P.E.R.C. No. 2015-82, Carlstadt Boro

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of BOROUGH OF CARLSTADT, Petitioner, -and- Docket No. SN-2015-024 CARLSTADT DEPARTMENT OF PUBLIC WORKS BENEVOLENT ASSOCIATION, Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission grants the Borough of Carlstadt’s request for a restraint of binding arbitration of a grievance filed by the Carlstadt Department of Public Works Benevolent Association. The grievance contests the Borough’s decision to privatize street sweeper operations. The Commission holds that even if the Board’s decision was made solely for economic reasons and resulted in job losses, Local 195, IFPTE v. State, 88 N.J. 393 (1982) does not allow binding arbitration to challenge such subcontracting decisions. ¶

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 BOROUGH OF CARLSTADT, Petitioner, -and- Docket No. SN-2015-024 CARLSTADT DEPARTMENT OF PUBLIC WORKS BENEVOLENT ASSOCIATION, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, The Corrigan Law Firm, attorneys (David F. Corrigan, of counsel) ¶

For the Respondent, Law Office of Brian P. Campbell, P.C., attorneys (Brian P. Campbell, of counsel) ¶

DECISION ¶

On October 6, 2014, the Borough of Carlstadt petitioned for a scope of negotiations determination. The Borough seeks a restraint of binding arbitration of a grievance filed by the Carlstadt Department of Public Works (DPW) Benevolent Association. The grievance contests the Borough’s decision to contract out the street sweeper operations to a private contractor. The parties have filed briefs, exhibits and certifications. These facts appear. ¶

The Association represents all Borough employees in the Departments of Buildings and Grounds and Streets, except for craft employees, mechanics and supervisors. The parties entered into a collective negotiations agreement effective from January 1, 2008 to December 31, 2016. The grievance procedure ends in binding arbitration. ¶

The agreement lists 13 separate “Job Descriptions” for DPW employees including “9. Street Sweeping.” According to the Association president, the DPW has performed street sweeping for 40 years. He further certifies that the position of Street Sweeper Driver is awarded via a bid. A street sweeper purchased by the Borough was delivered in late 2005. An employee represented by the Association began operating the Borough’s sweeper in 2006. The sweeper was used four days a week until it broke down in the summer of 2013. ¶

The street sweeper sat unused in the Borough’s DPW building for four months until it was moved to a private company for evaluation. The firm stated that the sweeper had not been properly cleaned and maintained. It estimated it would cost $30,000 to repair the machine. The sweeper was incurring storage charges while it sat at the private firm’s facility. The Borough then had it moved to Bergen County’s DPW facility for another evaluation. Its personnel determined that the damage was more extensive than first estimated and would be more costly to repair. The sweeper was, at the time the parties made their submissions to the Commission in this case, still at the Bergen County DPW facility. ¶

The Borough’s DPW Director, Bruce Young, assumed that job on January 1, 2014. He certifies that he received numerous citizen complaints about the lack of street sweeping services. Young states that, in response, he began to explore using private companies to do street sweeping in the Borough. He states that until a permanent solution was found, an arrangement was made in April 2014 with the Bergen County DPW to have their street sweeper provide services to the Borough. Beginning in May, 2014, a private firm, Christi Cleaning, began performing street sweeping in the Borough pursuant to an agreement approved by the Borough Council on April 17. ¶

On May 13, 2014, the Borough received a written grievance from the Association asserting that the subcontract violated Schedule B and Article XX of the agreement.1/ The grievance demands that the Borough “cease and desist from contracting out unit work, abide by the parties’ CBA and restore all members of [the Association] to where they would have been had the Borough complied with the CBA.2/ The grievance was denied by the Borough and the Association demanded arbitration. 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. ¶

Local 195, IFPTE v. State, 88 N.J. 393, 404-405 (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. ¶

Local 195 itself held that a public employer has a managerial prerogative to subcontract. Id. at 408. ¶

The Borough asserts that under the facts of this dispute, its right to subcontract the street sweeper services is unfettered. It asserts that its action did not deprive any unit member of employment and that it acted because reports issued reviewing the damage to the street sweeper attributed the machine’s woes to improper maintenance by DPW employees. The primary reason to subcontract, the Borough argues, was the inability of DPW laborers to properly maintain and clean the machine. The Borough also points out that relieving DPW workers from street sweeper operations frees up an additional employee to perform trash and recycling duties. ¶

The Association disputes the Borough’s assertions concerning the impact of the subcontracting, claiming that the DPW workforce went from 20 to 15 over the last few years and then up to 16 in recent months. It also disputes the Borough’s claims related to the alleged inability of DPW workers to operate the street sweeper, observing that no employee had been adversely evaluated or disciplined for improper maintenance and operation of the machine. It argues that under Local 195, because the Borough acted for economic reasons only, and the work force was reduced, its grievance is arbitrable. ¶

In its reply brief the Borough asserts that it acted for reasons related to efficiency, not economics. It decided not to have DPW employees perform street sweeping so that they could use them on other projects. The Borough asserts that as set forth in the Association President’s certification, the attrition from 20 to 15 DPW employees occurred over “the last few years” and thus had no connection with the street sweeper decision.3/ ¶

The Association’s demand for arbitration and its brief assert that the grievance is arbitrable under Local 195, because the decision was based on a desire to save money. Even if we were to determine that the Board’s decision was made solely for economic reasons and did result in job losses, Local 195 does not allow the use of binding arbitration to challenge and/or overturn such actions. As the Association has consistently sought to have the subcontracting invalidated, its grievance is non-arbitrable. ¶

OrderORDER ¶

The request of the Borough of Carlstadt for a restraint of binding arbitration of the street sweeper subcontracting grievance is granted. ¶

BY ORDER OF THE COMMISSION ¶

Chair Hatfield, Commissioners Boudreau, Eskilson, Voos and Wall voted in favor of this decision. Commissioner Jones opposed. Commissioner Bonanni was not present. ¶

ISSUED: June 25, 2015 ¶

Trenton, New Jersey ¶

Note1/ Article XXII, Performance of Unit Work reads in its entirety: ¶

A. The Superintendent of Public Works shall be allowed to perform bargaining unit work during emergencies, but said Superintendent must first call every other employee to determine their availability for work in case of or during an emergency. ¶

B. After twelve (12) consecutive hours of work, the employee is allowed to receive supper money in the amount of Seven Dollars and Fifty ($7.50) Cents and for every consecutive six (6) hours worked thereafter until he/she is finished his/her working time. ¶

2/ The grievance asserted that the cost of the private contractor was $35,000.00 and that the cost of repairing the Borough’s street sweeper was $30,000.00. ¶

3/ The Association President’s certification does not specify when the staff reductions occurred. The certification was submitted to us on December 12, 2014 and it is undisputed that the private contractor begin street sweeping in May, 2014. ¶