H.E. NO. 84-46

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

OLD BRIDGE MUNICIPAL UTILITY

AUTHORITY,

Respondent,

-and-	Docket No. CO-82-136-35

MIDDLESEX COUNCIL NO. 7,

Charging Party.

Appearances:

For the Respondent

Antonio & Flynn, Esqs.

(William E. Flynn, of Counsel)

For the Charging Party

Borrus, Goldin & Foley, Esqs.

(James F. Clarkin, of Counsel)

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

An Unfair Practice Charge was filed with the Public Employment Relations Commission ("Commission") on December 8, 1981, by Middlesex Council No. 7 ("Council") alleging that the Old Bridge Municipal Utility Authority ("Authority") had engaged in unfair practices within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. ("Act"). The Council alleged that the Authority unilaterally changed the work hours of certain employees to enable them to complete flushing duties, and it alleged that the Authority unilaterally altered a past practice and failed to give the employees time and one-half pay for performing such duties, all of which was alleged to be in violation of subsections 34:13A-
5.4(a)(1) and (5) of the Act.1/

The Council alleged in particular that in September 1981 the Authority changed the working hours of employees, Robert Davis, Guy Donatelli, and John O'Connell from their normal daytime working hours to a midnight shift to perform flushing duties, and that it failed to give them time and one-half pay for such work.2/ The Council further alleged that similar changes were made in 1982. The Council asserted that the Authority's actions unilaterally changed an established past practice and therefore violated the Act. The Authority denied committing any violation of the Act and asserted a contractual, and certain factual defenses to the Charge.

It appearing that the allegations of the Unfair Practice Charge may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on October 28, 1982. The Answer denying any violation was filed on November 24, 1982. Hearings were held in this matter on October 13 and November 9, 1983, in Trenton, New Jersey, at which time the parties had the opportunity to examine and cross-examine witnesses, present relevant evidence and argue orally. The Council submitted a post-hearing brief which was received on January 9, 1984.3/

An Unfair Practice Charge having been filed with the Commission, a question concerning alleged violation of the Act exists, and after hearing, and after consideration of the post-
hearing brief, 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 Old Bridge MUA is a public employer within the meaning of the Act and is subject to its provisions and is the employer of the employees involved herein.

2.	Middlesex Council No. 7 is an employee representative within the meaning of the Act and is subject to its provisions.

3.	During the conduct of the hearing the parties stipulated several facts herein. The Authority is apparently required to flush certain water pipes clear on a periodic basis. Flushing involves the opening of hydrants and letting them run until sediment and dirty water have been flushed clear. The flushing program takes 6 to 8 weeks to complete.

From 1975 through 1980 the authority conducted the flushing program from 9:00 p.m. through 1:00 a.m. Employees who participated in the program during that time period first worked their normal work day which was 8:00 a.m. - 4:30 p.m. at straight time pay, then they worked the 9:00 p.. - 1:00 a.m. flushing program at time and one-half pay. The employees 8:00 - 4:30 work day included one-half hour for lunch which resulted in their working 8 hours a day or 40 hours a week as a normal schedule. The evidence did not establish whether any breaks were allowed during the 9:00 p.m. - 1:00 a.m. overtime work. (Transcript "T" 1 pp 19-53, 70-71, 73-74).

4.	On September 14, 1981, George Stone, Executive Director of the Authority, posted the following notice to employees represented by Council 7:

Effective Monday, September 21st, our flushing program will begin with two volunteers from the Waterman I category, between the hours of 12:01 A.M. and 6 A.M.

However, if there are no volunteers, the bottom two men of said category will be assigned for these duties. This program will last approximately six to eight weeks. This is being posted with the requirements of the Contract in regard to the seven day notice that is necessitated.

The 12 to 6 shift will be in lieu of a normal eight hour shift with an additional 25¢ per hour shift differential. (Exhibit J-5)

As a result of that notice the Authority, in the Fall of 1981, changed the time for flushing duties. Rather than conducting the flushing program at 9:00 p.m. - 1:00 a.m. after employees had already worked a full day, the Authority scheduled the program from 12:00 a.m. - 6:00 a.m. and requested volunteers who would work those hours instead of their regular work day.

The evidence shows that the 12:00 a.m. - 6:00 a.m. flushing program was in effect at least in the Fall of 1981 and 1982. Included in those 6 hours of flushing was a one-half hour eating break which resulted in specifically only 5 1/2 hours of work. (T 1 pp 73-74, 81, 94). The employee who performed the flushing work after the change did not work their regular 8:00 a.m. - 4:30 p.m. shift, instead, they worked the 12:00 a.m. - 6:00 a.m. flushing program and received 8 hours of straight time pay (for 5 1/2 hours of work), plus 25¢ per hour differential for 8 hours (also for 5 1/2 hours of work). (T 1 pp 54-55, 63-65, 72).

