P.E.R.C. No. 2006-4, Vineland

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of CITY OF VINELAND, Petitioner, -and- Docket No. SN-2005-080 INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 210, Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission denies the request of the City of Vineland for a restraint of binding arbitration of a grievance filed by the International Brotherhood of Electrical Workers, Local 210. The grievance alleges that certain employees have had their work week changed in violation of the parties’ agreement. The Commission concludes that the employees’ interest in negotiating over the length of the workday and a paid lunch break outweigh the employer’s interest in determining these issues unilaterally. The Commission also holds that this dispute is not preempted by the Fair Labor Standards Act. ¶

This synopsis is not part of the Commission decision. It has been prepared for the convenience of the reader. It has been neither reviewed nor approved by the Commission. ¶

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of CITY OF VINELAND, Petitioner, -and- Docket No. SN-2005-080 INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 210, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, Eli B. Kuhnreich, Assistant Solicitor, on the brief ¶

For the Respondent, Cohen, Leder, Montalbano & Grossman, LLC, attorneys (Bruce D. Leder, on the brief) ¶

DECISION ¶

On May 20, 2005, the City of Vineland petitioned for a scope of negotiations determination. The City seeks a restraint of binding arbitration of a grievance filed by the International Brotherhood of Electrical Workers, Local 210. The grievance alleges that certain employees have had their work week changed in violation of the parties’ agreement. ¶

The parties have filed briefs and exhibits. These facts appear. ¶

The IBEW represents certain full-time white collar and blue collar non-professional employees including Telecommunications Operators and the Animal Control Officer. The parties’ collective negotiations agreement is effective from January 1, 2001 through December 31, 2005. The grievance procedure ends in binding arbitration. ¶

Article 8 is entitled Management Rights. Section 1 recognizes the City’s right to determine “schedules of work” except as specifically limited in the agreement. Article 16 is entitled Hours and Working Conditions. Section 1 provides that “Work weeks shall normally be comprised of an eight (8) hour day and a forty (40) hour work week or a seven and one-half (7 1/2) hour work day for those with a thirty-seven and one-half (37 1/2) hour work week.” Section 7 provides: ¶

All Communications Operators, Typing covered under the terms and conditions of this Agreement shall work a forty (40) hour work week. For the purpose of this Agreement, work week shall be defined as the seven (7) day period commencing Sunday and ending Saturday. The forty (40) hour work week provision as negotiated and such scheduled does not result in any claim for overtime unless work is performed beyond the normal schedule and as provided in Articles 16 and 17. ¶

A police department auto mechanic questioned why he was not being paid for his lunch break as other employees were. In response, the City eliminated the paid lunch break for the other employees and issued the following memorandum dated September 27, 2004: ¶

A member of Local 210 of I.B.E.W. has filed a complaint in that he is not being paid for his lunch when other members of the same bargaining unit were being paid during their lunch time. ¶

This situation was discussed with the Union President by the City Administrator without resolution. The situation was then referred to the City Solicitor’s Office for resolution. ¶

I am in receipt of their ruling that the Animal Control Officer and Public Safety Telecommunications Operators do not meet the test to be paid for their lunch break as established by the Fair Labor Standards Act. Accordingly, the Animal Control Officer and Public Safety Telecommunications Operators will have their hours of work changed to include a minimum . . . thirty (30) minute lunch break effective October 17, 2004. ¶

On October 1, 2004, the IBEW filed a grievance alleging that the change in the 40-hour work week violated Article 16, Section 7. The grievance was denied at all levels. On April 28, 2005, the IBEW demanded arbitration. This petition ensued. ¶

The City maintains that it had a managerial prerogative to change work schedules and adds that the Fair Labor Standards Act does not require paid lunch periods. ¶

The IBEW counters that work hours intimately and directly affect the welfare of employees and are generally mandatorily negotiable. It contends that the parties agreed to a 40-hour week consisting of 8-hour workdays, with a ½ hour paid lunch. By eliminating the ½ hour paid lunch and instituting a ½ hour unpaid lunch, the City allegedly imposed an eight and ½ hour work day. The IBEW maintains that the City has not identified any governmental policies that were thwarted by the paid lunch breaks and contends that the FLSA does not preclude an employer from agreeing to provide paid lunch breaks. ¶

Our jurisdiction is narrow. Ridgefield Park Ed. Ass’n v. Ridgefield Park Bd. of Ed., 78 N.J. 144, 154 (l978), 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 Commission in a scope proceeding. Those are questions appropriate for determination by an arbitrator and/or the courts. ¶

