H.E. NO. 83-21

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

EWING TOWNSHIP,

Respondent,

-and-	Docket No. CO-82-170-139

NEW JERSEY STATE POLICEMEN'S

BENEVOLENT, INC., LOCAL 111,

EWING TOWNSHIP,

Charging Party.

Appearances:

For the Respondent

Dietrich, Allen & St. John, Esqs.

(Charles P. Allen, Jr., Esq.)

For the Charging Party

Merlino, Rottkamp & Grillo, Esqs.

(Robert B. Rottkamp, Jr., Esq.)

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

The New Jersey State Policemen's Benevolent, Inc., Local 111, Ewing Township, filed an Unfair Practice Charge against Ewing Township with the Public Employment Relations Commission (Commission). The charge alleged that the Township violated the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. (the Act), specifically §5.4(a)(1), (3) and (5)1/ when effective January 11, 1982, the Township, through its Chief of Police, issued a work schedule which changed the old schedule that had been in existence for approximately 15 years. It is alleged that this change was made without any prior notice or prior negotiations.

The unfair practice charge was accompanied by an application for interim relief with an order to show cause. The order to show cause hearing was conducted on January 20, 1982, by the undersigned as the Commission's designee and at that time the application for interim restraints was denied.

On June 17, 1982, the Director of Unfair Practices issued a Complaint and Notice of Hearing. The hearing was conducted on July 21, 1982. Both parties were given an opportunity to present evidence, examine and cross-examine witnesses, and argue orally. Robert Litz, the President of the PBA, testified on behalf of the Charging Party. It was his testimony that officers in the Ewing Township Police Department worked pursuant to a rotating shift schedule that was in effect since March 4, 1968. In December of 1981 Deputy Chief Plaag called Litz and some other officers into his office and asked them to look at a new schedule proposal "to find out what the men thought of that proposal." A few days later Litz told the Deputy Chief that he would not like working under the new proposed schedule. Litz also stated that as President of the PBA he was of the opinion that most of the men were not in favor of the new schedule. Litz asked Plaag if it could be shown that the majority of the men were not in favor of the new schedule would it make a difference? Plaag's response was simply to show him.

Litz then conducted a poll to see if the men wanted to go under the new schedule or if they wanted to remain under the old schedule. The results of the poll were that the majority of the men were dissatisfied with the new schedule.

Under the provisions of the new schedule patrolmen were required to work stretches of seven days without interruption for three times a month. Litz also testified that he never was contacted by the Township as the PBA representative. In fact Litz stated Plaag would not negotiate these items, claiming they were non-negotiable. Plaag would only talk to Litz and the other officers as employees and not as union officers. The Chief of Police, Calvin R. Steepy, testified on behalf of the Township.

Steepy testified that due to the recent reduction in the number of police officers, he was forced to drop certain programs2/ and in order to restore those programs and further in order to allow more men to be on duty during the day shift, he altered the schedule. The new schedule change went into force in January of 1982 and provides for extra men on the day shift when, according to Steepy, they are needed most. Steepy testified that he was never completely satisfied with the old schedule and that for at least ten years he was thinking of ways to revise it. Steepy testified that there was an informal, ongoing process in attempting to develop a schedule that would be beneficial to both the men and the Township. He testified that Officer Litz once attempted to devise a schedule and the past president of the PBA Hutchinson also attempted to create a schedule. The former PBA officers went to outside individuals to try to come up with a better schedule. Steepy testified that he never personally was contacted by the PBA vis-a-vis the imposition of the new schedule. Steepy testified that he has always taken the position if anyone is dissatisfied with the schedule he would ask him to devise a new one and they would look it over. No one has been able to come up with a better schedule that both meets the needs of the Township and of the men.

Litz's testimony that Plaag refused to negotiate with the PBA concerning the imposition of the new schedule stands unrebutted. It goes without saying that the Township has a right to establish its own manning needs to put men on the street as it sees fit, but within these parameters, the Association has the right to negotiate a work schedule concerning the individual employee's hours of work. The proposed schedule does not change the hours worked on a shift or the number of hours of week worked. It does however change the number of times that the officers have to work seven days without a break. N.J.S.A. 40A:14-133 provides that:

The days of employment of any member or officer of the police department or force, including any officer having supervision or regulation of traffic upon county roads, parks and parkways shall not exceed 6 days in any one week, except in cases of emergency the officer, board or official in charge of such police department or force shall have authority to retain on duty any member or officer during the period of the emergency...

It is noted that no evidence was adduced at the hearing to indicate that the new schedule was implemented as a result of an emergency.

The New Jersey Supreme Court held in Bd/Ed of Bernards Tp. v. Bernards Tp. Ed/Assn, 79 N.J. 311, 316 (1979) that "in carrying out its duties PERC will at times be required to interpret statutes other than the New Jersey Employer-Employee Relations Act." See also Hunterdon Cent. H.S. v. Hunterdon Cent. H.S. Teachers Assn, 174 N.J. Super. 468 (App. Div. 1980).

The Township had the right to establish manning levels but within the framework of those levels the Township must negotiate with the PBA concerning scheduling. In re Boro of Roselle and Roselle Boro PBA Local 99, P.E.R.C. No. 80-137, 6 NJPER 247 (¶11120 1980), affm'd App. Div. Docket No. A-3329-79; In re City of Newark, P.E.R.C. No. 81-124, 7 NJPER 245 (¶12110 1980); In re City of Newark, P.E.R.C. No. 82-59, 7 NJPER 606 (¶12269 1981). Here, however, when the Township imposed a new work schedule, they not only failed to negotiate with the PBA, they also violated N.J.S.A. 40A:14-133. Further, simply because the Township conferred with several officers as to the creation of a new schedule does not satisfy the requirements of good faith negotiations. City of Orange and Orange PBA, Inc. Local 89, P.E.R.C. No. 79-10, 4 NJPER 420 (¶4188 1978).

Accordingly, it is recommended that the Commission find that the Township of Ewing violated §5.4(a)(1) and (5) of the Act when it refused to negotiate in good faith with the New Jersey State Patrolmen's Benevolent Association, Inc., Local 111 of Ewing Township and unilaterally imposed a new work schedule on January 11, 1982.

It is further recommended that the Commission order that the Township of Ewing within a reasonable time period reinstate the prior work schedule and further negotiate in good faith with the PBA concerning the implementation of a new work schedule.

It is further recommended that the Commission order that they post at all places where notices to employees are customarily posted copies of the attached Notice marked as Appendix "A." Copies of such notice, on forms to be provided by the Commission, shall be posted immediately upon receipt thereof, and, after being signed by the Respondent Town's authorized representative, shall be maintained by it for a period of at least sixty (60) consecutive days thereafter. Reasonable steps shall be taken by the Respondent Town to ensure that such notices are not altered, defaced or covered by other material.

/s/Edmund G. Gerber

Hearing Examiner

DATED:	January 7, 1983

Trenton, New Jersey

WE WILL NOT interfere with, restrain or coerce the New Jersey State Patrolmen's Benevolent Association, Inc., Local 111 of Ewing Township by refusing to negotiate the imposition of a new work schedule on members of the Police Department.

WE WILL within a reasonable time rescind the current schedule and reinstate the old schedule until good faith negotiations conclude pending the imposition of a new work schedule.