On appeal from New Jersey Public Employment Relations Commission, Docket No. CO-2009-118.
The opinion of the court was delivered by: Jonathan N. Harris, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Lihotz, and J. N. Harris.
The opinion of the court was delivered by JONATHAN N. HARRIS, J.A.D.
This case involves an attempt by a public employer -- the Morris County Sheriff's Office -- to eliminate previously-tolerated featherbedding, which effort was determined to be an unfair labor practice by the Public Employment Relations Commission (PERC). The disapproved solution, intended to eliminate an archaic work rule, sought a unilateral end to the long-standing employment practice that had permitted public employees who were assigned to posts that are normally nonoperational on weekends to nevertheless work those posts on nonoperational holidays and be paid a premium for the privilege. We reverse.
The Morris County Sheriff's Office and the County of Morris (collectively Morris) appeal from two orders of PERC that enjoined the abolishment of holiday assignments to non-operational posts. These orders were entered in connection with the Morris County Policemen's Benevolent Association, Local 298's (PBA) charges of unfair labor practices against Morris, and coincidently in the midst of those parties' contemporaneous interest arbitration. PERC ruled that Morris was required "to cease and desist from changing terms and conditions during interest arbitration and to restore the status quo." PERC's rationale for this conclusion was based upon the statutory standstill provision applicable to interest arbitration proceedings provided in N.J.S.A. 34:13A-21:
During the pendency of proceedings before the arbitrator, existing wages, hours and other conditions of employment shall not be changed by action of either party without the consent of the other, any change in or of the public employer or employee representative notwithstanding; but a party may so consent without prejudice to his rights or position under this supplementary act.
Notwithstanding our respect for the experience and expertise of PERC, we do not subscribe to its literal view that the standstill provision trumps the continuation of pointless work procedures designed merely to pay workers for performing make-work tasks, or worse, for just showing up.
Morris operates the Morris County Correctional Facility (MCCF) in Morristown. The PBA represents all corrections officers employed in the MCCF. From the time PERC first received the PBA's allegations of unfair labor practices in 2008, through the initial summary judgment motion practice in 2009, Morris and the PBA were engaged in interest arbitration because their previous four-year collective negotiations agreement (CNA) had expired on December 31, 2006. According to PERC, an interest arbitrator was appointed on May 9, 2007, to create a successor agreement for the parties. We are told that the interest arbitration award was rendered on October 5, 2009, which created a new agreement for the succeeding four years. Confoundingly, the contractual provisions at the heart of this case remained unaffected by the award.
Morris operates the MCCF twenty-four hours a day, seven days a week. According to the CNA's "Article 23: Hours of Work-Week," "[t]he work week for all employees working at the [MCCF] shall consist of forty-two and one-half hours (421/2 ) hours per seven (7) work days based on the current 5-2 day week." This translates into the routine of deploying employees to work five days on, then two days off, regardless of when a holiday occurs.
Pursuant to "Article 9: Holidays," all employees are paid for thirteen holidays enumerated in the agreement. Additionally, this article provides that employees who do not work on a holiday nevertheless "receive holiday pay computed at their regular straight-time hourly rate," and employees who do work any of the enumerated holidays receive in addition to their regular compensation, holiday pay "calculated at the employee's straight-time hourly rate of pay." In other words, employees who work on an enumerated holiday are paid double time for the day, whether their posts operate or do not operate on such holiday.
Finally, pursuant to "Article 11: Maintenance of Certain Practices," employees who are scheduled to work on a holiday may request the day off. The request must be made to the employee's supervisor three days prior to the holiday requested and the request is subject to the supervisor being able to sufficiently cover the post during the tour of duty.
In 2008, in an effort to reduce the overall public expense of operating the MCCF, Undersheriff Ralph McGrane issued a four-page "Strategy for Controlling Overtime and Operational Expenses," to become effective on January 1, 2009 (the McGrane Strategy). The McGrane Strategy discontinued the practice of assigning employees on holidays to work posts that are closed on the weekend because "correctional facilities traditionally operate on holidays the same way as they do on weekends." ...