P.E.R.C. No. 2025-8, Newark

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: NOTICE 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 Newark, Respondent, -and- Docket No. CO-2024-069 Newark Police Superior Officers’ Association Charging Party. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission grants in part and denies in part cross motions for summary judgment filed by the Newark Police Superior Officers Association (SOA) and the City of Newark on the SOA’s unfair practice charge alleging that the City violated the Act when it unilaterally rescinded a memorandum that prohibited discipline against officers for absences due to COVID-19. The Commission finds that the decision to rescind the memorandum was an exercise of a managerial prerogative to determine the basis for discipline. However, the Commission also finds that to the extent the rescission of the memorandum had an impact on disciplinary sanctions and procedures, those issues are mandatorily negotiable. ¶

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 Newark, RESPONDENT, -and- Docket No. CO-2024-069 Newark Police Superior Officers’ Association, CHARGING PARTY. ¶

AppearancesAppearances: ¶

For the Respondent, Kenyatta Stewart, Esq., Corporation Counsel (Hugh A. Thompson, Esq., on the brief) ¶

For the Charging Party, John J, Chrystal, III, Association President ¶

DECISION ¶

On July 2, 2024, the Newark Police Superior Officers’ Association (SOA) filed a motion for summary judgment on its unfair practice charge filed against the City of Newark (City). The charge was filed on November 17, 2023, and alleged the City violated sections 5.4(a)(1) and (5)1/ of the New Jersey Employer- Employee Relations Act N.J.S.A. 34:13A-5.4 et seq., (Act) when it rescinded a policy that provided employees would not be disciplined for using COVID-19 leave. On July 8, 2024 the City filed an opposition brief and cross-motion for summary judgment, seeking dismissal of the charge. On July 22, the Chair referred the motion to the full Commission. N.J.A.C. 19:14-4.8. ¶

Following the filing of the charge, the Director of Unfair Practices issued a Complaint on March 21, 2024. The City filed an uncertified Answer in the form of a letter brief on April 16 denying the allegations. ¶

After the conclusion of discovery, the SOA filed the instant motion for summary judgment, together with a brief, exhibits, and the certification of its President, John Chrystal. The City subsequently filed its cross-motion for summary judgment, along with a brief. On July 22, 2024, the SOA filed a reply to the City’s cross-motion. The following undisputed facts appear. ¶

UNDISPUTED MATERIAL FACTS ¶

1. The City and the SOA are, respectively, a public employer and employee representative within the meaning of the Act. ¶

2. The SOA represents superior police officers employed by the City for purposes of collective negotiations. ¶

3. The term of the parties’ most recent consolidated collective negotiations agreement (CNA) existed from January 1, 2013 through December 31, 2015. ¶

4. This agreement was extended, with some modification, through December 31, 2017 via a memorandum of agreement (MOA). ¶

5. The parties operated under this agreement as a status quo through February 17, 2023, when a new memorandum of agreement was ratified by the parties retroactive from January 1, 2018 through December 31, 2023. ¶

6. In relevant part, section 1 of Article XIV of the CNA entitled “Sick and Injured Leave” states “The present sick and injured leave policies shall remain unchanged during the term of this agreement.” ¶

7. On October 28, 2020, during the status quo period of the CNA, the Public Safety Director, issued Memorandum 2020-467, entitled “COVID-19 Related Absences.” The memo provided: ¶

As previously advised, all Commanders and Supervisors are herewith reminded that bonafide COVID-19 related absences will not be included as a basis for employee discipline or as a determining criteria for placing members on medical certification. ¶

Due diligence is required by Commanders and Supervisors to confirm the authenticity of absences and documents related to COVID-19 absences. ¶

This shall apply to both sworn and civilian personnel alike. ¶

Commanders and Supervisors are to ensure that all COVID-19 related absences are recorded properly: i.e. – COVID-19 quarantined; COVID- 19 symptoms; etc. ¶

(emphases in original). ¶

8. On October 5, 2023, the Public Safety Director issued “Memorandum 2020-467 RESCINDED” which stated: “EFFECTIVE IMMEDIATELY, DEPARTMENT OF PUBLIC SAFETY MEMORANDUM 2020-467, COVID-19 RELATED ABSENCES, IS HEREBY RESCINDED,” (emphasis in original). That memorandum was effective on October 19. ¶

