P.E.R.C. No. 2025-22, Hudson Cty

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of COUNTY OF HUDSON, Petitioner, -and- Docket No. SN-2025-005 HUDSON COUNTY SUPERIOR OFFICERS ASSOCIATION, PBA LOCAL 109A Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission grants the request of the County for a restraint of binding arbitration of the PBA’s grievance. The grievance alleges that the County violated the seniority bidding provisions of the parties’ 2023 Memorandum of Agreement (MOA) when it transferred the Grievant from a bidded post to a different post. The Commission finds that the grievance predominantly involves the County’s managerial prerogative to make transfers based on its assessment of the Grievant’s qualifications and the County’s significant governmental policy of preventing inmates from being erroneously discharged. ¶

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 COUNTY OF HUDSON, Petitioner, -and- Docket No. SN-2025-005 HUDSON COUNTY SUPERIOR OFFICERS ASSOCIATION, PBA LOCAL 109A Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, Donato J. Battista, Hudson County Counsel (Daniel W. Sexton, Assistant County Counsel) ¶

For the Respondent, Alterman & Associates, LLC, attorneys (Stuart J. Alterman, of counsel) ¶

DECISION ¶

On August 12, 2024, the County of Hudson (County or Department) filed a scope of negotiations petition seeking a restraint of binding arbitration of a grievance filed by the Hudson County Superior Officers Association, PBA Local 109A (PBA). The grievance asserts that the County violated Section 6 ( “Shift Bidding” ) of the parties’ 2023 Memorandum of Agreement (MOA) when it transferred the Grievant from a bidded post in the Discharge Unit to Unit 5. ¶

The County filed briefs, exhibits and the certification of the Captain of the Hudson County Corrections Department (Captain). The PBA filed a brief and exhibits.1/ These facts appear. ¶

The PBA represents all Superior Corrections Officers below the rank of Captain who are assigned to the Jail and/or penitentiary.2/ The County and PBA are parties to a collective negotiations agreement (CNA) with a term of January 1, 2018 through December 31, 2022, that was amended by the MOA for a term of January 1, 2023 through December 31, 2027. The grievance procedure ends in binding arbitration. ¶

The CNA’s Article X ( “Rights of Parties” ) provides, in pertinent part: ¶

10.1 The County hereby retains the right to manage and control its Correctional Facilities and, in addition, retains the right to hire, promote, transfer, discipline or discharge Employees for just cause. ¶

The MOA’s Section 6 ( “Shift Bidding” ) provides, in pertinent part” : ¶

There will be an annual shift bid inclusive of posts followed by subsequent bids as positions open up and promotions are made based on seniority. The Director shall determine, in the Director’s sole discretion, which posts are not subject to bidding and said posts shall be contained as a schedule appended to this Agreement and identified as Exhibit D. ¶

The Captain certifies that the Discharge Unit is a specialized unit within the jail that is responsible for discharging prisoners either to custody in another jurisdiction or to freedom. The Grievant was a supervisor in the Discharge Unit. The Greivant was trained for the duties of that position when she was promoted to sergeant. The good order and functioning of the Department rely upon the careful, accurate and efficient processing of the paperwork to ensure that prisoners are discharged correctly. A release in error is catastrophic, puts the public at risk, demonstrates disorder in the facility and brings disrepute and disdain upon the facility. All employees of the Discharge Unit receive special training to ensure that a release in error does not happen, and multiple redundancies are in place to prevent such an error. ¶

The Captain further certifies that the Grievant has demonstrated a chronic inability to perform in the Discharge Unit, committing two separate releases in error within a short time period that resulted in discipline. The County asserts that the Grievant received a three-day suspension for an erroneous discharge incident on August 24, 2023, that she did not appeal past the Third Step of the grievance procedure. (See County’s Reply Brief at Exhibit B). The County further asserts that the Grievant received a five-day suspension for an erroneous discharge incident on September 6, 2023, that was not appealed. (See County’s Reply Brief at Exhibit C). Lastly, the County asserts that the Greivant committed another erroneous discharge on April 3, 2024. The County submitted the following letter from the Department’s Internal Affairs to the Hudson County’s Prosecutor’s Office: ¶

