On appeal from Public Employment Relations Commission.
Allcorn, Morgan and Horn. The opinion of the court was delivered by Horn, J.A.D.
The question in this case is whether a change of shift assignments of a municipal police department as promulgated by a municipality is mandatorily negotiable under the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. (act).
The Town of Irvington (town) appeals from a decision and order of the Public Employment Relations Commission (PERC) issued pursuant to PERC's primary jurisdiction under N.J.S.A. 34:13A-5.4(d) to resolve disputes between public employers and public employees concerning the scope of negotiations under said act.
PERC's jurisdiction was invoked by the Irvington Policemen's Benevolent Association, Local # 29 (PBA), which on May 5, 1978 filed a Petition for Scope of Negotiations Determination with PERC, requesting that PERC determine whether the town's decision to "initiate and implement a three shift work schedule which rotates around the clock on a bi-weekly basis" was a required subject for collective negotiations. The matter was determined by PERC on that petition and briefs submitted by PBA and the town. PERC's decision and order that the town was required to negotiate the change was issued on July 5, 1978. The town filed a notice of appeal on August 22, 1978. On this appeal, in addition to the town and PBA, PERC has also filed a brief and argued the issue orally.
PERC did not hold an evidentiary hearing on the scope question, apparently because, as stated by it in its written decision and order, the essential facts were not contested. However, its recital of the uncontested facts merely includes, as we summarize same, a statement that the town desired to "change shift assignments so that all officers in the Patrol Division work on full rotating around the clock shifts," biweekly, from the former practice whereby approximately one-third of the officers worked the midnight shift on a steady, nonrotating basis and the other officers worked alternating shifts biweekly.
However, in the brief filed with us the town not only recites the earlier history of the dispute but also asserts the reasons for the desired change. We do not find this history to have been contradicted by either PERC or PBA. We reproduce the pertinent part of said history:
Several years ago a fixed evening shift was instituted on a trial basis for Officers in the Radio Patrol Division of the Irvington Police Department. Before that time, all Officers and their Superior Officers had been on three rotating shifts. After the change, the Superior Officers continued on a rotating shift schedule. Contrary to expectations, the change to an evening fixed shift did not enhance departmental efficiency, but rather, in the opinion of the Chief and his staff, diminished it. As an example, Superior Officers complained that they were not able to enforce discipline on a continuing basis because their rotating schedule did not enable them to supervise Patrol Officers on the fixed evening shift for more than a short period of time. The decision was made, at least as early as 1975, to put the entire Patrol Division on a rotating shift schedule in order to increase departmental efficiency.
In their counterstatement of the facts, PERC and PBA note that the issue (of rotating shifts) had been negotiated without objection in the past. Also, "Thus the dispute before PERC in the scope of negotiations proceeding is whether the change * * was a required subject of collective negotiations."
We pause to mention at this point that when PERC decided the scope question in this case it had not had the benefit of our Supreme Court's opinions which were rendered in Ridgefield Park Ed. Ass'n v. Ridgefield Park Bd. of Ed. , 78 N.J. 144 (1978);
State v. State Supervisory Employees Ass'n , 78 N.J. 54 (1978); Galloway Tp. Bd. of Ed. v. Galloway Tp. Ed. Ass'n , 78 N.J. 25 (1978), and Galloway Tp. Bd. of Ed. v. Galloway Tp. Ass'n of Ed. Sec. , 78 N.J. 1 (1978), as to which we refer below. In any event, PERC and PBA have since reviewed these opinions and at oral argument they ...