Opinion
DOCKET NO. A-6012-12T2
12-23-2014
IN THE MATTER OF: TOWNSHIP OF EDISON, Petitioner-Appellant, and INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL 1197, Respondent-Respondent.
Louis N. Rainone argued the cause for appellant (DeCotiis, FitzPatrick & Cole, LLP, attorneys; Mr. Rainone, of counsel; Victoria A. Flynn and Daniel E. Zwillenberg, on the briefs). Raymond G. Heineman argued the cause for respondent International Association of Firefighters, Local 1197 (Kroll Heineman Carton, LLC, attorneys; Mr. Heineman, of counsel and on the brief). Martin R. Pachman, General Counsel, attorney for respondent Public Employment Relations Commission (Mary E. Hennessy-Shotter, Deputy General Counsel, on the statement in lieu of brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Ostrer. On appeal from the Public Employment Relations Commission, Docket No. SN-2012-041. Louis N. Rainone argued the cause for appellant (DeCotiis, FitzPatrick & Cole, LLP, attorneys; Mr. Rainone, of counsel; Victoria A. Flynn and Daniel E. Zwillenberg, on the briefs). Raymond G. Heineman argued the cause for respondent International Association of Firefighters, Local 1197 (Kroll Heineman Carton, LLC, attorneys; Mr. Heineman, of counsel and on the brief). Martin R. Pachman, General Counsel, attorney for respondent Public Employment Relations Commission (Mary E. Hennessy-Shotter, Deputy General Counsel, on the statement in lieu of brief). PER CURIAM
The Township of Edison appeals from the June 27, 2013, decision of the Public Employment Relations Commission (PERC) denying the township's petition to restrain binding arbitration of a grievance. It was filed by Local 1197 of the International Association of Firefighters (IAFF) regarding compensation of certain firefighters who were also trained and licensed emergency medical technicians (firefighter/EMTs). The township argues that the arbitration would infringe upon its managerial prerogative. We disagree, and affirm.
I.
Local 1197's grievance arises from the township's January 2011 decision to remove from service an ambulance utilized by the Division of Fire and staffed by firef ighter/EMTs, and to eliminate a so-called rotation of thirty-six firefighters, trained as emergency medical technicians, who received pay enhancements under the 2010-2013 collective negotiations agreement (CNA) between the local and the township.
The significance of the township's step must be viewed in historic context. The record reflects that as early as 1989, firefighter/EMTs received a pay differential when they were assigned to a fire rescue vehicle, or when they were sent on an emergency medical call, while assigned to fire suppression activities. Unlike an ambulance, the fire rescue vehicle was not capable of emergency medical transportation.
In 1998, an arbitrator determined that firefighter/EMTs should receive pay differentials ranging from three to six percent of their base salary, "payable . . . when assigned to fire rescue or when performing EMS work while assigned to fire suppression." Apparently, this compensation system required detailed accounting of the assignments and activities of the firefighter/EMTs, to properly calculate their pay. Consequently, beginning with the 2001 CNA, the township and local adopted a different approach to the compensation of firefighter/EMTs.
The parties agreed that pay enhancements would be provided only to a select group of thirty-six firefighter/EMTs, who would be chosen in part based on seniority. The thirty-six consisted of two groups: firefighters holding training as an EMT-D; and firefighters denominated Senior EMTs, who, among other things, had to have five years of experience as a firefighter, and five years of experience as an EMT. The EMT-D's were entitled to a six percent pay enhancement. The Senior EMTs were entitled to seven percent. The thirty-six firefighter/EMTs were deemed part of a "rotation."
N.J.S.A. 26:2K-39 defines EMT-D as "an emergency medical technician who is certified by the commissioner to perform cardiac defibrillation."
The 2010-2013 contract provision stated:
Section 1. EMT Refresher Core Training and EMT-D Training shall be done in-house and approved by the Township Fire Department in February 1997 and 1998 and every other year, thereafter. Training will be provided off-shift and employees will not receive overtime compensation for attending EMT Refresher Core Training and EMT-D Training.
Section 2. The Township shall maintain normal crewing on Fire Rescue equipment of one driver and two Firefighters/EMTs and will not maintain a minimum crew of less than two Firefighters/EMTs, if the equipment is to be used for emergency medical service. Two member crews shall not be broken up or separated and a crew member shall not be assigned to ride along in a volunteer ambulance without a partner. In the event of medical necessity or the need to accompany a member of the opposite sex to a medical facility, a crew at minimum manning will have the discretion to leave their Fire Rescue vehicle parked on the side of the road and to call for a Township police officer or firefighter to provide coverage for the Fire Rescue vehicle.
