H.E. NO. 95-13

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

TOWNSHIP OF LOPATCONG,

Respondent,

-and-	Docket No. CO-H-94-79

PBA LOCAL 56 (LOPATCONG UNIT),

Charging Party.

Appearances:

For the Respondent,

Dorf and Dorf, attorneys

(Gerald L. Dorf, of counsel)

For the Charging Party,

Loccke & Correia, attorneys

(Manuel A. Correia, of counsel)

HEARING EXAMINER'S REPORT

AND RECOMMENDED DECISION

On September 16, 1993, the Lopatcong Policeman's Benevolent Association, Local No. 56 filed an unfair practice charge against the Township of Lopatcong. The charge alleges that the Township violated the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq., specifically, (a)(1), (2), (5) and (7),1/ when

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. (2) Dominating or interfering with the formation, existence or administration of

Footnote Continued on Next Page

in April 1992, the Township refused to pay double time pay to officers who were on duty alone after sunset as required by the collective negotiations agreement.2/

A Complaint and Notice of Hearing was issued on December 3, 1993.

On January 5, 1994, the Township filed an Answer. It does not dispute the factual allegations of the charge. Rather, the Township alleges that the pertinent contract provision concerns a non-negotiable managerial prerogative and therefore it had no duty to comply with the provision.

A hearing was held on May 10, 1994 and briefs were submitted on July 11, 1994.

1/	Footnote Continued From Previous Page

any employee organization. (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. (7) Violating any of the rules and regulations established by the commission."

2/	On August 29, 1991, a binding decision was issued, pursuant to a Litigation Alternative Program (LAP) proceeding. The LAP Umpire found that the Township violated the collective negotiations agreement when it failed to pay the contractual double time rate when an officer was on third shift duty alone. The Umpire ordered the Township to compensate officers at the double time rate when they work the third shift alone.

Initially, the Charging Party filed a motion requiring that P.E.R.C. order compliance with the LAP decision. In March 1993, the Commission determined that there are no enforcement procedures available in a LAP proceeding. Accordingly, the PBA filed this charge.

The facts in this matter are not disputed. This controversy first came before the Commission on April 11, 1990 when the Township filed a scope of negotiations petition (Docket No. SN-90-66) seeking both a declaration that a contract provision on minimum staffing is not mandatorily negotiable and a restraint of arbitration of two grievances arising under that provision.

The contract between PBA Local 54 and the Township was effective from January 1, 1987 to December 31, 1989.

Article 23, Section B provided:

B. Two regular police officers shall be assigned in a patrol car on second and third shifts at all times after sunset. Any assigned officer not able to report for duty will be replaced by another.

* * *

If the shift is not fitted with 2 regular police officers after sunset, the officer working alone shall be compensated at double time. This section is effective beginning June 1, 1987.

In Township of Lopatcong, P.E.R.C. No. 91-15, 16 NJPER 479 (¶21207 1990), the Commission restrained, in part, the arbitration concerning Article 23. It held that to the extent the provision unconditionally calls for a minimum number of officers on patrol, it is not mandatorily negotiable. However, the Article's premium pay provisions were found to be severable and mandatorily negotiable. The provision does not unconditionally require a minimum number of officers to be on duty; rather, it is a premium pay provision which is mandatorily negotiable. Accordingly, the Commission could not consider the wisdom or cost of the premium pay proposal. Those

issues had to be addressed through the negotiations process. Ridgefield Park Ed. Ass'n. v. Ridgefield Park Bd. of Ed., 78 N.J. 144, 154 (1978); Byram Tp. Bd. of Ed., 152 N.J. Super. 12, 30 (App. Div. 1977).

I make the following findings of fact.

1. On June 18, 1991, the Township and the PBA agreed to submit the pending arbitration to the Commission's LAP program. They further agreed that the decision would be binding. The LAP Umpire found that an officer working alone at night is contractually entitled to double time pay. During the hearing, Officer Robert Thorp acknowledged that the double time provision in the contract was a tool used to make the Township assign two officers on a shift.

2. The Township initially complied with the decision of the LAP Umpire (T12) and the language in the 1987 contract was incorporated unchanged into the January 1, 1990 - December 31, 1992 contract.

3. Subsequent to the LAP proceeding, patrol officers who worked alone during the specified hours were compensated at the double time rate (T14). However, effective May 14, 1992, Township Councilman Ron Gutek issued a directive stating that double time would no longer be paid (T14). (C-1B in evidence)

4. The PBA filed a grievance protesting the directive.

The Chief of Police wrote to Councilman Gutek. He explained the history of the contract provision and urged the Township to continue paying double time and wait for future

negotiations to alter this provision. (C1-C in evidence; T15). Nevertheless, the Township Council denied the grievance.

