On appeal from New Jersey Public Employment Relations Commission.
Before Judges Stern, Collester and Parker.
The opinion of the court was delivered by: Collester, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
The Township of Teaneck appeals from an order of the Public Employment Relations Commission (PERC) entered on October 28, 1999, affirming a public interest arbitration award settling an impasse in collective bargaining negotiations between Teaneck and the Teaneck Firemans Mutual Benevolent Association Local 42 (FMBA), which represents Teaneck's sixty-eight rank and file firefighters. The FMBA cross-appeals from that portion of the order modifying the arbitration award. We affirm in part and reverse in part.
The collective bargaining agreement between the parties had expired on December 31, 1996, and attempts to negotiate a successor agreement failed. FMBA declared an impasse in negotiations and filed a petition with PERC on January 2, 1997, to initiate compulsory interest arbitration pursuant to the Police and Fire Public Interest Arbitration Reform Act (the Reform Act), N.J.S.A. 34:13A-14a to -16.6.
PERC provided a list of arbitrators from its special panel, and the parties mutually agreed on Carl Kurtzman. Accordingly, Timothy Hundley, PERC's acting arbitration director, appointed Kurtzman in February 1997. After unsuccessful attempts to mediate the dispute, Kurtzman asked to be relieved of the assignment on grounds that the FMBA had requested his withdrawal. Over Teaneck's objection, Hundley accepted Kurtzman's resignation. Since the parties could not agree on a new arbitrator, Hundley appointed James Begin from PERC's special panel.
After conducting hearings on diverse dates between June and October 1998, Begin issued a decision on March 15, 1999: (1) awarding salary increases within the percentages requested by the parties; (2) granting a two percent stipend for firefighters with emergency medical training (EMT) certifications; and (3) adopting on a trial basis a new shift schedule for FMBA firefighters of a twenty-four hour shift, followed by seventy- two hours off duty, known as a "24/72."
Teaneck filed a notice of appeal to PERC in March 1999. After hearing oral argument, PERC issued its decision on October 29, 1999, affirming the arbitrator's award but modifying the implementation of the 24/72 schedule pending either agreement for the parties or the adoption of the 24/72 schedule for the fire officers' unit. Teaneck appealed from PERC's decision *fn1 , and the FMBA filed a notice of cross-appeal as to PERC's modification of the arbitrator's order implementing the 24/72 work schedule.
By far the most contentious issue before the arbitrator was the FMBA's proposed change in shift schedule to a 24/72. The Teaneck firefighters worked two ten hour days followed by twenty-four hours off, then two fourteen hour nights, followed by seventy-two hours off, which is known as a "10/14" schedule. Under either shift schedule the firefighters work forty-eight hours in an eight day tour. Testifying for the FMBA, Paul Chrystal, a member of the Union Township Fire Department and battalion chief, said that the 10/14 shift was in effect in Union from 1960 to 1979 when the change was made to the 24/72 shift. He participated in an evaluation of the change prepared by both the officers' and rank-and-files' local unions of the last six years of the 10/14 shift (1974-1979) and the first six years of the 24/72 shift (1980-1986). Chrystal testified there was a ninety-five percent increase in services provided (classified alarms, inspections and non-emergency aid) as a result of the change to the 24/72 shift, a twenty-three percent decrease in firefighting injuries, a thirty-five percent decrease in sick leave, a fifty-eight percent decrease in overtime and a thirty-eight percent decrease in civilian injuries.
Chrystal attributed each of the improvements to the adoption of the 24/72 schedule. He claimed the decrease in firefighter injuries was due to the increase in recuperative time to seventy-two hours; the decrease in civilian injuries because of an increase in fire prevention activities; and the decrease in overtime as a result of the diminished number of injuries and sick leave. He explained that the more recuperative time for firefighters translated to less sick time and fewer injuries because seventy-two hours was "an optimal recuperation time for a firefighter's body to eliminate toxins" from inhaling gases, which posed the greatest risk to firefighters. He added that the new schedule raised morale with more sustained quality time off. It also gave more opportunity for firefighter training because firefighters working weekend days on the 10/14 shift would go eight days before the weekday training division could work with them while only four days would elapse on the 24/72 shift. Chrystal testified further that in both New Jersey and throughout the United States there was a significant trend toward adoption of the 24/72 shift for firefighters and that the International Association of Firefighters approved the 24/72 shift because it resulted in fewer firefighter fatalities.
