P.E.R.C. No. 2025-42, Atlantic City

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of CITY OF ATLANTIC CITY, Respondent, -and- Docket No. CO-2022-200 INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL 198, Charging Party. ¶

SynopsisSYNOPSIS ¶

On exceptions filed by the International Association of Firefighters, Local 198, the Public Employment Relations Commission affirms a Hearing Examiner’s recommended post-hearing decision and order which dismissed Local 198’s unfair practice charge against the City of Atlantic City. Local 198 alleged the City violated the Act when it unilaterally implemented Hazardous Material (HAZMAT) training without negotiating the impact on working conditions. The Commission finds the record supports and the Hearing Examiner adequately explained her credibility-based factual determinations that there were no disciplinary consequences for not taking the training, it did not interfere with firefighters’ daily drills, and that HAZMAT-trained firefighters were not unfairly advantaged when bidding for other work assignments. The Commission further finds the Hearing Examiner properly relied on the Commission’s prior summary judgment decision in this matter to find that the City’s decision to implement HAZMAT training did not on its own trigger the duty to negotiate. The Commission also rejects Local 198’s contention that impact negotiations over additional compensation was required if firefighters voluntarily choose to study for HAZMAT training tests and quizzes during their off hours. ¶

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 ATLANTIC CITY, Respondent, -and- Docket No. CO-2022-200 INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL 198, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, Ruderman & Roth, LLC, attorneys (Stephen S. Glickman, of counsel) ¶

For the Charging Party, O’ Brien, Belland & Bushinsky, LLC (Matthew B. Madsen, of counsel) ¶

DECISION ¶

On March 31, 2025, the Charging Party, International Association of Firefighters, Local 198 (Local 198), filed exceptions to a Hearing Examiner’s recommended decision and order, H.E. No. 2025-3, 51 NJPER 317 (¶72 2025), dismissing Local 198’s unfair practice charge against the Respondent, City of Atlantic City (City). The charge alleges the City violated sections 5.4a(1) and (5),1/ of the New Jersey Employer-Employee Relations Act (Act), N.J.S.A. 34:13A-1 et seq., when it unilaterally implemented Hazardous Material (HAZMAT) training without negotiating the impact on working conditions after Local 198 made repeated demands to negotiate. On April 2, the City filed a brief in opposition to Local 198’s exceptions. ¶

On July 14, 2022, the Director issued a Complaint and Notice of Hearing. On April 25, 2024, the Commission denied the parties’ opposing motions for summary judgement. P.E.R.C. No. 2024-49, 50 NJPER 428 (¶104 2024). The Hearing Examiner conducted a hearing on September 23, 2024, at which Captain John Varallo, Local 198’s President, testified on behalf of Local 198, and James Gillespie, the current Deputy Chief of the first platoon, testified on behalf of the City. Post-hearing briefing was completed by February 14, 2025. ¶

The Hearing Examiner issued her recommended decision and order on March 21, 2025. She found the City’s unilateral decision to implement HAZMAT training to firefighters assigned to Station 12/ did not trigger the duty to negotiate, and that because the training had no impact on any working conditions, the City was not required to negotiate the issue of additional compensation. Specifically, the Hearing Examiner found the training did not impact: the taking of vacation or sick time; the scheduling of vacation time; internal employment opportunities; outside employment opportunities; overtime opportunities; or firefighters’ ability to perform their daily drills. The Hearing Examiner also found there were no disciplinary consequences for not taking the training, or for not passing the quizzes or tests that are part of the training. We have reviewed the record. We find it supports the Hearing Examiner’s findings of fact, and we adopt them. ¶

Local 198 filed six exceptions. We address them as follows. ¶

Exceptions 1, 2, and 4 ¶

Exceptions 1, 2, and 4 relate to the Hearing Examiner’s credibility-based findings regarding the HAZMAT training’s alleged impact on working conditions, and we will address them together. They state: ¶

1. The Hearing Examiner erred in finding that Varallo’s testimony regarding discipline for not participating in the HAZMAT Training was not credible (H.E. No. 2025-3 at 5, Finding of Fact 11). ¶

