(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued April 27, 1998 -- Decided July 9, 1998
STEIN, J., writing for a unanimous Court.
The issue in this appeal is whether a city must negotiate with police unions before implementing a
plan to transfer police officers from administrative and non-police positions to operational positions and to
fill the administrative and non-police positions with civilian personnel.
In July 1993, as part of a claimed reorganization of its police force, the City of Jersey City (City)
sought to transfer officers formerly discharging various non-police functions to operational or field positions
such as patrol duty and community-based policing. The vacant positions were to be filled by civilians. The
transferred officers received no reduction in rank or salary.
At the time of the reorganization, the City was a party to collective negotiations agreements covering
the terms and conditions of employment of police officers. That notwithstanding, the City did not engage in
negotiations with the police unions concerning the plan. The police unions filed charges with the Public
Employee Relations Commission (PERC), alleging that the City engaged in unfair practices within the
meaning of the New Jersey Employer-Employee Relations Act by unilaterally transferring work from police
personnel to civilian employees not included in the police officers' bargaining units.
Hearings before PERC were held in July and November 1994. The hearing examiner made findings
of fact, rejected the City's argument that all of the job transfers were part of an overall, systematic
reorganization, and conducted a job-by-job review and drew job-by-job conclusions. In general, the hearing
examiner determined that the police department was “civilianizing” the force to maintain the resources of
the Department, and intended to “reduce crime or the fear of crime in Jersey City” by improving the level
of service and increasing the number of police officers in field positions. The hearing examiner determined
that the “unit work rule” required the City to negotiate with the unions before transferring to civilians work
that had been performed exclusively by police officers, and concluded that of the ten functions that the City
had transferred from police officers to civilians, five had been performed exclusively by police officers and
five had not.
Thereafter, in June 1996, PERC issued its decision and order adopting all but two of the hearing
examiner's legal conclusions. In short, PERC held that the City had a duty to negotiate the transfer of jobs
in several areas and ordered the City, pending negotiations with the unions, to restore police officers to their
former duties in those five functional categories in which the City had unilaterally transferred unit work.
PERC subsequently stayed its order pending resolution of this appeal.
The City appealed from that part of PERC's decision finding negotiation obligations. In an
unreported decision, the Appellate Division affirmed “substantially for the reasons set forth” by PERC.
The Supreme Court granted the City's petition for certification.
HELD: Jersey City's actions constitute a non-negotiable managerial prerogative under the Local 195 negotiability test; even under the unit work rule applied by PERC, Jersey City was not required to negotiate the shifting of unit work because the City's actions were neither exclusively nor primarily economically
motivated.
1. In reviewing an action of an administrative agency, the judicial role is generally restricted. In the absence
of constitutional concerns or countervailing expressions of legislative intent, the Court applies a deferential
standard of review to determinations made by PERC. (pp 15-16)
2. The Court detailed the fundamental test for the negotiability of subjects between public employers and
employees in In re Local 195,
88 N.J. 393 (1982). Under that test, when the dominant concern is the
government's managerial prerogative to determine policy, a subject may not be included in collective
negotiations even though it may intimately affect employees' working conditions. (pp. 16-20)
3. Municipal decisions about how to organize and deploy their police forces to comply with economic needs
are unquestionably policy decisions and affect the public welfare, and are therefore not negotiable. (pp. 20-21)
4. The courts and the Legislature have long recognized that because police officers are different from other
public employees, the scope of discretion accorded to the public entities that administer police departments is
necessarily broad. (pp. 21-23)
5. The record supports the City's position that its actions were not taken primarily for economic reasons,
but rather to augment the City's ability to combat crime by increasing the number of police officers in field
positions. (pp. 23-24)
6. PERC should have applied the Local 195 negotiability test to the unique facts of this case. (pp. 24-25)
7. The concerns that inspired the unit work rule, which requires collective bargaining before workers in the
bargaining unit are replaced by non-unit workers in order to provide the union with at least an opportunity
to negotiate an acceptable alternative that would not result in the loss of jobs, are not fully implicated in
Jersey City's plan to reorganize the police department. However, even if the Court had applied the unit
work rule, it would have reached the identical result. (pp. 26-27)
8. PERC was correct in finding that the police unions had not waived their right to negotiate over the
transfer of the disputed positions. (pp. 28-30)
9. In order to succeed on a reorganizations defense to the unit work rule, the public employer is required
to prove that there was a change in the way services were delivered and that the change was not motivated
purely by economic reasons. (pp. 30-33)
10. Neither the evidence nor the policy rationale requiring negotiations when work is shifted out of a
bargaining unit for economic reasons supports PERC's determination that the City's actions were
exclusively or even primarily economically motivated and thus subject to negotiation. (pp. 34-35)
Judgment of the Appellate Division is REVERSED.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI and
COLEMAN join in JUSTICE STEIN's opinion.
SUPREME COURT OF NEW JERSEY
A-
128 September Term 1997
IN THE MATTER OF
CITY OF JERSEY CITY,
Respondent-Appellant,
v.
JERSEY CITY POLICE OFFICERS
BENEVOLENT ASSOCIATION,
Charging Party-Respondent,
and
JERSEY CITY POLICE SUPERIOR
OFFICERS ASSOCIATION,
Charging Party.
Argued April 27, 1998 -- Decided July 9, 1998
On certification to the Superior Court,
Appellate Division.
Martin R. Pachman argued the cause for
appellant (Mr. Pachman, attorney; Robin T.
McMahon, on the briefs).
Bruce D. Leder argued the cause for
respondent Jersey City Police Officers
Benevolent Association (Schneider,
Goldberger, Cohen, Finn, Solomon, Leder &
Montalbano; attorneys; Jacqueline Jassner
Poquette, former counsel, on the brief).
