P.E.R.C. No. 2016-40, Atlantic City

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of CITY OF ATLANTIC CITY, Respondent, -and- Docket No. CO-2011-478 ATLANTIC CITY POLICE BENEVOLENT ASSOCIATION, LOCAL 24, Charging Party. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission grants in part, and denies in part, the City of Atlantic City’s motion for summary judgment, and denies the Atlantic City Police Benevolent Association, Local 24’s cross-motion for summary judgment. A Complaint had issued on the PBA’s allegations that the City violated the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq., specifically 5.4a(1), (3), and (5), when it unilaterally, and in retaliation for protected activity, ordered officers to return from medical leaves prematurely and without their firearms. Finding that the decision of whether officers should carry firearms is not mandatorily negotiable, the Commission grants the City’s motion for summary judgment as to the 5.4a(5) allegation for failure to negotiate over that issue. Finding that there are insufficient facts to determine the 5.4a(3) retaliation charge, the Commission denies both parties’ motions for summary judgment on that issue and transfers them back to the Hearing Examiner. ¶

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 ATLANTIC CITY, Respondent, -and- Docket No. CO-2011-478 ATLANTIC CITY POLICE BENEVOLENT ASSOCIATION, LOCAL 24, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, Ruderman & Glickman, attorneys (Steven S. Glickman, of counsel) ¶

For the Respondent, O’ Brien, Belland & Bushinsky, attorneys (Mark Belland, of counsel; Theodore Y. Choi, on the brief) ¶

DECISION ¶

This case comes to us by way of the City of Atlantic City’s March 2, 2015 motion for summary judgment and the Atlantic City Police Benevolent Association, Local 24’s March 31 cross-motion for summary judgment. On June 23, 2015, the Chair referred the motions to the full Commission. See N.J.A.C. 19:14-4.8. ¶

On June 13, 2011, the PBA filed an unfair practice charge against the City of Atlantic City alleging that the City violated the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq., specifically subsections 5.4a(1),(3),(4), and (5), by ordering several unit members to return to work from medical leave prematurely and without their firearms, allegedly without negotiating over terms and conditions of employment and in retaliation for unit members’ protected union activity or union support. ¶

Specifically, the charge alleges: ¶

On or around June 9, 2011, the City of Atlantic City ordered several members of the Police Department who were on medical leave to return to work and the City required that they return to work and not carry their service firearms. The City of Atlantic City is retaliating against the members of Local 24 for their challenges to the administration, including but not limited to a civil lawsuit filed against the City and Public Safety Director Petersen and several unfair practice charges including a challenge to Director Petersen’s new Medical Policy and Procedures. The Officers targeted are all members who support union activities. The City is retaliating against former PBA president Sean McCausland and ordered him to return to work without his service firearm. As well the City has ordered Rob Nowarki, Eugene Laielli, Jose Gonzalez and it is anticipated that Harold Cooper will be ordered to return today or June 13, 2011. One Officer has been prescribed a strong pain killer Vicodin, and he could not even drive his car to work. The City has ordered some Officers to return to work prematurely and this decision by the City jeopardizes the safety of the Officers and the entire Police Department. The City has not negotiated with Local 24 over the terms and conditions of the employment of the members and the City is acting in bad faith and such conduct is retaliatory. ¶

On August 26, 2011, the Director of Unfair Practices wrote an initial case letter to the parties regarding the PBA’s charge. Among other things, she indicated that the case was assigned to a staff agent and that the City would have until September 9 to respond to the charge with “a written statement of position explaining why the allegations contained in the charge, if true, would or would not constitute unfair practices on the part of the Respondent.” The City did not file a Statement of Position in response to this charge. ¶

On October 22, 2014 the Director issued a Complaint and Notice of Hearing on the 5.4a(1), (3) and (5)1/ allegations.2/ The cover letter to the parties reminded the City of its obligation under N.J.A.C. 19:14-3.2 to file an answer and that if no answer was filed then pursuant to N.J.A.C. 19:14-3.1, all allegations in the complaint would be deemed to be admitted as true, unless good cause to the contrary was shown. The City did not file an answer. ¶

In support of its motion for summary judgment, the City asserts there is no issue of material fact that it has required PBA police officers to return to work without the ability to carry their service weapons. The City argues that as a matter of law, it has the managerial prerogative to order a police officer to work without carrying his or her service weapon. The City’s motion did not address allegations pertaining to premature return from medical leave or retaliation for protected activity. ¶

In opposition to the City’s motion, and in support of its cross-motion, the PBA asserts that it is entitled to summary judgment because the City failed to file an answer to the complaint and therefore all of the facts alleged in the charge are deemed to be admitted as true. The PBA argues that the City’s motion narrows the scope and context of its charge as only involving a non-negotiable managerial prerogative regarding the right to carry a service weapon, whereas the charge involves the broader issues of retaliation for protected activity and premature return from medical leaves of absence. ¶

