H.E. NO. 80-38

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

TOWNSHIP OF BYRAM,

Respondent,

-and-	Docket No. CO-79-287-1

PBA LOCAL 138, BYRAM TOWNSHIP,

Charging Party.

Appearances:

For the Respondent,

Mr. J. Peter Braun

For the Charging Party,

Osterweil, Wind & Loccke, Esqs.

(Manuel A. Correia, Esq.)

HEARING EXAMINER'S RECOMMENDED REPORT

AND DECISION

On April 18, 1979, PBA Local 138, Byram Township ("PBA" or "Charging Party") filed an Unfair Practice Charge with the Public Employment Relations Commission ("Commission") alleging the Township of Byram ("Township" or "Respondent") had engaged in certain unfair practices within the meaning of the New Jersey Employer-Employee Relations Act ("Act"), N.J.S.A. 34:13A-1 et seq. Specifically, the PBA alleges that the Township altered a standing practice of allowing police department negotiating representatives to attend negotiating sessions and other types of proceedings concerning police contract negotiations while on active duty in violation of N.J.S.A. 34:13A-5.4 (a)(1),(2),(3),(4),(5), and (7).1/

It appearing to the Director of Unfair Practices that the allegations of the charge, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing, was issued on July 5, 1979. Pursuant to the Complaint and Notice of Hearing, a hearing was held on October 3, 1979, in Newark, New Jersey, at which time all parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. The parties filed letter memoranda in lieu of briefs by November 5, 1979. Transcripts were received on November 14, 1979.

An Unfair Practice Charge having been filed with the Commission, a question concerning allegations of the Act exist and, after hearing, and after consideration of the post-hearing briefs of the parties, the matter is appropriately before the Commission by its designated Hearing Examiner for determination.

Upon the entire record, the Hearing Examiner makes the following:

Findings of Fact

1. The Township of Byram is a public employer within the meaning of the Act and is subject to its provisions.

2. PBA Local 138, Byram Township is a public employee representative within the meaning of the Act and is subject to its provisions and is the majority representative of all police department members, excluding the chief and lieutenant (vacant position) employed by the Township.

3. There are 11 police officers employed by the Township: one chief, one sergeant, one detective and eight officers. The eight officers work rotating eight and ten-hour shifts; the others do not. The sergeant acts as chief in the chief's absence.

4. The PBA and the Township have negotiated agreements between the parties for a number of years through their respective negotiating teams. Meetings have been held in the municipal building at mutually agreeable dates and times.

5. At times police officer negotiating team members have attended sessions while on duty (R-6 in evid.) without receiving approval to attend negotiating sessions while on duty (Tr. 15 and 87). Officers at times attended sessions in uniform and remained in radio communication during sessions (Tr. 15)2/

6. The Mayor, 3/ a Committeewoman4/ and the Business Administrator, all of whom were involved in negotiations, were unaware that officers were attending sessions while on duty.5/ The issue was never discussed in negotiations and the contract is silent on the matter.

7. On February 23, 1979, two police officer negotiating committee members attended a hearing on a motion filed by the PBA against the Township in the Superior Court of New Jersey in Morristown, New Jersey, while on duty. One of the officers, the sergeant, was acting chief on that day because the chief was in Arizona. Morristown is about 20 miles from Byram Township.

8. The sergeant, Sergeant Douglas Bell, received a letter of reprimand for neglect of duty from the Township Administrator. The other officer Patrolmen Bruce Bidgood received no formal disciplinary action because he attended the court session with permission of acting chief (Sergeant) Douglas Bell, but was advised by the Township Administrator that his attendance was unfounded and showed lack of sound judgment. The letters were placed in their respective personnel folders. The administrator also issued a directive on March 2, 1979, that no member of the police department would be allowed to attend "any negotiating session, court hearing, etc. concerning police contract while on active duty." (CP-6 in evid.) The directive provides exceptions can be granted with mutual consent of the chief and the Township Administrator.

The Issue

1. Did the Respondent violate the Act when it reprimanded the officers for attending the court hearing and set the policy for attendance of PBA related matters while on duty without negotiations?

Discussion and Analysis

The Respondent did not violate the Act

when it reprimanded the officers for

attending the court hearing of when it

set the policy for attendance at PBA

related matters while on duty.

Assuming arguendo a policy existed whereby police officers were allowed to attend negotiating sessions while on duty without obtaining prior permission to do so, I am not convinced that attendance at a court session 20 miles out of town is analogous to attending negotiating session in the municipal building.6/

The PBA argues that the letters of reprimand should be removed from the officers' files because the past practice of being allowed to attend such PBA related matters had been unilaterally changed. Since I do not find that such a past practice existed, I will not recommend to the Commission that the requested relief be ordered.7/

The PBA argues that the Administrator's directive of March 2, 1979, concerning PBA representatives attending collective negotiating sessions should be ordered rescinded because it violates a past practice which, while not an express provision of the contract, is a term and condition of employment that cannot be changed without negotiations.

In the absence of the inclusion of a terms and condition of employment in a contract between parties, such a term and condition may be established by past practice between the parties8/ and cannot be changed without negotiations.9/ I am not convinced that a practice between the parties was established that allowed PBA representatives to attend contract negotiations and other related proceedings while on duty (compare findings of fact 5 and 6), and therefore do not recommend that the March 2, 1979, directive be rescinded because it violates the Township's negotiations obligations with the PBA. 10/

No evidence was introduced as to the alleged violations of N.J.S.A. 34;13A-5.4(a)(2)(3)(4) or (7).

Upon the foregoing, and upon the entire record in this case, the Hearing Examiner makes the following

Conclusions of Law

The Respondent Township did not violate N.J.S.A. 34:13A-
5.4(a)(1),(2),(3),(4),(5)or (7).

Recommended Order

The Respondent Township having not violated the Act, it is HEREBY ORDERED that the Complaint be dismissed in its entirety.

___________________________

Joan Kane Josephson

Hearing Examiner

DATED: April 3, 1980

Trenton, New Jersey