Robert E. Anderson, General Counsel, argued
the cause for respondent Public Employment
Relations Commission.
Robert P. Curley submitted a brief on behalf
of amicus curiae New Jersey State Lodge
Fraternal Order of Police (Markowitz &
Richman, attorneys).
Joseph Licata submitted a brief on behalf of
amicus curiae New Jersey State AFL-CIO
(Loccke & Correia, attorneys; Richard D.
Loccke, of counsel).
Paul L. Kleinbaum and Edward H. O'Hare
submitted a brief on behalf of amicus curiae
New Jersey State Policemen's Benevolent
Association (Zazzali, Zazzali, Fagella &
Nowak, attorneys).
The opinion of the Court was delivered by
STEIN, J.
This appeal requires us to determine whether a city must
negotiate with police unions before implementing a plan to
transfer police officers from administrative and non-police
positions to operational positions and to fill the administrative
and non-police positions with civilian personnel. As part of a
claimed reorganization of its police force, the City of Jersey
City (City) sought to transfer officers formerly discharging non-police functions such as radio repair, supervision of school
crossing guards, and maintenance of police property rooms, to
operational or field positions such as patrol duty and community-based policing. The vacant positions were to be filled by
civilians. The City did not engage in negotiations with the
police unions concerning the plan. The police unions filed
unfair practice charges with the Public Employee Relations
Commission (PERC), alleging that the City engaged in unfair
practices within the meaning of the New Jersey Employer-Employee
Relations Act, N.J.S.A. 34:13A-1 to -29, by unilaterally
transferring work from police personnel to civilian employees not
included in the police officers' bargaining units.
PERC determined that the “unit work rule” required the City
to negotiate with the unions before transferring to civilians
work that had been performed exclusively by police officers, and
concluded that of the ten functions that the City had transferred
from police officers to civilians, five had been performed
exclusively by police officers and five had not. PERC thereafter
issued an order directing the City to reassign to police officers
those duties that had been performed exclusively by police
officers and ordered the City to negotiate the transfer of such
“police unit work” with union representatives.
The City appealed the order. The Appellate Division
affirmed, substantially for the reasons set forth in PERC's
decision and order. We granted the City's petition for
certification.
152 N.J. 8 (1997).
In 1988, Murray and Mayo Associates, a management consulting agency, conducted a study of the Jersey City Police Department (Department). The study revealed that the Department could be run more efficiently if uniformed personnel in administrative positions were moved into field positions and if civilians assumed the uniformed personnel's former administrative duties.
In that same year, the Police Director of Jersey City reached the
same conclusion and proposed a departmental reorganization.
In September 1992, the Police Chief of Jersey City identified
sixty-four clerical, technical, and other non-police positions
held by police officers that were to be filled by civilians. The
police officers were to be deployed into field positions.
Generally following the Police Chief's recommendations, the
City began reorganizing the Department in July 1993. Civilians
displaced police officers in the following areas: (1) intra- and
inter-departmental mail delivery, (2) the Bureau of Criminal
Identification, (3) clerical duties performed by the station
lieutenant's desk assistant, (4) the property room, (5) crossing
guard supervision, (6) the legal bureau, (7) the motor pool, (8)
radio repair, (9) the pistol range, and (10) the fiscal office.
The officers whose positions were filled by civilians were
transferred to operational or field positions. They were not
terminated and did not receive reductions in rank or salary.
At the time of the reorganization, the City was a party to
collective negotiations agreements covering the terms and
conditions of employment of police officers. In September 1993,
the Jersey City Police Officers Benevolent Association (POBA),
which represents the bargaining unit for police ranked lower than
sergeant, and the Jersey City Police Superior Officers
Association (PSOA), which represents the bargaining unit for
supervisory police officers holding the rank of sergeant through
deputy chief, each filed unfair practice charges against the
City. Both unions alleged that the City violated N.J.S.A.
34:13A-5.4(a) by unilaterally transferring to civilians work
traditionally performed by police officers and police superior
officers. That statute provides in relevant part:
a. Public employers, their representatives
or agents are prohibited from:
(1) Interfering with, restraining or
coercing employees in the exercise of 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 . . . .
Section 1. All conditions of employment relating to wages, hours of work and general working conditions presently in effect which are department-wide in nature shall be maintained . . . .
Section 3. Proposed new rules or
modification of existing rules governing
working conditions which are . . .
department-wide in nature shall be negotiated
with the duly authorized representative of
the [PSOA] before they are established.
Additionally, PSOA relied upon N.J.S.A. 40A:9-154.1, which provides in part: "Every adult school crossing guard shall be under the supervision and direction of the chief of police or
other chief law enforcement officer of the municipality wherein
he is appointed . . . ."
The cases were consolidated and hearings were held in July
and November 1994 before PERC. The hearing examiner made
findings of fact, rejected the City's argument that all of the
job transfers were part of an overall, systematic reorganization,
and conducted a job-by-job review and drew job-by-job
conclusions. In general, the hearing examiner determined that
the police department was “civilianizing” the force to maintain
the resources of the Department, and intended to “reduce crime or
the fear of crime in Jersey City” by improving the level of
service and increasing the number of police officers in field
positions. At the time of the hearing examiner's findings, 67" of police officers were in operational positions; the goal was to
increase that number to 85" by "civilianizing" administrative
police positions.
With respect to the specific departmental functions at
issue, the hearing examiner made the following findings:
A. Mail delivery
For at least 18 years, police officers picked up and
delivered intra- and inter-departmental mail using a marked
police car. They also distributed subpoenas to officers for
court appearances and picked up money at the car pound every day
and delivered it to the Chief of Police. Occasionally, as a
courtesy to fellow officers, they picked up evidence and
delivered it to the property room. In September 1993, mail duty
officers were transferred to patrol duty and mail duties were
assigned to civilian employees. One of the displaced officers
was required to return temporarily to mail duty because "civilian
delivery of police mail was not functioning properly." That
officer was returned to patrol duty later that year.
