P.E.R.C. No. 2025-35, Jersey City

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of CITY OF JERSEY CITY, RESPONDENT, -and- Docket No. CO-2025-117 JERSEY CITY POLICE SUPERIORS OFFICERS ASSOCIATION, CHARGING PARTY. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission denies the Jersey City Superior Officers Association’s (SOA) motion for reconsideration of the Director of Unfair Practices decision to decline to issue an Order to Show Cause in response to the SOA’s interim relief application. The SOA’s unfair practice charge asserts the City of Jersey (City) violated N.J.S.A. 34:13a- 5.4a(4) when it reorganized the police department by reassigning duties formerly performed by lieutenants to sergeants in retaliation of a grievance arbitration request filed by the SOA. The Commission finds that the Director properly found that the SOA did not establish a substantial likelihood of success because an evidentiary hearing is needed to determine the City’s motivation behind the reassignments. ¶

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, RESPONDENT, -and- Docket No. CO-2025-117 JERSEY CITY POLICE SUPERIORS OFFICERS ASSOCIATION, CHARGING PARTY. ¶

AppearancesAppearances: ¶

For the Respondent, Apruzzese, McDermott, Mastro & Murphy, P.C. (Arthur R. Thibault, Esq., of counsel) ¶

For the Charging Party, Sciarra, Catrambone, & Gray, LLC. (Christopher A. Gray, Esq. and Frank C. Cioffi, Esq., of counsel and on the brief) ¶

DECISION ¶

On February 6, 2025, the Jersey City Police Superior Officers Association (PSOA) moved for reconsideration of the Director of Unfair Practices’ January 22, 2025, decision to decline to issue an Order to Show Cause in response to the PSOA’s interim relief application. The PSOA filed its request for interim relief, with a certification and exhibits from its President, in conjunction with its unfair practice charge against the City of Jersey City (City) on January 13, 2025. The charge alleges that the City violated the New Jersey Employer-Employee Relations Act (Act), N.J.S.A. 34:13A-1 et seq., specifically subsections 5.4a(4) and (5)1/, when it reorganized the police department by reassigning duties formerly performed by lieutenants to sergeants. The charge further asserts that the reorganization was in retaliation for the PSOA’s filing of a grievance arbitration request concerning “short notice” compensation for reassignments, as well as for its application to the Civil Service Commission for the promulgation of a promotional list for the rank of Lieutenant.2/ The City asserts a managerial prerogative to reorganize and achieve cost savings. ¶

On January 16, 2025, the City filed a letter brief in response to the PSOA’s interim relief application.3/ On February 6, 2025, the PSOA filed a motion for reconsideration of the Director’s decision. The City did not file a timely response to the PSOA’s motion for reconsideration.4/ ¶

N.J.A.C. 19:14-9.6 ( “Motions for reconsideration of interim relief decisions” ) provides, in pertinent part: ¶

After an interim relief decision has been issued, a party may move for reconsideration before the Commission. Any motion pursuant to this section shall be filed within 15 days of service of the interim relief decision, together with proof of service of a copy on all other parties. Reconsideration will only be granted based on a demonstration of extraordinary circumstances and exceptional importance. The movant shall specify and bear the burden of establishing the grounds warranting reconsideration. ¶

[Emphasis added.] ¶

In City of Passaic, P.E.R.C. No. 2004-50, 30 NJPER 67 (¶21 2004), we explained that we will grant reconsideration of a Commission Designee’s interim relief decision only in cases of “exceptional importance” : ¶

In rare circumstances, a designee might have misunderstood the facts presented or a party’s argument. That situation might warrant the designee’s granting a motion for reconsideration of his or her own decision. However, only in cases of exceptional importance will we intrude into the regular interim relief process by granting a motion for reconsideration by the full Commission. A designee’s interim relief decision should rarely be a springboard for continued interim relief litigation. ¶

N.J.A.C. 19:14-9.2(f)(2) provides: ¶

An order to show cause shall not include any temporary restraints unless: ¶

2. It appears from the specific facts shown by affidavit or other verified pleading that the charging party or petitioner has a substantial likelihood of success on the merits and that the charging party or petitioner will probably suffer immediate and irreparable harm before notice can be given and a hearing on the application can be held. ¶

[Emphasis added.] ¶

Thus, to obtain interim relief, the moving party must demonstrate both that it has a substantial likelihood of prevailing in a final Commission decision on its legal and factual allegations and that irreparable harm will occur if the requested relief is not granted. Further, the public interest must not be injured by an interim relief order and the relative hardship to the parties in granting or denying relief must be considered. Crowe v. De Gioia, 90 N.J. 126, 132-134 (1982); Whitmyer Bros., Inc. v. Doyle, 58 N.J. 25, 35 (1971); State of New Jersey (Stockton State College), P.E.R.C. No. 76-6, 1 NJPER 41 (1975); Little Egg Harbor Tp., P.E.R.C. No. 94, 1 NJPER 37 (1975). Applying these standards here, we find that the PSOA has not established extraordinary circumstances nor is this a case of exceptional importance warranting reconsideration of the Director’s decision. ¶

