New Jersey Public Employment Relations Commission
City of Newark
Petitioner
v.
F.O.P. Lodge
12
Respondent
No. SN-2004-13;
P.E.R.C. No. 2004-36
2003 NJPER (LRP) Lexis 176
29 NJPER 174
December 19, 2003
Decision
On August 29, 2003, the City of Newark
petitioned for a scope of negotiations determination. The City seeks a
restraint of binding arbitration of a grievance filed by F.O.P. Lodge 12. The
grievance contests the City’s decision not to re-arm an officer.
The parties have filed briefs and
exhibits. These facts appear.
The FOP represents the City’s police
officers. The parties’ collective negotiations agreement is effective from
January 1, 2003 through December 31, 2004. The grievance procedure ends in
binding arbitration.
On January 12, 2000, a police officer was involved in the shooting of a
civilian. The City confiscated the officer’s weapon and he booked out on stress
leave.
In June 2000, the officer was examined by the City’s psychologist who
found him basically fit for duty. The psychologist noted that the officer was
not a danger to himself or others, but “his inclination towards a macho
approach to police work could potentially portend difficulty if it is not
moderated through some counseling.”
On October 17, 2000, a Special Deputy
Attorney General advised the Police Director that a grand jury had determined
there was no cause for action against the officer. She added:
Their
determination, however, is not to be construed as an exoneration. Specifically,
we are concerned about the number of shooting incidents [the] Officer ... has
been involved [in] in his relatively short career. Therefore, we are referring
this matter back to you for whatever administrative, disciplinary and/or retraining
your department deems appropriate.
On January 3, 2001, the City’s
psychologist wrote to a captain in the Internal Affairs Office. She stated that
the officer was fit for duty and may have possession of his weapon for regular police
duty.
On January 26, 2001, the City and the police officer were served as
defendants in a lawsuit filed by the civilian who was shot. That lawsuit
alleges violations of the civilian’s civil rights, assault and battery, and
negligent hiring and retention. It is still pending.
On April 3, 2001, the City’s supervisor of medical services indicated
that the officer had completed required counseling and that based on a review
of psychological reports, memoranda and other paperwork there was no reason to
keep the officer on “light duty” status. The supervisor further indicated that
the officer was medically fit to be re-armed and returned to full duty status
if an ongoing internal investigation cleared him and subject to the approval of
the Police Director.
An investigation is pending before the
United States Attorney’s office. On October 21, 2003, that office served
subpoenas on the City for records pertaining to the civil litigation.
On February 3, 2003, the FOP filed a grievance asserting that the City’s
failure to re-arm the officer violated the parties’ contract. It cited
provisions on Recognition, Maintenance of Standards, Management Rights, Rules
and Regulations, Investigations, and Discipline. The City denied the grievance and the FOP demanded arbitration.
This petition ensued.
Our jurisdiction is narrow. Ridgefield
Park Ed. Ass’n v. Ridgefield Park Bd. of Ed., 78 N.J. 144, 154 (1978), states:
The
Commission is addressing the abstract issue: is the subject matter in dispute
within the scope of collective negotiations. Whether that subject is within the
arbitration clause of the agreement, whether the facts are as alleged by the
grievant, whether the contract provides a defense for the employer’s alleged
action, or even whether there is a valid arbitration clause in the agreement or
any other question which might be raised is not to be determined by the
omission in a scope proceeding. Those are questions appropriate for
determination by an arbitrator and/or the courts.
In Paterson Police PBA No. 1 v. City of
Paterson, 87 N.J. 78 (1981), our Supreme Court outlined the steps of a scope of
negotiations analysis for police officers and firefighters. The Court stated:
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 and condition of employment as we have
defined that phrase. An item that intimately and directly affects the work and
welfare of police and fire fighters, 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 fire fighters, 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. [Id. at 92-93; citations omitted]
Arbitration will be permitted if the
subject of the dispute is mandatorily or permissively negotiable. See
Middletown Tp., P.E.R.C. No. 82-90, 8 NJPER 227 (113095 1982), aff’d NJPER
Supp.2d 130 (P.111 App. Div. 1983). Paterson bars arbitration only if the
agreement alleged is preempted or would substantially limit government’s
policymaking powers.
The City argues that whether or not police officers should carry
firearms while on duty is a managerial prerogative that implicates how a public
service is performed.
The FOP responds that the City has not made a policy decision not to
re-arm this officer. It asserts that the officer has been cleared to return to
full duty status by the City and its psychologist and that the only remaining
issue set forth by the City is the outstanding investigation by the U.S.
Attorney’s office. It argues that since the U.S. Attorney is not the employer,
that investigation should not prevent the officer from being re-armed.
The City replies that there is civil litigation pending regarding the
shooting incident as well as the pending federal investigation. It argues that
its policy reason for not rearming the officer is based on, but not limited to,
the safety and welfare of the public and the City and its supervisors’
potential liability for the consequences of re-arming an officer prior to the
completion of all litigation.
We have long held that the decision whether or not to arm a police officer is a policy decision not subject to mandatory negotiations. Hudson Cty., P.E.R.C. No. 93-37, 19 NJPER 3 (124002 1992); Brookdale Comm. College, P.E.R.C. No. 77-53, 3 NJPER 156 (1977). We have also restrained arbitration in a case involving these same parties where the FOP challenged the Police Director’s decision to relieve an officer of his service revolver after a citizen complaint. City of Newark, P.E.R.C. No. 83-158, 9 NJPER 374 (114169 1983). An arbitration award requiring the City to re-arm this officer would substantially limit the City’s policymaking power to determine the conditions under which it is proper for its police officers to be armed. Accordingly, we restrain binding arbitration.
The request of the City of Newark for a restraint of binding arbitration
is granted.