It appearing that the allegations of the charge, if true, might constitute an unfair practice within the meaning of the Act, a Complaint and Notice of Hearing was issued on May 25, 1977. Pursuant to the Complaint and Notice of Hearing, hearings were held on August 5, 1977, and October 19, 1977. ^2/

The City and the PBA were engaged in negotiations for 2 1/2 years; they finally executed a contract on October 4, 1976. The agreement was made retroactively effective as of January 1, 1976, and was to remain in force and effect until December 31, 1977. This new contract provided up to five weeks vacation, which constitutes a one-week increase ver the old contract.

Prior to the execution of the agreement of October 4, 1976, the method of scheduling vacations was that each officer, on the basis of seniority, would choose what periods of time he wanted to go on vacation during the forthcoming year at the beginning of that year. The shifts were also chosen by seniority. The officers were sometimes able to select as many as three or four consecutive weeks in which to enjoy their vacations. However, around October 14, 1976, only ten days after a new contract was signed a new A manpower deployment system @ which incorporated a vacation schedule, was announced by the City. This plan was originally to go into effect in November 1976, but a series of meetings were held with the PBA and this scheduling system in slightly modified form went into effect in January of 1977.

Under this new scheduling system which is now in effect the officers select their vacations for three-month periods, and in most cases can only choose one two-week vacation and three one- week vacations. Each officer is assigned either the letter A, B, or C, which he must keep during that year. Each assignment and shift involves a certain letter, and each letter tells the officers from what weeks he can choose his vacation. Since certain vacations are associated with certain shifts, an officer cannot usually choose both his assignment and his vacation as he was able to do in the past; in most cases now he must choose either one or the other. This forced choice between assignment and vacation represents a major difference between the two scheduling systems.

The October 4th agreement made no direct mention as to how vacations were to be scheduled. However, Article 33, Section 2-- the retention of benefits clause--states that A all rights, privileges and benefits which the officers have heretofore enjoyed and are presently enjoying, shall be maintained and continued to be maintained by the employer... @ The PBA claims that the then existing method of choosing vacations was a right, privilege or benefit enjoyed by the officers and was thus retained by the officers according to Article 33, Section 2. This claim is supported by the fact that the officers had chosen their vacations for the entire year of 1976 in January 1976 and that the agreement was made retroactively effective as of January 1, 1976.

It is undisputed that during the course of negotiations for the new contract, Article 33, the retention of rights and benefits clause, was considered. The new Commissioner of Police, Saunder Weinstein, had asked the PBA to enumerate all of the specific privileges or benefits covered under this article. The Association resisted, arguing there were simply too many. In fact this was never done and the article remained unchanged in the contract.

Accordingly, the undersigned is satisfied that the scheduling of vacation is a right under the contract. The Commission has recently held in Town of West Orange and West Orange Fire Fighter Local 692, IAFF , P.E.R.C. No. 78-93, 4 NJPER ___ (Para. ____ 1978) (see also In re Town of Irvington, P.E.R.C. No. 78-___, 4 NJPER ___ (Para.____ 1978) and In re Town of Northfield , P.E.R.C. No. 78-___, 4 NJPER ___ (Para.____ 1978), that within the framework of the number of employees that the employer has determined are necessary at a given time, the employer must negotiate as to which employees may be off duty, the method of selecting employees to be off duty, the amount of time that an employee can take consecutively, etc.

The City maintains that the series of meetings between it and the PBA which took place between October 14, 1976, and January 1977 concerning the new vacation schedule were in fact negotiations, that they negotiated in good faith and, accordingly, such negotiations satisfied their obligations under the Act.

As a result of their talks two changes were made in the proposed vacation schedule prior to its implementation by the City. Under the original proposal the officers would have had to choose their vacations for the entire year at the beginning of the year on the basis of seniority and each officer had to choose five one-week vacations. Under the adopted schedule an officer can have one two-week vacation during the year and could make their selections on a quarterly basis.

