P.E.R.C. No. 2025-10, Paterson

Notice to employeesNOTICE TO EMPLOYEES PURSUANT TO AN ORDER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION AND IN ORDER TO EFFECTUATE THE POLICIES OF THE NEW JERSEY EMPLOYER-EMPLOYEE RELATIONS ACT, AS AMENDED, We hereby notify our employees that: ¶

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of CITY OF PATERSON, Respondent, -and- Docket Nos. CO-2021-038 CO-2021-062 CO-2021-101 PATERSON POLICE PBA LOCAL 1 AND (CONSOLIDATED) PATERSON POLICE PBA LOCAL 1 SUPERIOR OFFICERS ASSOCIATION, Charging Parties. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission grants motions for summary judgment filed by the charging parties, Paterson Police PBA Local 1 (PBA), and PBA Local 1, Superior Officers Association (SOA), on their unfair practice charges alleging the respondent, City of Paterson, violated the Act in connection with statements made and actions taken in 2020 by the City’s then Chief of Police while the parties were engaged in negotiations for successor collective negotiation agreements (CNAs). The Commission finds the undisputed record supports that the Chief’s unilateral directives in August to the presidents of the PBA and SOA (CO-2021-038), and to the police staff of the Chief’s office (CO-2021-038), altered an established practice affecting the mandatorily negotiable subjects of employee work schedules, release time for representational purposes, and contractual leave time. The Commission further concludes the undisputed record establishes that after a joint collective negotiations session in October, the Chief made statements to rank and file officers (CO- 2021-101) that crossed over into direct dealing by the Chief’s portrayal that he was the only responsible party for increased overtime opportunities and potentially favorable disciplinary determinations. The Commission finds the Chief’s depiction could undermine the PBA’s representation efforts and have a potential chilling effect on rank-and-file officers during contract negotiations. ¶

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 PATERSON, Respondent, -and- Docket Nos. CO-2021-038 CO-2021-062 CO-2021-101 PATERSON POLICE PBA LOCAL 1 AND (CONSOLIDATED) PATERSON POLICE PBA LOCAL 1 SUPERIOR OFFICERS ASSOCIATION, Charging Parties. ¶

AppearancesAppearances: ¶

For the Respondent, ¶

Adams Gutierrez and Lattiboudere, attorneys ¶

(Adam S. Herman, of counsel) ¶

For the Charging Parties, ¶

Shaw Perelson May and Lambert, attorneys ¶

(Mark C. Rushfield, of counsel) ¶

DECISION ¶

In this matter we consider motions for summary judgment filed by the charging parties, Paterson Police PBA Local 1 (PBA), and PBA Local 1, Superior Officers Association (SOA) (collectively, Charging Parties or PBA), on consolidated unfair practice charges (CO-2021-038, CO-2021-062, and CO-2021-1011/) alleging the respondent, City of Paterson (City), violated the New Jersey Public Employer-Employee Relations Act, N.J.S.A. 34:13A-5.1, et seq. (Act), in connection with alleged statements made and actions taken in 2020 by the City’s then Chief of Police, Ibrahim Michael Baycora, while the parties were engaged in negotiations for successor collective negotiation agreements (CNAs) to those that expired on July 31, 2019. ¶

The PBA (rank and file officers), SOA (sergeants, lieutenants, captains, deputy chief) and the City signed separate collective negotiations agreements (CNAs), - with many identically numbered and worded provisions - extending from August 1, 2012 through July 31, 2019. The parties are engaged in negotiations for successor CNAs. ¶

On May 14, 2024, the PBA filed separate motions for summary judgment on each charge. On June 17, the City filed separate oppositions. On June 18, the Chair referred the case to the full Commission pursuant to N.J.A.C. 19:14-4.8(a). In support of its motions for summary judgment, the PBA filed briefs, the certifications of its legal counsel, Mark C. Rushfield, and exhibits, including previously filed certifications of SOA President Mason Maher, then PBA President Alex Cruz, former SOA President Ronald King, former PBA President Steve Olimpio, Captain Shawn McIvor, Captain Scott Eason, and Officer Michael Sisco. The City filed briefs and two previously filed certifications of Chief Baycora.2/ ¶

The Summary Judgment Standard ¶

Summary judgment will be granted if there are no material facts in dispute and the movant is entitled to relief as a matter of law. Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 540 (1995); Judson v. Peoples Bank & Trust Co., 17 N.J. 67, 73-75 (1954). N.J.A.C. 19:14-4.8(e) provides: ¶