Although the police mail delivery system had historically
been operated exclusively by the Police Department, civilians
delivered intra- and inter-departmental mail in other City
departments. By transferring the police mail delivery to
civilians, the City was doing no more than consolidating
governmental functions. The City had no obligation to negotiate
because consolidation is a managerial prerogative.
B. Bureau of Criminal Identification (BCI)
In 1985, there were 14 police officers in the BCI. Five
were on the day tour, five on the evening tour, and four on the
midnight tour. Their duties included checking FBI correspondence
to verify fingerprint identification, fingerprinting civilians,
processing (i.e. photographing and fingerprinting) prisoners,
lifting latent prints from evidence delivered to the BCI, and
going to crime scenes to secure latent evidence and take
photographs. There were also two civilian clerk typists. The
clerk typists would take telephone messages, answer mail, draw
files, and prepare correspondence. In Spring 1994, two police
officers in the BCI retired and, within a month, were rehired as
civilians. Except for going to crime scenes, the retired
officers performed the same functions at the BCI as they
performed when they were active officers.
The City's rehiring of retired police officers in the BCI
occurred for purely economic reasons because the City attempted
“to keep the same employees doing largely the same jobs for less
pay,” and was therefore not a legitimate reorganization. The
former officers performed "police-related duties" such as
processing and fingerprinting prisoners. The City was obligated
to negotiate with the police unions before it shifted unit work.
C. Desk assistants
The duties of station desk assistants included distributing
hand-held, two-way radios to officers going on patrol, acting as
building security, sending duty notes to the dispatcher through
the police computer, and writing incident reports when citizens
come to the station to complain about such matters as domestic
violence, stolen cars, and assaults. In the summer of 1992, a
civilian clerk began working next to the police officer serving
as a desk assistant in the Jersey City-West District police
station. The task of taking and writing incident reports fell to
the civilian clerk; the police clerk took reports only when the
civilian clerk was busy. In one station, a civilian clerk was
hired to take the place of one of three police clerks. In July
1994, one of the four police clerks in the South District retired
and was immediately rehired as a civilian clerk. His duties as a
civilian were the same as those he performed as a police officer.
Because the "Jersey City police have historically shared certain
clerical duties with civilians," a historical waiver existed and
the City had no obligation to negotiate the transfer of clerical
duties to civilian desk assistants.
D. Property room
Historically, police officers assigned to the property room
collected evidence from the four Jersey City police districts and
brought it to the central property room where it was catalogued
and stored. In early 1994, two officers assigned to the property
room retired and promptly were rehired as civilians. Those
'retirees' did not collect evidence, but they did handle and
record all evidence, including narcotics. The City's rehiring of
retired police officers to work as civilians in the property room
was an attempt "to keep the same employees doing largely the same
jobs for less pay." As such, it was not a legitimate
reorganization and the City was required to negotiate with the
police unions.
E. School crossing guard supervision
Historically, police superior officers have supervised the
City's civilian crossing guards. That supervision included pre-hiring background checks, making hiring recommendations, training
crossing guards, and making sure that the guards are at their
posts and in proper uniform. In August 1993, the police sergeant
performing that supervision was replaced by a civilian. The
"transfer of duties of the crossing guard supervisor to a
civilian was not violative of the Act since the work transferred
is supervisory in nature and therefore not mandatorily
negotiable."
F. Legal bureau
For many years, the Police Department had its own legal
bureau that was staffed by both police-officer attorneys and
civilian attorneys. The civilian attorneys "worked with internal
affairs and with the Police Director on various matters." The
police attorneys reviewed documents signed by the Police
Director, drafted policy directives for the Director, handled
negotiations and contracts, prosecuted medical/psychological
appeals of rejected police candidates, and served as hearing
prosecutors in police disciplinary procedures. “Legal work”
comprised no more than 15" of the legal bureau's work, however.
"Most of the work was akin to senior staff advisor or
administrative assistant." The legal bureau was abolished in
September 1993 and its legal duties were transferred to the
City's Corporation Counsel's office. The hearing officer
dismissed without comment the unfair practice charge that
centered around the abolition of the police legal bureau and the
transfer of the bureau's legal duties to the City's Corporation
Counsel.
G. Motor pool
Three or four officers ran the motor pool for the Police
Department. They made minor repairs, but were primarily
responsible for the assignment of motor vehicles. Those duties
were transferred to the City's Department of Public Works, the
entity that maintains and repairs all of the City's other
vehicles. Historically, the police motor pool was operated
exclusively by police officers. However, the Department of
Public Works repaired all of the City's other vehicles.
Therefore, the transfer of police motor pool jobs to the
Department of Public Works was a consolidation of government
functions; the City had no obligation to negotiate.
H. Radio repairs
Traditionally, three police officers in the support services
division performed radio repairs. At the time of the hearing,
the City sought to transfer that duty to the Department of Public
Works. Finding "no evidence in the record that the City ever had
facilities to repair civilian radios," the hearing examiner
concluded that the plan to transfer police radio repair work to
the Department of Public Works was not a consolidation of
governmental functions and that the City was obliged to negotiate
before transferring that unit work.
I. Pistol range
The City's police pistol range was staffed by a lieutenant
and three police officers. The City replaced them with a
civilian range master and two civilian range instructors. At the
time of the hearing, the City sought to add a third civilian
range instructor. The plan to staff the police pistol range with
civilians was not a reorganization to improve efficiency, but
rather was an attempt to lower costs. The City was obliged to
negotiate before shifting that work to civilian employees.
J. Fiscal officer
The fiscal officer prepared the budget for the Department,
maintained pension files, and handled purchasing requisitions.