2. The Hearing Examiner erred in crediting Gillespie’s testimony over Varallo’s regarding whether the HAZMAT Training interfered with fire personnel’s ability to complete daily drills, particularly in light of Gillespie’s admission that he had no personal knowledge regarding whether such training occurred (H.E. No. 2025-3 at 5-6, Finding of Fact 12). ¶

4. The Hearing Examiner erred in finding that the HAZMAT Training “has had no impact on any working conditions” (H.E. No. 2025-3 at 9). ¶

We “may not reject or modify any findings of fact as to issues of credibility of lay witness testimony unless it is first determined from a review of the record that the findings are arbitrary, capricious or unreasonable or are not supported by sufficient, competent, and credible evidence in the record.” N.J.S.A. 52:14B-10(c). In accordance with our precedent, “Absent compelling contrary evidence, we will not substitute our reading of the transcripts for a Hearing Examiner’s first-hand observations and judgments.” Neptune Tp., P.E.R.C. No. 2021-8, 47 NJPER 148 (¶35 2020), citing, West Orange Bd. of Ed., P.E.R.C. No. 2019-10, 45 NJPER 144 (¶37 2018); Ridgefield Bd. of Ed., P.E.R.C. No. 2013-75, 39 NJPER 488 (¶154 2013); Warren Hills Reg’ l Bd. of Educ. v. Warren Hills Reg’ l High Sch. Educ. Ass’n (App. Div. 2005) (aff’ g P.E.R.C. No. 2005-26, 30 NJPER 439 (¶145 2004)), certif. den., 186 N.J. 609 (2006). Applying this standard, we deny Exceptions 1 and 2, as follows. ¶

The Hearing Examiner’s factual findings are based in part on the following credibility determinations: ¶

8. ... Varallo testified that a firefighter would be sent for “remedial training” if they could not pass a test. Due to fear of embarrassment, some firefighters would study on their own time for the quizzes and tests so that they could pass the quizzes and test and not have to be sent to remedial training. (T43). Gillespie testified that if test scores needed to be increased, the subject matter would be touched on collectively. Specifically, Gillespie testified that “[w]e never – I, to my knowledge, took anyone to the side individually.” (T62). Additionally, there was no discipline or other consequences for not passing a quiz or test. (T69). I credit Gillespie’s testimony as it relates to remedial training because he has personal knowledge of the procedures followed given that he was one of the people administering the training. I do not credit Varallo’s testimony because he did not participate in the training or have personal knowledge as to the procedures that were followed. ¶

. . . ¶

10. Gillespie testified that HAZMAT training had no impact on a firefighter’s ability to take vacation or sick time; perform overtime; or perform outside employment. (T62-63). I credit Gillespie’s unrebutted testimony. ¶

11. Gillespie testified that no firefighters have been disciplined for failing to comply with the HAZMAT training. (T63). Although Varallo testified that there was an “implied order” that a firefighter would be disciplined if he or she did not participate in the HAZMAT training, I do not credit his testimony. (T31-32). No evidence was offered showing that any firefighter had been disciplined since the HAZMAT training began in 2022, which further supports Gillespie’s testimony. ¶

12. Varallo testified that the HAZMAT training had a negative impact[ … ] on firefighters’ ability to complete specific daily drills regarding life safety, vehicle extraction, search and rescue, first aid, and throwing ladders. (T48). However, Gillespie testified that all firefighters at Station 1 were able to partake in their drilling exercises outside of HAZMAT training “virtually on a daily basis.” (T60, 67-68). Gillespie also testified that the City does maintain records that firefighters complete “firematic training” , which are the daily drills. (T60. 67-69). In the absence of any documentary evidence, i.e; the records themselves, I do not credit Varallo’s testimony regarding firefighters’ ability to perform daily drills. ¶

