On appeal from final decision and order of the Public Employment Relations Commission.
Bischoff, Petrella and Brody. The opinion of the court was delivered by Petrella, J.A.D.
[192 NJSuper Page 72] This case once again presents the difficult question of scope of negotiations in the context of policemen as public employees. The Borough of Atlantic Highlands (borough) appeals the determination
of the chairman*fn1 of the Public Employment Relations Commission (PERC) that contract proposals made by the Atlantic Highlands PBA Local 242 (PBA) with respect to shift schedules in the police department are mandatorily negotiable. We reverse.
There was no hearing before PERC. However, the facts are not disputed, and the positions of the parties were fully presented in their respective submissions to PERC. The borough has a police force of 14 members: a chief of police (chief) and a captain who are not members of the PBA (both would presumably qualify as "managerial executives" under N.J.S.A. 34:13A-3(f)), and 12 police officers who are members of the PBA, consisting of one detective-sergeant, three patrol-sergeants and eight patrolmen.
The chief has implemented a schedule for the police force and borough has consistently maintained over the years that scheduling in the police department is a managerial prerogative not subject to mandatory negotiations.*fn2
Under the scheduling plan the chief is on regular duty from 8 a.m. to 4 p.m. The captain's normal working hours are from 2 p.m. to 10 p.m.; the detective-sergeant normally is on regular duty on the day shift or as required by the chief. The remaining force is divided into three rotating shifts providing 24-hour a day, seven-day a week coverage. Each officer works five days and is off duty two days of each week with shifts being rotated
each week. However, officers retain the same days off each week. Approximately every four months each officer's off-duty days are changed. The rotating shifts apparently consist of one sergeant and only two or three patrolmen to cover the entire borough during shifts other than the Monday to Friday day shift.*fn3 In order to maintain the ability to adjust manning requirements as the need arises, the work schedule provides for one officer on a rotating basis in ten-week cycles to work as a relief officer each week.
During negotiations for a new contract for the years 1982-1983, the PBA proposed a change in the work schedule from a five-days-on, two-days-off schedule to a repeating schedule of five days on, two days off, five days on, two days off and five days on, three days off. The proposal also included a requirement that there be 16 hours between shifts in all cases along with other incidental changes. The main focus was on the proposal that, in effect, every third week the PBA members would receive an additional day off. PBA argues that rather than 17 1/3 additional days a year off, this actually means only an additional 11 or 12 days off when vacations are considered. It is not at all clear from the record how that reduction is computed.
The parties ultimately reached an impasse in their negotiations on other matters as well as the rotating shift issue, and the mediation, fact-finding, arbitration provisions of N.J.S.A. 34:13A-16 were invoked.*fn4 The arbitrator did not adopt the
union's position with respect to a change in rotating shifts. There is no issue before us with ...