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 17, 1977. Hearings were held on August 18, 1977, and October 25, 1977. ^2/ It is undisputed that on October 23, 1976, the hours of Primary Level Supervisory Employees at Rahway State Prison were changed from 7:50 a.m. until 3:50 p.m. to 7:30 a.m. until 4 p.m. The State argues that this was done to bring these employees in line with the existing contract between the parties and, accordingly, it had no obligation to negotiate this change. Article VIII-A.1 of the Agreement between the parties provides that A the number of hours in the workweek for each job classification within the unit shall be consistent with its present designation in the State Compensation Plan. @ Under the State Compensation Plan the Primary Level Supervisors, i.e. foremen, are designated as 40-hour employees. It is undisputed that most other State employees governed by the State Compensation Plan are not paid for their lunch hours and it is the State = s position that the employees in question should not be paid either. The Association maintains that these employees have worked the old schedule for many years, they had always worked during the lunch period and the State actions effectively raised their work hours from 40 to 42 2 hours.

The foremen are not allowed to leave the prison during their lunch period for both security reasons and the necessity of their availability in case of an emergency. ^3/ The Association points out that correction officers at the prison are paid for their lunch period and, accordingly, so should they. Frank Mason, the Director of the Office of Employee Relations for the State, testified however that correction officers are paid for their lunch period for three reasons: 1) They must eat in the institution; 2) they continuously supervise inmates during the lunch period; and 3) they eat in close proximity to the inmates and must observe all activities and be available for immediate duty. The Association claims that the employees in question also meet these guidelines and should be likewise paid for their lunch periods. Unlike the correction officers, the foremen, although they eat in the institution, do not have to supervise inmates and are not required to be available for the same type of emergencies as a correction officer. More importantly, the concept of a paid lunch was specifically negotiated by the correction officers and is expressly provided for by the agreement between the State of New Jersey and the State Law Enforcement Conference of the New Jersey State Police Benevolent Association. The undersigned does not find the precedent set by the correction officers = lunch procedures to be controlling.

There was extensive testimony concerning the number of times different foremen had missed their lunch period either because they had been called out on emergencies during lunch or the nature of the work they were performing required them to remain on the job site during lunch. The estimates of the frequency with which these foremen missed lunch varied all the way from once a month to three times a week.

It is undisputed that the foremen who miss their regular lunch period can eat at a later time. Hot meals are served continuously in the officers = dining room from 9 a.m. to 5 p.m. and food is available during the entire day and can be sent to different places around the prison. On balance, it is quite clear that the employees within this unit are not required to work during the lunch periods for most days. There are times however when they had to work through the lunch either to finish a project or to handle an emergency. But it cannot be forgotten that the procedures for taking lunch were the same before the imposition of the new schedule and remained unchanged by the new hours. These employees had their lunch period interrupted before the imposition of the new work hours as well as after and, as before, they were afforded an opportunity to receive lunch on the job or take lunch later in the day. (It is noted that for security reasons employees cannot bring their own lunches into the prison. Rather, they eat meals provided by the institution.)

Significantly, the testimony does not show that even with the imposition of the new hours, these employees worked more than the 40 hours required by the contract. In, In re New Brunswick Board of Education, P.E.R.C. No. 78-47, 4 NJPER 84 (& 4040, 1978), motion for reconsideration denied P.E.R.C. No. 78-56, 4 NJPER ___, appeal pending App. Div. Docket No. A-240-50-77, the Commission stated ^4/ that where there is sufficiently clear and unambiguous language in the contract with respect to an issue that the mutual intent of the parties can be discerned with no other guide than a simple reading of the language, that contract language is controlling. Here the language of the contract is clear and controlling. The employer simply brought the total hours of work into line with the contract. ^5/

Having failed to prove by a preponderance of the evidence that the State unilaterally increased the hours of work of the Primary Level Supervisors at the Rahway State Prison, the undersigned will recommend to the Commission that they dismiss the complaint in this matter in its entirety.

__________________________
Edmund G. Gerber
Hearing Examiner

DATED: Trenton, New Jersey

1/ Section 5.4(a)(5) makes it an unfair practice for an employer to refuse 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. Both parties filed post-hearing briefs, and the Association filed a reply brief to the State = s summation statement for brief. These documents were received by the Commission by July 24, 1978.

An unfair practice having been filed with the Commission, questions concerning the alleged violations of the Act exist and this matter is appropriately before the Commission for determination.
3/ Vol. I, pp.11, 49.69, 79 and 84.
4/ In reaching an opposite conclusion under the facts of that case.
5/ It is noted that a change in the reporting and dismissal time is a change in the terms and conditions of employment. Board of Education of Township of Willingboro, P.E.R.C. No. 78-20, 3 NJPER 369 (1977), but this issue was not before the Hearing Examiner and was not considered.