Section 3. Two EMT-Ds shall normally be assigned to any Fire Rescue unit equipped with a defibrillator. In the event a minimum of two EMT-Ds, or other personnel licensed by the State of New Jersey, are not assigned to a Fire Rescue unit, the defibrillator may be used at the discretion of the EMT-D.
Section 4. The Township Health Department shall be responsible for the inoculation and testing of all Firefighters/ EMTs against Hepatitis-B, Tuberculosis and other communicable diseases. The Township Health Department shall maintain all health records for Firefighters/EMTs.
Section 5. As part of the general liability insurance coverage provided by the Township, the Township shall provide Firefighters/EMTs with professional malpractice insurance.
Section 6. The Emergency Medical Technician's differential shall be at least six percent (6%) of base salary for E.M.T.-D and seven percent (7%) of base salary for Senior E.M.T.[] The Emergency Medical Technician's differential shall be payable to thirty-six EMTs who bid to be part of the rotation at the beginning of the year by seniority, first among the EMTs who participated in the rotation during the prior year, and then among EMTs who did not participate in the prior year's rotation.
(a) Firefighter/EMTs will be eligible for Senior EMT differential after five years employment as a firefighter and five years as an EMT provided they are part of the rotation at the beginning of the year.
(b) The Township will equitably rotate the opportunity to work as a Senior EMT among all eligible firefighter/EMTs.
(c) One eligible firefighter/EMT shall be designated as Senior EMT on each rescue vehicle. In the event that there are no eligible firefighter/EMTs assigned to a fire rescue vehicle, the Township will designate a firefighter/EMT to perform the duties of a [S]enior EMT but without additional compensation.
Under the CNA, firefighter/EMTs who provided emergency medical services, but who were not included in the rotation, did not receive pay enhancements. Moreover, arbitration decisions construing earlier versions of the CNA confirmed that the thirty-six selected members were entitled to the pay differential, regardless of whether supervisors assigned them to emergency medical duties, or to a desk job at headquarters. Also, Senior EMTs were entitled to their differential, even if two happened to be assigned together.
On the other hand, the township asserts that the pay differential for the thirty-six firefighter/EMTs was tied to use of the transport capable ambulance assigned to the Fire Division. The township asserts that no pay differential was owed to firefighters when they fulfilled their duty as first responders — a duty shared by police — and arrived first at an emergency and provided emergency medical assistance while awaiting medical transportation.
In addition to services provided by firefighter/EMTs, emergency medical services in Edison were also provided by a unit of civilian, township-employed EMTs, as well as three EMS volunteer companies. The unit of public employees was represented by a different IAFF local. Local 1197 asserts that prior to the township's action in January 2011, firefighter/EMTs were the only EMTs providing emergency medical services on weekends, and between 7:00 p.m. and 7:00 a.m. on weekdays.
The township had previously procured emergency medical services from volunteer ambulance squads under a professional services agreement (PSA). After the Director of the National Labor Relations Board determined that the EMTs were employees of the volunteer squads, and not of the township, and an IAFF local was certified as the EMTs' representative, the township discontinued its PSA, and directly employed the civilian EMTs.
On January 15, 2011, the township purported to eliminate the "rotation" set forth in the CNA. The township asserts that all emergency service response work would be assigned to the civilian EMTs. The township began hiring civilian EMTs to provide services provided by firefighter/EMTs. The ambulance assigned to the Fire Division was transferred to the civilian EMTs. The local also asserts that the stretcher was removed from the Fire Division's fire rescue unit. Nonetheless, the record reflects that firefighter/EMTs continued to provide emergency medical services — responding to emergencies as first-responders even when fire suppression activities were not involved.
Shortly after the township's action, firefighter Wayne Enoch filed a grievance, which the township denied. The local requested arbitration. After one arbitration session was held, and another was scheduled, the township filed a scope petition with PERC, seeking its determination that it was within the township's non-negotiable managerial prerogative to end the rotation, and its obligation to pay the differential. It sought and obtained interim restraints of the arbitration.
The local also filed an unfair labor practice charge against the township challenging the township's authority to eliminate the rotation and to assign emergency services response work to the civilian EMTs. PERC's director of unfair practices dismissed the charge, holding that the transfer of duties was within management's prerogative. PERC upheld the decision.
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However, PERC ultimately determined in its June 2013 decision that arbitration should proceed on the question of whether the differential should be paid. In its decision, PERC recognized that its determination was solely the abstract issue of whether the subject matter in dispute was within the scope of collective negotiations. It did not reach the merits of the grievance or any contractual defenses.