The City acknowledges that they took a firm stand in these meetings. Weinstein testified that from the moment he promulgated this new plan he had stated that the old vacation schedule would be changed; but Weinstein also testified that the change of schedule was not, in his opinion, a change in the terms and conditions of employment. Further, in spite of Article 34, Section 3 of the contract, which provides A either party shall have the right upon 60 days = prior written notice to reopen the agreement...for the negotiation of changes. Weinstein admitted that he never contacted the PBA to reopen the contract. The President of the PBA, George Faso, denied that the meetings were negotiations. He acknowledged that he attended them but only with the intent of trying to preserve and protect the negotiated rights of his members. ^3/ In fact he went to Director Weinstein and asked him if he realized that they were not negotiating. Weinstein replied, according to Faso, that A he never intended it to be negotiations and he doesn = t expect a show of hands that this schedule was going to have to be changed and was going through. @ ^4/ Given the totality of the testimony, including that of Weinstein, the Hearing Examiner finds this testimony credible.

As mentioned above, this new schedule was promulgated only ten days after the contract was signed and Weinstein had the City = s Director of Systems Planning Douglas Dallio prepare a new scheduling system in September of 1976 ^5/ before the new contract was signed. The undersigned cannot accept the City = s contention that they had any intention of negotiating the change in the schedule, otherwise at a minimum it would have raised this issue during the negotiations -- before the contract was signed. As stated by the Commission in the State of New Jersey and Council of New Jersey State College Locals , E.D. No. 79, 1 NJPER 39 (1975), affirmed P.E.R.C. 76-8 (1975), A a determination that a party has refused to negotiate in good faith will depend upon an analysis of the overall conduct and/or attitude of the party charged. The object of this analysis is to determine the intent of the respondent, i.e. whether the respondent brought to the negotiating table and open mind and a sincere desire to reach an agreement, as opposed to a predetermined intention to go through the motions, to avoid rather than reach an agreement. @

The City = s failure to raise the scheduling issue prior to the signing of the contract, their subsequent failure to notify the PBA of their desire to reopen negotiations pursuant to the contract and Weinstein = s clear admission to Faso that the meetings in question were not negotiations make it indisputable that the City failed to negotiate in good faith.

There is no question that an employer may take a firm position on a given subject during the course of negotiations and, assuming good faith negotiations have taken place, may, upon the exhaustion of all of the commission = s impasse procedures unilaterally implement its last, best offer in negotiations. In re City of Jersey City, P.E.R.C. No. 77-58, 3 NJPER 122 (1977).^6/

However, an employer may not alter the status quo regarding terms and conditions of employment while engaged in collective negotiations and before the exhaustion of such procedures. Here, the City did not even begin to utilize these procedures, never mind exhaust them. The acknowledged changes in the original vacation schedule cannot satisfy the City = s obligation to negotiate in good faith. It necessarily follows that the City has violated ' 5.4(a)(1) and (5) of the Act.

The City further argues that implementation of the new vacation schedule was in response to a problem threatening the safety of the community, and that when one considers all the circumstances, its conduct was both fair and reasonable. The City claims that the old scheduling system was causing a situation in which the police force would be undermanned at certain times - thus endangering the safety and well-being of the community - and that it could use its police power to rectify this situation. The City states that its police power is absolutely inalienable and cannot be restricted or limited in any manner, nor can this power be contracted away.

The City argues that a reasonable exercise of the police power is one required by public necessity, and that public necessity is the limit of the legitimate exercise of this power. Certainly if the City could prove that the safety of the community was threatened this argument would have merit. See Porcelli v. Titus, 108 N.J. Super . 303 (App. Div. 1969), cert. denied 55 N.J . 310 (1970). The City failed to establish, however, that a crisis actually existed which was endangering the public = s safety and thus necessitating a change in the scheduling system; the evidence was simply insufficient on this point. The only time which the City was able to pinpoint was the night of February 14, 1976, which occurred well before the agreement was signed. The City was unable to show that any crisis occurred after the signing of the agreement which would justify a unilateral change in the scheduling system. Since the City was fully aware of the situation before the agreement was signed, or should have been, and since the situation did not worsen after the agreement was signed, the City is unable to use its police power to justify the unilateral change in the scheduling system.