I am writing to you to request that your department conduct a review of the following incident which occurred on April 3rd, 2024. [The Grievant] was assigned as the Officer in charge of the record room and signed off on the discharge verification form and inmate file for inmate [RS] #370727 authorizing his release with three open indictments. The commitment order contained the following 22- 12-377-A, W 2022-3192-0906, 21-12273-Z and 16-01-0060-1. On April 3rd, 2024, Judge Martineo signed off on a discharge for accusation 22-12377-A and complaint W 2022- 3192- 0906 only. Inmate [RS] 370727 still had three active open indictments, see attached documentation. [The Greivant] has two prior erroneous discharges. On August 24th, 2023, [the Grievant] discharged inmate [JJ] number 366301 in error and received a three-day suspension. On September 6th, 2023, [the Grievant] discharged inmate [DRB] number 366527 in error and received a five- day suspension. On April 10th 2024, while inmate [RS] was out he was arrested by the Jersey City Police and charged with 2C:20- 10.2A receiving a stolen vehicle. ¶

The investigation into this last alleged discharge incident is pending. The County asserts that it reassigned the Grievant to Unit 5 because she is unqualified to perform the duties in the Discharge Unit.3/ ¶

On May 20, 2024, the PBA filed a Request for Submission of a Panel of Arbitrators, which states: ¶

[The Grievant] was reassigned from a bidded post (Unit 2) and reassigned to Unit 5 then later advised [the Grievant] that he [sic] would be a floater but not be assigned to Unit 2. This is in direct violation of the Memorandum of Agreement, Page 3, Section 6, where in states - There will be an annual shift bid inclusive of all posts followed by subsequent bids as positions open up and promotions are made based on seniority. Therefore, reassigning [the Grievant] is in violation of the Memorandum of Agreement and [the Grievant] should be afforded the right to bid for Unit 2. ¶

This petition ensued.4/ ¶

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 County argues that its request for a restraint of arbitration should be granted because it has a non-negotiable, managerial prerogative to reassign or transfer employees based on its assessment of the employees’ qualifications and competency to perform particular jobs. Given the Grievant’s established disciplinary record, for violations of the specific duties she must perform in the Discharge Unit, she has demonstrated she is not qualified to remain in or bid on a position in the Discharge Unit. Thus, the County asserts that the Grievant’s reassignment was not disciplinary in nature, but rather, for legitimate operational reasons. ¶

The PBA argues that the County’s request for a restraint of arbitration should be denied because its grievance is negotiable and arbitrable. The PBA asserts that the County is not allowed to unilaterally transfer an employee from a bidded position. Further, the PBA asserts that the CNA requires the County to have just cause to transfer an employee, which makes the improper transfer arbitrable. The PBA argues that the County has not established just cause for the transfer because the most recent incident of alleged erroneous discharge that triggered the reassignment has not been adjudicated. The PBA, citing prior Commission precedent between the parties, argues that the County has not identified special skills or qualification that necessitated the transfer. Lastly, the PBA asserts that the Grievant’s transfer was a form of discipline that is in violation of our Act, citing N.J.S.A. 34:13A-25.5/ ¶

It is well established that an employer has a non-negotiable managerial prerogative to transfer employees based on its assessment of the employee’s qualifications and abilities to do the work it needs done. In re Local 95, IFPTE and State of New Jersey, 88 N.J. 393 (1982); Ridgefield Park, supra. Parties may negotiate agreements basing shift assignments on seniority provided all qualifications are equal and managerial prerogatives are not otherwise compromised. Union Tp., P.E.R.C. No. 2003-81, 29 NJPER 214 (¶163 2003); City of Hoboken, P.E.R.C. No. 95-23, 20 NJPER 391 (¶25197 1994). However, law enforcement employers may unilaterally make or change assignments when it determines that qualifications are not equal or that certain assignments must be made to achieve operational, supervisory, or other governmental policy objectives. See, e.g., Irvington PBA Local #29 v. Town of Irvington, 170 N.J. Super. 539 (App. Div. 1979), certif. den. 82 N.J. 296 (1980) (prerogative to rotate shift assignments to correct supervision and discipline problems on midnight shift); ¶

