Opinion
DOCKET NO. A-0766-12T2
07-28-2014
IN THE MATTER OF CITY OF RAHWAY AND FMBA LOCAL 33.
Mets, Schiro & McGovern, LLP, attorneys for appellant FMBA Local 33 (Kevin P. McGovern, of counsel and on the brief). DeCotiis, Fitzpatrick & Cole, LLP, attorneys for respondent City of Rahway (Louis N. Rainone, of counsel and on the brief; Daniel E. Zwillenberg and Michael J. Ash, on the brief). Martin R. Pachman, General Counsel, attorney for respondent New Jersey Public Employment Relations Commission (David N. Gambert, Deputy General Counsel, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Grall, Waugh and Accurso. On appeal from the New Jersey Public Employment Relations Commission. Mets, Schiro & McGovern, LLP, attorneys for appellant FMBA Local 33 (Kevin P. McGovern, of counsel and on the brief). DeCotiis, Fitzpatrick & Cole, LLP, attorneys for respondent City of Rahway (Louis N. Rainone, of counsel and on the brief; Daniel E. Zwillenberg and Michael J. Ash, on the brief). Martin R. Pachman, General Counsel, attorney for respondent New Jersey Public Employment Relations Commission (David N. Gambert, Deputy General Counsel, on the brief). PER CURIAM
This appeal is from the Public Employment Relations Commission's (PERC) resolution of a scope of negotiations petition filed by the City of Rahway (the City). The City filed its petition in response to a request for binding arbitration of a grievance filed by the Firemen's Mutual Benevolent Association, Local 33 (the FMBA). Applying Ridgefield Park Education Association v. Ridgefield Park Board of Education, 7 8 N.J. 144, 154 (1978) and Patterson Police PBA No. 1 v. City of Paterson, 87 N.J. 78, 92-93 (1981), PERC determined that the relief sought in the grievance "would encroach upon the employer's ability to determine staffing levels" in the City's fire department and, for that reason, restrained arbitration.
"In the absence of constitutional concerns or countervailing expressions of legislative intent, [courts] apply a deferential standard of review to determinations made by PERC." City of Jersey City v. Jersey City Police Officers Benev. Ass'n, 154 N.J. 555, 567 (1998). Because PERC followed the law, made findings supported by the record and reached a reasonable conclusion, there is no basis for us to disturb PERC's ruling. Ibid. Substantially for the reasons stated by PERC, we affirm.
This dispute between the City and the FMBA centers on a memorandum issued by Richard J. Young, Jr., Director and Chief (Chief) of Rahway's Fire Department. There is no dispute that the memorandum changed policy on the circumstances warranting appointment of acting captains and battalion chiefs.
The Chief's memorandum specifies the respective rates of pay for "Acting time" and advises that those rates "will ONLY be paid to Actors for responding to alarms." The FMBA delegate promptly filed a grievance on behalf of the union. The grievance, filed on April 12, 2011, asserts:
Presumably, "Actors" means officers assigned as acting battalion chiefs or acting captains.
Although the April 11, 2011 memorandum was amended on April 13 2011, the language set forth above was not amended.
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I am formally grieving the memo regarding Acting Officers dated 11 April, 2011 . . . . The implementation of this new policy is a breach of Civil Service Job Specificatio[ns] . . . for Battalion Chief . . . [and] Fire Captain, as well as FMBA Local #33's Collective Bargaining Agreement, specifically Article III Section 2.
Section 2 of Article III provides:
a. Whenever any member is required to serve in an acting capacity in a higher classification, such employee, for each days of such service, shall receive the rate of pay of that classification provided this complies with Civil Service regulations.
b. The officer in charge of each group on each tour shall keep a roster of employees based on seniority. Acting officer assignments shall be made from Department of Personnel lists, in order. If no list, seniority shall be used; taking the senior employee on the group, unless a provable management need exists to do otherwise. Whenever possible, group assignments shall be made so as to preserve the opportunity for members to serve as acting officers.
c. Acting pay shall not disqualify members from enjoying benefits under this agreement
where cost to the City is a factor in approving or disapproving same.
The Director responded to the grievance by advising the FMBA that he needed more information, and the FMBA proceeded to Step B of the contractual grievance procedure, which requires efforts to negotiate the dispute. Those efforts were unsuccessful.
