H.E. NO. 83-4

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

LONG BEACH TOWNSHIP,

Respondent,

-and-	Docket No. CO-82-250-136

POLICEMEN'S BENEVOLENT ASSOCIATION, INC.,

Charging Party.

HEARING EXAMINER'S REPORT

AND RECOMMENDED DECISION

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Party, all of which is alleged to be a violation of N.J.S.A. 34:13A-5.4(a)(1), (5) and (7) of the Act.1/

It appearing that the allegations of the Unfair Practice Charge, as amended, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on June 4, 1982. Pursuant to the Complaint and Notice of Hearing, a hearing was held on July 29, 1982 in Trenton, New Jersey, at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. Both parties argued orally and waived the filing of post-hearing briefs.

An Unfair Practice Charge, as amended, having been filed with the Commission, a question concerning alleged violations of the Act, as amended, exists and, after hearing, and after consideration of the oral argument 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:

FINDINGS OF FACT

1.	Long Beach Township is a public employer within the meaning of the Act, as amended, and is subject to its provisions.

2.	The Policemen's Benevolent Association, Inc. is a public employee representative within the meaning of the Act, as amended, and is subject to its provisions.

3.	The collective negotiations agreement between the parties is dated July 2, 1981 and is effective during the term January 1, 1981 through December 31, 1982 (J-1).

4.	The Agreement (J-1) provides, in part, in Article XXI, Management Rights:

...This Agreement is subject to existing rules and regulations. The Chief may not, under power granted in him of (sic) virtue of his office, modify the terms of this contract... (J-1, p. 17).

5.	The Agreement (J-1) also provides, in part, in Article XXIII, Retention of Benefits:

Except as otherwise provided herein, all benefits which employees have heretofore enjoyed and are presently enjoying shall be maintained and continued by the Township during the term of this Agreement..; (J-1, p. 17).

6.	The Agreement (J-1) further provides, in part, in Article XI, Vacations:

...K. Employees who wish may carry their earned vacation from the year before into the following year. Such earned vacation may not be carried more than one year... (J-1, p. 11).

7.	Under date of September 17, 1981 the Chief of Police, James C. Hartmann, issued a Policy memorandum to all personnel in the Police Department, which provided, in part, as follows:

Due to increase of activities and population in our area, the Department is attempting to satisfy the needs of the community by maintaining as many patrols as possible, thereby providing the best protection possible for our citizenry.

During the off-season, no shifts will be scheduled with less than four (4) personnel. This means that any leaves requested that will reduce the shift to less than four personnel will constitute an emergency...

1. Starting January 1, 1982, a new policy will be used for these personnel carrying time from the previous year. All leave requests for the time carried forward must be submitted to his commanding officer by January 15th of the next year... (J-2) (Emphasis supplied in part).

8.	Under date of November 8, 1981 a negotiations representative of the Charging Party, William Walters, made a demand for negotiations as to the policy changes proposed by the Chief of Police, said demand being addressed to the Mayor of the Township (J-3).

9.	Under date of November 17, 1981 counsel for the Township replied to Walters' demand for negotiations, stating that the Township would not negotiate on the ground that it was acting within its managerial prerogatives (J-4). Further, counsel for the Township stated that the matter should have been grieved under the contract but that the 30-day time limit had expired and that the Township would not waive its defense of time limits.

10.	Neither party offered any witnesses to testify as to how and in what manner the policy change (J-2) had been implemented on and after January 1, 1982.

THE ISSUE

Did the Township violate the Act when its Chief of Police unilaterally adopted a "new policy," effective January 1, 1982, for the carrying over of vacation time from one year to the next year without negotiations with the Charging Party?

DISCUSSION AND ANALYSIS

The Township Violated Subsections

(a)(1) And (5) Of The Act When Its

Chief Of Police Unilaterally Adopted

A "New Policy," Effective January 1,

1982, For The Carrying Over Of Vacation

Time From One Year To The Next Year

Without Negotiations With The Charging

Party

It appears clear to the Hearing Examiner that the Policy memorandum from the Chief of Police to all personnel, dated September 17, 1981, at least as to the "new policy" for carrying over vacation time, constitutes a unilateral change from prior practice and is analogous to the vacation schedule change in City of Orange, P.E.R.C. No. 79-10, 4 NJPER 420 (1978). See, also, Town of West Orange, P.E.R.C. No. 78-93, 4 NJPER 266 (1978); City of Northfield, P.E.R.C. No. 78-82 4 NJPER 247 (1978); Hudson County, P.E.R.C. No. 80-161, 6 NJPER 352 (1980); and City of Elizabeth, P.E.R.C. No. 82-100, 8 NJPER 303 (1982).

In City of Orange, supra, the Commission recognized that the subject of manning requirements established by the City was a managerial prerogative. However, the Commission went on to find that the unilateral change in the vacation scheduling system was a violation of Subsections (a)(1) and (5) of the Act to the extent that the prior system "...does not cause manpower levels to fall below the manning requirements established by the City..." (4 NJPER at 421).

