On appeal from a final administrative agency decision of the New Jersey Public Employment Relations Commission.
King, Shebell and Keefe. The opinion of the court was delivered by Shebell, J.A.D.
The State of New Jersey (alternately referred to as State, Department of Corrections and DOC) appeals from an adverse ruling of the Public Employment Relations Commission (PERC). The Communication Workers' of America (CWA) filed an unfair labor practice charge with PERC alleging that the DOC had violated the New Jersey Employer-Employee Relations Act by withdrawing the vacation time of physicians employed by DOC without prior negotiations with their union. The complaint as ultimately litigated alleged that on or about April 16, 1987, the DOC in violation of N.J.S.A. 34:13A-5.4(a)(1) and (5) had unilaterally rescinded the "policy granting physicians employed by the DOC ten additional days off per year in lieu of overtime worked during the calendar year."
Hearings were held before a PERC hearing examiner. Testimony was given regarding the purpose of the ten days vacation time and the method of accounting for the ten days vacation time (i.e., whether the vacation time was compensation for overtime). On November 18, 1988, the hearing examiner issued his findings of fact, conclusions and recommended order, holding
that the State had committed an unfair labor practice by unilaterally withdrawing the disputed vacation time without first negotiating with the CWA. The hearing examiner further concluded that the disputed vacation time was not overtime compensation and that the Department of Personnel (DOP) regulations alleged to be applicable did not prohibit the ten days vacation time.
Upon concluding that the applicable overtime rules did not preempt negotiations on withdrawal of the ten days of vacation time, the hearing examiner recommended that the State be ordered to:
1. Restore the status quo ante by reinstating the ten day leave policy.
2. Credit the affected physicians with any unused portion of the ten days for 1987, and the full ten days for 1988.
3. Negotiate with the CWA over any future attempt to terminate the ten day leave policy prior to actually terminating the policy.
The State filed exceptions to the hearing examiner's decision. On May 1, 1989, PERC issued its decision. PERC reviewed the record and concluded that the hearing examiner's Findings of Fact were thorough and accurate. After reviewing the applicable regulations PERC further concluded:
Under all the circumstances, we agree with the Hearing Examiner that these regulations did not mandate unilaterally eliminating the ten days off. That employees might not be entitled by law to overtime cash or overtime compensatory time off based on on-call status does not mean that an employer could not grant improved benefits in light of the round-the-clock demands of their jobs, demands which probably resulted in doctors working more than ten extra days. J-10 indicated that these regulations did not rule out the possibility that prison physicians might receive the extra days as vacation days. On this record, the extra days off were a form of vacation leave rather than overtime compensation. These days off were treated as vacation days: they were recorded as such, available at the start of the year, and scheduled the same way as other vacation days. When interviewed for jobs, doctors were told that they would receive these extra days off. An employer representative credibly testified that physicians had never received compensatory time off for overtime and were not eligible for it. The overtime and comp time boxes on their timesheets were left blank. The employee and employer, in short, both treated these days off as extra vacation days rather than overtime compensation days as defined in the rules and implemented by specified requirements and procedures. Given these circumstances, we hold that the employer violated subsections 5.4(a)(1) and (5)
when it unilaterally eliminated the extra days off. We adopt the Hearing Examiner's recommended remedy. . . .
PERC agreed with the hearing examiner's conclusion that the ten days off were not overtime compensation under N.J.A.C. 4A:3-5.2. PERC noted that the DOC was not preempted from negotiating "compensatory time off on an hour-for-hour basis under N.J.A.C. 4A:3-5.3(d)." Thus, PERC affirmed the hearing examiner's decision and adopted his proposed order.
The State moved to file an appeal out of time on July 14, 1989. We granted the State's motion. PERC joins the CWA in responding to the ...