P.E.R.C. No. 2000-3, Clinton Tp

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of TOWNSHIP OF CLINTON, Petitioner, -and- Docket No. SN-99-72 CLINTON P.B.A. LOCAL 329, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, Archer & Greiner, P.C., attorneys ¶

(Michael W. Sozansky, Jr., on the brief) ¶

For the Respondent, Abramson & Liebeskind Associations, Labor Relations Consultants (Arlyne K. Liebeskind, consultant) ¶

DECISION ¶

On March 18, 1999, the Township of Clinton petitioned for a scope of negotiations determination. The Township seeks a determination that a work schedule proposal that Clinton P.B.A. Local 329 has submitted to interest arbitration is not mandatorily negotiable. ¶

The parties have filed briefs, exhibits, certifications, and reply certifications. The Township has requested oral argument. 1/ These facts appear. ¶

The PBA represents all full-time, permanent police officers and superior officers through the rank of sergeant. The ¶

Note1/ We deny that request. The parties' positions have been fully addressed in the submissions. ¶

parties' most recent contract expired on December 31, 1998. The parties have engaged in successor contract negotiations and the PBA has petitioned for interest arbitration. ¶

Article XXIII of the parties' expired agreement provides: ¶

1. This provision memorializes the agreement of the Township and the PBA regarding the "Pink Day" arbitration: ¶

1. The Patrol Force in the Operations Division will work the following Schedule: ¶

a) There will be five (5) squads, one of which will be a "Power Squad." The squads will work a four (4) day on, two (2) day off, (or six (6) day) schedule. ¶

b) The parties understand and agree, however, that the standard weekly work schedule for employees covered by this agreement requires employees' services continuously throughout the seven (7) day week. ¶

c) This agreement represents a complete and final settlement between the parties as to their hours of work shift moving forward (7-3, 3-11, 11-7) and work week (4 on 2 off - 8 hour shifts). ¶

2. The Township reserves the right to determine and evaluate the efficiency and productivity of this new schedule. ¶

3. In the event either party is dissatisfied with this schedule, they shall present substantial documentation supporting their position and they will negotiate any different schedule changes. ¶

4. The schedule or shift assignment of an individual assigned to the Patrol Force of the Operations Division shall not be changed without seven (7) days advance notice to the employee except in an emergency or if said change, upon shorter notice, is acceptable to both parties. ¶

The PBA has proposed the following work schedule: ¶

1. Delete current language to reflect a replacement schedule as follows: ¶

1. The Patrol Force in the Operations Divisions will work the following schedule: ¶

a. There will be a total of six (6) squads, one of which will be a "power squad." The squads will work ten (10) hour shifts moving forward from 7am-5pm, 2pm-12am, and 9pm-7am. ¶

b. The work schedule shall consist of four (4) consecutive days on followed by four (4) consecutive days off. ¶

c. Delete as obsolete ¶

4. Increase change of shift notification from seven (7) days to fourteen (14) days. ¶

The Township asserted that this proposal would have a far-reaching impact. In a certification, the acting police chief, Stephen E. Clancy, stated that the current shift schedule and squad number maximizes efficiency. He indicated that altering the shift schedule from eight to ten hours and increasing the squads from five to six would cause problems such as overlaps in scheduling, coverage gaps, the need to hire additional officers, supervision problems and increased overtime. He further stated that increasing the number of squads would require scheduling an additional supervisor to handle the additional squad. Currently, one superior officer is assigned to each squad. ¶

Clancy also asserted that the PBA's proposal would require that each officer receive overtime compensation for every shift because the current agreement requires that work in excess of eight and one-half hours on an assigned shift is to be paid at time and one-half. He also stated that at present officers are working 1946 hours a year. Under the PBA's proposal, officers would be working 1824 hours per year. He asserted that they would be working less hours per year at a higher cost. Clancy stated that the PBA's proposal would also affect such benefits as holidays, sick time and vacation because these days are calculated based on shift hours. ¶

The PBA responded with a concession that its work schedule proposal is contingent upon the Township filling positions vacated by three retirees. The PBA therefore modified its proposal to include a caveat that the proposal would not go into effect until three replacement officers are hired. In the alternative, the PBA states that it will propose a reopener clause to reopen negotiations for a new work schedule when the force is brought up to the normal complement. According to the PBA, any overlaps in shift times could be aligned to best suit the Township's needs. And, supervision would not be a problem as it could be handled as it is currently, with the senior sergeant or supervisor on each shift in charge. The PBA also rejects the Township's increased overtime argument. The PBA submits that changes in related provisions could be considered during the negotiations for a new work schedule. ¶

The Township replied that the PBA's modified proposal still does not address its concerns about overlaps in coverage. ¶

Paterson Police PBA No. 1 v. Paterson, 87 N.J . 78 (1981), outlines the scope of negotiations analysis for police officers and firefighters: ¶

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. ¶

[87 N.J. at 92-93; citations omitted] ¶

We will consider only whether the revised proposals are mandatorily negotiable. We do not decide whether contract proposals concerning police officers are permissively negotiable since the employer need not negotiate over such proposals or consent to their retention in a successor agreement. Town of West New York, P.E.R.C. No. 82-34, 7 NJPER 594 (¶12265 1981). ¶