9. On October 27, 2023, the SOA filed a grievance and asserted that the City had committed an unfair labor practice by rescinding Memorandum 2020-467 (Memorandum) without collective negotiations. Additionally, the SOA demanded to negotiate over the issue. ¶

10. The City has not reinstated the October 28, 2020 policy, nor has it discussed or negotiated the matter with the SOA. ¶

STANDARD OF REVIEW ¶

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. The summary judgment procedure is not to be used as a substitute for a plenary trial. Baer v. Sorbello, 177 N.J. Super. 183 (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). ¶

ARGUMENTS ¶

The SOA asserts that the City should have negotiated before rescinding the Memorandum because it concerned two subject matters that are mandatorily negotiable: leave benefits and discipline/disciplinary procedures. ¶

In opposition to the SOA’s motion, and in support of its cross-motion for summary judgment, the City contends that the Memorandum was an exercise of managerial prerogative to ensure commanders and supervisors properly documented illness. Further, the City contends that the subject matter is preempted by N.J.S.A. 40:41A-28. ¶

In reply, the SOA asserts that the Memorandum had become a binding term and condition of employment and an established past practice. The SOA also refutes that any statute or regulation preempts negotiations over the subject matter. ¶

ANALYSIS ¶

The Act prohibits public employers from “[r]efusing 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.” N.J.S.A. 34:13A- 5.4a(5). Proposed new rules or modification of existing rules governing mandatorily negotiable working conditions must be negotiated with a majority representative before they are established. N.J.S.A. 34:13A-5.3; Middletown Tp., 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). “Thus, employers are barred from ‘unilaterally altering mandatory bargaining topics, whether established by expired contract or by past practice, without first bargaining to impasse.’” County of Atlantic, 230 N.J. 237, 252 (2017), quoting Neptune Bd. of Ed. v. Neptune Education Ass’n, 144 N.J. 16, 22 (1996). ¶

In deciding whether the City had an obligation to negotiate with the Association before rescinding the Memorandum, a determination must be made whether the Memorandum concerned a mandatorily negotiable term and condition of employment. Paterson Police PBA No. 1 v. City of Paterson, 87 N.J. 78, 92-93 (1981) establishes the following test for police and firefighters in determining whether an issue is mandatorily negotiable: ¶

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. ¶

Id. ¶

Where a statute or regulation addresses a term and condition of employment, negotiations are preempted only if it speaks in the imperative and fixes a term and condition of employment expressly, specifically and comprehensively. Bethlehem Tp. Ed. Ass’n v. Bethlehem Tp. Bd. of Ed., 91 N.J. 38, 44 (1982); State v. State Supervisory Employees Ass’n, 78 N.J. 54, 80-82 (1978). Paterson bars negotiation only if the agreement alleged is preempted or would substantially limit government’s policy-making powers. ¶

It is uncontested that the City unilaterally rescinded the Memorandum. Thus, in determining whether the City violated the Act by unilaterally rescinding the Memorandum without negotiating with the SOA, the question before us is whether the Memorandum concerned a mandatorily negotiable term and condition of employment. Paterson, supra. ¶

We find that the Memorandum did not concern a mandatorily negotiable term and condition of employment but concerned a managerial prerogative. It is well established that employers have a managerial prerogative to address the basis for discipline, i.e. what transgressions by employees warrant the imposition of discipline.” Newark, P.E.R.C. No. 2010-19, 35 NJPER 258 (¶120 2009); Newark, P.E.R.C. No. 2022-47, 49 NJPER 17 (¶4 2022), aff’d (App. Div. 2023). The Memorandum that the City rescinded plainly stated that absenteeism due to COVID-19 should not result in discipline. By rescinding that Memorandum, the City determined that absenteeism from COVID-19 leave would no longer be a protected category of leave from discipline. We find that the rescission of the Memorandum concerns the City’s managerial prerogative to determine the basis for discipline, specifically absenteeism from COVID-19 leave. ¶

