H.E. No. 82-58

Synopsis:

A Hearing Examiner finds the City of Elizabeth committed an unfair practice when it unilaterally altered the vacation schedule of the firefighters in the City of Elizabeth.

Pursuant to City of Orange, P.E.R.C. No. 79-10, 4 NJPER 420, the City had a right to establish a minimum manning level during the summer but once that was established, it had to follow the existing contract requirements for the assignment of vacations. It was recommended that no remedy was necessary since the City was restrained from acting upon its schedule change in an interim relief proceeding and the subsequent schedule revision made by the City was in compliance with the existing contract.

A Hearing Examiner's Recommended Report and Decision is not a final administrative determination of the Public Employment Relations Commission. The case is transferred to the Commission which reviews the Recommended Report and Decision, any exceptions thereto filed by the parties, and the record, and issues a decision which may adopt, reject or modify the Hearing Examiner's findings of fact and/or conclusions of law.

PERC Citation:

H.E. No. 82-58, 8 NJPER 398 (¶13182 1982)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

43.15 43.56 72.652 74.17

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- HE 82-058.pdf
Appellate Division:
Supreme Court:

H.E. NO. 82-58 1. H.E. NO. 82-58 STATE OF NEW JERSEY BEFORE A HEARING EXAMINER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of CITY OF ELIZABETH, Respondent, -and- Docket No. CO-81-298-163 FIREMEN = S MUTUAL BENEVOLENT ASSOCIATION, BRANCH NO. 9 and ROBERT GARRY, PRESIDENT, Charging Party. Appearances: For the Respondent Raymond T. Bolanowski, Esq. For the Charging Party Goldberger, Siegel & Finn, Esqs. (Howard A. Goldberger, Esq.) HEARING EXAMINER = S RECOMMENDED REPORT AND DECISION On April 1, 1981, the Firemen = s Mutual Benevolent Association, Branch No. 9 (FMBA) filed an Unfair Practice Charge with the Public Employment Relations Commission (Commission) alleging that the City of Elizabeth (City or Respondent) violated the New Jersey Employer-Employee Relations Act, as amended, N.J.S.A. 34:13A-1 et seq. (the Act). It specifically was alleged the City on March 5, 1981, without prior notice to the Association and without prior negotiations, unilaterally changed the vacation schedules by limiting the number of people who would be permitted to have summer vacations. As a consequence some 30 fire department employees would be eliminated from eligibility for summer vacations. It was claimed that this act specifically violated N.J.S.A. 34:13A-5.4(a)(1), (3) (5) and (7).1/ The Unfair Practice Charge was accompanied by a request for interim relief. Pursuant to that request a show cause order was signed and made returnable before the Commission = s designee, Alan Howe. Proceedings were conducted on May 1, 1981. At that time the City was restrained from imposing a new vacation schedule without negotiating same, entered into by Alan Howe dated May 7, 1981.2/ It appearing that the allegations of the Charge if true may constitute an unfair practice within the meaning of the Act, a Complaint and Notice of Hearing issued and a hearing was held before the undersigned on November 2, 1981, at 1180 Raymond Boulevard, Newark, New Jersey. At that time both parties were given an opportunity to present evidence, examine and cross- examine witnesses, argue orally and present briefs. Robert Garry testified on behalf of the FMBA. Garry is president of Branch No. 9, and has been so for 18 months. He served as a fireman for 18 years. The City and the FMBA have been parties to collective negotiations agreements since 1970. Article XIII of their contract provides for the granting of vacations as well as the procedures for the scheduling of vacations. The contract provides that there are six periods in which to take vacations. The first period begins on or about June 15th with eleven men taking vacation. Each of these periods lasts 19 calendar days, so therefore each employee in the fire department covered by the contract would have a vacation period in one of those six periods. Selection of vacation periods would be then on a seniority basis. Those employees who had vacation time in excess of the vacation periods would be able to take that time in the period from September to June. This was called residual vacations and was similarly assigned by seniority. On March 5, 1981, during the pendency of the contract and without any prior negotiations, the City announced a change in the vacation procedure. The following notice was sent to Mr. Garry and was posted on bulletin boards in the various fire houses in the city: SPECIAL NOTICE The roll call, in the Elizabeth Fire Department, during the summer season in 1980 was disastrous. An emergency situation still exists in the Fire department. There is nothing in either contract that indicates that every member of the Department is to be granted a vacation during the A Summer Section. @ We can no longer afford the luxury of allowing every man to take a vacation during such time. Effective in 1981, and every year thereafter, no more than six (6) men will be allowed on vacation from one (1) tour at any one time. According to Garry, 25 to 30 men would no longer be able to take vacations during the summertime and the number of men who could not take vacation during the time they requested was somewhere from 50 to 60. After the interim relief decision of Alan Howe the City revised its March 1 order and increased the number of people who could take vacations during the summer. Garry could not testify as to any firefighters who did not take a summer vacation although he did testify that there were fewer slots available and vacation plans of many firefighters still were disrupted. Joseph Sullivan testified on behalf of the City. He had been fire director since March, 1979. Before that he served as fire captain. Sullivan testified that in the summer of 1980 the manpower situation in the fire department became so bad that it necessitated the closing down of companies. Sullivan stated they were being closed down in almost all cases because of vacation schedules. He stated that it was felt that the manpower situation was far below what the minimum requirements should be. Because of this situation Sullivan issued the order in question to attempt to keep all fire companies open. The City of Elizabeth is currently undermanned and they cannot freely hire from the Civil Service lists. The City was subject to a consent decree with the United States Department of Justice because of a lack of minority hiring in the fire department. The decree states that the City must go through the Justice Department and District Judge Sarokin in order to hire. The current Civil Service list does not, in the opinion of the Department of Justice or Judge Sarokin, have a sufficient number of minority candidates. At the time of the hearing a new list was being composed. After the decision of Mr. Howe restraining the City from imposing its proposed schedule, the City, through Mr. Sullivan, determined that the City required minimum manpower level of 47 men on duty. Under the City = s table of organization the full strength of the fire department calls for 275 employees but at the time of the hearing there were 239 firefighters employed by the City. However the evidence indicates that all men who requested summer vacations were able to take them. As noted by the Commission = s designee, Howe, the fire department has the right to establish minimum manning levels within the department. A Once the City has established manning requirements it must negotiate a manning system. @ In re City of Orange, P.E.R.C. No. 79-10, 4 NJPER 420. The City = s directive of March 5, 1981, did not comply with these requirements and is illegal. The City failed to comply with the existing contract language. This directive is violative of ' 5.4(a)(1) and (5) of the Act. However, after the issuance of the restraint the City = s actions were proper. The creation of the vacation periods was in compliance with the terms of the contract. The limitations on the number of men on vacations was pursuant to the establishment of minimum manning levels. Since the City = s action did comply with the requirements of the Act, the undersigned does not believe that any remedy beyond a finding of an unfair practice is necessary here. /s/Edmund G. Gerber DATED: June 10, 1982 Hearing Examiner Trenton, New Jersey 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; (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 to them 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; (7) Violating any of the rules and regulations established by the commission. @ 2/ By letter dated May 21, 1981, counsel for th FMBA notified Mr. Howe that the City of Elizabeth was again imposing a new schedule. There is no indication however that counsel attempted to seek another restraint against the City. ***** End of HE 82-58 *****