Thus, we do not consider the merits of the grievance or any contractual defenses the employer may have. We specifically do not consider the City’s contention that it had a contractual right to change unit members’ work schedule and lunch period. ¶

Local 195, IFPTE v. State, 88 N.J . 393 (1982), articulates the standards for determining whether a subject is mandatorily negotiable: ¶

[A] subject is negotiable between public employers and employees when (1) the item intimately and directly affects the work and welfare of public employees; (2) the subject has not been fully or partially preempted by statute or regulation; and (3) a negotiated agreement would not significantly interfere with the determination of governmental 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. [Id . at 404-405] ¶

No statute or regulation preempts negotiations by mandating that the employer use a particular work schedule or by requiring or prohibiting duty-free paid lunch breaks. The question then is whether, based on a balancing of the parties’ interests in light of the facts, the change in work hours and the elimination of the paid lunch period involve mandatorily negotiable terms and conditions of employment. Local 195 at 404; see also City of Jersey City v. Jersey City POBA, 154 N.J. 555, 574 (1998). ¶

Work hours are among the most fundamental terms and conditions of employment. Englewood Bd. of Ed. v. Englewood Teachers Ass’n, 64 N.J. 1, 8-9 (1973); Burlington Cty. Coll. Faculty Ass’n v. Bd. of Trustees, 64 N.J . 9 (1973); State Supervisory at 67; Woodstown-Pilesgrove Reg. Sch. Dist. Bd. of Ed. v. Woodstown-Pilesgrove Reg. Ed. Ass’n, 81 N.J. 582, 589 (1980); Local 195; see also Troy v. Rutgers, 168 N.J . 364 (2001) (employer did not have managerial prerogative to determine number of days employee could work). Generally included in the duty to negotiate over work hours is the duty to negotiate over the length of the work year, workweek and workday. Galloway Tp. Bd. of Ed. v. Galloway Tp. of Ed. Sec., 78 N.J . 1, 8 (1978). Also included is the duty to negotiate, upon request, over paid, duty- free lunch periods. Morris Cty. Prosecutor, P.E.R.C. 2004-75, 30 NJPER 204 (¶76 2004); Trenton Bd. of Ed ., P.E.R.C. No. 92-91, 18 NJPER 133 (¶23063 1992). On the other hand, an employer generally has a prerogative to determine the hours during which it will offer its services. Local 195. ¶

Within this framework, the City does not contend that the elimination of paid lunch breaks was necessary to, or connected with, a decision concerning the hours during which the City will provide services. Nor does it assert that the change in work schedule and lunch breaks was a result of any other governmental policy determination. Accordingly, applying the negotiability balancing test to the facts of this case, we conclude that the employees’ interests in negotiating over the length of the workday and a paid lunch break outweigh the employer’s interest in determining these issues unilaterally. Unit members are removed from the labor market when they are either at work or at lunch and the employer could legally agree to continue the previous work schedule and lunch break for the affected employees. The City has not shown that binding arbitration to enforce such an alleged agreement would significantly interfere with any governmental policy determination. ¶

FLSA regulations, specifically 29 C.F.R. § 785.19, do not change this analysis. That regulation requires that an employer provide for a paid lunch period where the employee is not relieved from duty. It does not prohibit employers from agreeing to provide a paid, duty-free lunch break. Indeed, an FLSA guidance document submitted by the City indicates that breaks and rest periods “are usually for private agreement between employers and employees.” Therefore, the FLSA does not preempt negotiations over this topic. Bethlehem Tp. Bd. of Ed. and Bethlehem Tp. Ed. Ass’n, 91 N.J. 38, 44 (1982); State v. State Supervisory Employees Ass’n, 78 N.J. 54, 80 (1978). ¶

For the foregoing reasons, the grievance is legally arbitrable. ¶

OrderORDER ¶

The request of the City of Vineland for a restraint of binding arbitration is denied. ¶

BY ORDER OF THE COMMISSION ¶

Lawrence Henderson ¶

Chairman ¶

Chairman Henderson, Commissioners Buchanan, DiNardo, Fuller and Watkins voted in favor of this decision. None opposed. Commissioners Katz and Mastriani were not present. ¶

DATED: July 28, 2005 ¶

Trenton, New Jersey ¶

ISSUED: July 28, 2005 ¶