If it appears from the pleadings, together with the briefs, affidavits and other documents filed that there exists no genuine issue of material fact and that the movant or cross-movant is entitled to its requested relief as a matter of law, the motion or cross-motion for summary judgment may be granted and the requested relief may be ordered. ¶

In determining whether there exists a “genuine issue” of material fact that precludes summary judgment, we must “consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational fact finder to resolve the alleged disputed issue in favor of the non-moving party.” Brill, 142 N.J. at 540. We “must grant all the favorable inferences to the non-movant.” Id. at 536. A motion for summary judgment should be granted with extreme caution and may not be substituted for a plenary trial. Baer v. Sorbello, 177 N.J. Super. 183, 185 (App. Div. 1981), certif. denied, 87 N.J. 388 (1981). Summary judgment “should be denied unless the right thereto appears so clearly as to leave no room for controversy.” Saldana v. DeMedio, 275 N.J. Super. 488, 495 (App. Div. 1995). ¶

Applying the above standards, we address CO-2021-038 and CO- 2021-062 together, as they involve similar facts and issues. We then separately address CO-2021-101, as follows. ¶

CO-2021-038 and CO-2021-062 ¶

By way of procedural history, on August 25, 2020, the PBA filed the charge docketed CO-2021-038, together with an application for temporary restraints. It alleges the City violated sections 5.4a(1), (2), (3), (4) and (5)3/ of the Act when, on August 20, 2020, Chief Baycora unilaterally ordered the presidents of the PBA and SOA to: cease deviating from scheduled hours of work of officers in the divisions to which they are formally assigned (Warrants Division for PBA President Alex Cruz, Records Room for SOA President Mason Maher); use contractual leave time to engage in off-duty employment, rather than charge their hours of work as they had previously done while holding elective offices since 2011 and 2012, respectively; notify and receive permission of a deputy chief if, as a consequence of engaging in union business outside regular duty hours, they needed to reschedule their hours of work the next day; and report to and remain in their assigned division work spaces, rather than in the union offices in the Public Safety Complex. The charge seeks the rescission of those alleged orders, claiming Baycora’s actions were “part of a concerted action by the City in retaliation for the PBA and SOA presidents engaging in protected union activities . . . and to make the PBA and SOA appear powerless while engaged in joint collective negotiations.” ¶

On August 28, 2020, a Commission Designee temporarily enjoined the City from implementing the Chief’s contested directives, and in a September 24 interlocutory decision (I.R. No. 2021-6), ordered those restraints to remain in effect pending the disposition of CO-2021-038. On October 21, 2022, the Director of Unfair Practices issued a Complaint and Notice of Hearing on CO-2021-038. The City filed an answer and affirmative defenses on November 7. ¶

On September 29, 2020, the PBA filed the charge docketed CO- 2021-062 together with an application for interim relief seeking temporary restraints. It alleges the City violated sections 5.4a(1) and (5) of the Act (see n.3, supra) when, on or about August 26, 2020, Chief Baycora verbally directed the police staff of the Chief’s office (which included rank-and-file PBA members and superior-officer SOA members) that they would henceforth also be required to use contractual leave time to engage in off-duty employment. On September 30, 2020, the Commission Designee granted temporary restraints on this charge. The parties subsequently agreed to abide by the temporary restraints during the processing of CO-2021-062. On November 1, 2022, the Director issued a Complaint and Notice of Hearing on this charge. ¶

Facts Material to CO-2021-038 and CO-2021-062 ¶

CO-2021-038 ¶

Pertinent to CO-2021-038, which concerns the unilateral orders allegedly given by Chief Baycora to the PBA and SOA Presidents on August 20, 2020, both CNAs provide at Section 2.6: ¶

The [PBA, SOA] President shall be assigned to a day tour of duty in an non-uniform division appropriate to his fulfilling the obligations of his office including but not restricted to the attending of [PBA, SOA] meetings, the processing of grievances and the administration of this contract with the City and its employees. He shall not suffer any loss of wages and benefits which fulfilling the requirements of this section. The [PBA, SOA] President shall be placed into detective status with regard to his terms and conditions of employment, but shall suffer no loss of wages or benefits as a consequence thereof. Given the irregular work hours of the [PBA, SOA] President, the Police Director has the discretion to apply the contractual night differential. ¶

Section 2.10 of the CNAs provides: ¶

The City shall provide an office in the Headquarters Building [Police Safety Complex] for the sole use of the [PBA’s] [SOA’s] officers to administer this contract and to execute the duties of their office. ¶

