Labor Relations Report
Collective negotiations agreements (CNAs) exist to increase the general efficiency of the police department, to maintain the existing harmonious relationship between the police department and its employees and to promote the morale, rights and well-being of the parties. The goal is for the agreement to represent the complete and final understanding on all bargainable issues between the employer and the employees in the bargaining unit. In a perfect world, that would be sufficient. Since we work in the real world, the agreement must always contain a grievance procedure, because there will certainly be “misunderstandings.” The grievance procedure must include how arbitration will be handled and can even name a preselected arbitrator that will be used.
A grievance can be defined as any complaint, difference or dispute between the employer and any employee with respect to the interpretation, application or violation of any of the provisions of the agreement, or any applicable rule, regulation, policy, agreement or administrative decision affecting any employee covered by the collective negotiations agreement. The grievance can be filed by an individual employee or the PBA on behalf of the employee or group of employees affected.
While most contracts allow anyone to begin a grievance at Step One, usually only the PBA can advance a grievance to the Public Employment Relations Commission (PERC) for binding arbitration. This step will require an attorney to request submission of a panel of arbitrators, so there is a financial cost attached that the PBA must consider and decide how to proceed.
For this reason, each Local should always have a grievance committee in place. The members of the committee can be chosen by the president based on their knowledge of the agreement, recognized practices of the department and a basic understanding of — or at least access to — the laws governing public employment. The grievance committee should consult the attorney for an opinion if there is any uncertainty. Advice can also come from other members of the county conference through the State Delegate.
A skilled interviewer on the committee can be assigned to interview the grievant to get an understanding of what happened. That interviewer is probably also skilled at case preparation. A grievance is similar to a criminal investigation in that regard. The committee members should also be chosen for their ability to remain objective. Ultimately, the decision to file and pursue a grievance should be based on what is best for all members of the Local. If a union representative decides not to pursue a valid grievance because of a personality conflict or other problem with an individual member, then all members are potentially bound by that inaction. By contrast, if all members file grievances every time they feel slighted by a supervisor, the Local’s position is weakened. The grievance committee is key to maintaining a productive process that protects the members and honors the spirit of the agreement.
The grievance procedure must clearly outline the steps that will lead to an eventual resolution of the grievance. Each step should have a specific time period to respond to the previous step. If the PBA misses a deadline, usually the right to advance is waived or it can later be contested by the employer as “untimely” and dismissed. If the employer fails to respond, it is generally considered a denial of the grievance, and the PBA can advance to the next step. The agreement will be controlling in all disputes, so it is very important to be prepared for each subsequent step, working under the assumption that the grievance will be denied quickly.
Those time periods will vary in different contracts and may vary at each step in your agreement. Most begin with a verbal discussion with a direct supervisor or command-level administrator. While simple misunderstandings can generally be resolved at this level, more complex disputes must go to the next step. Generally, the boss receiving the grievance will have a set number of days to answer. That answer may or may not be in writing, but once received, the clock starts on the next step.
In my experience, prior to addressing the grievance verbally with the captain at Step One, I always prepared the grievance in writing for presentation to the chief at Step Two. It usually begins “This represents Step Two of the grievance procedure … after failing to reach a settlement at Step One.” With that in hand, I had all the details that were germane to the grievance discussion and that gave me the ability to make a cogent argument. If we didn’t get a resolution, I handed the grievance to the chief and the clock reset for his written response.
After getting an understanding of the employer’s position (with copious notes) from Step One, it is advisable for the PBA president to notify the Local’s attorney of the grievance. This will at least give her notice to get prepared for a timely response, even if she is not needed for the remaining steps at the Local level. It is much easier to archive a settlement than it is to rush briefs, exhibits and certifications required at PERC. Grievances are almost inevitable over time as things change, but they can be avoided by using unambiguous language in the contract.
Arbitrators are basically constrained by “the four corners” of the contract. If a clause is written properly and captures the intent of both parties, disputes can be minimized. An arbitrator is not allowed to add or change anything in a CNA. For that reason, before submitting a suspect case to an arbitrator, many employers will often file a petition with PERC requesting a scope of negotiations hearing, claiming that the item in dispute is a managerial prerogative and not negotiable.
All public-sector labor contracts cover items that are mandatorily negotiable, often described as “terms and conditions of employment.” In New Jersey, the scope of negotiations for police officers and firefighters is broader than for other public employees because N.J.S.A. 34:13A-16 provides for a permissive as well as a mandatory category of negotiations. Paterson Police PBA No. 1 v. City of Paterson outlines the steps of a scope of negotiations analysis for firefighters and police:
First, it must be determined whether the particular item in dispute is controlled by a specific statute or regulation. If it is, the parties may not include any inconsistent term in their agreement. State v. State Supervisory Employees Ass’n, 78 N.J. 54, 81 (1978). If an item is not mandated by statute or regulation but is within the general discretionary powers of a public employer, the next step is to determine whether it is a term or condition of employment as we have defined that phrase. An item that intimately and directly affects the work and welfare of police and firefighters, like any other public employees, and on which negotiated agreement would not significantly interfere with the exercise of inherent or express management prerogatives is mandatorily negotiable. In a case involving police and firefighters, if an item is not mandatorily negotiable, one last determination must be made. If it places substantial limitations on government’s policymaking powers, the item must always remain within managerial prerogatives and cannot be bargained away. However, if these governmental powers remain essentially unfettered by agreement on that item, then it is permissively negotiable.
This is an overview of the how the grievance procedure works in that proverbial “real world,” but unfortunately, we often encounter other issues involving past practice and unfair labor practices.
The PBA education committee has responded to the requests of the membership to provide training to Locals for grievances to supplement what is discussed at the collective bargaining seminar. The first class scheduled for June had an overwhelming response and filled quickly. We will gauge the need to add classes at the state office if there is sufficient interest. Knowledge of the process and an understanding of the strengths of members in the Local can help with some of the preliminary work needed, which serves to keep legal costs ready for when they are most needed.