In an unfair practice proceeding, the respondent is required to submit an answer to the complaint. N.J.A.C. 19:14-3.1 states (emphasis added) in pertinent part: ¶

Within 10 days of service on it of the complaint,the respondent shall file an answer. The hearing examiner, upon proper cause shown, may extend the time for filing an answer. The answer shall specifically admit, deny or explain each of the allegations set forth in the complaint, unless the respondent is without knowledge, in which case the respondent shall so state, such statement operating as a specific denial. All allegations in the complaint, if no answer is filed, or any allegation not specifically denied or explained shall be deemed to be admitted to be true and shall be so found by the hearing examiner and the Commission, unless good cause to the contrary is shown. The answer shall include a detailed statement of any affirmative defenses. ¶

This procedural requirement of filing an answer and the consequences of not filing one are established parts of our jurisprudence. Compare Pressler and Verniero, Current N.J. Court Rules R. 4:5-5 (2016); Ballantine v. Haight, 16 N.J.L. 196 (Sup. Ct. 1837)(whatever in one pleading is not denied in the subsequent one is in law admitted). The Commission and its Hearing Examiners have consistently enforced N.J.A.C. 19:14-3.1 by admitting as true a charging party’s allegations when a respondent has either not filed an answer or has filed an answer that did not comply with our rules. See, e.g., City of Newark, P.E.R.C. No. 2015-51, 41 NJPER 385 (¶121 2015); City of Newark, P.E.R.C. No. 2015-64, 41 NJPER 447 (¶138 2015); Runnemede Bor., H.E. No. 2005-9, 31 NJPER 70 (¶32 2005); City of Newark, P.E.R.C. No. 2002-28, 28 NJPER 50 (¶33015 2001); Fort Lee Bor., P.E.R.C. No. 98-118, 24 NJPER 208 (¶29096 1998); Fairfield Tp., P.E.R.C. No. 97-60, 23 NJPER 13 (¶28013 1996); Passaic Cty., P.E.R.C. No. 88-64, 14 NJPER 124 (¶19047 1988); and City of New Brunswick, P.E.R.C. No. 87-68, 13 NJPER 11 (¶18008 1986). ¶

In this case, the City’s failure to file an answer triggers the requirement that the allegations in the complaint be deemed true unless good cause to the contrary is shown. The City has not proffered any reason for overcoming that presumption and may not, by way of motions or exceptions, present additional facts to contradict those already deemed admitted by application of N.J.A.C. 19:14-3.1. See Fort Lee, supra; Newark, 28 NJPER 50, supra; and Tenafly Bor., P.E.R.C. No. 98-129, 24 NJPER 230 (¶29109 1998). The City’s motion admitted as true that it required police officers to return to work without their service weapons and did not assert any additional facts to contradict the PBA’s other allegations. ¶

Summary judgment will be granted if no material facts are in dispute and the movant or cross-movant is entitled to relief as a matter of law. N.J.A.C. 19:14-4.8(d); Brill v. Guardian Life Ins. Co. Of America, 142 N.J. 520, 540 (1995). Our motion rules require a party seeking summary judgment, whether as a movant or cross-movant, to file a supporting brief, which may be accompanied by supporting affidavits. See N.J.A.C. 19:14-4.8 (b) to (c). Here, neither party elected to file supporting affidavits. Nevertheless, the PBA, through the admissions discussed above, has established that (1) the City ordered several unit members to return to work prematurely from medical leaves, thereby jeopardizing officer safety, and required that they not carry their service firearms, and (2) the City took these actions because unit members’ had engaged in or supported union activity consisting of the filing of a civil lawsuit and several unfair practice charges challenging a new Medical Policy and Procedure. ¶

However, just because the facts in the charge are deemed admitted to be true does not mean that legal conclusions are accepted or that violations of the Act are automatically found. See, e.g., City of Egg Harbor City, H.E. No. 2000-1, 26 NJPER 33 (¶31010 1999)(though deemed true, pleadings of fact did not support a(3) or a(7) allegations); Fort Lee Bor., H.E. No. 98-14, 24 NJPER 1 (¶29000 1997)(though deemed true, pleadings of fact did not support violation of a(2), a(3), or a(7) of the Act). We also will allow parties who failed to file an answer to the complaint an opportunity to assert affirmative defenses. See, e.g., Runnemede; Fort Lee, 24 NJPER 1; Newark, 28 NJPER 50; Egg Harbor City. ¶