Section 10.1 of the CNAs provides: ¶

All the rights, privileges and benefits which the employees covered by this contract enjoyed prior to the effective date of this contract are retained by the employees except as those rights, privileges and benefits are specifically abridged or modified by this contract and the Rules and Regulations except as otherwise prescribed by law. ¶

Section 41.2 of the CNAs provides: ¶

This contract and its provisions will be extended to remain in full face and effect, with no reduction in wages, benefits or other conditions of employment during any extended period of negotiations that take place on a successor contract, subsequent to this contract’s expiration, until a successor agreement has been reached. ¶

Cruz and Maher certify that on August 20, 2020, Chief Baycora instructed them as follows: (1) neither was to deviate from their respective scheduled hours of work in the division to which each was formally assigned. Maher certifies he was directed to work “the set schedule of 8:00 a.m. to 4:00 p.m., though other Records Division officers on the day tour are enabled to work different hours than those” ; (2) Cruz and Maher were to use contractual leave time, rather than change their hours of work during the week, to engage in off-duty employment; (3) If they needed to reschedule their hours of work the day after engaging in union activities outside of regular duty hours (e.g. late into the night or early morning), they were to report to and obtain permission from a Deputy Chief; and (4) They were to report to and stay in their respective assigned work spaces (Maher in Records Division offices; Cruz in Warrants Division offices) when not actively involved in union activities. Both certify that they had previously reported to their respective union offices in the City’s Public Safety Complex. ¶

As to these claims (except as to item (3) above, further detailed infra), Baycora states he “did not impose any new requirements upon” either Cruz or Maher, and that “no change was made” to their work hours. Baycora bases these assertions on the CNAs’ provisions (Section 2.6) by which each Association President is assigned “to a day tour of duty in a non-uniform division,” and on the fact that no provision of the PBA or SOA CNAs provides for full-time union release. Baycora certifies that the Warrant and Records Division (Cruz and Maher’s respective assignments) each have only one shift per day, and that this has remained unchanged since their respective assignments to those divisions. Baycora posits in his certification, “if an officer were to unilaterally reschedule himself or herself from a Monday Warrant [or Records] Division day shift, there would be no other Warrant [or Records] Division shift to be assigned to on a Monday,” because each division “does not operate other than during” a single shift each day. ¶

Baycora further posits that since Cruz and Maher “cannot switch shifts on a given day” in their assigned divisions, each “is required to use contractual leave time in order to engage in [e]xtra duty employment if he decided not to report to an assigned daily detail.” Baycora certifies, “It is improper and a clear violation of rules and regulations for any police officer to fail to report to his or her daily detail without approval.” ¶

According to their certifications, Cruz was PBA President since May, 2011, and Maher has been SOA President since May, 2012. They certify that Cruz has been consistently assigned, “as a matter of form,” to the Warrants Division and Maher has been consistently assigned in the same regard to a day tour of the Records Division. They certify that neither has ever (previously) been required by the City to appear in those respective divisions for purposes of performing police duties. ¶

Maher certifies that the Records Division’s civilian staff work from 8:00 a.m. to 4:00 p.m., Monday through Friday. Maher’s work hours since 2012, “have primarily been from 10:00 a.m. to 6:00 p.m.” and Maher has been “permitted to unilaterally adjust [his] hours of work so that [he] could start earlier or later than 10:00 a.m. and adjust [his] hours accordingly at the back end, based upon the recognized “irregular hours’ (Section 2.6 of CNA)” Maher also certifies that since he became SOA President in 2012, “when not actively involved in union activities, I have never been required to report to or remain in the Records Room in the City Public Safety Complex rather than continue to be based in the SOA president’s union office” ¶

Cruz certifies that from the time he became PBA President, and until recently, “the City historically and consistently recognized [him] as having full-time union release without any requirement that the PBA president submit to any specific hours of work on behalf of any division of the [City] police department.) He specifically certifies that he hasn’t “attended, appeared or remained any time in the offices of the Warrant Division to which I am formally assigned.” He certifies that the Warrant Division has one shift per day, 7:00 a.m. - 3:00 p.m., on Mondays, Tuesdays, Thursdays and Fridays, and from 3:00 p.m - 11:00 p.m on Wednesdays. ¶

Baycora denies informing Cruz or Maher that they “had to notify and receive permission of a deputy chief if, as a consequence of engaging in union business activities outside of regular hours, he needed to reschedule his hours the next day.” Baycora certifies he “never” said that, and Cruz and Maher’s assertions that he “instituted a new requirement” are “false.” Baycora further certifies that Cruz and Maher have been, and are, “expected to report” to their daily detail. ¶