Sometime in 1993, the police officer in that position began using
leave time so that he could attend law school. He was replaced
by a civilian. The substitution of a civilian fiscal officer for
a police fiscal officer was not a true reorganization; it was a
displacement. Therefore, the City was obliged to negotiate with
the police union before transferring that unit work.
In June 1996, PERC issued its decision and order. In re
City of Jersey City, 22 NJPER ¶ 27131 (1996). PERC stated that
the issue involved “questions of negotiability that have been
carefully analyzed under the balancing test set forth by the
Supreme Court” in In re Local 195, IFPTE,
88 N.J. 393 (1982).
PERC adopted the hearing examiner's findings of fact except to
note that although at the time of the hearing examiner's report
transfer of radio repair work had only been in the planning
stage, since that time the Department of Public Works had begun
doing police radio repair work. Observing that the shifting of
work from employees within a negotiations unit to other employees
outside the unit generally is a mandatory subject of
negotiations, PERC stated that a City is relieved of its
negotiation obligation if (1) the City has "exercised its
managerial right to reorganize the way it delivers government
services," (2) the union has “waived its right to negotiate over
the transfer of unit work,” or (3) “duties were historically
performed by non-unit personnel exclusively or in conjunction
with unit employees.” In this case, however, PERC determined
that "no 'reorganization' controlled all the negotiability
questions." Simply substituting one person for another "without
changing the structure or the nature of the job" does not "per se
eliminate a duty to negotiate over the transfer of duties to non-unit employees."
Applying those principles, PERC adopted all but two of the
hearing examiner's legal conclusions. First, PERC noted that
there was no evidence that police officers historically filled
the position of fiscal officer. Therefore, contrary to the
hearing examiner, PERC held that the City had no duty to
negotiate the transfer of police fiscal duties to civilians.
Secondly, PERC rejected the hearing examiner's conclusion that
the negotiation obligation did not attach when purely supervisory
duties were involved. Therefore, PERC held that the City had a
duty to negotiate the substitution of a civilian for the police
superior officer who supervised the crossing guards. In short,
PERC held that the City had a duty to negotiate the transfer of
jobs in the following areas: (1) the BCI, (2) the property room,
(3) crossing guard supervision, (4) radio repair, and (5) the
pistol range. The remaining allegations were dismissed.
Finally, PERC ordered the City, pending negotiations with the
POBA and the PSOA, to restore police officers to their former
duties in the five functional categories in which the City
unilaterally had transferred unit work, but that order was stayed
pending resolution of this appeal. In re City of Jersey City, 22
NJPER ¶ 27168 (1996). PERC stressed that it was not ordering
that police officers must perform those functions, but that the
City must negotiate with the police unions before transferring
such duties to civilians.
The City appealed from that part of PERC's decision finding
negotiation obligations. In an unreported decision the Appellate
Division affirmed "substantially for the reasons set forth" by
PERC. The court first noted that it may not disturb an agency
determination unless the decision was arbitrary, capricious or
unreasonable, or unless it violates a legislative policy
expressed or implied in the act governing the agency. The court
observed that, pursuant to N.J.S.A. 34:13A-5.4(d), PERC is
authorized to determine whether a matter in dispute is within the
scope of collective negotiations. The court stated that PERC
applied the three-part test set forth in Local 195, supra, 88
N.J. at 401, and determined that the transfer of jobs in each of
the five disputed areas is negotiable because (1) the item
intimately and directly affects the work and welfare of public
employees; (2) the subject has not been fully or partially pre-empted by statute or regulation; and (3) a negotiated agreement
would not significantly interfere with the determination of
governmental policy. Finally, the court rejected the City's
argument that if negotiations over the transfers came to an
impasse the City would be faced with binding arbitration and
could be forced to restore police officers retroactively to
positions that did not warrant being filled by police officers.
(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency bases its action; and (3) whether, in applying the legislative policy to the facts, the agency erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.
[In re Musick,
143 N.J. 206, 216 (1996)
(citing Campbell v. Department of Civil
Serv.,
39 N.J. 556, 562 (1963).]
In the absence of constitutional concerns or countervailing
expressions of legislative intent, we apply a deferential
standard of review to determinations made by PERC. In re
Hunterdon County Bd. of Chosen Freeholders,
116 N.J. 322, 329
(1989); see also State v. State Troopers Fraternal Assoc.,
134 N.J. 393, 401 (1993) (stating that Court reviews PERC
determinations with “appropriate deference”).
The Legislature has vested PERC with “the power and duty,
upon the request of any public employer or majority
representative, to make a determination as to whether a matter in
dispute is within the scope of collective negotiations."
N.J.S.A. 34:13A-5.4(d). The standard of review of a PERC
decision concerning the scope of negotiations is “thoroughly
settled. The administrative determination will stand unless it
is clearly demonstrated to be arbitrary or capricious.”
Hunterdon County, supra, 116 N.J. at 329 (quoting State v.
Professional Ass'n of N.J. Dep't of Educ.,
64 N.J. 231, 258-59
(1974)).
[A] subject is negotiable between public employers and employees when (1) the item intimately and directly affects the work and welfare of public employees; (2) the subject has not been fully or partially preempted by statute or regulation; and (3) a negotiated agreement would not significantly interfere with the determination of governmental policy. To decide whether a negotiated agreement would significantly interfere with the determination of governmental policy, it is necessary to balance the interests of the public employees and the public employer. When the dominant concern is the government's managerial prerogative to determine policy, a subject may not be included in collective negotiations even though it may intimately affect employees' working conditions.
Applying that test to the facts before it, the Court held that to the extent that a provision in a contract included negotiation on the ultimate substantive decision to subcontract, it was a non-negotiable matter of managerial prerogative. Id. at 408. To hold otherwise and to impose a legal duty on the State
to negotiate all proposed instances of subcontracting would
"transfer the locus of the decision from the political process to
the negotiating table, to arbitrators, and ultimately to the
courts. The result of such a course would significantly
interfere with the determination of governmental policy and would
be inimical to the democratic process." Ibid.
