P.E.R.C. No. 2024-54, Edison Tp

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of TOWNSHIP OF EDISON, Petitioner, -and- Docket No. SN-2024-028 IAFF LOCAL 2883, Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission denies the Township’s request for a restraint of binding arbitration of Local 2883's grievance contesting the Township’s use of a non- unit firefighter instead of a Local 2883 fire officer on overtime to fill a fire officer staffing vacancy. The Commission finds that, while the Township has a managerial prerogative to determine staffing levels on each shift, overtime procedures for filling in for absent staff are mandatorily negotiable. Therefore, the Commission holds that Local 2883's grievance challenging the diminished allocation of overtime opportunities to fire officers caused by the Township’s decision to maintain firefighters in acting officer positions instead of using them to replace absent firefighters and calling in sworn fire officers on overtime 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 TOWNSHIP OF EDISON, Petitioner, -and- Docket No. SN-2024-028 IAFF LOCAL 2883, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, Ruderman & Roth, LLC, attorneys (Allan C. Roth, of counsel) ¶

For the Respondent, Cohen, Leder, Montalbano & Connaughton, LLC, attorneys (Matthew G. Connaughton, of counsel) ¶

DECISION ¶

On February 15, 2024, the Township of Edison (Township) filed a scope of negotiations petition seeking a restraint of binding arbitration of a grievance filed by IAFF Local 2883 (Local 2883). The grievance asserts that the Township violated Article 33 of the parties’ collective negotiations agreement (CNA) and past practice when it utilized a non-unit firefighter instead of a Local 2883 fire officer on overtime to fill a fire officer staffing vacancy on April 14, 2023. ¶

The Township filed briefs, exhibits, and the certification of Fire Chief Andrew Toth. Local 2882 filed a brief, exhibits, and the certification of retired Fire Captain and current Local 2883 First Vice President Matthew Herka. These facts appear. ¶

The Township and Local 2883 are parties to a CNA with a term of January 1, 2018 through December 31, 2022. The grievance procedure ends in binding arbitration. Local 2883 represents the ranks of captain and battalion chief.1/ ¶

Article 33 of the CNA is entitled “Continuation of Benefits” and provides: ¶

All benefits, terms and conditions of employment presently enjoyed by [e]mployees hereunder that have not been included in this contract shall be continued in full force and effect. ¶

Chief Toth certifies that the Township’s minimum staffing for platoon personnel is 26 total (firefighters and fire officers), that includes: two battalion chiefs and four captain positions. The department requires that those fire officer positions are filled with at least one sworn (Local 2883) battalion chief and at least two sworn (Local 2883) captains, but that the other fire officer positions may be filled with acting fire officers. If the Township falls below its minimum staffing numbers, the appropriate rank is called in for overtime. ¶

Chief Toth certifies that the April 14, 2023 shift schedule contained two sworn battalion chiefs and four sworn captains, all Local 2883 unit employees. On April 14, two Local 1197 firefighters called out of work, leaving two firefighter vacancies on the shift schedule and one short for minimum staffing for firefighters. Two different firefighters were called-in for overtime for the day and night shifts, respectively, as provided for under the Local 1197 CNA. On April 14, there were no vacancies in any fire officer position. ¶

Captain Herka certifies that, based on past practice, when the Township utilizes overtime to fill a staffing shortage, a firefighter working out-of-title as an acting captain (a fire officer position) may not continue to work out-of-title if it would prevent a fire officer from being called-in for overtime. Instead, if a firefighter (Local 1197) serving as an acting captain is returned to the rank of firefighter to fill a firefighter staffing deficit, a sworn captain (Local 2883) is utilized on overtime to fill-in the Captain vacancy. This practice is called “top-down back fill” and has been confirmed by previous fire chiefs (e.g., in a July 25, 2008 order and July 31, 2019 order) as well as in a 2019 grievance arbitration decision. ¶

