On appeal from the Public Employment Relations Commission, CO-2005-226.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Winkelstein and LeWinn.
The Township of Middletown (Township) appeals from a final decision of the Public Employment Relations Commission (PERC) ordering the Township to reinstate the practice of compensating patrol officers for "shape-up" or travel time when called into work for emergent or immediate overtime duty. The PBA cross-appeals from PERC's decision that the Township had not violated the Employer-Employee Relations Act (the Act), N.J.S.A. 34:13A-1 to -30, by refusing to comply with the Police Chief's grievance determination because the PBA had failed to follow the grievance procedures in the parties' collective bargaining agreement (CBA). We affirm in all respects, substantially for the reasons set forth in the September 28, 2006 final decision of PERC.
The PBA is the exclusive collective bargaining agent for police officers below the rank of sergeant in the Middletown Township Police Department (Department). On November 12, 2004, the Township and the PBA entered into a CBA covering the period of January 1, 2004 through December 31, 2007.
In September 2004, the Township implemented a "palm system"*fn1 to clock Department employees in and out. Prior to this time, there was no time clock system in place. Overtime and regular time cards were either hand written by a supervisor or completed by the officer and signed by a supervisor.
On January 22 and 23, 2005, several patrol officers were called in for immediate overtime duty following a severe snow storm. On their time cards the officers wrote the time they were called as their start time. The shift supervisor signed the cards and submitted them to payroll. Deputy Chief (now Chief) Robert Oches, who was then in charge of payroll, learned of the discrepancy in the time cards and ordered that the officers be paid only as of the time they palmed in.
On February 1, 2005, the PBA filed a grievance on behalf of these officers against the Department and Police Chief John Pollinger (now retired). The grievance claimed that the Department had "changed the manner in which patrol officers are paid for overtime when called in while off duty."
The CBA sets forth a three-step mandatory grievance procedure to be followed in any dispute arising out of the CBA:
The President of the Association or his duly authorized representative . . . discuss[es] the grievance or grievances orally with the immediate supervisor within thirty (30) days of the occurrence . . . otherwise said grievance shall be waived. The immediate supervisor shall answer the grievance within five (5) working days . . . .
If the grievance is not resolved at Step 1 . . . the [PBA] shall present the grievance in writing within five (5) working days, furnishing one (1) copy to the Police Chief and the other to the Business Administrator. If it is not filed, it is waived. . . . The Chief of Police shall answer the grievance within five (5) working days after receipt of said grievance. . . . STEP 3:
If the grievance is not resolved in Step 2, or if no answer has been received by the [PBA] within the time set forth above, the grievance may be presented in writing to the Mayor and Township Committee within five (5) working days.
On February 8, 2005, Pollinger granted the PBA's grievance and, based upon "past practice," ordered that [m]embers of the department called in on an emergent basis, i.e., within 15 to 30 minutes of the start of that shift will be granted a reasonable period of time, not to exceed one hour for travel/shape-up time.
Those officers under these circumstances shall be paid for the entire shift (8 hours) for which they are reporting.
On February 11, 2005, Oches wrote to Pollinger refusing to pay the overtime called for in that grievance response, asserting that the resolution was a violation of the CBA. On February 28, 2005, Township Administrator Robert Czech denied the grievance, asserting that it was outside Pollinger's authority to agree ...