Nevertheless, when a decision to subcontract will result in
a layoff or job displacement, a public employment contract may
include a provision requiring the State to discuss its decision
to subcontract when "the proposed subcontracting is based on
solely fiscal considerations." Id. at 409. "Replacing public
employees with private employees solely to save money does entail
a choice about the level of government spending, a matter of
great public concern. However, discussion about such a
replacement would not significantly interfere with the
determination of public goals." Id. at 410. In fact, "such
discussions would be in the public interest, since [public]
employees could demonstrate that they would do the same work more
efficiently than a private contractor." Ibid.
Further, "[t]o the extent the provisions impose a duty on
the State to negotiate procedural aspects of the subcontracting
decision as they affect [public] employees, the clauses are
negotiable." Ibid. For example, "negotiation could occur on the
issue of adequate notice to employees that are going to be laid
off." Ibid. Negotiation about such procedures will not
significantly interfere with the underlying policy determination
and are therefore negotiable terms of employment. Ibid. The
Court emphasized that its holding did not “grant the public
employer limitless freedom to subcontract for any reason.” Id.
at 411. A public employer could not subcontract in bad faith
“for the sole purpose of laying off public employees or
substituting private workers for public workers. State action
must be rationally related to a legitimate governmental purpose.”
Ibid.
The Court next addressed the negotiability of transfer and
reassignment provisions in the contract. The contract defined
transfer as "the movement of an employee from one job assignment
to another within his job classification in another
organizational unit or department” and defined reassignment as
"the movement of an employee from one job assignment to another
within his job classification and within the work unit,
organizational unit, or department." Id. at 414. The Court
stated that the union satisfied the first prong of the
negotiability test because the location and nature of an
employee's work intimately and directly affects the employee's
work and welfare. Id. at 415. The Court found that the subject
at issue was not preempted by statute or regulation. Id. at 416.
Finally, in determining whether the transfer and
reassignment provisions would significantly interfere with the
determination of governmental policy, the Court stated that the
substantive decision “to transfer or reassign an employee is
preeminently a policy determination. The power of the employer
to make the policy decision would be significantly hampered by
having to proceed through negotiation." Id. at 417 (citing
Ridgefield Park Educ. Ass'n v. Ridgefield Park Bd. of Educ.,
78 N.J. 144, 156 (1978)). However, negotiations about the
procedures for implementing transfers and reassignment "will not
significantly interfere with the underlying substantive policy
determination." Ibid.
We regard the critical issue to be the third standard of the Local 195 negotiability test, which concerns whether negotiations would “significantly interfere with the determination of governmental policy.” We need not address the second part of the
test, whether the subject is preempted by statute or regulation,
because of our conclusion that the “interference with
governmental policy” standard is dispositive.
To decide whether a negotiated agreement would significantly
interfere with the determination of governmental policy,
it is necessary to balance the interests of
the public employees and the public employer.
When the dominant concern is the government's
managerial prerogative to determine policy, a
subject may not be included in collective
negotiations even though it may intimately
affect employees' working conditions.
In a police context, we have interpreted statutes to reflect a legislative intent to vest discretion in municipalities to demote or lay-off police for economic reasons. See Paterson Police PBA Local No. 1 v. City of Paterson, 87 N.J. 78, 97-98 (1981)(discussing N.J.S.A. 40A:14-143, which provides: "The governing body of any municipality, if they shall deem it necessary for reasons of economy, may decrease the number of members and officers of the police department or force or their grades or ranks"). We concluded that “[m]unicipal decisions about how to organize and deploy their police forces to comply
with economic needs are unquestionably policy decisions and
affect the public welfare," and are therefore not negotiable.
Id. at 98. Other jurisdictions have come to the same conclusion
concerning the deployment of police officers and other service
personnel. See, e.g., City of Boston v. Boston Police Superior
Officers Fed'n,
402 N.E.2d 1098, 1099 (Mass. App. Ct.
1980)(finding inherent managerial prerogative to appoint, assign,
organize, and transfer police officers); City of Philadelphia v.
Pennsylvania Labor Relations Bd., Local 22,
588 A.2d 67, 72 (Pa.
Commw. Ct.)(finding managerial prerogative to decide what level
of emergency protection to provide and what amount of money to
lay out), appeal denied,
598 A.2d 285 (Pa. 1991); International
Ass'n of Fire Fighters, Local Union 1052 v. Public Emp. Relations
Comm'n,
778 P.2d 32, 36-37 (Wash. 1989)(en banc)(stating that
elected officials must have flexibility to determine amount of
services to be delivered; regardless of size of police force,
amount of services is basic managerial decision that ultimately
must be determined by voting public through elected
representatives).
Further, the courts and the Legislature have long recognized
that because police officers are different from other public
employees, the scope of discretion accorded to the public
entities that administer police departments is necessarily broad.
