P.E.R.C. No. 2026-20, Wanaque Boro

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of BOROUGH OF WANAQUE, Petitioner, -and- Docket No. SN-2026-006 PBA LOCAL 407, Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission denies a request for a restraint of binding arbitration of a grievance filed by PBA Local 407 against the Borough of Wanaque for allegedly violating an agreement concerning the allocation of overtime. Specifically, the grievance alleges that the Borough deviated from the binding past practice to offer a patrol overtime assignment to sergeants after all patrol officers declined the opportunity to work. The Commission finds that overtime allocation is a mandatorily negotiable subject and that the sergeants’ interest in overtime opportunities and patrol officers’ interests in regularly scheduled time off outweighed the Borough’s generalized operational concerns, especially where the practice had existed for over 20 years. ¶

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 BOROUGH OF WANAQUE, Petitioner, -and- Docket No. SN-2026-006 PBA LOCAL 407, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, Dias Law LLC, attorneys (Sean D. Dias, of counsel) ¶

For the Respondent, Mets Schiro & Manetta, LLP, attorneys (Joseph Licata, of counsel) ¶

DECISION ¶

On August 11, 2025, the Borough of Wanaque (Borough) filed a scope of negotiations petition seeking a restraint of binding arbitration of a grievance filed by PBA Local 107 (PBA). The grievance asserts that the Borough violated the parties’ previous collective negotiations agreement (CNA) when it denied sergeants the ability to work voluntary overtime to fill a regular patrol vacancy and instead filled the vacancy through mandatory overtime for patrol officers. ¶

The Borough filed briefs, exhibits and the certification of its Chief of Police, Keith Spillane. The PBA filed a brief and certification of its President, Joseph Fiorito. These facts appear. ¶

The PBA represents all Patrolmen, Detectives and Sergeants employed by the Police Department. The Borough and PBA were parties to a CNA in effect from January 1, 2020 through December 31, 2024. The grievance procedure ended in binding arbitration. ¶

Article VI, Section E of the CNA provided as follows: ¶

In the event a tour of duty is left vacant because a member of the F.O.P. cannot perform his duties due to sickness or any other valid reason, another member of equal rank shall first be called to fill the vacancy; if the vacancy cannot be filled by a member of equal rank, then any other member may fill the vacancy. Every attempt will be made to fill any vacancies as the schedule calls for. ¶

It is undisputed that this contractual provision was in effect at the time this dispute arose but was later removed during negotiations for a successor agreement. ¶

The PBA President certifies that the Department consists of 24 total police officers, including the Chief, one police captain, three police lieutenants, five police sergeants and 14 patrol officers. The Department is staffed according to the “Pittman” work schedule. The schedule consists of 12-hour shifts from either 5:45 a.m. to 5:45 p.m. or from 5:45 p.m. to 5:45 a.m. For example, an officer who works Monday and Tuesday would be off duty Wednesday and Thursday, followed by working Friday, Saturday and Sunday, followed by being off duty Monday and Tuesday, working Wednesday and Thursday, and being off duty Friday, Saturday, and Sunday (and repeating). The PBA further contends that although the Pittman schedule requires officers to work 182 days per year, there is fatigue associated with working 12-hour days and there is less time for family or to pursue other private interests on a workday. Overtime is required where there is a short-term vacancy that may be scheduled or unscheduled. ¶

According to the PBA President, for over twenty-years Article VI, Section E, has been applied to overtime as follows: a shift sergeant (primarily) or a lieutenant (less frequently) would contact officers in a specified order to first solicit volunteers for patrol overtime assignments from patrolmen. If there were no volunteers, then the supervisor would offer the overtime opportunity to sergeants, who would work in the lower patrol classification. If no sergeant was interested in filling the overtime opportunity, then the least senior patrol officer would be ordered to work. That patrol officer would then have his/her name moved to the bottom of the list for the next compulsory overtime assignment. ¶

The PBA President further certifies that in situations where a sergeant was assigned to work overtime in place of an absent patrol officer, the sergeant did not join the other sergeant as a supervisory officer. Rather, the sergeant replaced the absent patrol officer by assuming the patrol officer’s operational identity by being assigned traffic enforcement, responding to calls, community policing, welfare checks, and writing incident reports. For the past twenty years, the shift sergeant was in command of all officers on the shift, including the sergeant who volunteered for the overtime assignment. The PBA President further certifies that sergeants have far fewer opportunities to work overtime shifts since there are many more patrol officers employed by the Borough. He also certifies that there have been no operational concerns in twenty years of using this system. ¶

On June 10, 2024, a patrolman was absent from work after using contractual leave time, leaving the position vacant. The lieutenant on-duty ordered an off-duty patrolman to replace the absent patrolman, instead of offering the shift to sergeants. The Chief certifies that this decision was based on staffing needs, specifically that a sergeant was already working that shift and it was unnecessary to have two sergeants supervising the same shift. ¶