5.	Executive Director Stone testified that the men had the option to volunteer for the midnight flushing program, but that if no volunteers were forthcoming, then the two most junior men would be required to perform the work. (T 1 p 107). He testified further that if the two most junior men refused to perform the work they would be laid off. (T 1 p 120). However, Stone indicated that senior men have always volunteered for the flushing program, and he testified that both Robert Davis and Guy Donatelli were two such volunteers. (T 1 pp 107, 118-120).

6.	Robert Davis, one of the employees involved herein, testified that he has performed flushing duties every year since 1975. He admitted that in the Fall of 1981 the flushing work was posted as a volunteer action, and that he was the senior man on the crew, but that he took the work because it could not be refused because Stone allegedly said that if no one took the work he (Stone) would hire men off the street. (T 1 pp 55-56, 58). Davis testified further that he was not threatened to accept the flushing work in 1981, and he admitted that as senior man he could have refused the work. (T 1 pp 58, 80). He also admitted that the notice (Exhibit J-5) provided for 8 hours pay for 6 hours of work. (T 1 p 80).

After Davis accepted the flushing duties in 1981, he filed a grievance alleging that his hours had been changed without negotiations. (T 1 p 60). Once again in the Fall of 1982, after he accepted the flushing duties, Davis filed a grievance, Exhibit CP-4, alleging a violation of Article 13 Section N of the parties collective agreement, and he wrote that flushing had been paid at an overtime rate in the past, and he sought a return to the former flushing procedure including the receipt of overtime pay for flushing work. That grievance was never submitted to arbitration.

7.	The parties collective agreement, Exhibit J-2, which was effective from October 1980 through September 1982, provides in Article 5 Section E as follows:

Management shall reserve the right to maintain flexibility in the scheduling of personnel. In the event personnel are required to perform duties during hours not considered their regular shift, they shall be properly notified, except in an emergency situation. Proper notification shall consist of one week's notice in writing. If an individual is required to work in excess of 4 hours into a shift other than his or her regular day shift, he or she shall be paid the shift differential consistent with the Contract.

The collective agreement also includes an hours and overtime provision in Article 13. Article 13 Section A said:

Any employee working beyond his or her regularly scheduled work day shall be paid at the applicable overtime rate, spelled out in the following sections.

Section J of the Article then said:

All employees shall be paid at time and one half for all hours worked in excess of their normal work week. All employees who work more than 8 hours per day shall receive time and one half pay for all time worked in excess of 8 hours.

Finally, Section N of the Article said:

The regularly scheduled work period for the Authority is as follows, regarding Association members:

40 hours per week, 8:00 a.m. to 4:30 p.m. with 1/2 hour lunch period (excepting Plant Operators who shall continue under the existing schedule and procedures).

The evidence showed that other than the negotiations for J-
2, there were no separate or additional negotiations concerning flushing duties. (T 1 pp 86-87).

Analysis

Having reviewed the entire record the undersigned finds that the Authority did not unlawfully change the hours for flushing, nor did it unlawfully refuse to give time and one-half pay for the 1981 and 1982 flushing work. This case primarily involves the application of the instant facts and an interpretation of the parties collective agreement, and not a change or modification of an existing work rule or a failure to negotiate as alleged by the Council.

There are several factors involved in the instant decision. First, there is no question that in the years prior to 1981 the Authority conducted the flushing program from 9:00 p.m. to 1:00 a.m. after employees had already worked a full day. The Council, as part of its overall argument, apparently contests the Authority's unilateral decision to schedule flushing at some time other than 9:00 p.m. to 1:00 a.m. However, the decision as to when the flushing program shall be conducted is a managerial prerogative because it involves policy considerations concerning the Authority's obligation to deliver government services efficiently and conveniently. Consequently, the Authority was under no obligation to negotiate its decision to conduct flushing from 12:00 a.m. to 6:00 a.m. See Local 195, IFPTE v. State, 88 N.J. 393, 8 NJPER 285 (¶13129 1982); Bd. of Ed. Woodstown-
Pilesgrove Reg. School Dist. v. Woodstown-Pilesgrove Reg. Ed. Assoc., 81 N.J. 582 (1980); Ridgefield Park Ed. Assoc. v. Ridgefield Park Bd. of Ed., 78 N.J. 144, 163 (1983); and State v. State Supervisory Ees. Assoc., 78 N.J. 54 (1978).4/