Similarly, in City of Elizabeth, supra, where the City's Fire Director unilaterally suspended holidays or accumulated time off until further notice, the Commission held that the City had exceeded the needs of the emergency situation "...and unreasonably abrogated the terms and conditions of employment negotiated in the contract. Even assuming that the City had to suspend time off and holidays during the emergency, it was, at least, obligated to offer to negotiate with the FMBA on how these accrued contractual rights might be protected and/or reinstated when the emergency ended. Instead, it unilaterally imposed an open-ended, blanket denial of all accrued time off and holidays...We find that the City's actions were overly intrusive on the employee's negotiated rights, even if they had their genesis in a real manpower shortage..." (8 NJPER at 305).

In the instant case, the Chief of Police unilaterally decided on September 17, 1981 to institute a "new policy" regarding the carrying over of vacation time from the previous year. The Agreement in Article XI, supra, states, without qualification, that employees may carry their earned vacation from one year into the following year. The "new policy" (J-2) qualifies that contractual right to the extent that "...All leave requests for the time carried forward must be submitted...by January 15th of the next year..." A reasonable inference to be drawn from this quoted language, in the absence of testimony to the contrary, appears to be that failure to submit a leave request by January 15th of any given year would extinguish the right to carry over earned vacation from the previous year. Concededly, the Chief of Police had in mind working out the scheduling of vacations in the context of manning requirements for the Police Department. However, as noted above, the language of J-2, on its face, is clearly susceptible of a reasonable interpretation that the failure to submit a request by January 15th adversely affects the vacation carry-over rights of employees in the collective negotiations unit. Such an adverse impact on vacation entitlement and carry-over rights, without negotiations with the Charging Party, appears to be contrary to the language and spirit of the provisions of Article XXI and Article XXIII, supra. Exhibit J-2 constitutes a modification of the Agreement and the loss of a benefit enjoyed by employees heretofore.

As previously found, the Respondent elected to produce no testimony from the Chief of Police, or any other knowledgeable witness, as to what, in fact, has been the practical implementation of the "new policy" since January 1 or January 15, 1982. The argument of the Township's counsel cannot be regarded as record evidence: City of Elizabeth, P.E.R.C. No. 82-74, 8 NJPER 121, 122 (1982). Thus, the Hearing Examiner can only rely on the documentary evidence presented at the hearing, namely, J-1 through J-4.

Finally, the Hearing Examiner notes that this case is not appropriate for deferral to arbitration under East Windsor Board of Education, E.D. 76-6, 1 NJPER 59 (1975) inasmuch as the Respondent is unwilling to waive the defense of time limits in an arbitration proceeding. Deferral to arbitration would, thus, be futile: See Hudson County, P.E.R.C. No. 78-48, 4 NJPER 87, 89, 90 (1978), aff'd. App. Div. Docket No. A-2444-77 (1979).

Based on all the foregoing, the Hearing Examiner will recommend that paragraph 1 of the Policy memorandum of September 17, 1981 be rescinded as a violation by the Township of Subsections (a)(1) and (5) of the Act. The Hearing Examiner will recommend dismissal as to the Subsection (a)(7) allegation inasmuch as no evidence has been adduced to support a violation of this Subsection of the Act.

* * *

Upon the foregoing, and upon the entire record, the Hearing Examiner makes the following:

CONCLUSIONS OF LAW

1.	The Respondent Township violated N.J.S.A. 34:13A-
5.4(a)(5), and derivatively 5.4(a)(1), when its Chief of Police unilaterally issued a Policy memorandum on September 17, 1981 establishing a "new policy" for the carrying over of vacation time, effective January 1, 1982.

2.	The Respondent Township did not violate N.J.S.A. 34:13A-5.4(a)(7) by its conduct herein.

RECOMMENDED ORDER

The Hearing Examiner recommends that the Commission ORDER:

A.	That the Respondent cease and desist from:

1.	Interfering with, restraining or coercing its employees in the exercise of the rights guaranteed to them by the Act, particularly, by unilaterally implementing changes in the procedure for carrying over vacation from one year to the next.

2.	Refusing to negotiate in good faith with the PBA concerning terms and conditions of employment of employees in the collective negotiations unit, particularly, by unilaterally implementing changes in the procedure for carrying over vacation from one year to the next.

B.	That the Respondent take the following affirmative action:

1.	Forthwith rescind paragraph 1 of the Policy memorandum dated September 17, 1981 (J-2) unless and until any changes in the procedure for carrying over vacation from one year to the next are negotiated with the PBA.

2.	Post in all places where notices to employees are customarily posted, copies of the attached notice marked as Appendix "A." Copies of said notice, on forms to be provided by the Commission, shall be posted immediately upon receipt and, after being signed by the Respondent's authorized representative shall be maintained by it for at least sixty (60) consecutive days thereafter. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced or covered by other materials.

3.	Notify the Chairman of the Commission within twenty (20) days of receipt what steps the Respondent has taken to comply herewith.

C.	That the allegations that the Respondent violated N.J.S.A. 34:13A-5.4(a)(7) be dismissed in their entirety.

/s/Alan R. Howe

Hearing Examiner

DATED:	August 3, 1982

Trenton, New Jersey