Also, as noted above Weinstein was not caught short by the new negotiated extra week for patrolmen. He had Dallio design a new scheduling system before the contract was even signed. If he genuinely anticipated a crisis the issue could and should have been brought up during the ongoing negotiations.

In West Orange, supra , the Commission recognized that the number of officers on vacation or otherwise off duty is permissively but not mandatorily negotiable, for to hold otherwise would mandate negotiations on manning levels and the City has the right to set minimum manning requirements for police to ensure the safety of the City.

However, the City = s right to set sufficient manning does not give it the right to ignore the coexisting rights of its employees. The City must negotiate on all terms and conditions of employment which are effected by and manning decisions. Even if the City = s schedule was the only one viable under the circumstances, it was unlawful for the City to implement it without giving the PBA the right in good faith negotiations to work out all options and possibilities.

The agreement in this case was due to expire on December 31, 1977, but Article 34, ' 2 states that it A shall remain in full force and effect on a day-to-day basis beyond the date of expiration set forth herein during collective bargaining negotiations between the parties. @

If this agreement is still in effect, it is recommended that the Commission order the City to reinstate the vacation scheduling system which was in effect at the time the October 4, 1976 agreement was signed pending a resolution of such negotiations.

Although the charging party alleged a violation of ' 5.4(a)(3) of the Act no evidence was adduced at the hearing in support of such an allegation. Accordingly, it is recommended that this portion of the charge be dismissed.

1) Cease and desist from

a) interfering with the rights of its employees by denying them their rights to negotiate any proposed changes in their vacation schedules;

b) refusing to negotiate in good faith with the PBA any proposed changes in vacation scheduling.

2) Take the following affirmative action which is necessary to effectuate the policies of the Act:

a) reinstate the vacation scheduling system which was in effect at the time the October 4, 1976 agreement was signed, assuming the terms of such agreement are still in force and effect;

b) post in a prominent place at the Orange Police Headquarters copies of the attached notice. Copies of said notice, on forms provided by the Commission, shall, after being signed by the Respondent = s representative, be posted for a period of at least sixty (60) consecutive days thereafter. Reasonable steps shall be taken by the Respondent to ensure that such notice are not altered, defaced or covered by any other materials.

3) It is further recommended to the Commission that the portion of the Complaint alleging a violation of N.J.S.A. 34:13A-5.4(3) be dismissed.

_________________________
Edmund D. Gerber

Hearing Examiner

DATED: July 19, 1978
Trenton, New Jersey
1/ It is specifically charged that the City violated Subsection 5.4(a)(1), (3) and (5) of the Act. These sections prohibit 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 enure 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; 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/ Both parties were given an opportunity to examine witnesses, to present evidence and to argue orally. Briefs were submitted by both parties by November 30, 1977. Upon the entire record of this proceeding, the Hearing Examiner finds that the City is a public employer and the PBA is an employee representative within the meaning of the Act. Questions concerning alleged violations of the Act exist and this matter is appropriately before the Commission for determination.
3/ Tr. Vol. I, p. 95, line 17.
4/ Tr. Vol. I, p. 88, line 9.
5/ Tr. Vol. II, p. 61.
6/ See also In re Piscataway Twp. Board of Education, P.E.R.C. No. 91, 1 NJPER 49 (1976); In re Township of Little Egg Harbor, P.E.R.C. No. 76-15, 2 NJPER 5 (1976); In re Burlington City Board of Education , P.E.R.C. No. 77-4, 2 NJPER 256 (1976).