The Legislature has vested municipal authorities with the
discretion to determine the powers, duties, functions, and
efficient operation of police departments. See N.J.S.A. 40A:14-118 (establishing municipal power to create, maintain, and
control own police force). In State Troopers Fraternal Ass'n,
supra, 134 N.J. at 417, we held that negotiability of statutorily
mandated disciplinary review procedures did not apply to the
Division of State Police because "negotiability of such
procedures would infringe unacceptably on one of the most
important managerial prerogatives” of the State Police
Superintendent. See also Irvington Policemen's Benevolent Ass'n,
Local No. 29 v. Town of Irvington,
170 N.J. Super. 539, 545-46
(App. Div. 1979) (taking judicial notice that “the role of the
police in every community has always been of extreme importance
to our social well-being" and noting that in “this obscure area
of what constitutes a managerial prerogative, the importance of
managing a police department cannot be equated with the need of a
board of education to unilaterally fix the working hours of its
secretaries"), certif. denied,
82 N.J. 296 (1980); Borough of
Atl. Highlands v. Atlantic Highlands PBA Local 242,
192 N.J.
Super. 71, 75-76 (App. Div. 1983) (noting "special position of
policemen" and finding non-negotiable proposed item of
negotiation that would "negatively affect the current level of
efficiency in the deployment of [the municipality's] police
force"); Township of Moorestown v. Armstrong,
89 N.J. Super. 560,
566 (App. Div. 1965) (noting that "[i]t must be recognized that a
police officer is a special kind of public employee"), certif.
denied,
47 N.J. 80 (1966); Caronia v. Civil Serv. Comm'n,
6 N.J.
Super. 275, 279 (App. Div. 1950) (noting that "regulation of the
police force by assignment of its members to particular duties,
according to the requirements of the service and the special
fitness of the individual members for these duties, must
certainly be left to the discretion of the appointing authority,
if they are to have any control or any liberty to act for the
promotion of the efficiency of their department"); Guthiel v.
Nelson,
86 N.J.L. 1, 3 (Sup. Ct. 1914) (holding that police
officer "holds [his] assignment subject to be transferred from
one line of duty to another" whenever municipality "shall
determine it to be for the public interest"), aff'd,
87 N.J.L. 691 (Err. & App. 1915); State v. Board of Police Comm'rs of the
City of Newark,
49 N.J.L. 175, 176 (1886) (noting that if
"questions of precedence and preference among the members of the
police force are to be settled by hearing on evidence and
argument, there can be no proper subordination,--no selection or
preference for skill or aptitude for special service. The
hindrance and restraint on the [municipality] would defeat,
rather than promote, the efficiency of the police force").
In this case, PERC found that economic reasons motivated the
City to redeploy police officers and fill their vacated positions
with civilians. Conversely, the City contended that its actions
were undertaken for the purpose of increasing the number of
officers in operational positions and thereby reducing the
incidence or fear of crime. We conclude that the record supports
the City's position that its actions were not taken primarily for
economic reasons, but rather to augment the City's ability to
combat crime by increasing the number of police officers in field
positions. Because the City implemented the reorganization
primarily for the purpose of improving the Department's
effectiveness and performance, the City's actions constitute an
inherent policy determination that would, under Local 195, supra,
and N.J.S.A. 40A:14-118, be impermissibly hampered by
negotiations. We therefore hold that, under the third prong of
the Local 195 negotiability test, a negotiated agreement would
significantly interfere with the City's managerial prerogative to
determine governmental policy.
Although PERC's decision in this case stated that it analyzed the facts in accordance with the three-part negotiability test set forth in Local 195, we are satisfied that PERC did not literally apply that test. In response to the contention that Local 195's negotiability test must be applied explicitly to the facts of this case, PERC argues that if that test had to be applied in every dispute the negotiability of all well-established employment conditions would have to be redetermined case-by-case and fact-by-fact. PERC contends that such an approach would destroy predictability in determining negotiations rights and duties, breed litigation, and undermine labor relations stability. Additionally, PERC asserts that application of the negotiability test would improperly inject
PERC into the merits of every negotiations issue because
application of the test would require PERC to determine in every
dispute whether the interests of the employees or the employers
predominated.
We find PERC's argument to be at odds with precedent. In Paterson Police, supra, 87 N.J. at 93, we concluded that "[o]nly case-by-case determinations will give further meaning and substance” to the principle of managerial prerogative and that “PERC and our courts are capable of making such determinations as individual cases arise." See also State Troopers Fraternal Ass'n, supra, 134 N.J. at 401 (stating that courts "need to determine on a case-by-case basis the subjects that are mandatorily negotiable"); Board of Educ. of the City of Englewood v. Englewood Teachers Ass'n, 64 N.J. 1, 7 (1973) (stating that lines between negotiability and non-negotiability are obscure and must be drawn case by case); In re Township of Mt. Laurel, 215 N.J. Super. 108, 114 (App. Div. 1987) (finding that whether government interest is dominant over that of employees “is a fact intensive determination which must be fine-tuned to the details of each case"); Borough of Atl. Highlands, supra, 192 N.J. Super. at 77 (stating that differing facts of each case should determine whether disputed subject is mandatorily negotiable); Irvington Policemen's Benevolent Ass'n, supra, 170 N.J. Super. at 544 (stating that lines between negotiable and non-negotiable subjects are "nebulous" and "each case must be decided upon its own particular facts on a case-by-case basis"), certif. denied,
82 N.J. 296 (1980). We therefore conclude that PERC should have
applied the Local 195 negotiability test to the unique facts of
this case.
In defense of its emphasis on the “unit work rule” rather
than the Local 195 negotiability test, PERC argues that the unit
work rule and its exceptions were developed through application
of this Court's negotiability tests. The unit work rule, which
predates this Court's decision in Local 195, provides that,
subject to three exceptions, "the shifting of work from employees
within a negotiations unit to other employees outside the unit is
a mandatory subject of negotiations." In re City of Jersey City,
supra, 22 NJPER ¶ 27131. The crux of PERC's argument, however,
is that it had been applying the unit work rule both before and
after our decision in Local 195 and the Appellate Division has
never reversed a PERC decision for failure to apply the Local 195
standards rather than the unit work rule.
Although we hold that the Local 195 negotiability test
controls and that the transfer of officers to operational
positions is not a subject of negotiation, we note that we would
reach the identical result if we applied the unit work rule. The
unit work rule, which has its underpinnings in federal private-sector labor law, see Fibreboard Paper Prods. Corp. v. NLRB,
379 U.S. 203,
85 S. Ct. 398,
13 L. Ed.2d 233 (1964), provides that an
employer must negotiate before using non-unit employees to do
work traditionally performed by unit employees alone. In
Fibreboard, supra, the Supreme Court construed the National Labor
Relations Act to reflect a congressional determination that an
employer must engage in collective bargaining before contracting
out work previously performed by members of the bargaining unit.
