be used to work the overtime shift. ¶

In the instances you are referring to in your grievance, no overtime was approved or offered to any employees. Based on the facts in this matter your grievance is DENIED. ¶

On November 23, Local 32 demanded binding grievance arbitration. This petition ensued. ¶

Our jurisdiction is narrow. We only consider the negotiability of this dispute in the abstract. We express no opinion about the contractual merits of the grievance or any contractual defenses the County may have.1/ Ridgefield Park Ed. Ass’n v. Ridgefield Park Bd. of Ed., 78 N.J. 144, 154 (1978). ¶

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 County asserts that assigning sworn personnel to perform dispatching duties on a non-overtime basis in lieu of assigning overtime work to civilian dispatchers is a managerial prerogative based on its determination of the appropriate staffing levels for the efficient delivery of governmental services. Citing City of Long Branch, P.E.R.C. No. 83-15, 8 NJPER 448 (¶13211 1982) and Rutgers University, P.E.R.C. No. 2014-41, 40 NJPER 289 (¶110 2013), the County argues that because sheriff’s officers job functions include the dispatching duties performed by the bargaining unit members, and no overtime was offered to sheriff’s officers performing dispatch duties, the overtime procedures of the CNA with Local 32 are not implicated and the County may assign sheriff’s officers to meet temporary dispatching needs instead of creating overtime work for civilian dispatchers. ¶

Local 32 asserts that the Commission has found that the assignment of unit work to non-unit employees to avoid the payment of overtime has been found to be mandatorily negotiable; therefore a dispute over the CNA provision regarding assignment of overtime work to unit members is arbitrable.2/ Local 32 argues that the County’s assertion that unit work may be assigned to non-unit sheriff’s officers as long as they do not perform it on an overtime basis is merely a contractual defense to the claimed violation of Article 12.B.2.(k). It contends that such contractual defense regarding how the term “overtime assignment” should be interpreted and applied as used in that provision is appropriate for an arbitrator and irrelevant to the scope issue. Local 32 asserts that the County has offered no evidence suggesting that it cannot get a dispatcher to respond to a surge in call volume in the same time it can take a sheriff’s officer off of patrol duty for reassignment to dispatching. It argues that the only difference is that by recalling a sheriff’s officer from patrol duty instead of calling a civilian dispatcher from home, the County avoids paying overtime to a Local 32 unit member. Citing N.J. Sports & Expo. Auth. and Local 560 IBT, Laborers’ Local 472 and Laborers Int'l Union Local 734, P.E.R.C. No. 87-143, 13 NJPER 492 (¶18181 1987), aff'd NJPER Supp.2d 195 (¶172 App. Div. 1988), Local 32 asserts that where the employer has exercised its managerial prerogative to make the decision that some extra hours of work will be required, a unit work overtime clause governing how to assign those extra hours is arbitrable. Local 32 further argues that the grievance is arbitrable under the unit work doctrine, and that none of the three exceptions apply because the union has previously negotiated, obtained, and enforced a settlement over the transfer of unit work, and the County’s use of sheriff’s officers as dispatchers is not part of a reorganization of how it delivers government services. ¶

The County replies that the transfer of unit work to non- unit employees in this case is not mandatorily negotiable because it was not motivated solely or primarily for economic reasons. It argues that this case is like Rutgers, supra., in that there were not actually any extra hours that needed to be worked because available, qualified non-unit members who were already scheduled and working were just reassigned to overflow dispatch duties instead of calling in additional unit members on overtime. Citing Plainsboro Tp., P.E.R.C. No. 2012-64, 39 NJPER 25 (¶7 2012), the County asserts that a public employer has a managerial prerogative to efficiently and timely respond to an emergency, such as surges in call volume, by temporarily reassigning non- unit employees to dispatching. ¶

At the outset, we do not find that this case invokes the unit work doctrine since the record, as set forth above, does not support that the dispatching duty functions were being performed by Local 32 employees alone. The Local 32 employees and sheriff’s office sworn personnel perform the same dispatching duties (with the caveat that only the sworn personnel are authorized to release vehicle impounds, take inventory of the weapons safe, place items into temporary evidence, take citizen complaints and/or Internal Affairs complaints). See City of Jersey City v. Jersey City POBA, 154 N.J. 555 (1998); Rutgers, The State University of NJ and Union of Rutgers Administrators, AFT, Local 1766, AFL-CIO, P.E.R.C. No. 2014-41, 40 NJPER 289 (¶110 2013), app. pending. ¶

The specific facts of this case indicate that the Local 32 Radio Dispatchers are assigned overtime when the County has prior notice of prescheduled events as set forth above. Additional Sheriff’s Office sworn personnel are only assigned to dispatcher functions when unforseen short duration call volume surges occur. We find that these unforseen surges are analogous to emergency conditions. We recently addressed this issue in Howell Tp. P.E.R.C. No. 2013-68, 39 NJPER 465 (¶147 2013): ¶

If emergency conditions exist, a public employer may deploy its workforce to respond, even if doing so may deviate from normal employee assignments or overtime allocation. See Hunterdon Cty, P.E.R.C. No. 83-86, 9 NJPER 66 (¶14036 1982). (a public employer has a reserved right to make emergency assignments to protect the public interest and to assign employees with special skills and qualifications to perform a specific overtime task). ¶

[Id.] ¶

We find that the use of the additional sworn personnel for dispatching duties, under the facts of this case, is a non- negotiable managerial prerogative. ¶

OrderORDER ¶

The request of the Bergen County Sheriff’s Office for a restraint of binding arbitration is granted. ¶

BY ORDER OF THE COMMISSION ¶

Chair Hatfield, Commissioners Bonanni and Boudreau voted in favor of this decision. Commissioner Jones voted against this decision. Commissioner Eskilson recused himself. Commissioners Voos and Wall were not present. ¶

ISSUED: October 30, 2014 ¶

Note1/ We also do not consider settlement agreements that were entered into between the parties. ¶

2/ For this, Local 32 cites: City of Orange, P.E.R.C. No. 2011-10, 36 NJPER 310 (¶119 2010); 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 38 NJPER 32 (¶4 2011), certif. den. 209 N.J. 100; Township of Kearny, P.E.R.C. No. 98-22, 23 NJPER 501 (¶28243 1997), aff’d 25 NJPER 400 (¶30173 App. Div. 1999); and North Arlington Bd. of Ed., H.E. No. 97-18, 23 NJPER 156 (¶28077 1997). ¶