P.E.R.C. No. 2020-23, Carteret Boro

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of BOROUGH OF CARTERET, Petitioner, -and- Docket No. SN-2019-043 FMBA LOCAL 67, Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission denies the Borough’s request for a restraint of binding arbitration of Local 67’s grievance contesting the Borough’s failure to re-assign probationary firefighters from a daytime weekly work schedule to 24-shifts at the completion of their academy training. Finding that Local 67’s claim relates to the generally negotiable issue of work schedules, and that the Borough has not sufficiently demonstrated its asserted governmental policy interests to the schedule assignment’s of post-academy probationary firefighters, the Commission finds the grievance mandatorily negotiable and legally arbitrable. ¶

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 CARTERET, Petitioner, -and- Docket No. SN-2019-043 FMBA LOCAL 67, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, DeCotiis, FitzPatrick, Cole & Giblin, LLP, attorneys (Gregory J. Hazley, of counsel and on the brief) ¶

For the Respondent, Kroll Heineman Carton, LLC, attorneys (Raymond G. Heineman, of counsel and on the brief) ¶

DECISION ¶

On August 23, 2018, FMBA Local 67 (Local 67 or FMBA) filed a request for submission of a panel of arbitrators, docketed AR- 2019-109, seeking binding arbitration of a grievance contesting the failure of the Borough of Carteret (Borough) to re-assign probationary firefighters from a daytime, weekly work schedule to 24-hour shifts following the completion of their training at the Fire Academy. ¶

On December 17, 2018, the Commission appointed an arbitrator. On January 18, 2019, the Borough filed a scope of negotiations petition, seeking a restraint of binding arbitration. By March 12, 2019, briefing on the scope petition was complete. 1/ ¶

The Borough filed briefs, exhibits, and two certifications of its Fire Chief, Mark Hruska.2/ Local 67 filed a brief, exhibits, and the affidavit of its President, Jason Kurdyla. These facts appear. ¶

Local 67 represents all fire personnel within the fire department but excluding the Fire Chief. Local 67 and the Borough are parties to a CNA in effect from January 1, 2011 through December 31, 2015. The CNA at Article I, Section 2, Areas of Negotiations, states that the FMBA “has the right to negotiate as to rates of pay, hours of work, fringe benefits, working conditions, safety of equipment, procedures for adjustments of disputes and grievances and all other related matters.” The negotiated grievance procedure, at Article IX(e) of the CNA, ends in binding arbitration. ¶

Article II of the CNA, entitled “Manpower,” provides in pertinent part: ¶

Section 3. Probationary Firefighters ¶

To enable the Borough to exercise sound discretion in the filling of positions within the Fire Department, no appointment to the position of firefighter in the Fire Department shall be deemed final and permanent until after the expiration of a period of one-year probationary service. During the probationary period of an employee, the Borough may terminate the employment of such employee, if during this period upon observation and consideration of his performance of duty, they shall deem him unfit for such appointment. Nothing contained herein shall be used to deny any employee of any rights or benefits to which he may be entitled under the pension provisions of the New Jersey Police and Firefighter’s Retirement system covering employees of the Fire Department. ¶

Article III of the CNA, entitled “Hours of Work and Overtime,” provides as follows: ¶

Section 1. Hours of Work ¶

The work week for all employees of the Fire Department who perform fire fighting duties shall be what is commonly known as the “24- 72” system. The four shifts alternate as follows: ¶

The first shall work 24 consecutive hours beginning at 7:00 a.m. and ending the following morning at 7:00 a.m., followed by 72 consecutive hours off duty. The second shift shall relieve the first beginning at 7:00 a.m. and work 24 consecutive hours, followed by the third and forth shifts on a rotating basis. ¶

* * * * ¶

Section 4. Relief Men’s Hours of Work ¶

Relief men shall not work more than 48 hours or less than 24 hours in any week. All shifts shall consist of 24 consecutive hours starting at 7:00 a.m. The relief men will also have at least 24 hours in between each shift, unless called in for overtime when their names come up in the overtime list. ¶

Section 5. Relief Men’s Shifts ¶

Relief men in each of the two firehouses shall be given at least one-week notice for each change. Relief men shall be assigned a specific shift whenever scheduling allows. Relief men preference or shift selection shall be governed by relief man seniority. ¶