Second, even assuming the negotiability of any changes in the affected employees work schedules, the facts show that employees Davis, Donatelli, and apparently O'Connell, were not "assigned" to the flushing program, nor were their work hours and work schedules unilaterally changed. The evidence shows conclusively that those employees volunteered for the flushing program. Exhibit J-5 clearly indicates that volunteers were being sought to work from 12:00 a.m. - 6:00 a.m. instead of their normal shift. Although Davis alleged that the work could not be turned down, he admitted that he was not threatened to accept the work, and that he could, in fact, refuse the work.5/ Consequently, the Authority never actually assigned the three named employees to flushing or changed their schedules, rather, they volunteered to do the work, and thus, no obligation to negotiate existed.6/

Third, there was no requirement that the Authority give time and one-half pay for the 12:00 a.m. - 6:00 a.m. flushing work. The collective agreement, J2, is silent on payment for flushing in particular, but does provide in Article 5 Section E that an employee shall receive a shift differential for working more than four hours into a shift other than his/her regular day shift.

The overtime provisions of the agreement provide in Article 13 Sections A and J that time and one-half shall be paid only if an employee works more than 8 hours per day, or for any hours worked in excess of his/her normal work week which was defined in Article 13 Section N as 40 hours per week. In this case none of the affected employees worked more than 8 hours a day or 40 hours a week, consequently, they were not entitled to time and one-half pay for the 1981 or 1982 flushing work. However, since those employees did work more than four hours into a shift other than their regular day shift, they were properly given differential pay.

It is important to point out, however, that the affected employees only performed 5 1/2 hours of work for 8 hours of pay and thus actually received almost time and one-half pay for the 5 1/2 hours of work.7/ Therefore, even if the Authority were required to give time and one-half pay for the flushing work, it appears that the Authority has virtually paid that amount.

Fourth, contrary to the Council's allegation, this case does not involve the unilateral creation of a new work rule, nor the modification of an existing work rule. No rule, in fact, was cited as having been changed or created. Compare In re Borough of Mountainside, P.E.R.C. No. 83-94, 9 NJPER 81 (¶14044 1982); In re Township of Ocean, P.E.R.C. No. 81-133, 7 NJPER 333 (¶12149 1981); and, In re Township of Moorestown, H.E. No. 83-43, 10 NJPER ___ (¶_____ 2/17/84).

Finally, even if the Authority were required to negotiate with the Council over any change in the flushing program, the undersigned finds that the Council waived its right to negotiate over the scheduling of personnel. The undersigned agrees with the Council that the parol evidence rule applies in this case because the pertinent part of the agreement (Article 5 Section E of J-2) is clear on its face, and no outside evidence is permitted to otherwise change the meaning of that clause.8/ That clause on its face gives the Authority the right to maintain flexible scheduling of personnel, and requires the Authority to give employees one week notification prior to requiring them to work during hours which are not their regular shift, and requires the payment of a differential as mentioned hereinabove. By posting J-5 on September 14, 1981, which was one week before the start of the 12:00 a.m. to 6:00 a.m. flushing program, and by paying the affected employees the 25¢ per hour differential, the Authority complied with Article 5 Section E and therefore committed no contractual violation in the instant matter.

The undersigned believes that Article 5 Section E represents a waiver of the Council's right to negotiate over work schedule changes and is similar to waivers in several other Commission decisions. See In re Randolph Twp. Bd. of Ed., P.E.R.C. No. 83-
41, 8 NJPER 600 (¶13282 1982); In re Middlesex County College, P.E.R.C. No. 82-15, 7 NJPER 463, 7 NJPER 23 (¶12009 1980); In re Hanover Park Reg. H.S. Bd. of Ed., P.E.R.C. No. 80-105, 6 NJPER 104 (¶11054 1980); In re Jamesburg Bd. of Ed., P.E.R.C. No. 80-
56, 5 NJPER 496 (¶10253 1979); and In re State of N.J., P.E.R.C. No. 79-33, 5 NJPER 27 (¶10018 1978).9/

Accordingly, based upon the entire record and the above analysis, the Hearing Examiner makes the following:

Conclusions of Law

The Authority did not violate N.J.S.A. 34:13A-5.4(a)(1) and (5) by changing the time for the flushing program or by denying time and one-half pay to employees working that program.

Recommended Order

The Hearing Examiner recommends that the Commission ORDER that the Complaint be dismissed in its entirety.

/s/Arnold H. Zudick

Hearing Examiner

DATED:	February 27, 1984

Trenton, New Jersey