[H.E. Findings of Fact 8, 10, 11 and 12, pp. 4-6 (emphases added).] ¶

Local 198 contends in its exceptions brief (as in its post- hearing brief) that Varallo gave “unrebutted” testimony that a firefighter’s “refusal” to participate in “any element” of the HAZMAT training would subject the firefighter to potential discipline. (Local 198 Br. at 11, citing T20.) To support this assertion, Local 198 cites to Varallo’s testimony on direct examination when he was asked if there was “any impact on terms and conditions of employment” associated with the HAZMAT training. (T20:9-11.) Neither the question nor Varallo’s response contained any form of the word “refuse” or the phrase “refusal to participate.” Varallo testified: “So, I do know that there was an implied order. Those individuals would have been written up if they did not take – - if they did not partake in the modulars and power points, tests and quizzes.” (T20:12-26.) ¶

Gillespie, the City’s witness, also was never directly asked if a “refusal” to participate in HAZMAT training would result in discipline. Gillespie was asked on cross examination: “[Y]ou testified that no individuals were disciplined for poor performance. But what . . . if somebody was unable to complete the entire training, there was, you know, [a] difficult section that they just couldn’t grasp?” Gillespie testified: “They just didn’t pass that section. There was no adverse action taken, no transfer taken.” (T69:5-13.) Later in the same cross examination, Gillespie was asked: “If an individual is unable to complete the HAZMAT training, not additional training, they’re just not able to complete it, what impact does that have on the individual, are they subject to any discipline?” Gillespie testified: “Has no impact on the individual.” (T84:11-16.) ¶

Local 198 also takes exception to the Hearing Examiner crediting Gillespie’s testimony over Varallo’s with respect to her finding that the HAZMAT training did not interfere with firefighters’ ability to complete their daily drills. On direct examination, Varallo testified that “one of the major complaints that the Union had and received from the membership in general” about the HAZMAT training was “that they were taken away from their daily drills.” (T35:4-7.) However, Varallo provided no specific examples of such interference. Nor did he detail any particular complaints from members about it. ¶

On cross-examination, Varallo was asked: “you were talking about because of HAZMAT training, they weren’t able to do the drills, the maintenance of the firehouse, maintain the equipment” ? Varallo testified: “I said that it impacted, negatively impacted their ability. Did it impact it every single day[?] I’m not there every day. Did it have a negative impact in general across four shifts? One hundred percent, yes.” (T47:14-22.) Again, Varallo provided no specific examples. Varallo also testified on cross that although daily drills are a factor in the fire department’s insurance rating, that rating did not go down because of lack of training. (T48:19 – T50:9.) ¶

In contrast Gillespie, as the Hearing Examiner noted, “testified that all firefighters at Station 1 were able to partake in their drilling exercises outside of HAZMAT training ‘virtually on a daily basis,” and that “the City does maintain records that firefighters complete ‘firematic training’ , which are the daily drills.” H.E. at 5, Finding of Fact No. 12. ¶

We find that on the whole, the record presents no evidence that would compel us to substitute our judgment for the Hearing Examiner’s on her credibility-based factual determinations. We are satisfied that the Hearing Examiner adequately explained the bases for her credibility determinations. Local 198 has not met its burden of establishing that they are arbitrary, capricious or unreasonable, or unsupported by sufficient, competent, and credible evidence in the record, and we deny Exceptions 1 and 2. ¶

Varallo’s testimony on the disciplinary-impact issue is speculative, and his testimony on the daily-drill issue is nonspecific. In the absence of direct evidence that any firefighter had been disciplined since the HAZMAT training began, or that it actually interfered with the completion of daily drills, the record presented does not meet Local 198’s burden of proving the disciplinary and daily-drill impact allegations of the complaint by a preponderance of the evidence. N.J.A.C. 19:14-6.8. ¶

We deny exception 4, both for the reasons we stated above in denying exceptions 1 and 2, and as follows. At the hearing, Varallo testified that there is “no specific on the job benefit currently” that would accrue to a firefighter on the basis of having received HAZMAT training. (T:23:23.) We find that the Hearing Examiner properly relied upon this testimony in rejecting Local 198’s impact argument “that a firefighter who has had the HAZMAT training would have an advantage” over other employees when bidding for different work assignments and opportunities. H.E. at 10. ¶