Section 6. Bureau of Fire Safety Hours ¶

The hours of work for the Bureau of Fire Safety will be four days a week, nine hours a day, on a Monday through Friday basis. ¶

The Chief certifies that the above provisions together hold that the Fire Department has three different schedules personnel can be assigned to: the 24/72 schedule for regular firefighters, a regular day schedule for those assigned to the Bureau of Fire Safety, and the modified 24-hour shift for Relief Men. The Chief certifies that in accordance with the Uniform Fire Safety Act and regulations, N.J.S.A. 52:27D-192 to 198.6, and N.J.A.C. 5:73-1.1 to -18.9, newly hired prospective firefighters must attend a Fire Academy to pass basic firefighter training in order to become qualified to perform the duties of firefighter, and further that the Bureau of Fire Safety itself was established pursuant to the Uniform Fire Safety Act and regulations.3/ ¶

The Chief certifies that assignment to the Fire Safety Bureau, with its weekly schedule, allows probationary firefighters to attend the Fire Academy within their first year and thereafter to “work during daytime hours where they receive additional training, both in-house and other outside day-time schooling, and, importantly, are available for observation and evaluation by management, i.e., the Fire Chief, while he is on duty during the day, during this evaluative probationary period.” The Chief further certifies that the Department’s ability to assign probationary firefighters to the Fire Safety Bureau (where the Chief also serves as the Borough’s Fire Official) is necessary “for the proper training, evaluation and staffing of the Department.” ¶

The Chief’s supplemental certification adds that the probationary firefighters’ post-Academy training included their assignment “to ride on fire apparatus to bolster their academy training, receive exposure to live firefighting, be observed by [the Chief], and to be monitored by their peers.” The Chief points out that on the Fire Safety Bureau schedule, “probationary firefighters work 208 days or 1,872 hours of actual work time with exposure to the chief and training. On 24-hour shifts, probationary firefighters would work 91 days during the probationary year . . . [or] approximately 1,400 potential training hours, . . . and even less time under observation by the Fire Chief.” The Chief also certifies that the probationary firefighters “are not yet ready to perform the duties of full- time firefighters on their own and will benefit from the oversight and limited role the Fire Safety Bureau affords them,” and further that on March 24, 2019, both probationary firefighters told him “they do not feel they are ready to be released from training and perform on their own as firefighters.” 4/ The Chief also certifies that only he has “the authority to ‘release’ or re-assign” a probationary firefighter, and that he “will not re-assign probationary firefighters from the Fire Prevention Bureau until . . . [he is] certain they are not a danger to themselves or others.” ¶

Kurdyla attests that traditionally, the training schedule for newly hired firefighters, 5/ including himself, consisted of the Firefighter 1 course, if needed, then six weeks of in-house training, conducted on five 8-hour days, Monday through Friday. The in-house training followed a Departmental training manual and schedule, in which each shift Captain would leave comments after every training session. At the 6-week mark, the Training Captain would evaluate the recruit over two 24-hour shifts and then give his recommendation to either continue the training schedule, if needed, or release the trainee to work on a 24-hour shift, on which they would continue to train daily and to prepare for emergency responses. ¶

According to Kurdyla, currently, newly hired firefighters are scheduled consistent with the Fire Prevention schedule, of four 9-hour days per week. During the first few weeks, the recruits went through normal in-house training, learning the specific items, the difference between a ladder truck and an engine, amongst other learning opportunities. The initial training was done by the Chief and the two firefighters assigned to Fire Prevention. Kurdyla further alleges that after two weeks, the Chief returned to his normal duties spending most of his nine hours in Borough Hall, where he is currently the Director of the Carteret Business Partnership office. ¶

After the recruits spent their initial weeks doing in-house training, the recruits attended and passed the Middlesex Fire Academy classes, Firefighter 1 and Firefighter 2.6/ The trainees returned to the Fire House after they completed their classes, and were typically assigned to ride on the fire apparatus as additional manpower during their four 9-hour day schedule. In addition, the firefighters and fire officers assigned to 24-hour shifts would continue to train them on equipment. ¶