Work hours has long been considered a mandatorily negotiable term and condition of employment. Englewood Bd. of Ed. ¶

v. Englewood Ed. Ass'n, 64 N.J . 1, 6-7 (1973); see also Hunterdon Cty. Freeholder Bd. v. CWA , 116 N.J. 322, 331 (1989); Woodstown-Pilesgrove Reg. School Dist. v. Woodstown-Pilesgrove Reg. Ed. Ass'n , 81 N.J. 582, 589, 594 (1980); State v. State Supervisory Employees Ass'n, 78 N.J. 54, 67 (1978); Galloway Tp. Bd. of Ed. v. Galloway Tp. Bd. of Ed. Sec'ys, 78 N.J . 1, 8 (1978); Burlington Cty. College Faculty Ass'n v. Bd. of Trustees , 64 N.J . 10, 12 (1973). Recognizing that the subject of work hours encompasses work schedules setting the hours and days employees will work, the Court has held that work schedules are generally negotiable. Local 195, at 411-412. Accord Hardin, The Developing Labor Law , 882-883 (3d ed. 1992). The Legislature has also expressly designated work hours as a negotiable terms and condition of employment for police officers and firefighters. N.J.S.A. 34:13A-14 et seq.; N.J.S.A . 34:13A-16g(2) and (8). ¶

Consistent with the Supreme Court's cases and the Legislature's decrees, the Commission and the Appellate Division have generally held that work schedules of police officers and firefighters are mandatorily negotiable. See cases cited in Maplewood Tp., P.E.R.C. No. 97-80, 23 NJPER 106, 113 (¶28054 1997). However, the Commission and the Appellate Division have also found exceptions to the rule of negotiability when the facts prove a particularized need to preserve or change a work schedule to protect a governmental policy determination. See, e.g., Irvington PBA Local #29 v. Town of Irvington , 170 N.J. Super. 539 (App. Div. 1979), certif. den. 82 N.J . 296 (1980); Borough of Atlantic Highlands and Atlantic Highlands PBA Local 242, 192 N.J. Super. 71 (App. Div. 1983), certif. den. 96 N.J . 293 (1984); Jackson Tp., P.E.R.C. No. 93-4, 18 NJPER 395 (¶23178 1992); Borough of Prospect Park , P.E.R.C. No. 92-117, 18 NJPER 301 (¶23129 1992). ¶

Maplewood sums up our approach when labor or management presents a facially valid work schedule proposal during interest arbitration. We stated: ¶

When the Legislature required negotiations over terms and conditions of employment, it recognized that both management and employees would have legitimate concerns and competing arguments and it decided that the negotiations process was the best forum for addressing those concerns and arguments and the best way to improve morale and efficiency. See N.J.S.A. 34:13A-2; Woodstown-Pilesgrove at 591. When the Legislature approved interest arbitration as a means of resolving negotiations impasses over the wages, hours, and employment conditions of police officers and firefighters, it recognized that both management and employees would have legitimate concerns and competing evidence and it decided that the interest arbitration process was the best forum for presenting, considering, and reviewing those concerns and evidentiary presentations and the best way to ensure the high morale of these employees and the efficient operation of their departments. N.J.S.A. 34:13A-14 et seq. Indeed, the Legislature expressly instructed interest arbitrators to consider the public interest and welfare in determining wages, hours, and employment conditions and contemplated that such considerations would be based on a record developed by the parties in an interest arbitration proceeding. N.J.S.A. 34:13A-16g(1). See also Hillsdale PBA Local 207 v. Borough of Hillsdale, 137 N.J . 71 (1994). The question, then, is not which party should prevail in negotiations or interest arbitration or whether a particular proposal raises some legitimate concerns, but whether the facts demonstrate that a particular work schedule issue so involves and impedes governmental policy that it must not be addressed through the negotiations process at all despite the normal legislative desideratum that work hours be negotiated in order to improve morale and efficiency. ¶

In this case, the PBA has recognized that its initial proposal required increased staffing levels and has modified that proposal to require that implementation be contingent upon filling three positions or that negotiations be reopened should staffing levels increase. That concession narrows the parties' dispute and moots the Township's factual assertions based on the existing staffing levels. ¶

The PBA's current work schedule proposal is facially valid. It may or may not be the best or even a realistic way to allocate police department resources. However, the parties' arguments about the efficiency of the proposed work schedule given higher staffing levels need not be resolved now and instead should be evaluated by the interest arbitrator to see if they warrant adoption. Given the judicial recognition and legislative directive that work hours are generally negotiable, we cannot say, on this record, that this work schedule should be declared non-negotiable. ¶

The employer's concerns about potential overlaps in coverage if staffing levels are increased may be legitimate, but they do not warrant cutting off the interest arbitration process altogether. Both parties may develop a full record enabling the interest arbitrator to evaluate their concerns in light of the public interest and all the statutory criteria. We make no judgment on the merits of the work schedule issue in interest arbitration and note that we have jurisdiction to review interest arbitration awards. N.J.S.A. 34:13A-16f(5)(a). ¶

OrderORDER ¶

The revised proposal of Clinton PBA Local 329 is mandatorily negotiable. ¶

BY ORDER OF THE COMMISSION ¶

Millicent A. Wasell ¶

Chair ¶

Chair Wasell, Commissioners Buchanan, McGlynn, Muscato and Ricci voted in favor of this decision. Commissioner Madonna abstained from consideration. Commissioner Boose was not present. ¶

DATED: July 29, 1999 ¶

Trenton, New Jersey ¶

ISSUED: July 30, 1999 ¶