P.E.R.C. No. 2010-6, Wyckoff Tp

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of TOWNSHIP OF WYCKOFF, Petitioner, -and- Docket No. SN-2009-062 PBA LOCAL 261, Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission denies the Township of Wyckoff’s petition for a scope of negotiations determination that PBA Local 261 may not submit a proposal for a 12-hour work schedule to interest arbitration. The Commission finds the PBA has not submitted a proposal for a 12-hour work schedule in interest arbitration and that the disputed work schedule issue listed on the PBA’s interest arbitration petition involves a mandatorily negotiable subject. Should the PBA submit a final offer that includes a 12-hour work schedule, the Township may reactivate its petition and supplement its submissions with the details of the proposal. ¶

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 WYCKOFF, Petitioner, -and- Docket No. SN-2009-062 PBA LOCAL 261, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, Wiss & Bouregy, P.C., attorneys (Raymond R. Wiss, of counsel and on the brief; Thomas K. Bouregy, Jr., on the brief) ¶

For the Respondent, D. John McAusland, attorney (D. John McAusland, on the brief) ¶

DECISION ¶

On March 16, 2009, the Township of Wyckoff petitioned for a scope of negotiations determination. The Township seeks a declaration that PBA Local 261 may not submit a proposal for a 12-hour work schedule to interest arbitration. As the PBA has not specifically proposed a 12-hour work schedule, we preliminarily deny the Township’s request. ¶

The parties have filed briefs and exhibits. The Township has submitted certifications from its police chief. The PBA has submitted a certification from a Wyckoff police officer who is a State delegate for the New Jersey State PBA. These facts appear. ¶

The PBA represents the Township’s 24 patrol officers, sergeants, lieutenants and captains. The parties entered into a collective negotiations agreement effective from January 1, 2003 through December 31, 2007. That agreement was reached after the issuance of an interest arbitration award. ¶

In the prior interest arbitration proceeding, the PBA proposed a 12-hour work schedule. The Township filed a scope of negotiations petition nearly one year later. We dismissed the petition as untimely. Township of Wyckoff, P.E.R.C. No. 2004-63, 30 NJPER 107 (¶43 2004). We stated that the arbitrator should consider the parties’ evidence and arguments on the PBA’s work schedule proposal, including the Township’s staffing and supervision arguments. We also stated that should the arbitrator issue an award that the Township believes would impermissibly compromise its ability to set staffing levels, the Township could appeal the award pursuant to N.J.S.A. 34:13A-16f(5)(a). The arbitrator rejected the PBA’s proposed work schedule, finding that given the current rank structure within the department, the limited number of superior officers and police officers devoted to patrol, and the existing minimum staffing requirements, he was compelled to conclude that the proposed work schedule could not be awarded over the objection of the Township without compromising the broad managerial discretion the Township has chosen to exercise with respect to these administrative and operational issues. ¶

During the course of negotiations for a successor agreement, the chief stated that he had contacted a consultant for input on work schedules, but that due to budget restraints, if the Township paid for the consultant, it would have to forego money in other areas. The PBA offered to pay any fees charged by the consultant. The chief agreed and the PBA retained Shiftwork Solutions at the expense of the PBA. In October 2006, Shiftwork issued a report finding that a 12-hour work schedule best deployed available staff and specifically addressed some of the Township’s concerns. Shiftwork offered six options, including both 12 and 10-hour work schedules. ¶

Unable to reach agreement for a successor contract, the PBA again petitioned for interest arbitration (IA-2009-062). In its petition, the PBA is required to list the issues in dispute. One of the issues is “Number of Hours worked and number of scheduled work days/work schedule.” ¶

According to the PBA delegate, negotiations over a 12-hour work schedule broke down because the Township demanded the right to rescind the 12-hour schedule without giving up the PBA’s economic concessions, if the work schedule did not result in sufficient economic savings to the Township through a reduction in overtime. According to the chief, he never communicated any belief that a 12-hour schedule could be used by the department. The chief objects to any 12-hour work schedule because it would impermissibly interfere with Wyckoff’s managerial prerogative by, among other things, setting staffing levels. ¶

The Township argues that the prior arbitration award held that the PBA’s proposal for a 12-hour work schedule impermissibly interfered with the Township’s managerial prerogative and under the principles of res judicata and collateral estoppel, that determination is binding on the parties and the Commission in the present action; the PBA’s proposal to implement a 12-hour shift must necessarily set staffing levels and is not mandatorily negotiable; and the PBA’s proposal interferes with the Township’s managerial prerogative because of the small size of the police force, the historic treatment of shift scheduling, and the detrimental impact on efficiency. ¶

The PBA argues that the interest arbitrator in the prior arbitration did not have jurisdiction to, and did not in fact, rule that its 12-hour work schedule proposal was beyond the scope of negotiations. The PBA contends that nothing in its filing indicates that the same 12-hour work schedule proposal will be made in interest arbitration. It further contends that, even if it were to make a 12-hour proposal, the Township’s certification does not support a finding that the proposal would be outside the scope of negotiations. ¶

We appreciate the time, effort and expense the parties have expended in this proceeding. However, the Township is not arguing, nor would we hold, that the disputed issue listed on the PBA’s interest arbitration petition -- number of hours worked and number of scheduled work days/work schedule -- is not mandatorily negotiable. Teaneck Tp. and Teaneck Tp. FMBA Local No. 42, 353 N.J. Super. 289 (App. Div. 2002), aff’d o.b. 177 N.J. 560 (2003); see also Mt. Laurel Tp., 215 N.J. Super. 108 (App. Div. 1987) . And the PBA has not yet proposed a 12-hour work schedule in arbitration. ¶

In Maplewood, we explained that only under very narrow circumstances would a work schedule proposal be outside the scope of negotiations: ¶

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. [Maplewood, 23 NJPER at 114] ¶

We have a limited record before us. It includes a prior arbitration award rejecting a proposal for a 12-hour work schedule and certifications from the police chief explaining why he opposes any 12-hour work schedule. It also includes an evaluation by a PBA-paid consultant of the current 8-hour schedule along with several alternate schedules featuring different shift lengths (9-hour, 10-hour and 12-hour). The consultant concludes that the 12-hour shift schedules provide superior coverage and are win-win propositions for the PBA and the Township. ¶

We also have an interest arbitration process that has not yet progressed to the point of final offers from the parties. The interest arbitration process contemplates that an arbitrator may mediate or assist the parties in reaching a mutually agreeable settlement, particularly at this early stage. N.J.A.C. 19:16-5.7. ¶

Under these circumstances, we preliminarily deny the Township’s petition. The PBA’s general work schedule proposal is mandatorily negotiable. Should the PBA submit a final offer that includes a 12-hour work schedule, the Township may reactivate its petition and supplement its submissions with the details of the proposal and its particular objections. The PBA will then be given an opportunity to respond. ¶

OrderORDER ¶

The disputed work schedule issue listed on the PBA’s interest arbitration petition involves a mandatorily negotiable subject. Should the PBA submit a final offer that includes a 12- hour work schedule, the Township may reactivate its petition and supplement its submissions with the details of the proposal. ¶

BY ORDER OF THE COMMISSION ¶

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

ISSUED: August 13, 2009 ¶

Trenton, New Jersey ¶