New Disciplinary Matrix And Procedures Are Negotiable

Written on 08/06/2022
Will Aitchison

For many years, FOP Lodge 12 has represented officers working for the Newark, New Jersey Police Department. The Newark Police Superior Officers’ Association (SOA) represents supervisors in the Department. When the City unilaterally implemented a disciplinary matrix, the FOP and the SOA filed unfair labor practice complaints with New Jersey’s Public Employment Relations Commission.

PERC agreed with the unions and found the unilateral adoption of the matrix to be a mandatory subject for bargaining. PERC noted that “this Commission and the 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 our Act. Thus, employers are barred from unilaterally altering mandatory bargaining topics, whether established by expired contract or by past practice, without first bargaining to impasse.

“Here, the record establishes that the City’s promulgation of a disciplinary matrix resulted in unilateral changes to disciplinary procedures for the FOP and SOA units that were established via contractual agreement and through the negotiated disciplinary and investigation procedures the parties had agreed to. City does not contest that it made these changes. Thus, the City will have violated its statutory obligation to negotiate if the subjects of its unilaterally implemented procedural changes are mandatorily negotiable.

“The Commission and courts have held that procedural safeguards associated with discipline and investigations intimately and directly affect employees and do not significantly interfere with the ability of a public employer to impose discipline.” PERC then noted that the City’s matrix omitted the following disciplinary procedures that had been contained in prior rules:

  • Notifications were provided to officers of complaints filed against them and notification of the outcome of the investigation;
  • Investigations for serious complaints included interviews of the complainant, all witnesses, and the subject officer;
  • Officers were granted the right to consult with and have a union representative present for the subject officer during criminal allegation interview;
  • Officers must be informed of differences between being a witness or subject of criminal investigation and a witness acknowledgment form must be completed;
  • Witness officers had the right to a union representative if they reasonably believed the interview could lead to administrative charges;
  • A witness in an investigation of administrative allegation was obligated to cooperate and was informed of the difference between being a witness and subject, and completed a witness acknowledg­ment form;
  • Subject officers to an admin­istrative allegation were provided a hearing date within a reasonable time, a discovery package from the internal affairs file, proper notification was given to all witnesses, and a copy of the decision was provided to the subject officers; and
  • Investigative files were main­tained securely and confidentially for prescribed periods of time and only released under certain circumstances, and entries of investigative records into personnel files were limited to when the complaint was sustained and discipline imposed.

“We find that all of these are man­datorily negotiable pre-disciplinary procedures concerning due process is­sues such as time frames, informational and notice issues, evidence and witness­es during a hearing, and the right to different levels of union representation under certain circumstances. As such, the City violated the Act by unilaterally implementing these changes.

“Also, the City’s definition of ‘ma­jor offense’ added unspecified ‘serious violations of City Ordinances or Motor Vehicle violations.’ The City’s defini­tion of Division Policy, the violation of which can constitute the basis for minor or major discipline, changed from a list including rules, regulations, and general orders, to the Division’s general and unspecified goals and objectives concerning officer’s interactions with people. Informing employees of what actions may result in discipline is negotiable. Thus, to the extent the changes to these definitions fail to inform employees of which offenses or violations will result in discipline, they are mandatorily negotiable.

“We next address the City’s chief defense of its unilateral changes to negotiable disciplinary procedures: that its consent decree requires it to implement the changes and that the consent decree effectively supersedes the parties’ labor agreements and the Commission’s unfair practice jurisdic­tion. Contrary to the City’s assertion, the consent decree does not supersede applicable state law, e.g., the New Jersey Employer-Employee Relations Act, or abrogate the City’s contractual obliga­tions pursuant to its collective negoti­ations agreements with the FOP and SOA. Further, the Supreme Court has been clear that an employer’s voluntary settlement agreement with a third party (including a government entity) may not unilaterally change the provisions of a labor agreement.”

City of Newark, 2022 WL 2168226 (N.J. PERC 2022).

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