5. After May 14, 1992, two patrol officers continued to be assigned on a regular basis to the night time shift. Very occasionally, one of the employees regularly assigned to the next shift might be sick or on vacation and the other officer on duty would have to work the shift alone. Patrol officers worked alone a total of 44 hours during the hours of darkness during 1992, 46.5 hours (for approximately 6 shifts) in 1993 and about 11.5 hours in 1994 through the date of the hearing (CP-3 in evidence). The Township paid straight time for these hours.

6. Chief Nick Corley testified that when he was a patrol officer, he first negotiated the double time language in 1980 on the PBA's behalf. He acknowledged that the extra compensation was a lever to impel the Township to retain two officers on a shift (T42).

The Township acknowledges that to the extent the disputed provision is a premium pay provision, it is mandatorily negotiable. However, the Township argues that since the PBA views this language as a device to ensure that two officers will always be on duty "after dark", the provision is improperly serving to enforce the illegal minimum staffing provision. "The parties did not seek to negotiate extra compensation for officers who work alone at night, to the contrary, the Association admittedly first desired to obtain -- and now seeks mandatory negotiation regarding -- a provision which serves purely as a minimum manning requirement." Post-hearing

brief pg. 9. It argues that the "true issue is whether the Association may admittedly seek to achieve through indirect means what it may not achieve directly, the mandatory negotiation of a minimum manning requirement, albeit one enforced in the guise of a double time payment mechanism." Post-hearing brief pg. 13.

The Association asserts that the issues of minimum staffing and related compensation have been fully adjudicated in the LAP proceeding.3/ It urges that the same issues may not be relitigated under the doctrine of res judicata.

The facts before me do not support the Township's overall argument. Even after announcing that it would no longer pay double time when a patrol officer is on solitary night-time duty, the Township continued to schedule two police officers on the night-time shift. The Township did not institute a new schedule incorporating solitary nighttime patrols. Thus, in all of 1993, officers worked alone at night only 46 hours or approximately six shifts. Officers apparently worked the solitary night shifts only when fellow officers were not available. It is only the double time compensation incurring at those unscheduled times which the Township refuses to pay. That compensation decision is severable from the Township's managerial prerogative to establish a new schedule with reduced staffing levels for nighttime shifts, a prerogative the Township has not asserted.

3/	Where the parties agreed to be bound by the Umpire's decision.

The Township unpersuasively argues that the contract provision is a de facto bar to the exercise of its managerial discretion.4/ The Township never exercised its managerial discretion; it merely repudiated the contract language. Had it exercised its discretion to create a new schedule, it is doubtful that the union's claim could survive. Paterson Police PBA Local No. 1 v. City of Paterson, 87 N.J. 78 (1981). The facts reveal no substantial limitation on the Township's policymaking power.

Accordingly, I recommend the Commission find that when the Township refused to pay the negotiated level of compensation, it repudiated the contract language without exercising a managerial prerogative. It committed an unfair practice by violating subsection 5.4(a)(5) and derivatively (a)(1) of the Act.

Conclusions of Law

The Township violated subsections 5.4(a)(5) and derivatively (a)(1) of the Act by repudiating its collective negotiations agreement with PBA Local 56 (Lopatcong unit) by refusing to pay double time to patrol officers who must work alone on after-dark duty.

Recommended Order

I recommend that the Commission ORDER:

A: That the Township cease and desist from:

4/	The PBA negotiator's subjective state of mind of the is simply irrelevant to this determination.

1. Interfering with, restraining or coercing its employees in the exercise of the rights guaranteed to them by the Act, particularly by refusing to pay the contractual rate compensation to patrol officers working alone on after-dark duty.

2. Refusing to negotiate in good faith with PBA Local 56 (Lopatcong unit) concerning terms and conditions of employment of employees by unilaterally refusing to pay the contractual rate of compensation to patrol officers working alone on after-dark duty.

B. That the Township take the following action:

1. Immediately pay the contractual rate of compensation to patrol officers who must work alone on after-dark duty.

2. Reimburse patrol officers who commencing in April 1992 worked alone on after-dark duty the proper contractual rate of compensation, double-time, plus interest, less compensation paid.

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

4. Notify the Chairman of the Commission within twenty (20) days of receipt what steps the Respondent has taken to comply with this order.

Edmund G. Gerber

Hearing Examiner

Dated: November 7, 1994

Trenton, New Jersey

WE WILL NOT interfere with, restrain or coerce our employees in the exercise of the rights guaranteed to them by the Act, particularly by refusing to pay the contractual rate of compensation to patrol officers who work alone on after-dark duty.

WE WILL NOT refuse to negotiate in good faith with PBA Local 56 (Lopatcong unit) concerning terms and conditions of employment of employees by unilaterally refusing to pay the contractual rate of compensation to patrol officers working alone on after-dark duty.

WE WILL immediately pay the contractual rate of compensation to patrol officers who must work alone on after-dark duty.

WE WILL reimburse patrol officers who commencing in April 1992 worked alone on after-dark duty the proper contractual rate of compensation, double-time, plus interest, less compensation paid.