The commission held that arbitration was permitted if the subject was mandatorily or permissively negotiable. PERC noted that cases involving firefighters and police may be mandatorily negotiable, quoting Paterson Police PBA Local No. 1 v. City of Paterson, 87 N.J. 78, 92 (1981): "'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.'" A matter may also be permissively negotiable if the item is not mandatorily negotiable, and if "'governmental powers remain essentially unfettered by agreement on that item.'" (quoting Paterson Police PBA Local No. 1, supra, 87 N.J. at 93).
PERC determined that the decision to transfer or reassign public employees is a policy determination. However, a severable compensation claim arising out of that policy change was arbitrable. The commission reviewed the parties' competing positions. The township asserted that its elimination of the firefighter/EMT rotation and the pay differential was a policy decision to focus firefighters' efforts on fire suppression. The local responded that the only change was the elimination of the ambulance and that firefighter/EMTs continued to provide emergency medical services.
The commission concluded:
[T]he contractual claim for pay differential for performance of EMS duties may be arbitrated because it does not significantly interfere with the employer's prerogative to eliminate the Firefighter/EMT rotation and hire more civilian EMTs. What EMS duties the Firefighter/EMTs are now performing, and whether those duties are eligible for the Article 49, Section 6 salary differential, are questions for the arbitrator to decide. The Township may argue to an arbitrator that the Firefighter/EMTs responding to EMS calls are, in fact, performing duties normally assigned to firefighters and not duties
distinctively assigned to civilian EMTs or the historic Firefighter/EMT rotation.
The commission added, "The arbitrator is reminded of the Appellate Division's caution that payment for no services rendered would constitute ' featherbedding' and a violation of the employer's duty to spend public funds wisely. In re Morris County Sheriff's Office v. Morris County PBA Local 298, 418 N.J. Super. 64 (App. Div. 2011)."
This appeal followed. The township presents the following point and subpoints for our consideration:
PERC'S DECISION SHOULD BE REVERSED BECAUSE IT IS CONTRARY TO APPLICABLE LAW AND EARLIER PERC DECISIONS REGARDING THE ELIMINATION OF THE EMT ROTATION IN THE DIVISION OF FIRE.
A. The Decision Below Is a Departure from PERC's Earlier Decisions Regarding the Elimination of the EMT Rotation.
B. The Township's Elimination of the Firefighter/EMT Rotation Cannot Be Severed From The Salary Differential.
C. Local 1197's Grievance Lacks Merit.
II.
We review PERC's decision to determine whether it was arbitrary, capricious, or unreasonable; lacked evidential support; or violated legislative policy. Twp. of Franklin v. Franklin Twp. PBA Local 154, 424 N.J. Super. 369, 377 (App. Div. 2012) (Franklin Twp. PBA). We accord substantial deference to PERC's exercise of its authority to determine "whether a matter in dispute is within the scope of collective negotiations." Id. at 377-78 (quoting N.J.S.A. 34:13A-5.4d).
PERC exercises limited jurisdiction to determine whether a dispute is negotiable.
Where the dispute concerns the legal arbitrability of a grievance sought to be submitted to binding arbitration pursuant to a collectively negotiated grievance/ arbitration procedure, the Commission will not determine . . . [w]hether the grievance is covered by the arbitration clause of an agreement; . . . the facts are as alleged by the grievant; . . . a contract provides a defense for the employer's alleged action; . . . there is a valid arbitration clause in an agreement; or . . . [a]ny other similar question.
[N. J.A.C. 19:13-1.1(b).]
PERC's scope of negotiations determination implicates the dichotomy our Court has drawn between "'mandatorily negotiable terms and conditions of employment and non-negotiable matters of governmental policy.'" In re Local 195, IFPTE, AFL-CIO, 88 N.J. 393, 402 (1982) (Local 195) (quoting Ridgefield Park Educ. Ass'n v. Ridqefield Park Bd. of Educ., 78 N.J. 144, 163 (1978)). Public employees are constitutionally entitled to engage in collective negotiations. N.J. Const., art. I, ¶ 19; Council of N.J. State Coll. Locals v. State Bd. of Higher Educ., 91 N.J. 18, 26 (1982). Their representative organization is authorized to negotiate "terms and conditions of employment." N.J.S.A. 34:13A-5.3. However, the scope of those negotiations is limited because of the government's "special responsibilities to the public . . . in mak[ing] and implement[ing] public policy." Local 195, supra, 88 N.J. at 401-02 (citations omitted).
Our Court has established a three-part test for determining whether a subject is negotiable:
[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.The test must be applied on a case-by-case basis. Troy v. Rutgers, 168 N.J. 354, 383 (2001).
[Id. at 404-05.]