The SOA asserts that the Memorandum concerns sick leave, which is generally mandatorily negotiable. See generally, City of Hoboken, P.E.R.C. No. 2023-051, 50 NJPER 7 (¶3 2023). As identified above, the Memorandum does not address sick leave but plainly addressed the City’s decision to discipline absenteeism due to COVID-19. The SOA does not assert that the City changed anything substantively about COVID-19 leave itself such as the ability for officers to actually take COVID-19 leave or the availability of such leave. ¶

While we find that the City’s rescission of the Memorandum concerned its managerial prerogative to discipline officers for absenteeism due to COVID-19, we nonetheless find that the City violated the Act to the extent it did not negotiate about disciplinary procedures or sanctions resulting from that rescission since it is well-settled that disciplinary procedures and sanctions are mandatorily negotiable. Newark, P.E.R.C. No. 2022-47, supra. ¶

Given our above findings, we need not fully address the City’s reliance on N.J.S.A. 40:41A-282/ to assert that the Memorandum concerned an issue that is statutorily preempted and therefore not mandatorily negotiable. We briefly note that N.J.S.A. 40:41A-28 confers general authority on municipalities and does not “expressly, specifically and comprehensively” address the subject matter of Memorandum. Bethlehem, supra. It is also unnecessary for us to fully address the City’s waiver argument except to note that the SOA filed a grievance within a few days of the City’s rescission of the Memorandum. ¶

In closing, we deny the SOA’s motion for summary judgment to the extent it asserts that the City violated the Act by unilaterally rescinding the Memorandum. However, we grant the SOA’s motion for summary judgment to the extent it asserts that the City should have negotiated over disciplinary procedures and sanctions resulting from the City’s rescission of the Memorandum. The City’s cross-motion for summary judgment is granted to the extent it asserts it had a managerial prerogative to rescind the Memorandum, but denied to the extent it asserts that it did not have to negotiate over disciplinary procedures and sanctions resulting from its rescission of the Memorandum. ¶

OrderORDER ¶

A. The motion of the Newark Superior Officers Association for summary judgment is denied to the extent it asserts that the City violated the Act by unilaterally rescinding the Memorandum. However, we grant the SOA’s motion for summary judgment to the extent it asserts that the City should have negotiated over disciplinary procedures and sanctions resulting from the City’s rescission of the Memorandum. ¶

B. The City of Newark’s cross-motion for summary judgment is granted to the extent it asserts it had a managerial prerogative to rescind the Memorandum, but denied to the extent it asserts that it did not have to negotiate over disciplinary sanctions and penalties resulting from its rescission of the Memorandum. ¶

C. The City of Newark shall: ¶

1. Cease and desist from interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by the Act and from refusing to negotiate in good faith with the majority representative of employees in the appropriate unit concerning terms and conditions of employment in that unit, particularly by refusing to negotiate disciplinary procedures and sanctions after it unilaterally rescinded Memorandum 2020-467. ¶

2. Take the following affirmative action: ¶

a. Negotiate in good faith about disciplinary procedures and sanctions resulting from rescission of Memorandum 2020-467. ¶

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

c. Within twenty days of receipt of this decision, notify the Chair of the steps it has taken to comply with this Order. ¶

BY ORDER OF THE COMMISSION ¶

Chair Hennessy-Shotter, Commissioners Ford, Kushnir, and Papero voted in favor of the decision. None opposed. 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 from refusing to negotiate in good faith with the majority representative of employees in the appropriate unit concerning terms and conditions of employment in that unit, particularly by refusing to negotiate disciplinary procedures and sanctions for employees represented by the Newark Superior Officers Association after we unilaterally rescinded Memorandum 2020-467. WE SHALL negotiate in good faith over disciplinary procedures and sanctions resulting from the rescission of Memorandum 2020-467. ¶

Note1/ 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” ; (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/ This statute states as follows: ¶

Nothing in this act shall be construed to impair or diminish or infringe on the powers and duties of municipalities under the general law of this State. It is the intent of this act only to permit municipalities to employ services and facilities of the county for more effective, efficient, and adequate provision of services if and when municipalities may deem it desirable to do so. Municipalities are and shall remain the broad repository of local police power in terms of the right and power to legislate for the general health, safety and welfare of their residents. ¶

Notice to employeesDocket No. CO-2024-069 City of Newark (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” Docket No. CO-2024-069 City of Newark (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” ¶