The threshold question in this case is whether the Grievant’s transfer was an exercise of the County’s managerial preogative to transfer its employees based on its assessment of their qualifications, or instead, a possible violation of the parties agreement to base shift assignments on seniority for equally qualified employees, which would be mandatorily negotiable. See State of New Jersey (Corrections), P.E.R.C. No. 2023-55, 50 NJPER 30 (¶10 2023) (partially restraining arbitration of a temporary reassignment that the Commission found was made to ensure operational effectiveness and inmate safety); Salem Cty. Sheriff’s Department, P.E.R.C. No. 2022-21, 48 NJPER 252 (¶56 2021) (partially restraining arbitration of a shift bid denial, finding that the County had a managerial prerogative to determine that assigning the Grievant, who had been disciplined for incidents of verbal harassment with another employee, to a separate shift from that employee would best effectuate the operations of its facility and staff); compare Hudson Cty., P.E.R.C. No. 87-20, 12 NJPER 742 (¶17278 1986) (declining to restrain arbitration of a predominately disciplinary transfer because it occurred in close temporal proximity to alleged incidents of misconduct or poor performance and the transfer was not based on a predominately operational reason.) ¶

Under the circumstances of this case, we find, on balance, that the grievance predominantly involves the County’s managerial prerogative to make transfers based on its assessment of the Grievant’s qualifications. The County certifies that the Grievant was trained for her supervisory duties in the Discharge Unit and that discharge errors are catastrophic to the central mission of the prison. It is undisputed that the Grievant had been disciplined twice for erroneous discharges, which is a function at the core of her duties as a supervisor in the Discharge Unit. There is also a pending investigation of an alleged third incident of erroneous discharge. The Grievant has demonstrated multiple issues with discharge errors. As a result, the County had a reasonable operational need to transfer her out of the Discharge Unit. The record supports that the Grievant’s reassignment was based on the County’s significant governmental policy of preventing inmates from being erroneously discharged into society. ¶

The PBA’s reliance on the prior Commission case between the parties, Hudson Cty., P.E.R.C. No. 2019-24, 45 NJPER 219 (¶58 2018) is misplaced. In that case, we denied the County’s scope petition because it did not demonstrate a particularized governmental policy need to deviate from an alleged agreement or past practice concerning post/assignment bidding. Here, the County has demonstrated a particularized governmental policy for the transfer. ¶

OrderORDER ¶

The request of the County of Hudson for a restraint of binding arbitration is granted. ¶

BY ORDER OF THE COMMISSION ¶

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

ISSUED: December 12, 2024 ¶

Trenton, New Jersey ¶

Note1/ The PBA did not file a certification. N.J.A.C. 19:13-3.6(f) requires that all pertinent facts be supported by certifications based upon personal knowledge. ¶

2/ The unit excludes managerial executives, professional employees, clerical employees, other police employees and all other employees. ¶

3/ The record does not indicate when the Grievant’s reassignment was effectuated, only that it occurred after the April 3, 2024 incident. ¶

4/ Following the County’s filing of the scope petition, by letter dated October 9, 2024, the PBA requested to supplement the record with additional facts concerning the Grievant’s current assignments. The case was already scheduled to be heard at the October 24th Commission meeting. On October 22, the Commission informed the parties that it would table the case to allow the PBA until November 8 to file an additional submission, setting out that any newly asserted facts be supported by a certification. The County’s response was to be filed by November 15, also requiring that any newly asserted defenses be supported by a certification. The PBA failed to avail itself of the opportunity it requested to file an additional submission, and therefore no additional response was necessitated by the County. ¶

5/ N.J.S.A. 34:13A-25 prohibits transfers of school employees between work sites for disciplinary reasons. Camden City Sch. Dist., P.E.R.C. No. 2025-5, 51 NJPER 112 (¶27 2024) (Emphasis added). ¶