Id. at 214, 85 S. Ct. at 404, 13 L. Ed.
2d at 240. Typically,
the rule applies to require collective bargaining before workers
in the bargaining unit are replaced by non-unit workers, the
objective being to provide the union with at least an opportunity
to negotiate an acceptable alternative, one that would not result
in loss of jobs and reduction in union membership. In this
matter, no job losses are contemplated because the police
officers performing non-police duties are being reassigned to
police work. Their replacements, however, cannot be represented
by the unions, which represent only police officers, and thus the
possible reduction in union membership is merely coincidental.
Accordingly, the concerns that inspired the unit work rule are
not fully implicated in Jersey City's plan to reorganize the
police department.
PERC has consistently applied the unit work rule not only to
disputes between public employers and employees in general, but
also specifically to cases involving police officers. See, e.g.,
In re City of Newark, 23 NJPER ¶ 28266 (1997) (denying police
union's request for interim order prohibiting city from
transferring certain police duties to civilians because union
could not show irreparable harm resulting from transfer of unit
work); In re Borough of Bogota, 23 NJPER ¶ 28165 (1997) (applying
unit work rule and granting police union's request for interim
order restraining borough from transferring exclusive police
dispatch functions to civilian employees); In re County of
Bergen, 17 NJPER ¶ 22129 (1991) (finding county violated unit
work rule by unilaterally assigning radio and teletype
communications functions traditionally performed by sheriff's
officers to lower paid non-unit civilian personnel); In re City
of Newark, 14 NJPER ¶ 19125 (1988) (applying unit work rule and
holding that police union's grievance, alleging that city
violated contract by assigning police dispatching work to non-unit communications clerks, was arbitrable because it involved
work-preservation issues); In re Township of Mine Hill, 13 NJPER
¶ 18056 (1987) (holding mandatorily negotiable contract provision
that stated: "No post presently filled [by a police officer]
shall be covered by any non-police officer"); In re Borough of
Paramus, 11 NJPER ¶ 16178 (1985) (holding that police proposal
concerning preservation of unit work was mandatorily negotiable
where proposal sought only to prevent overtime opportunities from
being assigned to non-unit employees of borough); In re Township
of Washington, 9 NJPER ¶ 14183 (1983) (finding that replacement
of police personnel by non-unit township employees was
mandatorily negotiable under unit work rule because negotiation
would not “significantly interfere with the Township's ability to
make assignments or determine the number of employees required to
perform a function”).
PERC recognizes three exceptions to the rule that the
transfer of unit work is mandatorily negotiable: (1) the union
has waived its right to negotiate over the transfer of unit work,
(2) historically, the job was not within the exclusive province
of the unit-personnel, and (3) the municipality is reorganizing
the way it delivers government services. In re North Arlington
Bd. of Educ., 23 NJPER ¶ 28077 (1997); In re State Dep't of Law &
Public Safety, 20 NJPER ¶ 25032 (1994); In re Township of Nutley,
11 NJPER ¶ 16116 (1985).
The first exception to the unit work rule provides that a
public employer does not have to negotiate the shifting of work
from unit employees to non-unit workers if the union has waived
its right to negotiate. In re North Arlington Bd. of Educ.,
supra, 23 NJPER ¶ 28077. A waiver "can come in a number of
different forms," but it "must be clear and unmistakable." Ibid.
For example, "if the contract explicitly and unmistakably allows
the employer to make the changes," the union has no right to
negotiate over the shifting of unit work. In re Monmouth County
Sheriff, 18 NJPER ¶ 23201 (1992). Similarly, consistent past
practice to which no objection has been made operates as a
waiver. See, e.g., In re New Jersey Transit Bus Operations,
Inc., 14 NJPER ¶ 19211 (1988) (finding union's right to negotiate
over transfer of jobs to another union was extinguished by
thirteen-year hiatus in offering service); In re South River Bd.
of Educ., 12 NJPER ¶ 17167 (1986) (finding union waived right to
negotiate school board's reduction of part-time teacher's hours
and wages where such conduct was consistent with past practice);
In re Rutgers, the State Univ., 8 NJPER ¶ 13132 (1982) (finding
union waived right to negotiate over employer's policy of not
permitting members to work on January 2 when policy had been in
place for nine years and union had not previously objected).
We conclude that PERC was correct in finding that the police
unions had not waived their right to negotiate over the transfer
of the disputed positions. There was no evidence that there was
either a contractual waiver or an implied waiver due to lapse of
time or acquiescence.
The next exception to the unit-work rule states that a
public employer need not negotiate when it transfers to one unit
more of the job duties that the unit historically has performed
in conjunction with another unit. See, e.g. In re State Dep't of
Law & Public Safety, supra, 20 NJPER ¶ 25032 (state did not
violate negotiation obligation where it laid off civilian
communications operators and assigned work to non-unit state
troopers who had "historically performed communications work in
conjunction with the operators"); In re Town of Dover, 15 NJPER ¶
20112 (1989)(town did not violate negotiation obligation where it
laid off civilian dispatchers and assigned work to non-unit
police officers who had previously performed dispatching
functions). In the instant case, the Commission found that the
only areas where the police officers had historically shared
duties with civilians were the positions of desk assistant,
fiscal officer, and attorney in the police legal bureau. We find
that there is no evidence in the record that the Jersey City
police have historically performed any other functions in
conjunction with civilians. Therefore, PERC was correct in
finding that that exception did not apply to the job transfers at
issue on this appeal.
