P.E.R.C. No. 2025-16, Mt Olive Tp

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of TOWNSHIP OF MOUNT OLIVE, Petitioner, -and- Docket No. SN-2025-003 FOP LODGE 122, Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission denies the Township of Mount Olive’s scope of negotiations petition seeking to restrain arbitration of FOP Lodge 122’s grievance. The grievance seeks to rescind the Grievant’s Corporal designation. After weighing the Township’s justification for the rescission, the Commission determined that it was predominantly for disciplinary reasons because the rescission was included in the notice of disciplinary action and coincided with a disciplinary suspension. Thus, the grievance is 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 MOUNT OLIVE, Petitioner, -and- Docket No. SN-2025-003 FOP LODGE 122, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, Cleary Giacobbe Alfieri Jacobs, LLC, attorneys (Adam S. Abramson-Schneider, of counsel; Anthony G. LoBrace, on the brief) ¶

For the Respondent, Caruso Smith Picini, P.C., attorneys (Nicholas Poberezhsky, of counsel) ¶

DECISION ¶

On July 30, 2024, the Township of Mount Olive (Township) filed a scope of negotiations petition seeking a restraint of binding arbitration of a grievance filed by FOP Lodge 122 (FOP). The grievance asserts that the Township violated the parties’ collective negotiations agreement (CNA) when it disciplined the Grievant, including by imposing a 16-hour suspension and “removal from Corporal Assignment.” ¶

The Township filed briefs, exhibits and the certification of its Chief of Police, Michael Spitzer. The FOP filed a brief, exhibits and the certification of the Grievant. These facts appear. ¶

The FOP represents full-time Patrolmen, Sergeants and Detectives of the Mount Olive Township Police Department. The Township and FOP are parties to a CNA in effect from January 1, 2020 through December 31, 2023. The grievance procedure ends in binding arbitration. ¶

The Chief of Police, Stephen Beecher, certifies to the following facts. As Chief, he is responsible and authorized to prescribe the duties and assignments of all officers and employees of the police department. In accordance with this authority, he maintains the discretion to fill temporary assignments within the police department, including the Corporal assignment. The Corporal assignment is defined by Department Policy as “[a]n officer assigned by the Chief of Police to supervise a squad or unit in the absence of a sergeant. The absence is not limited to scheduled days off or vacation, but may also include times where a Sergeant is unable to assist due to a meeting, prior assignment, or previous call for service.” ¶

The Grievant has at all relevant times been a police officer employed by the Township. The Grievant certifies that he was never “assigned” as a Corporal but instead received the “distinction” of Corporal. The Corporal distinction included his ability to wear “Corporal stripes” and to be assigned as an Acting Sergeant. As Acting Sergeant, he possessed some supervisory authority and was entitled to a shift differential. The Grievant certifies that since 2016, he worked approximately five shifts per month since 2016 in this capacity. ¶

On August 26, the Grievant received a Notice of Disciplinary Action for violations of Department policies related to the service of a complaint-summons and arrest of an individual while serving as Acting Sergeant. As part of the discipline imposed, the Grievant’s Corporal designation was rescinded. ¶

Departmental disciplinary proceedings concerning the Grievant’s August 26, 2021 disciplinary action were held on May 26, 2022, June 17, 2022 and August 15, 2022. The Hearing Officer found that the Grievant violated eight Department policies, standard operating procedures and state statutes for actions and inactions taken in relation to the issuance and service of a complaint-summons for an individual’s alleged violation of a temporary domestic violence restraining order. ¶

The Hearing Officer found, following a citizen’s complaint and concerns raised by the Mercer County Prosecutor’s Office, that while the Grievant worked as Acting Sergeant, he approved a complaint-summons against an individual who was accused of violating a temporary domestic violence restraining order. The Attorney General guidelines on Domestic Violence require that such an offense result in the issuance of a complaint-warrant, allowing for the immediate arrest of the suspect. The Hearing Officer also determined that when the Grievant and another police officer attempted to serve the summons, they entered the suspect’s private residence without a warrant, consent or exigent circumstances and arrested the suspect. Moreover, the suspect was never charged with an indictable offense nor referred for psychiatric treatment even though the Grievant asserted the suspect was undergoing a psychiatric episode. The Hearing Officer determined this course of conducted amounted to violations of the suspect’s civil rights, Department policies and a violation of N.J.S.A. 40A:14-147. ¶

On November 26, 2022, the Hearing Officer sustained the disciplinary charges against the grievant and agreed that the proposed penalty of a sixteen (16) hour suspension without pay was appropriate in light of the sustained disciplinary violations. ¶

By mutual agreement of the parties on December 22, 2022, the FOP filed a Request for Submission of a Panel of Arbitrators. This petition ensued, following the first day of arbitration on July 29, 2024, but before an award was issued by the arbitrator. ¶