Following the failed negotiations, the FMBA invoked Step C of the grievance process, which provides for submission of the matter in dispute to PERC for binding arbitration. In accordance with the contractual process, the FMBA submitted a request for PERC to submit the matter to binding arbitration. The FMBA's request described the grievance to be arbitrated as follows: "The employer, City of Rahway, violated Article III, Section 2 of the collective negotiations agreement and such other Articles as may apply by failing to properly compensate one or more members of the bargaining unit for performing in the capacity of Acting Captain."
The City responded to the FMBA request for binding arbitration by filing a petition for a scope of negotiations determination by PERC. Its petition asserted that the "assignment of Acting Captain is a non-negotiable management prerogative and not subject to grievance arbitration."
In a certification opposing the City's petition, the FMBA delegate asserted: "The union's grievance is about compensation for performing the duties of Acting Captain. We are not seeking to force the City to make Acting Captain assignments[] or change the way that such assignments are made." In addition, the FMBA gave various descriptions of its grievance in the course of the proceeding on the scope of negotiations. The FMBA pointed to Article 5 of the Department's Rules and Regulations, to establish that captains have administrative duties beyond responding to alarms. And, in a certification submitted to PERC, the FMBA's president asserted that "[h]istorically, and pursuant to Article III, Section 2 of our contract, firefighters who performed any of the duties of Captain that are listed in Article 5 were compensated" at the rate of pay for captains. Clearly, the FMBA's concern was that the new policy meant that the City "will no longer pay Acting pay to firefighters who perform" all of the duties of captain.
While the April 2011 policy is cast in terms of pay, based on the position asserted by the parties, PERC concluded that the City's new policy addressed the circumstances under which it would appoint acting captains and battalion chiefs. PERC noted that the City had conceded "that when a firefighter is assigned as an acting captain, the issue of receiving premium pay for performing those duties is mandatorily negotiable" and that the City had acknowledged "that the parties' agreement covers those situations and provides for higher pay." In addition, PERC's decision stresses that the City acknowledged that the Chief's April 2011 directive memorandum "simply preserves its managerial right to limit acting captain assignments only to 'emergencies,' i.e., instances where responses to an alarm occur. [The City] argues that there is no need for a firefighter to work as an Acting Captain to perform administrative duties." As we understand the preceding passages of PERC's decision, the City acknowledged that it has no need to have a captain's administrative duties performed by firefighters appointed as acting captains.
From that perspective, PERC summarized the parties' respective positions and its resolution of them as follows:
[T]he City of Rahway petitioned for a scope of negotiations determination. The employer seeks a restraint of binding arbitration of a grievance filed by Firemen's Mutual Benevolent Association Local 33 (FMBA). The grievance contends that the City violated the parties' collective negotiations agreement when it issued a policy limiting the designation of firefighters as "Acting Captains," only on shifts where a response to a fire alarm occurs. As the relief sought by the grievance would encroach upon the employer's ability to determine staffing levels on a given shift, including whether to temporarily have a firefighter perform
the duties of a higher rank, we restrain arbitration.
On this appeal, the FMBA argues that it is well-settled that a dispute about compensation for performing the work of a higher title is negotiable and subject to arbitration. But PERC did not decide otherwise. The FMBA also argues that PERC misunderstood the subject of the grievance it filed on April 12, which was "about compensation for performing the duties of Acting Captain." But the grievance the FMBA filed "on April 12" was about the memorandum of April 11, not compensation. On its face, the Chief's memorandum announcing the policy, which was the subject of the City's petition and the grievance the FMBA filed on April 11, does not indicate that acting captains and battalion chiefs will be required to perform the duties of those positions unrelated to response without compensation for doing the work of a higher ranking officer. Moreover, the contractual provision on which the FMBA relies, Section 2 of Article III quoted above, addresses nothing other than the pay due when an employee is "required to serve in an acting capacity in a higher classification." It does not address the circumstances under which an employee will be deemed to be serving in an acting capacity. Our decision is based on our understanding that the City has declared that it would only appoint firefighters to acting capacity during emergency responses and that these actors would not be required to perform duties above their rank at other times.
Having considered the arguments the FMBA presents in light of the narrow question PERC addressed, we have concluded that they have insufficient merit to warrant any additional discussion in a written opinion. R. 2:11-3(e)(1)(E). Contrary to the FMBA's suggestion, PERC did not decide that a grievance filed by an employee who was assigned to perform the work of an officer holding a higher rank without compensation was not subject to binding arbitration. As previously noted, the FMBA grievance indicates that the FMBA was "grieving the memo regarding Acting Officers dated 11 April, 2011," not its implementation.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION