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:

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 Committeewoman^4/ 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 A 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.

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 parties ^8/ 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

___________________________
Joan Kane Josephson

Hearing Examiner

DATED: April 3, 1980
Trenton, New Jersey

1/ These subsections 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; (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 to them by this Act; (4) discharging or otherwise discriminating against any employee because he has signed or filed and affidavit, petition or complaint or given any information or testimony under 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/ One of the officers who testified had been on the negotiating committee since 1975; another since 1978.

3/ Involved in negotiations since late 1976.
4/ Involved in negotiations since 1975 and police commissioner in 1977-78.
5/ In cross-examination Councilwoman Carol Jacobs testified that negotiations sessions with units of employees are never conducted during employees work hours, noting that negotiations with units that work 9 to 5 hours are always at night (Tr. 177).
6/ There was a prior court session on another PBA related matter that the PBA negotiating committee attended but no one was on duty (Tr. 67) and there was a negotiations session Sgt. Bell attended in Mt. Arlington, N.J., also while off duty.
7/ It is not argued that the disciplined imposed, the letters of reprimand, did not follow the normal disciplinary procedure thereby violating the Township = s negotiations obligation with the PBA, and I do not, therefore, pass on that aspect of the Township = s conduct.
8/ See Hudson Cty. Board of Chosen Freeholders and Hudson Cty. PBA Local 5 , P.E.R.C. No. 78-48, 4 NJPER 87 ( & 4041 1978), affm = d App. Div. Docket No. A-244-77 (4/9/79). State of New Jersey v. Local 195, IFPTE and Local 518 SEIU , P.E.R.C. No. 80-7, 5 NJPER 299 ( & 10161, 1979), appeal pending App. Div. Docket No. A-4601-78.
9/ N.J.S.A. 34:13A-5.3 provides in part:
A Proposed new rules or modifications of existing rules governing working conditions shall be negotiated with the majority representative before they are established. @
10/ The Commission has found that procedures for employees representation by the majority representative is a mandatory subject of bargaining. In the Matter of Administration Employees Association and Newark Board of Education, SN 80- 22, 5 NJPER __(& 1980). The Commission found a proposal that procedures for transfer of shop stewards was mandatorily negotiable. Work hours have been agreed to between the parties and is incorporated into their contract. Time off within work schedules whether it be for vacations ( Byram Township Board of Education and Byram Township Education Association , 152 N.J. Super . 12 (App. Div. 1977) or to negotiate on behalf of unit members would therefore be mandatorily negotiable. I do not find it was negotiated or that it is a past practice that PBA representatives be granted such time off. The May 2 directive falls within the negotiated hours of work.