Rushfield certifies that in response to discovery requests in other litigation, the City provided the PBA with a copy of the “written minutes” of the Chief’s August 20, 2020 meeting with Cruz and Maher. Submitted as an exhibit in support of the PBA’s summary judgment motion, this document indicates that Baycora told Cruz and Maher to ask for approval “through the chain of command” if they needed to come in late the next day after working late hours on PBA-related duties. In opposition to summary judgment, Baycora does not mention or address these “written minutes” , and the City does not otherwise dispute their authenticity. Rushfield certifies that the reference to the “chain of command” as opposed to the “Deputy Chief” is a “distinction without a difference,” because requiring approval through the chain of command would require Cruz and Maher to ask for such approval from the Deputy Chief responsible for the division to which each was assigned. ¶

In reply to Baycora’s certification, Maher certifies that both sworn police and civilian personnel “adjust their hours” for that division “independent of the 8:00 AM to 4:00 PM schedule identified on the monthly detail.” Maher further certifies: the Records Division is a “uniformed division” ; during his formal assignment thereto he has “routinely been working” from 10:00 AM to 6:00 PM as his “day tour of duty” ; and section 2.6 of the CNA “has neither been previously interpreted nor applied . . . to require a person serving as the SOA President to conform his actual hours of work to those of whatever division the SOA President has been, as a matter of formality, assigned.” ¶

Maher further certifies (in reply to Baycora’s contrary assertion) that, without being found to violate any rule or regulation of the Police Department, “many rank and file and superior police officers outside of the Patrol Division” and “until very recently, the Chief’s office itself,” have “reassigned, and currently reassign, themselves to work hours outside of their detailed shifts.” ¶

Former PBA President Steve Olimpio, and former SOA President Ronald King4/ both certify that the CNAs then in effect included Sections 2.6, 2.10 and 10.1, and that the practice of allowing flexibility in work schedules for union presidents during their terms was consistent with the certifications of Cruz and Maher. ¶

Baycora’s certification does not address the alleged past practice evidence detailed in the Charging Parties’ certifications. ¶

CO-2021-062 ¶

Regarding CO-2021-062, Maher certifies that undisclosed police personnel in the Chief’s office notified Maher and Cruz of the Chief’s alleged verbal directive on August 26, 2020 that police staff of the Chief’s office would henceforth also be required to use contractual leave time to engage in off-duty employment. ¶

Maher certifies, based upon his personal knowledge as a longstanding member of the PBA executive board, that since 1995 rank and file and superior officers, including the police staff of the Chief’s office, have had the right, “at the officer’s option and discretion, to change their work schedules so as to make up their regular 8-hour day tour of duty during which they instead worked the outside employment.” Maher further certifies that this right was not abridged or modified by any provision of the expired CNAs, any provision of departmental rules and regulations, or otherwise through collective negotiations. Maher certifies that the City has made no proposal to do so during the current collective negotiations. The Charging Parties further rely on the certifications of King, Olimpio, Maher, and Cruz, detailed supra, in support of this charge. ¶

The City relies upon Baycora’s certification, detailed supra, in response to this charge. That certification does not address the Charging Parties’ claim about the order allegedly given by Baycora on August 26, 2020, to police staff of the Chief’s office. ¶

Parties’ Arguments re CO-2021-038, CO-2021-062 ¶

The PBA argues it was a per se violation of the Act for the City, through the August 20, 2020, order and directive of Chief Baycora, to unilaterally alter the terms and conditions of employment of PBA President Cruz and SOA President Maher during negotiations for successor collective negotiations with the unions. Thus, the Commission should grant the Charging Parties’ summary judgment motion, and order the City to cease and desist from unilaterally imposing such changes upon the PBA and SOA Presidents. ¶

The PBA argues likewise with respect to Baycora’s verbal directive to police personnel of the Chief’s office to use contractual leave time, rather than change their hours of work, in order to engage in off-duty employment. ¶

The City argues that the Charging Parties have failed to satisfy the Brill standard, and the Commission should deny summary judgment, because material facts are at issue, and no new terms and conditions of employment have been imposed. ¶

Analysis re CO-2021-038 and CO-2021-062 ¶

Our Act requires that “[p]roposed new rules or modifications of existing rules governing working conditions shall be negotiated with the majority representative before they are established.” N.J.S.A. 34:13A-5.3. ¶

