On June 24, 1981, the Irvington Municipal Employees Association (Association) filed an unfair practice charge with the Public Employment Relations Commission (Commission) alleging that the Town of Irvington (Town) committed an unfair practice when on June 11, 1981, it unilaterally and without negotiations issued a directive which would change the hours of the Parks and Recreation Department employees from 7:30 a.m. til 4:00 p.m. to 1:00 p.m. til 9:00 p.m. effective June 26, 1981, in violation of N.J.S.A. 34:13A-5.4(a)(1), (2), (5) and (7) of the Act.^1/ This directive was scheduled to take effect within five days. The Association also made an emergent application to restrain the Town from implementing this directive. An Order to Show Cause was issued by Commission Hearing Examiner Alan Howe. The Hearing Examiner restrained the Town from implementing their directive A pending the disposition of the instant unfair practice. @ In re Town of Irvington , I.R. No. 82-1, 7 NJPER (1981).

On July 10, 1981, the Director of Unfair Practices issued a Complaint in this matter and on September 3, 1981, a hearing was held before the undersigned wherein both parties were given an opportunity to introduce evidence, examine and cross-examine witnesses and argue orally. Both sides waived their respective rights to file briefs.

The Irvington Municipal Employees Association represents the employees of the Parks and Recreation Department of the Town. A current collective negotiations agreement was in effect at the time of the filing of the instant charge and will remain in effect until June 30, 1982. For no less than seven years these employees have always worked from 7:30 a.m. to 4:00 p.m. ^2/ Since the summer of 1975 or 1976 the Town also had CETA employees and part-time employees working in the parks. These employees worked shifts from 4:00 p.m. to 12 midnight and 12 midnight to 8:00 a.m. The job title of these employees was A security guard @ although they performed maintenance work in the parks. The number of CETA employees dropped significantly through 1980 and 1981 so that in the spring of 1981 there was only one CETA employee left with the Parks and Recreation Department. One employee Hofter, a former CETA worker, was hired to work from 1:00 p.m. to 9:00 p.m. and still does.

On June 11, 1981, the Town promulgated the following directive:

A Due to the constant vandalism problem that has been costing thousands of dollars in repair and additional work for the maintenance personnel, the schedule (sic) working hours starting June 29 ^th will be changed.

A This change in working hours will enable us to better cover our parks and playgrounds and will be of benefit to the overall operation of the parks and recreation programs.

A The new working schedule for all park employees will be from the hours of 1:00 p.m. until 9:00 p.m. This change in working hours will be until further notice. @

The parties stipulated that this revised work schedule was to be in effect for the summer months only and by mid-September the parties would return to their old schedule.

Several employees testified that if this schedule revision would go into effect they would be exposed to increased physical danger, for some of the parks are in bad neighborhoods; their family lives would be disrupted, one employee would be forced to give up a part-time position and in general they would be subject to increased inconvenience.

The Town argued at the hearing that they had a right to impose the new work schedule under the contract. ^3/ The Association argues that the contract language prohibits the Town from revising the scheduled hours of work. In the negotiations leading to the current agreement, there was no discussion as to a change in the scheduled hours of work of the Parks and Recreation employees.

The pertinent contract language is as follows:

In the Interlocutory decision, it was held that when the above contract provisions are read together, A there are > specific provisions = of the agreement which contravene the right of management to establish and change work schedules and assignments. @ I respectfully cannot reach this same conclusion. Neither the recognition of a regularly scheduled quitting and starting time in the overtime provision nor an acknowledgment of department practices in the hours of work provision are clear enough to satisfy the Association = s burden here.

Although it is well settled and undisputed here that a Hearing Examiner has the ability to interpret agreements of contracting parties to the extent necessary to resolve unfair practices, ^4/ the Charging Party must prove its case by a preponderance of the evidence ^5/ and its entire case rests on contract interpretation coupled with past practice.

I find the Town = s analysis of the contract, that Article VI gives to it A the right to establish and change work schedules, @ is equally compelling. The plain meaning of a work schedule is the regular recurring hours which an employee works. The overtime provision in XV refers to A regularly scheduled quitting or starting time. @ Article VI gives the town the right to change that regularly scheduled time. The reference to present departmental practice in Article XVIII does not refer to scheduling but to number of hours worked and the length of meal period. The other provisions of Article XVIII refer to a 7-1/2 hour day for white collar employees, a 7-hour day for municipal court employees and sanitation employees and not to specific starting and/or quitting time.

As stated in New Brunswick Bd/Ed v. New Brunswick Ed/Assn, P.E.R.C. No. 78-47, 4 NJPER 84 (1978), aff= d Docket No. A-2450-77 (1979), A where there is clear and unambiguous contract language granting a benefit to employees, but through past practice the employer has granted a more generous benefit, the contract provision takes precedence over the past practice. @

I do not believe the provisions of the contract discussed above create ambiguities here. Accordingly I recommend that the Complaint in this matter be dismissed in its entirety.

________________________
Edmund G. Gerber

Hearing Examiner

DATED: September 25, 1981

1/ These subsections prohibit public employers, their representatives or agents 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 or any employee organization; (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; (7) violating any of the rules and regulations established by the Commission. @
2/ There was one exception to this which will be discussed below.
3/ At the interim relief hearing the Town argued that they had a managerial right to change the shift hours pursuant to Irvington PBA v. Town of Irvington, 170 N.J. Super . 539 (1979). This argument was effectively considered and rejected in Howe = s Interlocutory Decision and Order and the undersigned will rely on Howe = s analysis therein.
4/ NLRB v C&C Plywood, Corp., 385 U.S. 421, 87 S. Ct . 559, 17 L. Ed. 2d 136 (1967) and NLRB v. Hutting Sash and Door, 377 F. 2d. 964 8^th Cir. (1967). These cases decided under the National Labor Relations Act, are appropriate for use as precedents for cases arising under our Act. Galloway Twp. Bd/Ed v. Galloway Twp. Ed/Assn, 78 N.J. 25 (1978).
5/ The requirements of proof in an unfair practice hearing are significantly different then those present in an arbitration proceeding. In re Twp. of Jackson, P.E.R.C. No. 81-076, 7 NJPER 30 ( & 12010, 1980).