NJ Court Rules Assignment of Probationary Firefighters Is Bargainable

Where firefighters are able to collectively bargaining, what subjects are bargainable, and what subjects not? That question intrigued me in law school to the point that it became the focus of my senior thesis: The Scope of Collective Bargaining for Firefighters.

That question was the focus of a decision handed down today by the Appellate Division of the New Jersey Superior Court. The case involved an appeal of a New Jersey Public Employment Relations Commission ruling concluding that the assignment of probationary firefighters with the Borough of Cateret Fire Department was bargainable.

The Borough assigned two probationary firefighters who completed their training to work days while the collective bargaining agreement stated all personnel assigned to firefighting duties were to be assigned to work a 24-72 schedule.

As explained in the ruling:

  • In this matter arising out of a labor relations dispute, the Fireman’s Mutual Benevolent Association, Local 67 (FMBA) sought arbitration of a grievance contesting the failure of the Borough of Carteret Fire Department (Borough) to reschedule two probationary firefighters from a daytime, weekly work schedule to twenty-four hour shifts following the completion of their fire fighter training.
  • The Borough filed a scope of negotiations petition with the Public Employment Relations Commission (PERC), seeking an order restraining arbitration.
  • After reviewing briefs, exhibits, and certifications from FMBA’s president and the Borough fire chief, PERC concluded the grievance was mandatorily negotiable and denied the Borough’s petition.
  • [The Borough then appealed the PERC decision arguing that the assignment of probationary firefighters is not negotiable but rather a management prerogative.]
  • The CNA states “[t]he work week for all employees of the Fire Department who perform firefighting duties shall be what is commonly known as the ’24-72 system.'”
  • Under this schedule, firefighters work twenty-four consecutive hours, followed by seventy-two consecutive hours off-duty.
  • Employees can also be assigned to a relief shift, and these employees “shall not work more than [forty-eight] hours or less than [twenty-four] hours in any week.”
  • The CNA also provides that department employees can be assigned to the Bureau of Fire Safety (Bureau) and work “four days a week, nine hours a day, on a Monday through Friday basis.”
  • The CNA mandates that rookie firefighters complete a twelve-month term of probationary service.
  • No firefighting position is deemed final or permanent until a firefighter completes the probationary term.
  • The Borough may terminate the employment of a probationary firefighter if the Borough deems the employee unfit for permanent employment.
  • After graduating from the Fire Academy, the two probationary firefighters were assigned to the Bureau shift by the Fire Chief.
  • FMBA grieved the assignment, contending the probationary firefighters should be assigned to the 24-72 schedule followed by all the other firefighters. FMBA sought binding arbitration of the issue.
  • In seeking a restraint of arbitration, the Borough argued that the “assignment of probationary firefighters to the daytime, weekly work schedule is not mandatorily negotiable . . . .”
  • The Fire Chief contended it was his managerial prerogative, not a negotiable term, to determine a probationary firefighter’s shift, as public safety was the most important factor in his decision – making process.
  • The Fire Chief asserted the assignment to the Bureau shift allowed the probationary firefighters to complete their training at the Fire Academy and “work during daytime hours where they receive additional training, both in-house and other outside day-time schooling, and, importantly, are available for observation and evaluation by management . . .
  • PERC issued its decision on November 26, 2020, finding “the grievance is mandatorily negotiable and legally arbitrable. The FMBA’s claim relates to the determination of work schedules, which is a mandatorily negotiable issue absent evidence that such negotiations would substantively interfere with governmental policy making.”
  • PERC has primary jurisdiction to determine in the first instance whether a matter in dispute is within the scope of collective negotiations.
  • Thus, “[i]n the absence of constitutional concerns or countervailing expressions of legislative intent, we apply a deferential standard of review to determinations made by PERC.”
  • The Borough further asserts that PERC’s decision “usurps management’s evaluation of probationary firefighters[,]”disregards the “[CSA], is well beyond the scope of the [CNA][,] and [directly conflicts] with managerial prerogative.” It argues that PERC’s decision “interferes with (1) the managerial policy decision of qualification; (2) the particularized need to keep probationary firefighters on their assigned schedule until they are capable of performing their jobs with limited oversight; and (3) public safety. . . .” Thus, it contends PERC’s decision failed to follow the law and violates express and implied legislative policies.
  • Although the Borough argues the probationary firefighters must receive further training and instruction before they are assigned to the 24 -72 shift, the probationary firefighters have completed the statutorily required training.
  • When a firefighter completes the required training program and receives Firefighter I and Firefighter II certifications, that firefighter “may perform interior structural firefighting under direct supervision.”
  • In addition, “[f]ire departments shall be authorized to permit the firefighter . . . to respond to fire alarms, and under direct supervision, assist in all exterior firefighting operations.”
  • Therefore, if the arbitrator were to schedule the probationary firefighters on the 24-72 shift, the firefighters would be legally qualified to perform the functions of the job, as they have completed the necessary training.
  • In addition, the Borough would still retain the power to terminate the probationary firefighters. Therefore, the arbitration of
  • probationary firefighters’ individual work schedules neither undermines the Fire Chief’s power to evaluate probationary firefighters, nor violates express or implied legislative 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.” Ibid.
  • Work schedules and hours of work are “prime examples” of subjects that “intimately and directly affect the work and welfare of public employees.”
  • A public employer must place facts on the record “in support of its need, from a policy making point of view,” to “counterbalance the direct and intimate effect” work schedules have on employees.
  • A review of the record reflects the Borough has failed to explain how scheduling the probationary firefighters to the 24-72 shift would interfere with governmental policy, since they are being trained and “mentored” by firefighters working the 24-72 shift.
  • In addition, the CNA states “[t]he work week for all employees of the Fire Department who perform firefighting duties shall be what is commonly known as the ’24-72 system.'”
  • The probationary firefighters are classified as firefighters and therefore their proper work schedule is the 24-72 shift.
  • Having considered the Borough’s arguments under our deferential standard of review, we affirm PERC’s decision denying the Borough’s petition.
  • The decision is supported by sufficient credible evidence on the record, and is neither arbitrary nor capricious.
  • Affirmed.

Here’s a copy of the decision:

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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