P.E.R.C. No. 2010-10, Hopewell Tp

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of TOWNSHIP OF HOPEWELL, Respondent, -and- Docket No. CO-2008-323 PBA LOCAL 342, Charging Party. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission grants the PBA Local 342's motion for summary judgment and denies the Township’s cross-motion in an unfair practice case filed by the PBA. The PBA alleges the Township violated the New Jersey Employer- Employee Relations Act, N.J.S.A. 34:13A-1 et seq. , when it changed procedures for requesting annual or compensatory leave time. The Commission finds that the Township unilaterally changed terms and conditions of employment during interest arbitration proceedings by adding new conditions on last-minute leave requests. The Commission notes that the parties’ agreement still requires approval for leave requests and the Township has a managerial prerogative to deny requests that would prevent it from meeting its minimum staffing levels. ¶

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 TOWNSHIP OF HOPEWELL, Respondent, -and- Docket No. CO-2008-323 PBA LOCAL 342, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, Knapp, Trimboli & Prusinowski. LLC, attorneys (Fredric M. Knapp, of counsel and on the brief; Molly S. Marmion, on the brief) ¶

For the Charging Party, Loccke, Correia, Schlager, Limsky & Bukosky, attorneys (Lauren P. Sandy, on the briefs) ¶

DECISION ¶

This case comes to us by way of cross-motions for summary judgment. In the underlying unfair practice charge, PBA Local 342 alleges that the Township of Hopewell violated the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq., when it changed procedures for requesting annual or compensatory leave time. We grant the PBA’s motion for summary judgment and deny the Township’s cross-motion. ¶

The PBA filed its charge on April 25, 2008 and an amended charge on April 30. On January 20, 2009, a Complaint and Notice of Hearing issued on alleged violations of 5.4a(1) and (5).1/ On February 9, the Township filed its Answer, relying on a previously filed statement of position. The Township asserted that any action taken by the police department was permitted by the parties’ contract. ¶

The parties have filed briefs and certifications in support of their cross-motions. The material facts are not in dispute. ¶

The PBA represents the Township’s full-time patrol officers. The parties’ most recent collective negotiations agreement expired on December 31, 2006. Article Twelve is entitled “Annual Leave.” Section D provides: ¶

It is hereby recognized that the scheduling of annual leave periods is a management prerogative. In accordance with such recognition, annual leave periods shall be taken in four (4) hour increments (as much as that is possible) and approved by the Chief of Police in accordance with his decision to maintain efficiency and smooth operation of the Department. Nevertheless, individual exceptions may be made to such “block” vacation periods upon application to and approval by the Chief of Police. ¶

Article Seventeen is entitled “Compensatory Time.” It provides, in relevant part, that “Compensatory time may be taken by the Employee when authorized by the Chief of Police.” ¶

According to the PBA, before February 12, 2008, police officers were not required to articulate a reason to use annual or compensatory leave. SOP# 32, issued September 27, 1997, provided under “Annual Leave” that: ¶

Members of the police department are required to submit a request for annual leave for the following year by the end of October of the current year. That annual leave request must be for two “blocks” of days totaling a minimum of 72 hours. ¶

Annual leave requests may be denied due to scheduled events or activities which necessitate more than the minimum manpower (as defined in SOP 21) on duty. ¶

Additional requests for annual leave may be made throughout the year. Annual leave requests made by patrol officers and dispatchers must be approved by their Sergeant. The Patrol Commander will approve leave requests submitted by Sergeants, the Chief will approve leave requests submitted by officers above the rank of sergeant. ¶

Last minute leave requests, which are requests made the day the leave is desired need approval from the Superior Officer on Call or the Chief. ¶

Last minute leave requests that create overtime will not be permitted. ¶

Under “Compensatory Time,” SOP# 32 provided that “Compensatory time off is requested and scheduled utilizing the same guidelines as annual leave time.” ¶

According to the chief, early in 2008, he recognized that some police officers had developed a habit of calling in for a day off shortly before the start of their shifts. The chief states in his certification that: ¶

[t]his habit was producing a negative effect on the operations of the Police Department and made scheduling matters increasingly difficult. For example, if an officer called in for compensatory time or vacation time the day of his shift, the supervising officer, upon arriving to begin the shift would have to adjust the manpower assignments for the shift. This is especially detrimental concerning shifts where the supervising officer had arranged or planned for a special operation or training. ¶