Consistent with the Act, the Commission and courts have held that changes in negotiable terms and conditions of employment must be addressed through the collective negotiations process because unilateral action is destabilizing to the employment relationship and contrary to the principles of our Act. See, e.g., Atlantic Cty., 230 N.J. 237, 252 (2017); Middletown Tp., P.E.R.C. No. 98-77, 24 NJPER 28, 29-30 (¶29016 1997), aff’d, 334 N.J. Super. 512 (App. Div. 1999), aff’d, 166 N.J. 112 (2000); Hunterdon Cty. Freeholder Bd. and CWA, 116 N.J. 322, 337-338 (1989); and Galloway Twp. Bd. of Educ., 78 N.J. 25, 52 (1978). An employer also violates its duty to negotiate when it changes an existing practice, unless the majority representative has waived its right to negotiate. Rutgers, the State University of New Jersey, P.E.R.C. No. 2016-31, 42 NJPER 255 (¶72 2015) (citing, e.g., Twp. of Middletown v. Middletown PBA Local 124, 166 N.J. 112 (2000), aff’ g 334 N.J. Super. 512 (App. Div. 1999), aff’ g P.E.R.C. No. 2016-31, 42 NJPER 255 (¶72 2015)). ¶

In opposition to summary judgment, the City does not dispute that the subjects at issue here (e.g., employee work schedules, employee release time for representational purposes, and (subject to minimum staffing requirements not at issue here) use of contractual leave time) are mandatorily negotiable. See, City of Paterson, P.E.R.C. No. 2005-32, 30 NJPER 463, 464 (¶153 2004); see also City of Newark, P.E.R.C. No. 90-122, 16 NJPER 394 (¶21164 1990); Pennsauken Tp. P.E.R.C. No. 92-39, 17 NJPER 478, 480 (¶22232 1991); Borough of Rutherford, P.E.R.C. No. 97-12, 22 NJPER 322 (¶27163 1996) recon. den. P.E.R.C. No. 97-25, 23 NJPER 163 (¶28080 1997). ¶

As our Commission Designee stated in imposing temporary restraints here, ¶

[A]n employer violates its duty to negotiate when it unilaterally alters an existing practice or work rule governing a term and condition of employment even where that practice or rule isn’t specifically set forth in a collective agreement. Tp. of Middletown, P.E.R.C. No. 98-77, 24 NJPER 28 (¶29016 1998), aff’d 334 N.J. Super. 512 (App. Div. 1999), aff’d 166 N.J.112 (2000); Sayreville Bd. of Ed., P.E.R.C. No. 83-105, 9 NJPER 138 (¶14066 1983). ¶

[I.R. No. 2021-6, 47 NJPER 157 (¶36 2020).] ¶

Applying the above principles to the undisputed facts here, even when viewed in a light most favorable to the City as the non-moving party, we are unable to resolve the alleged disputed issues in favor of the City. Brill, supra. We thus grant the Charging Parties’ motions for summary judgment in CO-2021-038 and CO-2021-062. ¶

Baycora’s certification contains no factual statements that, if true, would directly deny or refute the certified statements of Cruz, Maher, Olimpio and King to the effect that there has been a longstanding practice of allowing Association Presidents flexibility in their work schedules, no requirement to obtain a deputy chief’s permission to reschedule following union activities, and no requirement to use contractual leave time for off-duty employment, notwithstanding the provisions of Section 2.6 of the CNAs. ¶

Baycora’s certification, on the whole, contains no factual statements that, if true, would directly deny or refute Cruz and Maher’s claims about the August 20 instructions Baycora allegedly gave them. Baycora does not address or deny the extensive evidence, certified by the Charging Parties, showing that Baycora’s August 20 directives altered an established practice that allowed union presidents flexibility in setting their work schedules. Baycora does deny telling Cruz and Maher to obtain a deputy chief’s permission to reschedule their work hours following union activities. But neither Baycora nor the City dispute the authenticity of written minutes of the Chief’s August 20 meeting with Cruz and Maher, obtained by the PBA through discovery in other litigation, which indicate that Baycora told them to follow the “chain of command” to obtain such permission. Nor does the City cite any evidence in the record to refute the PBA’s contention that whether Baycora used the words “deputy chief” or “chain of command” in that context, the meaning is effectively the same. ¶

Likewise, Baycora’s certification contains no factual statements denying or refuting the Charging Parties’ allegation that Baycora unilaterally directed police staff of the Chief’s office to use contractual leave time to engage in off-duty employment, or otherwise refuting the Charging Parties’ certified statements regarding the alleged prior longstanding practice to the contrary, or their allegation that the Chief’s verbal directive was not supported by negotiated agreement or departmental rules. ¶