Supporting Chrystal's testimony was William Lavin, president of the New Jersey FMBA and the Elizabeth Local, who testified that when Elizabeth changed from the 10/14 shift to the 24/72 shift in 1976, there was a 3800 man-hour reduction in sick leave in the first year. He added that the new schedule resulted in an improvement in production, service, training and motivation. Moreover, the City of New Brunswick accepted the change to the 24/72 shift because it was "better for the health of the firefighters."
Testifying for Teaneck in opposition to the change to the 24/72 shift was William Norton, Teaneck's Fire Chief. He opposed the switch on grounds that it would impede proper supervision. He claimed the new schedule would require another deputy chief and staff officer to maintain the department's day- to-day operations. *fn2 Most significant was his testimony that the continuity of supervision would suffer from the change for the rank-and-file to a 24/72 while the officers were on the 10/14 schedule.
Prior negotiations with the officers unit, Local 242, culminated in interest arbitration under the Reform Act, and one of the issues involved a proposal by the officers for a change to a 24/72 shift. Teaneck opposed, and the arbitrator rejected the shift change. In the Matter of Tp. of Teaneck and Prof'l Officers Ass'n (PERC Docket No. IA-97-58, Sept. 4, 1998). The subsequently negotiated agreement with the Teaneck officers continued the 10/14 shift and expires in 2004.
Gary Saage, Teaneck's municipal manager, testified that it would be "chaotic" to have officers and rank-and-file firefighters on different schedules. Notably, the officers and rank-and-file in both Union and Elizabeth adopted the 24/72 schedule at the same time. Nonetheless, Chrystal opined that effective supervision could occur with the two groups on different schedules.
Chief Norton further testified that he understood from other fire chiefs that firefighters on the 24/72 shift moved farther away from their municipalities, which made it more difficult to recall them. However, Lavin disputed this claim, stating that the change to the 24/72 did not result in more firefighters moving out of town in either Elizabeth or Union. While Chief Norton acknowledged the possibility of improvement in morale and less use of sick leave and overtime with the 24/72 shift, he was fearful that the firefighters might use less sick time during a trial period and then return to increased sick leave, which he claimed was already "out of control."
Regarding the proposed EMT stipend, Chief Norton and Richard Silvia, a Teaneck captain, explained that firefighters render first aid at accident and fire scenes until the ambulance corps or paramedics from a hospital arrive. They stated there had been a substantial increase in medical calls. Seven rank-and- file Teaneck firefighters had obtained EMT certifications and were seeking an EMT stipend. According to an exhibit produced by the FMBA, nine other fire departments in the area awarded EMT stipends ranging in amounts from $1,250 to $3,471. Municipal manager Saage testified that Teaneck encouraged firefighters to take the EMT training and paid for them to maintain their certification. However, he said that as a matter of policy, the Township did not pay stipends for certifications.
Both sides presented testimony on Teaneck's ability to fund the FMBA's economic proposals. Raphael Caprio, the FMBA's expert in municipal budgets, reviewed Teaneck's budgets and financial data and concluded that Teaneck was financially sound and able to fund the FMBA's proposal. Saage countered Caprio's analysis and stated that he anticipated a budget deficit in 1998.
After receiving and considering the evidence and testimony, the arbitrator ruled in favor of both the 24/72 shift schedule and a stipend for EMT firefighters. He relied on the prevalence of the 24/72 schedule in other communities, the findings of Union's twelve year study, the favorable results from the schedule change in Elizabeth, and Chrystal's testimony that the officers and rank-and-file could work effectively on different schedules. He rejected Chief Norton's objections as speculative and noted that Teaneck offered no direct evidence from the New Jersey communities with the 24/72 schedule to indicate any substance to the concerns expressed by the Chief. He found that "the substantial benefits of the 24/72 schedule to all parties, the Town, the firefighters, and the public, justifies undertaking a trial run." He added that the 24/72 schedule should not continue beyond a trial period unless both parties, or an arbitrator if they could not agree, were convinced that the new schedule achieved the "objectives of (1) improving moral, (2) reducing sick leave, (3) reducing overtime, (4) enhancing training, (5) maintaining or improving ...