The Director found, in pertinent part: ¶

I find that PSOA’s application does not provide clear and convincing evidence establishing a substantial likelihood of success on its legal and factual claims. “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.” Moreover, “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.” Here, the City raises at least a colorable managerial prerogative defense (which the PSOA acknowledges) that the restructuring of the department to assign sergeants to “District Desk” duties and deploy lieutenants to perform arrests and evidence processing at “Central Booking” was a managerial prerogative. Given this, interim relief is not appropriate. ¶

[Internal citations omitted.] ¶

As for PSOA’s (a)(4) claim, PSOA has failed to establish a substantial likelihood of success on this claim since (a)(4) claims only apply to proceedings and/or filings or testimony given in PERC matters (not Civil Service decisions or contractual grievances). Randolph Tp. Bd. of Ed., P.E.R.C. No. 82-119, 8 NJPER 365 (¶13167 1982), aff'd, NJPER Supp.2d 136 (¶117 App. Div. 1983). Moreover, to the extent PSOA is alleging an (a)(3) claim, interim relief generally is not appropriate since (a)(3) claims require a fact-sensitive inquiry into the motives behind the City’s reorganizational decision. City of Englewood, I.R. No. 2020-25, 47 NJPER 17 (¶3 2020). ¶

In its motion for reconsideration, the PSOA argues that the Director incorrectly found that the PSOA has not established a substantial likelihood of success on its N.J.S.A. 34:13A-5.4a(4) claim. The PSOA argues that the City’s unilateral reorganization occurred shortly after it filed a grievance arbitration request with PERC. It asserts that the Director incorrectly found that N.J.S.A. 34:13A-5.4a(4) claims only apply to retaliation for testimony given in PERC matters and not for filing a grievance arbitration request. ¶

N.J.S.A. 34:13A-5.4a(4) provides that “[d}ischarging 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” is unlawful. (emphasis added). N.J.S.A. 34:13A-5.4a(4) claims have not recently been routinely litigated before PERC. We find that the Director properly found that the PSOA did not establish a substantial likelihood of success because its claim “require[s] a fact-sensitive inquiry into the motives behind the City's reorganizational decision.” The dispute in the charge is whether the City had a legitimate operational justification for restructuring the assignments of sergeants and lieutenants or whether that action was in retaliation for “sign[ing] or fil[ing] an affidavit, petition or complaint or given any information or testimony under this act.” As specifically applicable to the PSOA’s claim, for the filing of a grievance arbitration request. We agree that this fact-sensitive inquiry into the motives behind the City’s actions must be litigated through the routine processing of the charge. ¶

With regard to the PSOA’s disagreement with the Director that N.J.S.A. 34:13A-5.4a(4) claims are limited to retaliation involving PERC matters only and do not apply to the filing of a grievance, Randolph, supra, implies that the Director was correct. However, the explicit “under the act” language in N.J.S.A. 34:13A-5.4a(4) may suggest a broader application. The PSOA may pursue this claim as the charge is further processed. ¶

The PSOA’s motion for reconsideration is denied. For the reasons stated above, the PSOA has not asserted extraordinary circumstances nor is this a case of exceptional importance warranting reconsideration. This matter is referred to the Director of Unfair Practices for routine processing. ¶

OrderORDER ¶

The Jersey City Police Superior Officers Association’s motion for reconsideration is denied. The charge is referred to the Director of Unfair Practices for further processing. ¶

BY ORDER OF THE COMMISSION ¶

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

ISSUED: March 27, 2025 ¶

Trenton, New Jersey ¶

Note1/ These provisions prohibit public employers, their representatives or agents from: “(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. (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.” ¶

2/ The PSOA’s grievance is based on the City denying members who have requested “short notice” compensation for having their assignment changed by the City without enough notice. “Short notice” compensation was part of a Fair Labor Standards Act (FSLA) lawsuit against the City that was filed in 1999. The matter was settled. As part of the settlement, the City agreed to compensate officers who reported to another assignment with less than 24 hours. (PSOA’s Request for Interim Relief at ¶20.) ¶

3/ Following the January 13 filing of the PSOA’s interim relief application, the Deputy Director of Unfair Practices instructed the City to file a “very brief response (email or letter is sufficient) before screening to determine whether or not to issue an Order to Show Cause (with or without temporary restraints).” by January 14. The Deputy Director granted the City’s request to file its response by January 16. ¶

4/ The City’s request to file an untimely response was received after this matter was placed on the agenda for the March Commission meeting. ¶