Since graduating the Middlesex Fire Academy, the new recruits have worked the Fire Prevention schedule of four 9-hour days and have generally been assigned as additional staffing on the fire apparatus, complementing firefighters working 24 hour shifts. Kurdyla attests that it is his understanding that once or twice since graduation, the recruits accompanied Fire Prevention and shift firefighters to do a walkthrough of buildings. The union is unaware of any direct training of the recruits by the Chief, since their graduation from the Fire Academy, or of any direction by the Chief to any of the Tour Commanders on specific training, or of any requested updates on the recruits’ training. Kurdyla states that as of February 26, 2019, one of the trainees is currently attending EMT school, for five days per week. The second trainee is currently still working four 9 hour days per week and has continued to be assigned to additional staffing on the apparatus, being trained by personnel on 24 hour shifts. Kurdyla attests that the personnel assigned to Fire Safety Bureau continue to perform their own duties, with only limited interaction with the recruits. ¶

Kurdyla further attests that a previously hired recruit, hired in May 2017, was also assigned as a firefighter to the Fire Prevention Bureau schedule. He performs the same duties as the firefighters, including being assigned to ride the Fire Apparatus and work as additional staff during the day, while continuing to work four 9-hour days per week. Since December 2017, and as recently as February 19, 2019, Local 67 was informed that he would be assigned to 24-hour shifts in the near future. ¶

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 merits of the grievance or any contractual defenses that the Borough may have. ¶

The scope of negotiations for police officers and firefighters is broader than for other public employees because N.J.S.A. 34:13A-16 provides for a permissive as well as a mandatory category of negotiations. Paterson Police PBA No. 1 v. City of Paterson, 87 N.J. 78, 92-93 (1981), outlines the steps of a scope of negotiations analysis for firefighters and police: ¶

First, it must be determined whether the particular item in dispute is controlled by a specific statute or regulation. If it is, the parties may not include any inconsistent term in their agreement. [State v. State Supervisory Employees Ass’n, 78 N.J. 54, 81 (l978).] If an item is not mandated by statute or regulation but is within the general discretionary powers of a public employer, the next step is to determine whether it is a term or condition of employment as we have defined that phrase. An item that intimately and directly affects the work and welfare of police and firefighters, like any other public employees, and on which negotiated agreement would not significantly interfere with the exercise of inherent or express management prerogatives is mandatorily negotiable. In a case involving police and firefighters, if an item is not mandatorily negotiable, one last determination must be made. If it places substantial limitations on government’s policymaking powers, the item must always remain within managerial prerogatives and cannot be bargained away. However, if these governmental powers remain essentially unfettered by agreement on that item, then it is permissively negotiable. ¶

Because this dispute involves a grievance, arbitration is permitted if the subject of the dispute is mandatorily or permissively negotiable. See Middletown Tp., P.E.R.C. No. 82-90, 8 NJPER 227 (¶13095 1982), aff’d, NJPER Supp.2d 130 (¶111 App. Div. 1983). Thus, if we conclude that the PBA’s grievance is either mandatorily or permissively negotiable, then an arbitrator can determine whether the grievance should be sustained or dismissed. Paterson bars arbitration only if the agreement alleged is preempted or would substantially limit government’s policy-making powers. ¶

The substantive decision to transfer or reassign employees is not mandatorily negotiable. Local 195, IFPTE v. State, 88 N.J. 393, 417 (1982), citing Ridgefield Park Educ. Ass’n v. Ridgefield Park Bd. of Ed., 78 N.J. 144, 156 (1978); City of Jersey City v. Jersey City Police Officers Benevolent Ass’n, 154 N.J. 555, 575 (1998). ¶

The work schedules of individual employees are, in general, mandatorily negotiable unless agreement on that topic would significantly interfere with a governmental policy determination or the facts prove a particularized need to preserve or change a work schedule to effectuate a governmental policy. Teaneck Tp. v. Teaneck FMBA, Local No. 42, 353 N.J. Super. 289 (App. Div. 2002), aff’d, 177 N.J. 560 (2003); Local 195, supra at 411-412; Irvington PBA Local #29 v. Town of Irvington, 170 N.J. Super. 539 (App. Div. 1979), certif. den. 82 N.J. 296 (1980). ¶

Public employers have a non-negotiable managerial prerogative to decide which employees are qualified to perform which duties. Edison Tp., P.E.R.C. No. 2010-39, 35 NJPER 442 (¶145 2009). Procedural aspects of such decisions, and their severable economic consequences or “impact,” are mandatorily negotiable. Local 195, supra at 417; State v. State Supervisory Employees Ass’n, 78 N.J. 54, 90-91 (1978). 7/ ¶