Captain Herka certifies that, on April 14, 2023, one overtime position was utilized for firefighters, but the Township should have used “top-down back fill” procedures to call in a sworn fire officer (Local 2883) on overtime while returning one of the scheduled acting captains (Local 1197) to their sworn position of firefighter to fill the firefighter position (without overtime). The schedule for April 14, 2023 indicates that the Township’s claim that two sworn battalion chiefs and four sworn captains were on duty is incorrect. Rather, the schedule indicates there was one acting battalion chief (and one sworn battalion chief) and there were two acting captains (and two sworn captains) on the schedule assigned to regular 24-hour shifts. According to Captain Herka, the Township’s certification incorrectly included fire officers assigned to “Headquarters” day shifts on April 14, who are not part of the minimum staffing calculations. ¶

The “Edison Division of Fire Platoon Daily Roster” submitted by the Township (Exhibit 7) corroborates Captain Herka’s assertion that there were two acting captains (who Captain Herka certifies are designated as “A/C” ) out of four scheduled non- Headquarters captains on April 14, 2023. ¶

On April 20, 2023, Local 2883 filed a grievance alleging that the Township violated Article 33 of the CNA (Continuation of Benefits). The grievance asserts the Township did not adhere to overtime past practice to fill staffing vacancies. Specifically, on April 14 when it used an acting officer that resulted in a Local 1197 firefighter receiving overtime instead of a Local 2883 fire officer. On June 9, the Township denied the grievance, acknowledging that there were two acting captains and one acting battalion chief scheduled on April 14. The Township reasoned that because the vacancy was in the firefighter position, a firefighter was called in to cover it. On June 27, Local 2883 requested binding arbitration of the grievance. This petition ensued. ¶

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 contractual merits of the grievance or any contractual defenses the employer 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. ¶

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 Township asserts that this issue is not substantively arbitrable because the parties never agreed to arbitrate the issue of overtime as it pertains to Local 1197 firefighters, as opposed to Local 2882 fire officers. It argues that the grievance challenges overtime given to a Local 1197 firefighter and does not involve Local 2883 overtime procedures because there were no vacancies in fire officer positions on April 14, 2023. The Township contends that the grievance infringes on its managerial prerogative to determine staffing and minimum staffing because it seeks for a sworn fire officer to be called in on overtime to replace an acting captain who is already scheduled. The Township asserts that its decision to call in firefighters on overtime to replace absent firefighters instead of moving the acting captain to firefighter and calling in a Local 2883 sworn fire officer on overtime is non-negotiable. ¶

Local 2883 asserts that the allocation of overtime is mandatorily negotiable. It argues that the “top-down backfill” procedure for filling staffing vacancies, that determines which titles get called in for overtime opportunities, is a negotiable past practice that has been repeated by multiple fire chiefs and recently upheld by an arbitrator. Local 2883 contends that its grievance does not challenge the Township’s determination of minimum staffing or staffing, but only seeks to preserve sworn fire officers’ interest in overtime opportunities in their own job titles instead of having that work performed by firefighters working out-of-title as acting captains. ¶

“A public employer has a managerial prerogative to determine when governmental services will be delivered and the manning or staffing levels necessary for the efficient delivery of those services and, derivative from those determinations, when overtime work is necessary.” Clark Tp., P.E.R.C. No. 2016-55, 42 NJPER 372 (¶105 2016), aff’d; see also City of Long Branch, P.E.R.C. No. 83-15, 8 NJPER 448 (¶13211 1982). However, “the allocation of overtime and procedures for selecting employees to work overtime are generally mandatorily negotiable and arbitrable.” West Milford Tp., P.E.R.C. No. 2016-45, 42 NJPER 310 (¶90 2015); see also Wayne Tp. (App. Div. 1998), aff’ g, P.E.R.C. No. 97-74, 23 NJPER 42 (¶28029 1996). ¶

