I.R. NO. 96-5

STATE OF NEW JERSEY

BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

STATE OF NEW JERSEY,

(DEPARTMENT OF CORRECTIONS),

Respondent,

-and-	Docket No. CO-96-51

STATE LAW ENFORCEMENT CONFERENCE (PBA LOCAL 326),

Charging Party.

Appearances:

For the Respondent,

Stephan M. Schwartz, Deputy Attorney General

For the Charging Party,

Zazzali, Zazzali, Fagella & Nowak, attorneys

(Paul L. Kleinbaum, of counsel)

INTERLOCUTORY DECISION

On August 18, 1995, the State Law Enforcement Conference (PBA Local 326) filed an unfair practice charge with the Public Employment Relations Commission alleging that the State of New Jersey (Department of Corrections) engaged in an unfair practice within the meaning of N.J.S.A. 34:13A-5.4(a)(1), (3) and (5)1/

1/	These subsections prohibit public employers, their representatives or agents from: "(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 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.

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when after the expiration of the most recent collective negotiations agreement, and during the negotiations for a successor agreement, the Bureau of Parole announced that, effective September 9, 1995, it would unilaterally alter the hours of work of field officers and establish two overlapping shifts between the hours of 6 a.m. and 9 p.m., seven days a week. It was alleged that this unilateral alteration was a change in terms and conditions of employment. Local 321 submitted an application for interim relief arguing that since this unilateral change occurred during negotiations for a successor agreement, the harm which flowed from this change was irreparable.

The order to show cause was executed and a hearing was conducted on September 7, 1995. The State argued that it had a contractual right to create the two new overlapping shifts. The application for interim relief was denied on the record.

The standards that have been developed by the Commission for evaluating interim relief requests are similar to those applied by the Courts when addressing similar applications. The moving party must demonstrate that it has a substantial likelihood of success on the legal and factual allegations in a final Commission

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(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.

decision and that irreparable harm will occur if the requested relief is not granted. Further, in evaluating such requests for relief, the relative hardship to the parties in granting or denying the relief must be considered.2/

The contract between the parties provides at Article 28, paragraph B:

B. 1. All employees shall be scheduled to work on a regular shift as determined by the appointing authority which work shift shall have stated starting and quitting times. The specific work shifts shall be posted within the work unit.

This language raises a significant question of contract interpretation. The charging party failed to meet its heavy burden. In light of Article 28 of the contract, there is a substantial question as to whether there was an unlawful unilateral change of terms and conditions of employment.

Edmund G. Gerber

Commission Designee

DATED:	September 13, 1995

Trenton, New Jersey

2/	Crowe v. DeGioia, 90 N.J. 126 (1982); Tp. of Stafford, P.E.R.C. No. 76-9, 1 NJPER 59 (1975); State of New Jersey (Stockton State College), P.E.R.C. No. 76-6, 1 NJPER 41 (1975); Tp. of Little Egg Harbor, P.E.R.C. No. 94, 1 NJPER 36 (1975).