The final exception, whether a public employer's actions
will be deemed to constitute a legitimate reorganization, depends
both on the employer's motivations and whether there is a change
in the delivery of services. In In re Township of Nutley, supra,
11 NJPER ¶ 16116, PERC held that the municipality had a non-negotiable managerial prerogative both to replace a patrolman in
the Traffic Safety Unit with a civilian and to transfer the
displaced officer to operational duties. The municipality
contended that the change was motivated partly by the fact that
the civilian would receive $21,000 less in salary and partly by
the desire to put another patrolman in a field position. PERC
accepted those arguments, but found dispositive the fact that
there was not a mere replacement of an officer by a civilian.
Rather, there was a basic change in the structure of the Traffic
Safety Unit because the civilian, unlike her predecessor, would
spend only half of her shift in the Traffic Safety Unit and would
spend the remainder of her day performing clerical duties in the
Office of the Chief of Police.
Similarly, in In re Township of Maplewood, 11 NJPER ¶ 16183
(1985), PERC held that a municipality has a managerial
prerogative to consolidate the dispatching functions of its
police and fire departments and to employ civilian dispatchers in
order to have "more police officers and fire fighters available
for line duties." See also In re Town of Kearney, 23 NJPER ¶
28164 (1997)(denying police union's request for restraining order
where town attempted to eliminate position of police auto
mechanic and to transfer duties to civilians in a "central
garage" to service all township vehicles). In In re County of
Essex, 18 NJPER ¶ 23124 (1992), the hearing examiner held that
the County was within its rights when it unilaterally fired
police officers and transferred their job responsibilities to
their counterparts in the County Sheriff's Department. The
examiner found that the County had acted pursuant to a study that
revealed that the then-existing structure encouraged duplication
of work, stimulated excess overtime, condoned unnecessary
specialization and impeded the goals of good government. He
found dispositive the fact that the County and the County Sheriff
are separate and distinct public employers. Ibid; see also In re
County of Hudson, 22 NJPER ¶ 27204 (1996) (denying police union's
request for restraining order where county attempted to
“reorganize” its police force by abolishing it and transferring
work to County Sheriff's Department because of "severe financial
difficulties").
Alternatively, there are several cases in which PERC found
that a municipality's claimed "reorganization" was nothing more
than a shifting of work out of the unit, and was therefore
negotiable. In In re Toms River Education Association, 17 NJPER
¶ 22056 (1991), the School Board, after the voters rejected its
operational budget, eliminated the position of Department
Chairperson, transferred the displaced chairpersons into full-time teaching positions, and had principals assume the
supervisory duties of the chairpersons. The Board admitted that
its sole purpose was to save money. In finding the changes
mandatorily negotiable, the hearing examiner reasoned that
because the changes "'were necessitated by the budget cut' then a
fortiori the Board's decision was motivated by mandatorily
negotiable economic factors and did not involve non-negotiable
departmental reorganization . . . in furtherance of a major
educational policy." Ibid.; see also In re Borough of Bogota, 23
NJPER ¶ 28165 (1997) (granting police union's request for
restraining order where municipality's transfer of dispatching
functions from police to civilians was done "purely to effect
economic savings"); In re County of Bergen, 17 NJPER ¶ 22129
(1991) (finding county's elimination of positions in Sheriff's
Department and replacement of officers with civilians
impermissible because claimed reorganization was nothing more
than plan to save money and because county did not change nature
of services rendered). Those cases are premised on the notion
that if money is the only issue, then the public employer must
first attempt to negotiate efficiency or cost savings measures
with the union before transferring the work to lower paid
employees in a different negotiations unit. See In re Bergen
Pines County Hosp., 17 NJPER ¶ 22102 (1991).
Thus, in order to succeed on a reorganization defense, the
public employer is required to prove that there was a change in
the way services were delivered and that the change was not
motivated purely by economic reasons. Applying that principle to
the instant case, PERC held that the reorganization exception was
germane only to the mail delivery and motor pool positions. PERC
found that the City had civilians in other departments who were
already delivering mail and fixing cars, and that by eliminating
those positions within the police department the City was merely
trying to consolidate its operations. PERC did not find that any
of the City's other actions constituted a valid reorganization.
PERC viewed the City's actions not as part of an overall
reorganization of the municipality's police force, but rather as
"discrete" actions that should be examined on a "job-by-job
basis." Doing so minimized the significance of the City's hiring
of a consulting firm and revising its organization of employees
in an attempt to increase the percentage of the police force
engaged in operational duties. Further, when focusing on the
discrete actions the City took with regard to the pistol range,
the property room, the BCI, and radio repairs, PERC found that
the City undertook these changes for reasons that were "simply
economic." However, there was no testimony at the hearing
concerning either the salaries of the police officers or the
salaries of the civilians who replaced them.
Moreover, the conclusion that the City's actions primarily
were economically motivated is at odds with PERC's finding that
the City undertook the reorganization to reduce crime by putting
more officers into operational positions. Further, PERC
invalidated the City's attempted reorganization of the contested positions because it found that the City had merely substituted a non-unit employee for a unit employee with no change in the responsibilities or duties attendant to the position. Normally, the employer is required to negotiate such a change in order to give the union a chance to demonstrate how its members can perform the job with greater efficiency or for less money. See Bergen Pines, supra, 17 NJPER at 22102. Such a negotiation does not impair the public employer's ability to manage because, if money is the ultimate issue for the employer, the employer will not be concerned with who performs the job as long as it is performed in a manner that will effectuate cost savings. However, that rationale for prohibiting a shifting of unit work does not apply where the purpose of the change is not to save money, but rather to free up more police personnel for field jobs. Unlike a reorganization driven by economic concerns, the City here is concerned specifically with who performs the job and has determined that trained police personnel can most effectively be deployed in jobs that directly involve the i