Local 198 also argues that in reliance on Article 21 of the parties’ current CNA3/ the City could “prevent a firefighter from leaving Station 1 by asserting that HAZMAT Training makes the individual better able to effectuate services to the City by remaining assigned to Station 1.” (Local 198 Exceptions Br. at 13.) The record is devoid of evidence that this has actually occurred in connection with HAZMAT training. Further, this speculative argument identifies, at most, a potential dispute over contractual interpretation. The mechanism for resolving such a dispute is a grievance, not an unfair practice charge. State of New Jersey, Dept. of Human Services, P.E.R.C. No. 84-148, 10 NJPER 419, 421 (¶15191 1984) ( “such claims must be resolved, if possible, through the parties’ agreed-upon grievance procedures” ). ¶

Exception 3 ¶

Next, we address Local 198’s third exception, which states: ¶

3. The Hearing Examiner erred in finding that “the City’s unilateral decision to implement HAZMAT training does not on its own trigger the duty to negotiate” (H.E. No. 2025-3 at 8-9). ¶

We deny this exception because we find no error in the Hearing Examiner’s finding that “the City’s unilateral decision to implement HAZMAT training does not on its own trigger the duty to negotiate.” (H.E. at 8-9). The Hearing Examiner properly relied upon our prior decision in this matter, denying both parties’ motions for summary judgment. P.E.R.C. No. 2024-49, 50 NJPER 428 (¶104 2024). In that decision we stated: ¶

We reject the Local’s contention that the decision to require a certain training, standing alone, impacts the terms and conditions of employment, thus triggering a duty to negotiate. This position is inconsistent with longstanding Commission precedent, including a case involving the instant parties, which held that “[a]n employer has a prerogative to decide which employees will be trained, how they will be trained, and how long they will be trained.” Atlantic City, P.E.R.C. No. 2015-63, 41 NJPER 439 (¶137 2015), a’ ffd in relevant part (App. Div. 2017). On this point, we find that Local 198’s reliance on State of NJ, Kean University, P.E.R.C. No. 2018-18, 44 NJPER 221 (¶116 2018) is misplaced. That case does not stand for the proposition that mandatory training by definition creates a severable impact on working conditions. Instead, it stands for the notion that where an employer’s required training actually affects working conditions, such as requiring additional on-campus participation (i.e. increasing the number of workdays) as was the case in Kean, the employer must negotiate to impasse prior to unilaterally taking its desired action. ¶

[50 NJPER 428, 430.] ¶

By repeating arguments that we comprehensively addressed and rejected in deciding the summary judgment motions, Local 198 states no basis for granting this exception. ¶

Exception 5 ¶

Local 198’s fifth exception states: ¶

5. The Hearing Examiner erred in finding “that the City was not required to negotiate the issue of additional compensation” (H.E. No. 2025-3 at 10). ¶

We reject Local 198’s contention in support of this exception that if firefighters voluntarily choose to study for HAZMAT training tests and quizzes during their off hours, this represents a “clear change” in their workload that would be subject to impact negotiations over additional compensation. Such a circumstance is starkly distinct from that in Kean University, P.E.R.C. No. 2018-18, 44 NJPER 221 (¶116 2018), where the employer unilaterally required faculty to attend mandatory training during their winter break. We also reach this conclusion based upon the City’s unrebutted testimony that there are no adverse consequences for not passing the tests and quizzes, and that the City provides remedial training, if necessary, without singling out any particular firefighters. ¶

Exception 6 ¶

For all of the foregoing reasons, we deny Local 198’s sixth exception which states: ¶

6. The Hearing Examiner erred in recommending that the Complaint be dismissed (H.E. No. 2025-3 at 11). ¶

OrderORDER ¶

The Hearing Examiner’s recommended Decision and Order is affirmed. The complaint is dismissed. ¶

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 29, 2025 ¶

Trenton, New Jersey ¶

Note1/ N.J.S.A. 34:13A-5.4 prohibits 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” 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.” ¶

2/ Station 1 is the only station that houses a HAZMAT unit. H.E. at 3, Finding of Fact No. 4. ¶

3/ Article 21, Section I.4 states: “The Fire Chief may deny placement of an applicant possessing ability and other qualifications to the vacant or new position” if the Chief determines “that such individual is needed more in the position already assigned.” ¶