Based on the foregoing, we conclude the Charging Parties are entitled to relief as a matter of law on their charges that the City violated sections 5.4a(1) and (5) of the Act in connection with Chief Baycora’s unilateral directives to the presidents of the PBA and SOA on August 20, 2020 (CO-2021-038), and to the police staff of the Chief’s office on or about August 26, 2020 (CO-2021-062). ¶

CO-2021-101 ¶

By way of procedural history, on November 18, 2020, the PBA filed the charge docketed CO-2021-101, also with an application for interim relief seeking temporary restraints. It alleges the City violated sections 5.4a(1), (2) and (5) of the Act (see n.3, supra) after a joint collective negotiations session on October 27, 2020, at which Chief Baycora served as a member of the City’s negotiations team, when Baycora: held captive-audience meetings with rank and file and superior police officers for purposes of direct dealing with them; questioned them about their attendance at union meetings and what was said at them about Baycora’s conduct; challenged statements made by officers of the Charging Parties to their members during membership meetings about what Baycora said during current collective negotiation sessions; and accused officers of the Charging Parties of lying to their membership about the positions expressed by Baycora on behalf of the City during collective negotiations. ¶

On November 20, 2020, a Commission Designee issued an order to show cause with temporary restraints, and on January 13, 2021, an interlocutory decision (I.R. No. 2021-18) ordering those restraints to remain in effect pending the disposition of CO- 2021-101. The Commission denied the City’s motion for reconsideration of the Designee’s order, as modified. (P.E.R.C. NO. 2021-39.) On October 27, 2022, the Director of Unfair Practices issued a Complaint and Notice of Hearing on this charge. The City filed an answer and affirmative defenses on November 7. ¶

Facts Material to CO-2021-101 ¶

CO-2021-101 concerns the alleged conduct of Chief Baycora following a joint collective negotiations session on October 27, 2020. Captain Eason, who remotely attended, certifies that at that session Chief Baycora stated, among other things: that the assignments of the PBA and SOA presidents must be clarified and that their entitlements to flexible hours places them in the position of being in “dereliction of duty” ; that he wanted “past practice” eliminated from the CNAs because it is expensive to litigate contract actions brought by the PBA and SOA under past practices; and that because of the past practice clause in the CNAs, the Chief cannot unilaterally change the work hours of any division of the Police Department or of the PBA and SOA presidents. Chief Baycora certifies that at the October 27 negotiations session, he “expressed [his] opinion about . . . the past practice section of the contracts,” among other things. ¶

There was a joint membership meeting of the PBA and SOA on November 9, 2020. Baycora certifies that while he did not attend, he believed that the statements he made at the negotiations session were a topic of conversation at the joint membership meeting, and that those statements were not communicated to the members accurately. He certifies that he subsequently visited some roll call and division meetings to clarify his opinions expressed in the negotiations session. These roll call and division meetings occurred on November 10, 11, and 12, 2020. ¶

At the first such meeting, PBA witnesses certify that after making an “extraordinary request” that all superior officers (including Captain Eason, one lieutenant and two sergeants) first leave the room, Baycora then told those who remained that he wanted to “clear the air.” Baycora stated, among other things, that despite what members may have heard: their benefits were safe; they were all “eating well” under him with more off-duty jobs available to them; and that although some officers should be fired, forced to leave or subjected to heavy discipline, Baycora had not pushed for such actions to be taken. ¶

At the second such meeting Baycora did not ask the superior officers present to leave the room. Eason certifies that Baycora first asked who among those assembled had attended the November 9 joint PBA meeting, and that as one rank and file officer raised his hand, Eason interrupted and asked the Chief to step out of the room. Eason then advised Baycora that asking “which rank and file police officers had attended the PBA meeting was an inappropriate inquiry relating to union business.” Eason certifies that he and Baycora then returned to the roll call room, whereupon the Chief stated that he knew he was a topic of the PBA meeting held on November 9, and further that: the union lied about what he had said at the October 27, collective negotiations session; that he was not seeking to establish a right to alter the work schedule or take away the unlimited sick time benefit; that “past practices” were improperly hindering his ability to effectively manage the Police Department; and that if the police officers in attendance had any questions about anything he said, after clearing it through the chain of command, they were invited to meet with him privately. ¶

Baycora certifies regarding the first two roll call meetings that: he “communicated and clarified [his] opinions expressed in the negotiations session” ; and that he had a “legitimate and substantial business reason” for doing so because of the “breakdown in communications” about “what was communicated by the Charging Parties to the entire membership.” ¶