The PBA’s allegation regarding failure to negotiate over terms and conditions of employment is too vague to support a violation of 5.4a(5) because it does not specify what terms and conditions of employment the PBA sought to negotiate or what conditions the City might have unilaterally changed without negotiations. To the extent that the allegation was related to the City’s decision to order officers to return to duty without their service weapons, the City’s motion provided an affirmative defense based on its asserted managerial prerogative to unilaterally make that determination. The Commission has consistently found that, despite the possible impact on officer safety, the decision of whether police officers should carry firearms is not mandatorily negotiable because it relates primarily to governmental policy considerations about how a public service is to be performed. See, e.g., Rochelle Park Tp., P.E.R.C. No. 96-68, 22 NJPER 137 (¶27068 1996); Hudson Cty., P.E.R.C. No. 93-37, 19 NJPER 3 (¶24002 1992); Nutley Tp., P.E.R.C. No. 88-90, 14 NJPER 254 (¶19095 1988); South Brunswick Tp., P.E.R.C. No. 86-115, 12 NJPER 363 (¶17138 1986); Borough of Paramus, P.E.R.C. No. 86-17, 11 NJPER 502 (¶16178 1985); Hunterdon Cty., P.E.R.C. No. 83-46, 8 NJPER 607 (¶ l3046 l982); City of Camden, P.E.R.C. No. 82-7l, 8 NJPER 110 (¶ l3287 l982); Brookdale Community College, 3 NJPER l56 (l977). Accordingly, the City’s decision to order officers back to work without their service weapons is not mandatorily negotiable, so there can be no 5.4a(5) violation for failure to negotiate over that issue.3/ ¶

Although the City has demonstrated its legal right to determine, without negotiations, whether particular police officers will be armed when on duty, an employer does not have a right to exercise a managerial prerogative for anti-union reasons. See, e.g., Passaic County Superintendent of Elections, P.E.R.C. No. 2014-1, 40 NJPER 136 (¶51 2013)(non-negotiable personnel actions taken to discriminate against employees are unfair practices); Jackson Tp. Bd. of Ed., P.E.R.C. No. 2006-12, 31 NJPER 281 (¶110 2005); State of New Jersey, P.E.R.C. No. 2006-11, 31 NJPER 276 (~109 2005); Warren Hills Reg. Bd. of Ed. and Warren Hills Reg. H.S. Ed. Ass’n, P.E.R.C. No. 2005-26, 30 NJPER 439 (¶145 2004), aff’d , 32 NJPER 8 (¶2 App. Div. 2005), certif. den. 186 N.J. 609 (2006); Hudson Cty. Police Dept. Layoffs, P.E.R.C. No. 2004-14, 29 NJPER 409 (¶136 2003). At this juncture, summary judgment for either party regarding the PBA’s 5.4a(3) allegation is inappropriate where there are insufficient facts to complete the In re Bridgewater Tp., 95 N.J. 235, 244 (1984) burden-shifting analysis. A hearing is necessary to determine whether the City’s orders to return officers to work prematurely and without weapons were substantially motivated by hostility towards protected activity and would not have occurred anyway based on legitimate, non- discriminatory reasons. See generally, Current N.J. Court Rules, R. 4:46-2, Comment 2.3.4., p. 1900 (2016)(summary judgment should ordinarily not be granted where an action or defense requires determination of a state of mind or intent, such as claims of waiver, bad faith, fraud or duress). ¶

OrderORDER ¶

The City’s motion for summary judgment is granted in part and denied in part. It is granted with respect to the PBA’s claim that the City violated N.J.S.A. 34:13A-5.4a(5) by failing to negotiate before requiring certain unit members not to carry their service firearms. As a result, the subsection 5.4a(5) claim is dismissed. The City’s motion is denied with respect to the PBA’s claims that the City violated N.J.S.A. 34:13A-5.4a(3) and (1) by requiring certain officers to return from medical leave prematurely for having engaging in protected activity or supporting the union.4/ The PBA’s cross-motion for summary judgment is denied in its entirety. ¶

BY ORDER OF THE COMMISSION ¶

Chair Hatfield, Commissioners Bonanni, Boudreau, Eskilson, Jones and Voos voted in favor of this decision. None opposed. Commissioner Wall recused himself. ¶

ISSUED: December 17, 2015 ¶

Trenton, New Jersey ¶

Note1/ These provisions prohibit public employers, their representatives or agents from: “(1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act....(3) Discriminating in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage employees in the exercise of the 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/ During the interim between the filing of the charge and the issuance of the Complaint, the parties notified the Commission that they were engaged in settlement negotiations with respect to this and several other pending matters. After multiple contacts with the parties, the Commission resumed processing the charge and issued the Complaint. ¶

3/ To the extent that the alleged failure to negotiate instead related to the adoption of the medical leave policy or its content, we note that the PBA elected to filed a separate charge over that matter and later informed Commission staff that the case proceeded to arbitration. ¶

4/ Therefore, these claims are transferred back to the Hearing Examiner. ¶