Finally, N.J.S.A. 34:13A-5.3 requires public employers to negotiate written policies setting forth grievance procedures by means of which their employees or representatives of employees may appeal the interpretation, application, or violation of agreements, and administrative decisions affecting them. ¶

Applying these standards to the facts of this matter, we find that the grievance is mandatorily negotiable and legally arbitrable. The FMBA’s claim relates to the determination of work schedules, which is a mandatorily negotiable issue absent evidence that such negotiations would substantively interfere with governmental policy making. On this record, there is insufficient evidence to tie the asserted governmental policy (i.e. the Chief’s training concerns) to the assignment of the probationary firefighters, post-Academy, to the Bureau of Fire Safety shift. ¶

The Borough, in essence, contends that the determination of which shift to assign probationary firefighters is not purely a work schedule issue, but also concerns job assignment considerations that are tied to the Chief’s judgment as to the trainees’ readiness for deployment on the 24/72 schedule. ¶

The FMBA, in contrast, frames the dispute as posing “the simple issue of the arbitrability of the work hours of probationary firefighters, while they are not engaged in classroom training at either the Middlesex Fire Academy or another outside training provider.” The FMBA stresses that the “only issue is the schedule worked by trainees performing the normal duties of firefighters.” (Emphasis supplied.) ¶

Each of the firefighters at issue successfully completed basic firefighter training at the Fire Academy. The Chief certified that this qualified them to perform the duties of a firefighter. The phrase “fire fighting duties” appears only in Section 1 of Article III of the CNA, which establishes the 24/72 schedule. Given the Chief’s somewhat conflicting statements about the qualifications of the probationary firefighters, the Borough has not shown that negotiation over their work schedules would substantially interfere with government policy. Teaneck Tp., supra. The Borough may raise any concerns about the probationary firefighters readiness for the 24/72 schedule, post- Academy, to the arbitrator. ¶

OrderORDER ¶

The request of the Borough of Carteret for a restraint of binding arbitration is denied. ¶

BY ORDER OF THE COMMISSION ¶

Chair Weisblatt, Commissioners Bonanni, Jones and Papero voted in favor of this decision. None opposed. Commissioner Voos was not present. ¶

ISSUED: November 26, 2019 ¶

Trenton, New Jersey ¶

Note1/ At the Commission’s August 15, 2019 meeting, an initial draft decision was presented to the Commission which resulted in a tie vote. There was one abstention by a Commissioner who, although eligible to vote, had not yet had an opportunity to read the draft and the parties’ briefs. The Commission then voted to table the initial draft, to allow the abstaining Commissioner to review the materials before voting. The Commission’s meeting of September 26, 2019 again produced a tie vote, this time due to the absence of a Commissioner who was otherwise eligible to vote. Under such circumstances, Commission policy dictates that the case will be held over until the next meeting so that a majority vote might be reached. In advance of the Commission’s next meeting on October 31, 2019, the FMBA’s counsel wrote to the Commission on October 25, requesting to supplement the record. This request was denied as the record was closed and the initial draft was on the agenda for the October 31 meeting. That meeting resulted in a majority vote of two in favor and three opposed. A discussion ensued, followed by a motion, unanimously approved, to table the initial draft until the next meeting for consideration of a revised draft reflecting the majority vote of the Commission, set forth herein. ¶

2/ On March 11, 2019, Chief Hruska filed a supplemental certification. ¶

3/ N.J.A.C. 5:71-2.3(a)(3) permits a local governing body to “create or designate a local enforcing agency within the municipality” for purposes of enforcing the uniform Fire Code and performing fire safety inspections. See also N.J.A.C. 5:71-1.3. ¶

4/ We note that the record is devoid of affidavits or certifications from the two probationary firefighters. ¶

5/ In his affidavit, Kurdyla variously refers to probationary firefighters as “newly hired firefighters,” “trainees,” and “recruits.” ¶

6/ See N.J.A.C. 5:73-4.1 through -4.6. ¶

7/ The FMBA has neither alleged nor demanded negotiations over any economic impact or procedural concerns arising from the probationary firefighters’ assignment to the Fire Safety Bureau. ¶