* * * ¶

Specifically, last minute requests require approval by myself or the Supervisor Officer on call. . . . However, in the past, the Township’s police officers rarely obtained said approval from me or the Supervisor Officer on call. ¶

On February 12, 2008, during the pendency of interest arbitration proceedings for a successor collective negotiations agreement, the chief issued the following memorandum: ¶

In order to better maintain the efficiency and smooth operation of the police department, requests for the use of annual leave and compensatory leave must be submitted and approved at least 24 hours in advance of the requested time off. ¶

Supervisors are permitted to allow personnel to utilize annual leave and/or compensatory time to leave a scheduled shift early provided manpower requirements are met and doing so does not impair the efficiency and smooth operation of the department. ¶

If an employee needs to utilize annual leave time or compensatory time with less than 24 hours notice/approval, it may be granted for extraordinary circumstances. However, the employee will be required to articulate the circumstances and obtain approval from the shift supervisor working when the request is made. ¶

The chief states that he issued the memorandum due to the habit of officers requesting time off at the last moment and the adverse effect on minimum staffing needs. ¶

After he issued the memorandum, the chief met with the PBA president. The meeting concluded with the understanding that the president would meet with PBA members and would follow-up with the chief. In a subsequent meeting, the president informed the chief that the PBA did not agree with the change and would be taking action against it. ¶

On February 14, 2008, the PBA sent the Township a request and demand for negotiations over the procedures for requesting annual and compensatory leave. ¶

On April 21, 2008, the Attendance/Sick SOP# 32 was revised to reflect the chief’s memorandum. ¶

On April 25, 2008, the PBA filed its unfair practice charge. On May 1, it filed an amended charge. It did not file a grievance. ¶

Summary judgment will be granted if there are no material facts in dispute and the movant is entitled to relief as a matter of law. N.J.A.C. 19:14-4.8(d); Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 540 (1995); Judson v. Peoples Bank & Trust Co., 17 N.J. 67, 73-75 (1954). ¶

The PBA asserts that it is undisputed that the chief changed the procedures for scheduling annual and compensatory leave by permitting officers to take leave with less than 24 hours’ notice only in “extraordinary circumstances.” It further asserts that the new policy requires officers to articulate circumstances that justify such last minute leave. The PBA argues that since the scheduling of leave time is mandatorily negotiable, the Township violated the Act by unilaterally changing that established term and condition of employment. ¶

The Township argues that the parties’ contract, a statute and an ordinance permit the chief’s actions and that, therefore, the Township did not violate the Act. It further argues that the PBA fails to address the fact that time off is mandatorily negotiable only to the extent it does not cause staffing levels to fall below an employer’s minimum requirements. Finally, the Township argues that we should dismiss the charge because the PBA failed to file a grievance under the contractually agreed-upon grievance procedure. ¶

N.J.S.A. 34:13A-5.3 entitles a majority representative to negotiate on behalf of unit employees over their terms and conditions of employment. Section 5.3 also defines an employer's duty to negotiate before changing working conditions: ¶

Proposed new rules or modifications of existing rules governing working conditions shall be negotiated with the majority representative before they are established. ¶

In addition, N.J.S.A. 34:13A-21 specifically prohibits changes in negotiable conditions of employment during the pendency of proceedings before an interest arbitrator. See also Galloway Tp. Bd. of Ed. v. Galloway Tp. Ed. Ass’n, 78 N.J. 25, 48 (1978); Middletown Tp., P.E.R.C. No. 98-77, 24 NJPER 28 (¶29016 1997), aff’d 334 N.J. Super. 512 (App. Div. 1999), aff’d 166 N.J. 112 (2000) ; Hunterdon Cty. Freeholder Bd. and CWA, 116 N.J. 322, 338 (1989). An employer may defeat this claim if it has a managerial prerogative to change or institute the working condition or if it shows that the majority representative has clearly and unequivocally waived its statutory right to negotiate. Passaic Cty. Reg. H.S. Dist. No. 1 Bd. of Ed., P.E.R.C. No. 91-11, 16 NJPER 446 (¶21192 1990). A controlling contract provision may also establish that the parties have already negotiated over an issue and no further negotiations are required. Passaic Cty. ¶

