It appearing that the allegations, if true, might constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on May 3, 1977, and a hearing was held before the undersigned on July 27, 1977. All parties had the opportunity to examine witnesses, present evidence, and to argue orally. Briefs were received by August 26, 1977.

Based on the record herein, I find that the Borough is a public employer within the meaning of the Act and is subject to its provisions, and the PBA is an employee representative within the meaning of the Act and is subject to its provisions. Unfair practice charges having been filed alleging that the Borough has engaged or is engaging in unfair practices within the meaning of the Act, a question concerning alleged violations of the Act is properly before the Hearing Examiner for a recommended report and decision.

Several police officers testified that during their years on the force - - which in two cases amounted to 13 years apiece - - there was an option for off-duty police to testify in municipal court either in uniform or in civilian clothes wearing a badge. Nothing was offered to rebut this testimony and the undersigned finds that in fact members of the Montvale police did testify in civilian clothes if they so desired at least during the 13 years prior to September 1976 when an order was issued for the wearing of uniforms to municipal court by all officers other than detectives.

The first contract between the parties was entered in October, 1974 for the years 1973-74, and subsequently a 1975-76 contract was agreed upon. There is no contention by either party that this subject was ever specifically raised during either negotiations.

A stipulation was entered that had the Mayor - - who was unable to appear because of a personal problem - - testified he would maintain that in his 13 years as a member of the Borough = s governing body, he believed that police officers were required to testify in uniform, that he so believed during the original contract negotiations, and that the Chief of Police was never authorized to allow a contrary practice. Rebuttal testimony was offered to show that the Mayor and Council did know of the A practice @ from personal observation.

The PBA argues that the Borough has violated its duty to negotiate a change in conditions of employment, citing a contract clause requiring negotiation for A modifications for existing rules concerning working conditions. @ It must be noted that this clause does no more than restate the language of N.J.S.A . 34:13A- 5.3 which imposes that duty even in the absence of such a contractual provision. In response, the Borough contends that wearing of a uniform in the performance of duties relates to the quality of performance, hence an order to do so is a management prerogative not mandatorily negotiable. In this regard, the PBA at no time disputed that testimony in court is a required duty for police officers, and in fact that is confirmed by Article 12 of the contract between the parties. ^2/

The Commission has previously noted the difference between an employer = s activities directly affecting terms and conditions of employment, and those which have an impact on terms and conditions without being directly concerned with them. ^3/ That sort of analysis has been applied to police ^4/ and is therefore the proper one to be applied herein.

The testimony presented by the PBA all tends to show an impact on its members arising out of the decision to order the wearing of uniforms. Primarily, it manifests itself in the form of alleged burdens on police in their chosen ways of utilizing their off-duty hours for socializing, education or other personal activities. Several police related the need to appear in court in uniform disrupted these activities in that it required additional time away from them to allow for changing into uniform. None of these alleged inconveniences can be said to arise directly from the order to wear uniforms, but rather can be read only to represent an impact on the police arising out of the order. ^5/ Therefore, the undersigned concludes the decision to order the wearing of uniforms is a managerial policy decision relating primarily to the manner in which a public service is being provided, and is not mandatorily negotiable. ^6/

Inasmuch as the decision is not directly one on terms and conditions of employment, the PBA = s argument about a past practice is not germane. While a past practice may be binding as to a term and condition of employment, it does not bind management to negotiate a policy decision which only impacts on terms and conditions of employment.

Under the Rutgers doctrine, the impact on terms and conditions of employment if a managerial decision is mandatorily negotiable. As noted above, the impact alleged by the PBA is that added time is required for unit members to prepare for performance of the duty of testifying in municipal court during their off-duty hours. The Borough = s defense to this assertion of a mandatorily negotiable impact is that any such impact is de minimus . Cited are the facts that court appearances may not interfere with planned activities, that municipal court meets only twice a month, that any individual officer might not have to appear for months at a time, and that the police have lockers down the hall from the courthouse.

In response the PBA claimed the lockers were inadequate for maintaining uniforms in a neat condition and that in any event they were worn home so that officers could be picked up in the morning in uniform and thereby be available in uniform that much sooner.

While the undersigned recognizes that the points raised by the Borough may be valid insofar as indicating that the impact of the order will be relatively limited, the undersigned is not convinced that the impact has been demonstrated to be so slight as to be de minimus . In this regard, the Hearing Examiner takes note that police officers = non-working time apparently is concentrated into this off-duty evenings as opposed to weekends. Therefore, the Borough must negotiate on demand with the PBA as to the impact of the order to wear uniforms, and said negotiations would - - if the PBA so demands - - relate back to September 16, 1976, the date of the order. Having found the Borough to be in violation of N.J.S.A . 34:13A-5.4(a)(5) it follows that the failure to bargain necessarily restrained free exercise of rights guaranteed to the PBA by the Act and therefore constitutes a violation of ' (a)(1).

No evidence having been presented to support the allegations of violation of N.J.S.A . 34:13A-5.4(a)(2) and (3), it is recommended that the complaint be dismissed as to those violations.

1. Cease and desist from:

(a) Interfering with, restraining, or coercing its employees in the exercise of rights guaranteed to them by the Act.

(b) Refusing to negotiate collectively in good faith with the Montvale P.B.A. regarding the impact on terms and conditions of employment stemming from the order to wear uniforms to municipal court.

2. Take the following affirmative action:

(a) Upon demand, negotiate collectively with the Montvale P.B.A. concerning the impact on terms and conditions of employment of the order to wear uniforms to municipal court.

(b) Post at its central office building in Montvale copies of the attached notice. Copies of said notice on forms to be provided by the Commission shall, after being duly signed by Respondent = s representative, be posted by Respondent immediately upon receipt thereof, and maintained by it for a period of at least sixty (60) consecutive days thereafter, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that such notices are not altered, defaced or covered by any other material.

(c) Notify the Chairman of the Commission, in writing, within twenty (20) days of receipt of this Order what steps the respondent has taken to comply herewith.

IT IS HEREBY FURTHER ORDERED that those sections of the complaint alleging violations of N.J.S.A. 34:13A-5.4(a)(2) and (3) are dismissed.

_________________________
James F. Schwerin

Hearing Examiner

DATED: October 26, 1977
Trenton, New Jersey

1/ These subsections provide that an employer, its representatives or agents are prohibited from:
A (1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act.
(2) Dominating or interfering with the formation, existence or administration of any employee organization.
(3) Discriminating in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage employees in the exercise of the rights guaranteed tot hem by this act.
(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/ Section 12.01 reads as follows:
A Court time, as referred to in this article, shall consist of all time, excluding regular tours of duty, during which any employee covered under this Agreement shall be required to attend a Municipal Court... @
3/ In re Rutgers, P.E.R.C. No. 76-13, 2 NJPER 13 (1976).
4/ In re City of Jersey City, P.E.R.C. No. 77-33, 3 NJPER 66 (1977).
5/ Even the brief submitted on behalf of the PBA refers to A those police officers who have been impacted by the order... @ and claims that the alleged unilateral change A has had a serious impact on the bargaining unit. @
6/ See In re Brookdale Community College, P.E.R.C. No. 77-53, 3 NJPER 156 (1977) applying this type analysis to the issue of whether the carrying of firearms by a college police force is mandatorily negotiable.