On June 17, 2024, the PBA filed a grievance stating that the Borough has historically permitted sergeants to bid on vacancies within the Department, and the Borough violated the agreement on June 10 when it refused to allow a sergeant to volunteer for a patrol vacancy where no patrol officer volunteered.1/ The Borough denied the grievance, stating that it concerned a matter of non-negotiable managerial prerogative related to the staffing and deployment of personnel, including its determination as to the number of supervisory staff assigned to a given shift. ¶

On August 12, 2024, the PBA filed a Request for Submission of a Panel of Arbitrators to enforce the CNA. This petition ensued. ¶

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 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. 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 arbitration only if the agreement alleged is preempted or would substantially limit government’s policy-making powers. ¶

The Borough contends that arbitration must be restrained because it has the non-negotiable managerial prerogative to determine how to deploy its staff, including by setting the number of supervisory staff assigned to a given shift. According to the Borough, it has the authority to order an off-duty patrol officer to replace an absent patrol officer before offering the shift to a sergeant because it has the ability to set minimum staffing levels, including the number and type of officers to be on duty. ¶

In opposition, the PBA asserts that the longstanding practice of offering voluntary overtime to sergeants prior to mandating overtime to patrol officers who had already declined the opportunity is a legally arbitrable subject. The PBA claims that a sergeant who covers for an absent patrol officer works in the lower position and not as an additional sergeant on the shift, and therefore the grievance does not challenge the deployment of staff or the number of sergeants assigned to the shift. The PBA also argues that the Borough essentially claims to have an unfettered right to replace an absent patrol officer with an equally ranked patrol officer, which is contrary to existing Commission precedent. ¶

In reply, the Borough argues that the cases cited by the PBA are distinguishable because they involved public employees seeking to perform their own unit work, or assigning lower ranked employees to work in a higher classification, which is not the case here. ¶

The question before the Commission is whether a past practice to offer voluntary overtime to sergeants to fill a patrol vacancy is legally arbitrable. On this record, we find the issue legally arbitrable. ¶

The PBA certifies to a twenty-year past practice that requires that patrol overtime be offered to sergeants if no patrol officers are available. IMO County of Atlantic, 230 N.J. 237, 252 (2017) (reiterating that mandatorily negotiable terms and conditions of employment may be established by past practice). The Borough does not contest the existence of this long-standing past practice. In general, the allocation of overtime among qualified employees is a mandatorily negotiable subject. Long Branch, P.E.R.C. No. 83-15, 8 NJPER 448 (¶13211 1982); see also Town of Kearny, 98-22, 23 NJPER 501 (¶28243 1997) aff’d (App. Div. 1999) (citing N.J. Sports and Expo. Auth., P.E.R.C. No. 87-143, 13 NJPER 492 (¶18181 1987) aff’d (App. Div. 1987) (grievances challenging use of junior employees at straight time rates instead of senior employees at overtime are legally arbitrable). However, “there are still specific limitations on negotiability designed to ensure that the employer will obtain a sufficient number of qualified employees to perform the necessary overtime tasks.” Long Branch; see also Hunterdon Cty., P.E.R.C. No. 83-86, 9 NJPER 66 (¶14036 1982) (finding that a grievance based on the Borough’s emergent need to call in road crews from one district to perform work in another district was not legally arbitrable); see also Springfield Tp., P.E.R.C. No. 2026-15, ___ NJPER ___ (¶ ___ 2025) (finding that the Township’s concerns for officer health and safety outweighed the officers’ interest in maintaining the existing overtime practice). ¶

This dispute turns on the third prong of the Paterson negotiability test, which requires us to determine whether the past practice would place substantial limitations on government’s policymaking powers. The interests of the employees in this case are that the past practice provides sergeants with the opportunity to work additional overtime. The PBA President certifies that overtime for sergeants is limited because there are many more patrol officers employed by the Borough than sergeants. Additionally, patrol officers have an interest in their regularly scheduled time off. The Borough cites general operational principles for deviating from the past practice, including that it may deploy its personnel as it sees fit by setting staffing levels and may dictate the number and type of officers that are assigned to a given shift. However, the Borough’s specific justification for deviating from the past practice on June 10, 2024- - that it did not need two sergeants performing supervisory duties on one shift- is undermined by the unrebutted assertion by the PBA President that when sergeants work overtime for a patrol position, they perform patrol duties and not sergeant duties. The Borough contends that because this dispute involves sergeants performing overtime for patrol work, their interests are not the same as if the overtime work was being performed within their same title. However, the Borough does not contend that sergeants are unqualified to work patrol overtime shifts or that the past practice has impeded its ability to fully staff its police force. On balance, we find that this record does not support that the past practice concerning overtime allocation substantially interferes with governmental policymaking. Therefore, we find the grievance legally arbitrable and decline to restrain arbitration. ¶

OrderORDER ¶

The Borough of Wanaque’s request for a restraint of arbitration is denied. ¶

BY ORDER OF THE COMMISSION ¶

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

ISSUED: December 18, 2025 ¶

Trenton, New Jersey ¶

Note1/ The record does not contain allegations that the Borough deviated from the established past practice on any other occasion. ¶