At the third roll call meeting, Captain McIvor certifies, Baycora again stated, among other things: it was untrue that he wanted to take away any of the members’ benefits; “everybody is eating well,” new officers are getting more overtime jobs and a lot of side work because it was he who had “fixed it” ; and it was not his “fault” that Paterson officers made less than those in Bergen County, that there was a 14-step process for new officers to reach top pay, or that new officers get less longevity pay than more senior officers. McIvor certifies it was apparent that in making those statements, Baycora sought to convince rank and file police officers that the PBA could not be relied upon to protect their interests in collective negotiations, and that, instead, Chief Baycora was doing so. ¶

With respect to his communications at the roll call meetings, Baycora denies stating that: “there are officers that should be fired or subjected to heavier discipline” ; he “wanted to end detective pay” ; “the Union was lying” ; “the PBA/SOA was not looking out for all the officers of the Police Department” ; or that “the PBA had not fairly represented newer hires.” Baycora further certifies: ¶

At no time in any of those communications did any of my statements constitute a threat of reprisal or force or a promise of benefits. ¶

At no time in any of those communications did any of my statements suggest that the City refused to negotiate in good faith. ¶

At no time in any of those communications did any of my statements suggest that the City lacked a desire to reach a successor agreement. ¶

At no time in any of those communications did any of my statements interfere with the existence or administration of the PBA or SOA. ¶

Both Cruz and Maher certify as to how they were alerted on November 11, 2020 by police officers, who requested anonymity, that Baycora was approaching them, speaking to them privately under circumstances in which they did not feel they could separate themselves from Baycora. Both certifications contain statements that Baycora allegedly stated to these officers. Baycora’s certification does not address these allegations. ¶

Maher certifies “it is inconsistent with the Police Department’s practice under the chain of command and virtually unheard of for the Chief to skip levels of the chain of command rather than communicating through the Deputy Chiefs with regard to police business.” ¶

Parties’ Arguments re CO-2021-101 ¶

The PBA argues that the actions of Chief Baycora as described in the unfair practice charge and supporting certifications constitute prohibited direct dealing between a managerial representative of the City and captive audiences of rank and file and superior officers represented by the Charging parties. The PBA argues that these actions, occurring at the very time when exclusivity of representation was essential, i.e., while the parties were engaged in collective negotiations for a new CNA, constituted violations of the Act. The PBA asks that we grant its summary judgment motion and order the City and its representatives to cease and desist from such conduct. ¶

The City argues the PBA is not entitled to summary judgment, because there are genuine issues of material fact in dispute. In particular, the City disputes the Charging Parties’ allegations that Baycora told police officers: that some officers should be fired or subject to heavier discipline; that Baycora wanted to end detective pay; that the Union was lying; that the PBA/SOA was not looking out for all officers; or that the PBA had not fairly represented new hires. ¶

Analysis re CO-2021-101 ¶

Previously in this matter, in denying the City’s motion for reconsideration of our Designee’s interim order, we observed as follows: ¶

Baycora denies many of the statements attributed to him at the roll call meetings. However, what is undisputed is that Baycora attended roll call meetings where rank and file officers were a captive audience, and in one of these meetings he asked a union official, Eason, along with other superior officers, to leave the room so he could directly address the officers. Baycora also does not dispute that he asked the officers attending the November 11 roll call meeting who among them had attended the PBA and SOA joint membership meeting. Moreover, Baycora does not dispute that at the roll call meetings he stated that officers had more overtime opportunities under his tenure. While Baycora denies saying that certain officers should be fired or subjected to heavier discipline, he does not dispute that he claimed to have been lenient with the severity of certain officers’ discipline. ¶

[P.E.R.C. No. 2021-39, 47 NJPER 414, 416 (¶99 2021).] ¶

In opposition to summary judgment, the City has cited no evidence or factual allegations that, if true, would cause us to change our above-quoted view of the undisputed facts, or to conclude that there is any genuine issue of disputed material fact. As such, in deciding the motion for summary judgment, we must again conclude: ¶

When viewed as a composite, Baycora’s undisputed statements amount to more than informing the officers of the City’s negotiations position; his statements crossed over into direct dealing with the officers. Baycora’s undisputed statements had the effect of undermining the PBA’s representation by his portrayal that he was the only responsible party for the increased overtime opportunities and potentially favorable disciplinary determinations. Baycora’s depiction could undermine the PBA’s representation efforts and have a potential chilling effect on the rank and file officers during contract negotiations. Moreover, Baycora should not have questioned the officers about who attended the joint PBA/SOA meeting. ¶

[Id., at 417.] ¶

Based on the foregoing, we conclude the Charging Parties are entitled to relief as a matter of law on their charge (CO-2021- 101) that the City violated sections 5.4a(1), (2) and (5) of the Act in connection with the conduct of Chief Baycora following a joint collective negotiations session on October 27, 2020. ¶