Therefore, the Commission and courts have held that, where the employer has determined a need to provide services at certain times with a certain level of staffing, disputes over whether those services will be provided on an overtime basis based on existing work schedules and/or overtime procedures are mandatorily negotiable as long as such schedules and procedures are not demonstrated to significantly interfere with the delivery of those services. See, e.g., Town of West New York (App. Div. 1991), aff’ g, P.E.R.C. No. 91-52, 17 NJPER 5 (¶22003 1990) (union could arbitrate employer’s use of Emergency Response Team officers to work certain special duty assignments instead of calling in PBA officers on overtime); and Maywood Bor. (App. Div. 1983), aff’ g, P.E.R.C. No. 83-107, 9 NJPER 144 (¶14068 1983) (union could arbitrate to enforce use of overtime priority list to achieve employer’s minimum staffing levels, rather than employer’s directive requiring shift swaps to avoid overtime opportunities). ¶

In City of Orange Tp., P.E.R.C. No. 2011-10, 36 NJPER 310 (¶119 2010), the union challenged the City’s directive that changed the procedures for filling vacancies such that lower- ranked firefighters and officers would fill in for higher ranks in an acting capacity. The union asserted that the change violated the parties’ past practice concerning overtime and reduced fire officers’ overtime opportunities. While finding that the City had a non-negotiable managerial prerogative to determine staffing levels, the Commission held that the issue of whether the City violated the parties’ CNA and past practice “when it required firefighters and captains to act up in rank rather than call-in a deputy chief or captain on overtime” was mandatorily negotiable. The Commission found: ¶

Officers have a negotiable interest in performing work in their own job titles before that work is offered to other officers working out of title. Thus, the City could have legally agreed to call in deputy chiefs or captains on overtime rather than have captains and firefighters act up. That kind of agreement is mandatorily negotiable. ¶

[City of Orange Tp., 36 NJPER at 312.] ¶

See also Town of Kearny v. Kearny Superior Officers Ass’n (App. Div. 1999), aff’ g, P.E.R.C. No. 98-22, 23 NJPER 501 (¶28243 1997) (employer violated the Act when it unilaterally changed negotiable practice of replacing absent officers with officers of the same rank on overtime and instead gave work to a lower-ranked acting officer); and City of Jersey City, P.E.R.C. No. 2021-41, 47 NJPER 459 (¶108 2021) (City’s use of acting captains to fill captain vacancies instead of calling in captains from other tours on overtime was arbitrable). ¶

Here, Local 2883’s grievance challenges the diminished allocation of overtime opportunities to fire officers caused by the Township’s decision to maintain firefighters in acting officer positions instead of using them to replace absent firefighters and calling in sworn fire officers on overtime. Consistent with City of Orange Tp. and the above-cited precedent, this alleged “top-down back fill” procedure for replacing absent firefighters and officers is mandatorily negotiable and legally arbitrable because it implicates Local 2883 fire officers’ interest in preserving overtime opportunities within their own titles. Although the result of the alleged violation of this past practice was that a firefighter received overtime for filling a firefighter vacancy, that overtime could have gone to a sworn fire officer if one of the acting captains on the schedule filled the vacant firefighter shift. This scenario would open up the fire officer shift for a sworn fire officer.2/ Whether the “top-down back fill” past practice operates as asserted and whether it was violated on the date in question, resulting in overtime loss for a fire officer, are factual determinations concerning the merits of the grievance that are appropriate for the arbitrator. Ridgefield Park. ¶

OrderORDER ¶

The Township of Edison’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/ The Township’s rank-and-file firefighters are represented by IAFF Local 1197 under a separate CNA. ¶

2/ Because Local 2883’s overtime interests are implicated by the Township’s decisions on how to staff and backfill Local 1197 firefighter vacancies and its use of acting officers, we find that the Township’s substantive arbitrability defense alleging that Local 2883 is attempting to grieve a Local 1197 issue lacks merit. Regardless, substantive arbitrability is a matter for a court to decide. Ridgefield Park; Pascack Valley Reg. H.S. Bd. of Educ. v. Pascack Valley Reg. Support Staff Ass’n, 192 N.J. 489 (2007). ¶