Labor Relations Report
The Public Employment Relations Commission (PERC) held that the City of Newark violated subsections 5.4a(5) and (1) of the New Jersey Employer–Employee Relations Act, N.J.S.A. 34:13A-1 et seq. when it implemented two general orders and a disciplinary matrix that unilaterally modified negotiable disciplinary procedures and disciplinary penalty policies of Newark Police employees. The commission ordered the city to cease and desist from unilaterally changing negotiable terms and conditions of employment, and to restore the negotiated disciplinary procedures.
In 2019, the SOA filed an unfair practice charge and request for interim relief (injunction) against the city alleging that on Sept. 3, 2019, during negotiations for a collective negotiations agreement (CNA), the city repudiated Article XXV, “Investigations,” which incorporated a general order from 2005, by implementing a new general order, “Complaint Intake and Investigation Process,” which explicitly superseded the previous order. On Sept. 11, 2019, the city unilaterally implemented another general order, “Disciplinary Process and Matrix,” which modified a 1993 general order, “The Disciplinary Process,” and implemented a discipline matrix. These charges alleged that the city’s actions violated the Employer–Employee Relations Act by unilaterally changing terms and conditions of employment regarding employee investigations and disciplinary review procedures.
The relief was granted in both cases, temporarily restraining the city from implementing the portions of the new general orders that changed pre-disciplinary procedures and modified the parties’ negotiated disciplinary review procedures. The commission designee determined that the SOA established a substantial likelihood of success on the merits of its allegations and that irreparable harm would result because the parties are in negotiations for a successor agreement. The designee also found that the public interest was furthered by adhering to the act and requiring good faith negotiations prior to changing a term and condition of employment. The city was ordered to reinstate all procedures and protections in the previously existing general orders.
The city entered into a consent decree in 2016 with the U.S. Department of Justice, and they asserted that the consent decree relieved them of an obligation to negotiate over changes that they made. This claim was made in the appellate division, requesting an appeal of the interim relief decision. The court denied the city’s motion and allowed PERC to retain jurisdiction over these matters.
At PERC, the union asserted that the city violated the act by unilaterally changing mandatorily negotiable terms and conditions of employment concerning the penalties to be imposed for certain disciplinary infractions (disciplinary matrix), as well as disciplinary procedures related to the timeliness of charges, the holding of a hearing before a determination of guilt, the right to union representation during certain investigatory interviews and being adequately informed of what actions might constitute a major offense. Specifically, it alleged that the CCRB ordinance changed investigation procedures articulated in the General Orders and the CNA because the due process guarantees contained therein are inapplicable to CCRB investigations.
The union also alleged that the city’s promulgation of a disciplinary matrix is a unilaterally implemented new progressive discipline system by designating certain penalties for each category of misconduct. It argued that the steps of such a disciplinary table are negotiable. The new general order also unilaterally changed the pre-disciplinary investigation procedures. The union asserted that the city’s consent decree with the DOJ does not allow it to avoid its obligations under the act to negotiate over changes to terms and conditions of employment.
The city asserted that general orders are not mandatorily negotiable because the CNA gives the city “unlimited authority over disciplinary action.” The city argued that the general orders fall within its managerial prerogative because they are consistent with the city’s consent decree settlement agreement with the DOJ. The city contended that public policy requires it to comply with the consent decree because the CNA cannot be used to contravene the protections of the U.S. Constitution. The city further argued that, under the terms of the consent decree, the federal court has jurisdiction over any disputes arising under it.
N.J.S.A. 34:13A-5.3 defines when a public employer has a duty to negotiate before changing working conditions: Proposed new rules or modifications of existing rules governing working conditions shall be negotiated with the majority representative before they are established. In addition, the majority representative and designated representatives of the public employer shall meet at reasonable times and negotiate in good faith with respect to grievances, disciplinary disputes, and other terms and conditions of employment. PERC and courts have thus held that changes in negotiable terms and conditions of employment must be achieved through the collective negotiations process because unilateral action is destabilizing to the employment relationship and contrary to the principles of the act. The Supreme Court of New Jersey reiterated this statutory duty to negotiate: “Thus, employers are barred from unilaterally altering … mandatory bargaining topics, whether established by expired contract or by past practice, without first bargaining to impasse.”
After analysis, PERC found that the city’s interest in settling litigation concerning alleged constitutional violations by its police department via a consent decree with the DOJ does not outweigh the union’s statutory rights to collectively negotiate over mandatorily negotiable terms and conditions of employment. The city cannot, through the consent decree, shield itself from a finding, pursuant to New Jersey state law, that its disciplinary matrix and general orders violated the Employer–Employee Relations Act by unilaterally changing mandatorily negotiable disciplinary procedures in the parties’ CNAs. Accordingly, they held that the city’s unilateral implementation of the disciplinary procedures and disciplinary matrix breached its statutory obligation to negotiate with the union over “proposed new rules or modifications of existing rules” as well as “disciplinary disputes” and therefore violated subsection 5.4a(5) of the act and, derivatively, 5.4a(1). Moreover, PERC found that the general orders made unilateral changes to negotiable terms and conditions of employment during pending contract negotiations, which is destabilizing to the employment relationship and contrary to the principles of the Act. Such unilateral changes create a chilling effect on negotiations for a successor contract and constitute a refusal to negotiate.