P.E.R.C. No. 2024-53, Jersey City

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of CITY OF JERSEY CITY, Petitioner, -and- Docket No. SN-2024-029 JERSEY CITY PSOA, Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission denies the City of Jersey City’s request for a restraint of binding arbitration of a grievance filed by the Jersey City PSOA. The grievance alleges that the City violated the parties’ collective negotiations agreement and the terms of a 2003 Settlement Agreement, resolving several FLSA lawsuits, when it allegedly began denying “short notice” assignments and the required additional compensation for such assignments. The Commission finds that PSOA’s grievance is not challenging the City’s managerial prerogative to make the short notice assignments, but rather, the compensation allegedly owed for such assignments, which is 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 CITY OF JERSEY CITY, Petitioner, -and- Docket No. SN-2024-029 JERSEY CITY PSOA, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, Apruzzese, McDerrmott, Mastro & Murphy, P.C., attorneys (Arthur R. Thibault, of counsel and on the brief; Boris Shapiro, on the brief) ¶

For the Respondent, Sciarra & Catrambone, LLC, attorneys (Christopher A. Gray, of counsel) ¶

DECISION ¶

On February 20, 2024, the City of Jersey City (City) filed a scope of negotiations petition seeking a restraint of binding arbitration of a grievance filed by the Jersey City PSOA (PSOA). The grievance alleges that the City violated the parties’ collective negotiations agreement (CNA) and the terms of a 2003 Settlement Agreement, resolving several FLSA lawsuits, when it allegedly began denying “short notice” assignments and the required additional compensation for such assignments. ¶

The City filed briefs, exhibits and the certification of its Acting Chief of Police. The PSOA filed a brief, exhibits and the certification of its President.1/ These facts appear. ¶

The PSOA represents all Superior Officers employed by the City within the Police Department from the rank of Sergeant through Inspectors, inclusive. The City and PSOA were parties to a CNA with a term of January 1, 2017 through December 31, 2020, and a Memorandum of Agreement (MOA) for the period of January 1, 2020 through December 31, 2024. The grievance procedure ends in binding arbitration. ¶

The parties’ MOA provides, in pertinent part: ¶

19. SCHEDULE CHANGE Add. Article 22, ¶

Section I. Change in Schedule (p. 51 Contract) ¶

Section I. No change in schedule of any Employee covered by this Agreement shall be made unless such Employee is given at least forty-eight (48) hours' notice prior to the time that he is regularly scheduled to work, or (48) hours prior to the changes in reporting time, whichever is greater. ¶

The Acting Chief of Police certifies to the following facts. Each year, the City’s law enforcement officers within the Patrol Division, including Superior Officers, are assigned to one of the City’s four Districts. During the year, however, a need may arise to temporarily reassign an officer, including a Superior Officer, to another District to meet the operational needs of the Department, such as manpower shortages. While reassigned, the Superior Officer is performing the typical and customary duties of his position. This practice of reassigning Superior Officers to another District during their regular shift is well known, long-standing, and continues to this day. (See City’s cert. at ¶ ¶4-5). ¶

In 1999, numerous police officers, including Superior Officers and the Acting Chief himself, filed an FLSA lawsuit against the City wherein it was alleged, in part, that they were not compensated for overtime work, including “time spent as a result of being assigned to travel to another District or another work site (other than the Plaintiff’s assignment for the year in question) with the Jersey City Department.” (See City’s cert. at ¶6). ¶

In 2003, the FLSA lawsuit was amicably resolved by way of a signed settlement agreement which provided, in relevant part: ¶

Short Notice Assignments: Officers that are directed to report to another assignment on short notice (i.e. less than 24 hours advance notice) shall be entitled to receive one (1) compensatory day for every twelve (12) short notice assignments. In order to qualify for the receipt of credit for a short notice assignment, an Officer shall be required to confirm in writing with his/her lieutenant/captain or authorized supervisor the receipt of said assignment within twenty- four hours from the time of the assignment. If the officer does not obtain said confirmation then he/she forfeits any credit for that short notice assignment. It is acknowledged and agreed there shall be no additional compensation, benefits or overtime in connection with such short notice assignments. ¶

[See City’s cert. at ¶7]. ¶

At all times relevant to the 1999 FLSA lawsuit and through the expiration of the 2013-2016 CNA, line Superior Officers worked an eight hour tour of duty on any given workday. There was no overlap between shifts, and thus, a line Superior Officer scheduled to work a day shift (which officially started at 6 a.m.), who was reassigned on short notice to another District, may need to arrive at work earlier than he would otherwise arrive to compensate for the additional time needed to travel from his regularly assigned District. However, in the 2017-2020 CNA and General Order 6-18, effective March 2018, a line Superior Officer’s tour of duty, or shift, was increased by one half hour to eight and a half hour hours in length. Additionally, shift times were officially changed to begin a half hour earlier, creating a one-half hour overlap between day, evening, and midnight shifts. As a result, officers no longer needed to arrive at work earlier than usual to attend to a “short notice” assignment. Therefore, due to the changes in the shift schedule, the basis for compensating reassigned officers for travel time was extinguished, effective March 2018. (See City’s cert. at ¶ ¶8- 10). ¶