ORDERS ¶

CO-2021-038 and CO-2021-062 ¶

The City of Paterson is ordered to: ¶

A. Cease and desist from: ¶

1. Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by the Act, and refusing to negotiate in good faith with the Paterson Police PBA Local 1, and PBA Local 1, Superior Officers Association, concerning terms and conditions of employment of employees in those units, by unilaterally altering existing terms and conditions of employment during the pendency of collective negotiations for a successor collective negotiations agreement. ¶

B. Take the following action: ¶

1. Post in all places where notices to employees are customarily posted, copies of the attached notice marked as Appendix “A.” Copies of such notice shall, after being signed by the Respondent’s authorized representative, be posted immediately and maintained by it for at least sixty (60) consecutive days. Reasonable steps shall be taken to ensure that such notices are not altered, defaced or covered by other materials. ¶

2. Notify the Chair of the Commission within twenty (20) days of receipt what steps the Respondent has taken to comply with this ORDER. ¶

CO-2021-101 ¶

The City of Paterson is ordered to: ¶

A. Cease and desist from: ¶

1. Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by the Act, dominating or interfering with the formation, existence or administration of any employee organization, and refusing to negotiate in good faith with the Paterson Police PBA Local 1, and PBA Local 1, Superior Officers Association, concerning terms and conditions of employment of employees in those units, by direct dealing with unit members at roll call meetings, undermining PBA representation, and questioning unit members about who attended joint PBA/SOA meetings, during the pendency of collective negotiations for a successor collective negotiations agreement. ¶

B. Take the following action: ¶

1. Post in all places where notices to employees are customarily posted, copies of the attached notice marked as Appendix “A.” Copies of such notice shall, after being signed by the Respondent’s authorized representative, be posted immediately and maintained by it for at least sixty (60) consecutive days. Reasonable steps shall be taken to ensure that such notices are not altered, defaced or covered by other materials. ¶

2. Notify the Chair of the Commission within twenty (20) days of receipt what steps the Respondent has taken to comply with this ORDER. ¶

OrderBY ORDER OF THE COMMISSION ¶

Chair Hennessy-Shotter, Commissioners Ford and Kushnir voted in favor of this decision. None opposed. Commissioner Papero recused himself. Commissioners Eaton and Higgins were not present. ¶

ISSUED: September 26, 2024 ¶

Trenton, New Jersey ¶

Notice to employeesWE SHALL cease and desist from interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by the Act, and refusing to negotiate in good faith with the Paterson Police PBA Local 1, and PBA Local 1, Superior Officers Association, concerning terms and conditions of employment of employees in those units, by unilaterally altering existing terms and conditions of employment during the pendency of collective negotiations for a successor collective negotiations agreement. WE SHALL cease and desist from interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by the Act, dominating or interfering with the formation, existence or administration of any employee organization, and refusing to negotiate in good faith with the Paterson Police PBA Local 1, and PBA Local 1, Superior Officers Association, concerning terms and conditions of employment of employees in those units, by direct dealing with unit members at roll call meetings, undermining PBA representation, and questioning unit members about who attended joint PBA/SOA meetings, during the pendency of collective negotiations for a successor collective negotiations agreement. ¶

Note1/ The PBA and SOA are named as charging parties in all three matters. All three charges were filed in 2020, however processing of the charges was held in abeyance at various times while the parties engaged in settlement discussions. ¶

2/ The City relies upon Baycora’s certification dated September 15, 2020, in opposing the summary judgment motions in both CO-2021-038 and CO-2021-062. The City relies on Baycora’s certification dated December 15, 2020, in opposing summary judgment in CO-2021-101. ¶

3/ 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” ; “(2) Dominating or interfering with the formation, existence or administration of any employee organization” ; “(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” ; “(4) Discharging or otherwise discriminating against any employee because he has signed or filed an affidavit, petition or complaint or given any information or testimony under this act” ; and “(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.” ¶

4/ Olimpio certifies he was PBA President from June 2003 until Cruz succeeded him. King certifies he was SOA President from 2008 through June 2012 and was succeeded by Maher. ¶

Notice to employeesDocket No. CO-2021-038 CO-2021-062 CO-2021-101 City of Paterson (Public Employer) Date: By: This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced or covered by any other material. If employees have any question concerning this Notice or compliance with its provisions, they may communicate directly with the Public Employment Relations Commission, 495 West State Street, PO Box 429, Trenton, NJ 08625-0429 (609) 292-9830 APPENDIX “A” ¶