Restrictions on the use of paid personal leave are mandatorily negotiable. Barnegat Tp. Bd. of Ed., P.E.R.C. No. 84-123, 10 NJPER 269 (¶15133 1984). Therefore, a public employer may not unilaterally impose new restrictions on the use of personal leave, absent some demonstrated significant interference with a governmental policy determination. Local 195, IFPTE v. State, 88 N.J. 393, 404-405 (1982) (articulating the standards for determining whether a subject is mandatorily negotiable). ¶

The chief’s February 12, 2008 memorandum changed terms and conditions of employment by stating that last-minute leave requests can be granted only under extraordinary circumstances and by requiring that officers articulate the circumstances for a last-minute leave request. These new conditions on leave requests go beyond the prior policy where the only additional restriction on a leave request made at the last minute was that overtime not be required. ¶

N.J.S.A. 40A:14-118, cited by the Township, is a general statute that gives a police chief the authority to establish policies for the day-to-day operation of the police department. It does not preempt negotiations over terms and conditions of employment. See Borough of West Paterson, P.E.R.C. No. 2000-62, 26 NJPER 101, 102-103 (¶31041 2000). Nor does a Township ordinance preempt negotiations. A public employer cannot, by passage of a local ordinance, unilaterally preempt a negotiable term and condition of employment; only a specific State statute or regulation can do so. City of Paterson, NJPER Supp.2d 93 (¶76 App. Div. 1981), aff’ g P.E.R.C. No. 80-68, 5 NJPER 543 (¶10280 1979). ¶

The parties have agreed in their contract that the scheduling of annual leave periods is a management prerogative.2/ In accordance with that prerogative, the contract also provides that leave periods shall normally be taken in four-hour increments. The provision further mentions the maintenance of police department efficiency and smooth operation as part of the chief of police's approval consideration. The SOP in effect since 1997 states that leave requests that create overtime will not be permitted. Presumably, that means that leave requests would be denied if they would result in a staffing level that is below the minimum. In addition, the SOP states that leave requests may be denied when events or activities require more than minimum staffing. ¶

We recognize that in considering whether to grant or deny last-minute leave requests, public employers sometimes weigh the needs of the employee and the organization. Thus, an employee might be asked for the reason for the leave request. In fact, an employee, in an effort to impress upon an employer the need for a last-minute leave request, might volunteer the reason for the request. That information can then be used by the employer to decide whether to grant or deny the request. ¶

However, by flatly stating that last-minute leave requests will be granted only under extraordinary circumstances and requiring officers to articulate the reason for the last-minute request, the Township is effectively establishing a new policy whereby officers without an extraordinary reason cannot even request last-minute leave, even if granting the request will not affect the efficiency or smooth operation of the department, minimum staffing, or the ability of the department to deal with events or activities that require more than minimum staffing. Previously, an employee could ask for leave without providing a reason and the department, pursuant to its contractual prerogative, could grant or deny the leave request. If, as noted above, the employee wanted to seek reconsideration, he or she might offer a reason for the last-minute request. ¶

Here, we distinguish between the Township's contractual prerogative to schedule annual and compensatory leave by requiring officers to ask for and receive permission to take leave, and the procedural right of officers to continue to be able to request leave for any reason without being required to supply a rationale for the leave request. The contract does not contain clear contract language granting the Township the right to impose these new conditions, nor does it contain a clear and unequivocal waiver of the PBA’s right to negotiate over these new conditions. Because the PBA is not alleging a breach of contract, we will not dismiss the charge on the ground that the PBA is alleging a mere breach of contract claim that had to be raised through the contractual grievance procedure. State of New Jersey (Dept. of Human Services), P.E.R.C. No. 84-148, 10 NJPER 419 (¶15191 1984).3/ We thus conclude that the Township unilaterally changed terms and conditions of employment during interest arbitration proceedings by adding new conditions on last-minute leave requests. Accordingly, we grant the PBA’s motion for summary judgment on this aspect of the charge and deny the Township’s cross-motion. ¶