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 Township of Middletown v. Middletown Twp. P.B.A. Local 124 (App. Div. 1983), aff’ g P.E.R.C. No. 82-90, 8 NJPER 227 (¶13095 1982). Paterson bars arbitration only if the agreement alleged is preempted or would substantially limit government’s policy-making powers. ¶

The Township contends that the Chief of Police has the managerial prerogative to determine all work assignments, including making the substantive decision to transfer or reassign employees as he sees fit. Specific to this grievance, the Township argues that arbitration must be restrained because the Chief’s decision to reassign the Grievant from the Corporal designation was a non-negotiable exercise of its policy making powers to promote efficient and effective public services. ¶

In opposition, the FOP argues that the disciplinary action taken against the Grievant was not a reassignment, but instead was the retraction of a commendation which constituted the loss of a “stepping stone” to promotional opportunities and the elimination of opportunities for extra compensation. According to the FOP, this distinction means that it is a disciplinary issue subject to arbitration. Additionally, the FOP argues that the equitable doctrines of laches and waiver apply to this case and disfavor granting the restraint of arbitration, since the Township waited over two years since the request for a panel of arbitrators was filed. ¶

In reply, the Township argues that the relevant portions of the record show that Corporal is an assignment and it is undisputed that it is not a recognized rank or position according to the CNA or the Department Regulations. Further, the Township argues that even if the reassignment is categorized as disciplinary, the reassignment is not arbitrable because it is still a matter of managerial prerogative. The Township also rejects the FOP’s assertion that it waived its right to file the instant scope petition or that the doctrine of laches applies since the EERA entrusts the Commission with determining the scope of negotiations “at any time.” ¶

The Commission finds that Chief’s decision to rescind the Grievant’s Corporal designation is legally arbitrable because, on balance, that decision was predominately disciplinary. ¶

As a threshold matter regarding the timing of the Township’s petition, the Commission has a longstanding policy allowing for the filing of scope of negotiations petitions until an arbitration award is issued.1/ In this case, the petition was filed after the first day of arbitration. Therefore, the petition is properly before the Commission. ¶

N.J.S.A. 34:13A-5.3 “permits binding arbitration of disciplinary disputes in the absence of an alternate statutory appeal procedure.” State of N.J., P.E.R.C. No. 2023-55, 50 NJPER 30 (¶10 2023). Conversely, “arbitration must be restrained if a negotiated agreement on the subject of the reassignment would significantly interfere with the determination of government policy.” Id. In order to reconcile these competing policies, the Commission “must make the determination whether a transfer is non-disciplinary and thus non-arbitrable or disciplinary and arbitrable.” Cape May Cty. Bridge Comm. and Local No. 196, IFPTE (App. Div. 1985) aff’ g P.E.R.C. 84-133, 10 NJPER 344 (¶15158 1984); see also City of East Orange, P.E.R.C. No. 86-70, 12 NJPER 19 (¶17006 1985). ¶

The Corporal designation is not a promotional position or a title. It is undisputed that police officers who are designated as Corporals do not receive a higher rate of pay, or perform substantially different work from police officers. The sole function, according to the record, is that Corporals assume the role of Acting Sergeant when a Sergeant is unavailable to perform their duties. Acting Sergeants do receive a shift differential when assigned in that capacity. Thus, the Corporal designation allows for temporary assignment as an Acting Sergeant and earning a shift differential. ¶

The Grievant’s Corporal designation was rescinded as part of a Notice of Disciplinary Action, in addition to other penalties. This temporal aspect weighs strongly in favor of a finding that the rescission of the Corporal designation was disciplinary. Additionally, the recission was included as part of the disciplinary action taken against the Grievant, one of the strongest “indicia of disciplinary action.” State, supra, 50 NJPER 30 (¶10 2023). ¶

The record indicates some operational justification for the Chief’s decision to rescind Grievant’s Corporal designation. According to the Departmental Hearing Officer, the errors in issuing and serving this criminal process violated Department procedures, the civil rights of the suspect, and created a possible civil liability. However, the only facts relating to the underlying incident are findings of fact by the Hearing Officer, which are explicitly challenged by the grievance. ¶

On balance, the Commission finds that the Grievant’s reassignment was predominantly disciplinary. Thus, the grievance is legally arbitrable. The merits of the Chief’s decision to rescind the Grievant’s Corporal designation will be adjudicated by the arbitrator. ¶

OrderORDER ¶

The Township of Mt. Olive’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: November 26, 2024 ¶

Trenton, New Jersey ¶

Note1/ The only exception to this policy is when the Commission is ordered by the Superior Court to make a scope of negotiations ruling. See Salem Cty. Sheriff’s Dept., P.E.R.C. No. 2022-26, 48 NJPER 284 (¶63 2022) (citing Ocean Tp. Bd. of Ed., P.E.R.C. No. 83-164, 9 NJPER 397 (¶14181 1983). ¶