By letter dated December 12, 2023, the PSOA filed its Step A grievance concerning denials of “short notice assignments” , which stated in pertinent part: ¶

The reason for this letter is to formally address the recent denials of supervisors' short notice assignments. It appears that this is being initiated by the PBC office even after prior approval by a CIC on duty and appears to have begun around the last week of November this year. This deviation from established practices raises significant legal concerns, and it is imperative to note that these recent changes are in violation of the Fair Labor Standards Act (FLSA) lawsuit from 1999 between the City of Jersey City and the Police Unions at that time. While the lawsuit did not specify a particular time frame for notifications, it unequivocally affirmed that when a supervisor is transferred from an assigned district to another work location, they are entitled to receive a short notice. ¶

The PSOA filed additional Step B and C grievances on January 11 and 29, respectively, which the Acting Chief denied. (See City’s cert. at ¶ ¶11-13). ¶

On February 5, the PSOA filed a Request For Submission of A Panel of Arbitrators, alleging that the “City’s denial of the request for “short notice” compensation violates Article 22 of the CNA as well as established past practice. (See City’s cert. at ¶14). On February 9, the Acting Captain issued a memorandum to all Superior Officers concerning the erroneous approval of short notice assignments. The memorandum provides as follows: ¶

It has come to our attention that Short Notice requests have been erroneously signed for supervisors that have been reassigned while on duty. Our current shifts, which have been in place since in or about 2018, provide sufficient time for responding, while on duty, to a different assignment to make relief. Management has the right to reassign manpower for the operational needs and efficiency of the Department to provide for the safety of our citizenry. Effective immediately, short notice requests shall not be approved. Any short notice request erroneously signed for is not approved and shall be voided. ¶

All sworn supervisors of the department will take cognizance of the above and will comply with same. Each superior officer shall be responsible for directing the effective implementation of this order. ¶

[See City’s cert. at ¶16]. ¶

This petition ensued. ¶

Our jurisdiction is narrow. The Commission is addressing the abstract issue of whether the subject matter in dispute is within the scope of collective negotiations. We do not consider the merits of the grievance or any contractual defenses that the employer may have. Ridgefield Park Ed. Ass’n v. Ridgefield Park Bd. of Ed., 78 N.J. 144, 154 (1978). ¶

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. ¶

Arbitration is permitted if the subject of the grievance 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 a 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 City argues that arbitration of the PSOA’s grievance should be restrained because its decision to assign an on-duty officer to a different post on short notice, without additional compensation, is a non-negotiable, managerial prerogative. It argues that negotiations over additional compensation for such assignments would significantly interfere with the Department’s ability to address operational and staffing needs in an efficient and cost effective-manner, particularly when the reassigned officers are performing the same work for which compensation has already been negotiated. The City asserts that the PSOA’s reliance on the Settlement Agreement is misplaced because the officers’ right to compensation for sort notice assignments was extinguished as of March 2018 due to the schedule change enacted in Article 8 of the 2017-2020 CNA and General Order 6-18, that extended shifts by a half hour allowing officers’ sufficient overlap between shifts to attend to their short notice assignments. The City further asserts that the PSOA’s reliance on the CNA’s Article 22 is misplaced because that article addresses compensation as a result of short notice changes to an officer’s work schedule rather than temporary short notice reassignment during an officer’s regularly scheduled shift. ¶

The PSOA argues that the City’s scope of negotiations petition should be denied because its grievance is challenging the City’s alleged violation of the CNA by denying additional compensation for short notice assignments, which is mandatorily negotiable. The PSOA asserts that its grievance is not challenging the City’s authority to make such short notice assignments, but only the additional compensation, which was negotiated as part of the Settlement Agreement that resolved the FLSA lawsuits. ¶

Here, we decline to restrain arbitration of PSOA’s grievance because it is seeking to challenge an alleged violation of the 2003 Settlement Agreement that established additional compensation for short term assignments. Employees have a right to negotiate over the compensation they receive for the duties they perform. See Woodstown-Pilesgrove Reg. H.S. Dist. Bd. of Ed. v. Woodstown-Pilesgrove Ed. Ass'n, 81 N.J. 582 (1980). We find that PSOA’s grievance is not challenging the City’s managerial prerogative to make the short notice assignments, but rather, the compensation allegedly owed for such assignments. Whether the Settlement Agreement is no longer in effect or has been nullified by a later CNA or departmental order are defenses for an arbitrator to consider. Ridgefield Park, supra. ¶

OrderORDER ¶

The City of Jersey City’s request for a restraint of binding arbitration is denied. ¶

BY ORDER OF THE COMMISSION ¶

Chair Hennessy-Shotter, Commissioners Eaton, Ford, Higgins, Kushnir and Papero voted in favor of this decision. None opposed. ¶

ISSUED: May 30, 2024 ¶

Trenton, New Jersey ¶

Note1/ N.J.A.C. 19:13-3.6(f) requires that all pertinent facts be supported by certifications based upon personal knowledge. The PSOA President's certification authenticates the exhibits presented by the PSOA, but does not certify to the facts asserted in the PSOA's brief. ¶