Although we have granted summary judgment for the PBA, we note that the contract still requires approval for leave requests and the Township has a managerial prerogative to deny requests that would prevent it from meeting its minimum staffing levels. Pennsauken Tp., P.E.R.C. No. 92-39, 17 NJPER 478 (¶22232 1991) (scheduling of time-off is mandatorily negotiable, so long as an agreed-upon system does not prevent the employer from meeting its staffing requirements). Both the old and new policies protect the Township’s prerogative to meet its minimum staffing requirements by requiring that leave requests, including last- minute requests, be approved. The fact that, in the past, officers may have violated the prior policy by not obtaining prior approval does not create a new managerial prerogative to require extraordinary circumstances for last-minute leave requests or that officers articulate the reasons for those requests. The Township has not explained how enforcement of the prior policy would not sufficiently protect its ability to ensure the smooth operation of the department. ¶

OrderORDER ¶

The Township of Hopewell is ordered to: ¶

A. Cease and desist from: ¶

1. Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by the Act, particularly by unilaterally imposing new conditions on last-minute leave requests. ¶

2. Refusing to negotiate in good faith with a majority representative of employees in an appropriate unit concerning terms and conditions of employment of employees in that unit, particularly by unilaterally imposing new conditions on last-minute leave requests. ¶

B. Take this action: ¶

1. Rescind the conditions that last-minute leave requests be granted only for extraordinary circumstances and that employees articulate the circumstances for the request pending negotiations over any new conditions on last-minute leave requests. ¶

2. Post in all places where notices to employees are customarily posted, copies of the attached notice marked as Appendix "A." Copies of such notice shall, after being signed by the Respondent's authorized representative, be posted immediately and maintained by it for at least sixty (60) consecutive days. Reasonable steps shall be taken to ensure that such notices are not altered, defaced or covered by other materials. ¶

3. Within twenty (20) days of receipt of this decision, notify the Chairman of the Commission of the steps the Respondent has taken to comply with this order. ¶

Any remaining allegations in the Complaint are dismissed. ¶

BY ORDER OF THE COMMISSION ¶

Chairman Henderson, Commissioners Fuller, Joanis and Watkins voted in favor of this decision. None opposed. Commissioner Colligan recused himself. Commissioners Branigan and Buchanan were not present. ¶

ISSUED: August 13, 2009 ¶

Trenton, New Jersey ¶

NOTICE TO EMPLOYEES ¶

PURSUANT TO ¶

AN ORDER OF THE ¶

PUBLIC EMPLOYMENT RELATIONS COMMISSION ¶

AND IN ORDER TO EFFECTUATE THE POLICIES OF THE ¶

NEW JERSEY EMPLOYER-EMPLOYEE RELATIONS ACT, ¶

AS AMENDED, ¶

We hereby notify our employees that: ¶

WE WILL cease and desist from interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by the Act, particularly by unilaterally imposing new conditions on last-minute leave requests. ¶

WE WILL rescind the conditions that last-minute leave requests be granted only for extraordinary circumstances and that employees articulate the circumstances for the request pending negotiations over any new conditions on last-minute leave requests. ¶

Docket No. ¶

CO-2008-323 TOWNSHIP OF HOPEWELL ¶

(Public Employer) ¶

Date: ¶

By: ¶

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced or covered by any other material. ¶

If employees have any question concerning this Notice or compliance with its provisions, they may communicate directly with the Public Employment Relations Commission, 495 West State Street, P.O. Box 429, Trenton, NJ 08625-0429 (609) 984-7372 ¶

APPENDIX "A" ¶

d:\percdocs\notice 10/93 ¶

Note1/ These provisions prohibit public employers, their representatives or agents from: “(1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act . . . and (5) “Refusing to negotiate in good faith with a majority representative of employees in an appropriate unit concerning terms and conditions of employment of employees in that unit, or refusing to process grievances presented by the majority representative.” ¶

2/ The parties’ use of the term “management prerogative” reflects their understanding of how annual leave will be scheduled in their department. It does not necessarily reflect whether the scheduling of annual leave is mandatorily or permissively negotiable under Paterson Police PBA No. 1 v. Paterson, 87 N.J. 78 (1981). ¶

3/ Deferral to arbitration is not appropriate unless the Township agrees to waive all procedural defenses to arbitration. The record does not indicate that there was such a waiver. ¶