Rates of pay and working hours fall squarely within the first prong. Local 195, supra, 88 N.J. at 403. However, impact on work or pay does not necessarily render an issue negotiable, as "most decisions of the public employer affect the work and welfare of public employees to some extent," and negotiation may significantly interfere with governmental policy-setting. Id. at 404. There is no question that "[m]unicipal officials retain discretion to . . . limit the areas in which personnel will be deployed, inasmuch as these decisions unquestionably [are] predominantly managerial function[s] which cannot be delegated to an arbitrator not accountable to the public at large." Paterson Police PBA Local No. 1, supra, 87 N.J. at 97 (quoting Atl. City v. Laezza, 80 N.J. 255, 267 (1979).
Nonetheless, there is ample precedent for requiring negotiation of the financial impacts on employees of reallocations of work or staffing, while shielding the managerial prerogative to make those re-allocations. For example, in Board of Education of the Woodstown-Pilesgrove Regional School District v. Woodstown-Pilesgrove Regional Education Ass'n, 81 N.J. 582, 591 (1980) (Woodstown-Pilesgrove), the Court held that extending the working hours of teachers was mandatorily negotiable, where the employees' representative did not question the length of the school year, or length of school day. The Court found that the changes were motivated mainly by a "budgetary consideration" and not a "particularly significant educational purpose." Id. at 594. In Local 195, supra, the Court held that the "the substantive decision to transfer or reassign an employee is preeminently a policy determination." 88 N.J. at 417. The decision to subcontract was a non-negotiable managerial prerogative. Id. at 410. However, lay-off procedures were negotiable because they would not significantly interfere with the policy decision. Ibid.
In Franklin Twp. PBA, supra, we held mandatorily negotiable a municipality's decision to alter the work schedules of its police officers, which resulted in more working hours per year for the same pay. 424 N.J. Super. at 382-83. We rejected the argument that the municipality's managerial decision to achieve efficiency and conserve resources justified increasing work hours without negotiation. Ibid. In Piscataway Township Education Ass'n v. Piscataway Township Board of Education, 307 N.J. Super. 263 (App. Div.), certif. denied, 156 N.J. 385 (1998), we applied Woodstown-Pilesgrove in holding that while the school board's decision to schedule class during previously scheduled recess days was non-negotiable, the financial impact of that decision was not necessarily non-negotiable.
In this case, the township has decided to reallocate to civilian employees and volunteers a service previously provided by firefighter/EMTs who staffed the Fire Division's ambulance. However, the local contends that firefighter/EMTs continue to provide emergency medical services as first responders, regardless of whether fire suppression activities are involved. Although the ambulance has been removed, Local 1197 argues that firefighter/EMTs continue to perform the same work, yet the township has withheld the pay differential.
The township contends that these first-response duties are similar to those of the police and do not justify enhanced pay for the select group of thirty-six. The township also argues the arbitration in this case may require it to pay for a job that is no longer performed. We recognize, as did PERC in its decision in this case, that the township may not be required to pay for unrendered services. See In re Morris County Sheriff's Office, supra, 418 N.J. Super. at 77 (finding, in unfair practices case, that "the decision not to staff positions which have no function on holidays is a managerial prerogative because it implicates the essential duty of government to spend public funds wisely") (internal quotation marks and citation omitted).
However, the township's objections implicate questions that ultimately must be determined by an arbitrator. These include whether the parties to the CNA agreed that firefighter/EMTs were entitled to compensation for responding to emergencies regardless of the presence of a transport-capable vehicle. An arbitrator must also determine whether the thirty-six firefighter/EMTs alone were entitled to such compensation. The arbitrator may consider the contract term that, in one form or another, was included in CNAs since 2001, after prior contract provisions authorized enhanced pay to all firefighter/EMTs who provided emergency medical services on a per shift, or per incident basis. We discern no error in PERC's determination that the financial impact of the township's decision is severable from its policy determination, and the grievance is arbitrable.
In urging a different result, the township misplaces reliance on our decision in City of Elizabeth v. Elizabeth Fire Officers Ass'n, Local 2040, IAFF, 198 N.J. Super. 382 (App. Div. 1985). In that case, we affirmed PERC's decision that the cost of verifying that someone was sick and authorized to take sick leave was negotiable and severable from the city's decision, within its managerial prerogative, to implement a sick leave verification policy. Likewise, here, whether the township was obliged to continue to pay the thirty-six firefighter/EMTs for emergency medical services is arbitrable. That is so, even though the township was within its prerogative to shift ambulance staffing to civil employees, and to provide civilian EMTs during the hours when, the local asserts, firefighter/EMTs previously were the sole providers of emergency medical services.
We also find no inconsistency in PERC's dismissal of the local's unfair practices charge and its arbitrability determination in this case. The issue in the former case was whether it was within the township's managerial prerogative to reallocate personnel in the provision of emergency medical services. The issue in this case is whether the township must continue to pay the salary enhancement, notwithstanding the reallocation.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION