Irvington Policemen's Benev. Ass'n, Local No. 29 v. Town of Irvington

CourtNew Jersey Superior Court – Appellate Division
Writing for the CourtHORN
Parties, 103 L.R.R.M. (BNA) 2358 IRVINGTON POLICEMEN'S BENEVOLENT ASSOCIATION, LOCAL # 29, Petitioner-Respondent, v. TOWN OF IRVINGTON, Respondent-Appellant.
Decision Date16 October 1979

Page 539

170 N.J.Super. 539
407 A.2d 377, 103 L.R.R.M. (BNA) 2358
IRVINGTON POLICEMEN'S BENEVOLENT ASSOCIATION, LOCAL # 29,
Petitioner-Respondent,
v.
TOWN OF IRVINGTON, Respondent-Appellant.
Superior Court of New Jersey, Appellate Division.
Argued Sept. 17, 1979.
Decided Oct. 16, 1979.

[407 A.2d 378]

Page 541

Jacob Green, East Orange, for respondent-appellant (Ellen Harrison, Newark, on the brief).

Albert G. Kroll, Newark, for petitioner-respondent (Zazzali, Zazzali & Whipple, Newark, attorneys; Lawrence A. Whipple, Jr., Newark, on the brief).

Don Horowitz, Deputy Gen. Counsel, Trenton, for Public Employment Relations Com'n (Sidney H. Lehmann, Gen. Counsel, Trenton, attorney).

Page 540

Before Judges ALLCORN, MORGAN and HORN.

Page 541

The opinion of the court was delivered by

HORN, J. A. D.

The question in this case is whether a change of shift assignments of a municipal police department as promulgated by a municipality is mandatorily negotiable under the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 Et seq. (act).

The Town of Irvington (town) appeals from a decision and order of the Public Employment Relations Commission (PERC) issued pursuant to PERC's primary jurisdiction under N.J.S.A. 34:13A-5.4(d) to resolve disputes between public employers and public employees concerning the scope of negotiations under said act.

PERC's jurisdiction was invoked by the Irvington Policemen's Benevolent Association, Local # 29 (PBA), which on May 5, 1978 filed a Petition for Scope of Negotiations Determination with PERC, requesting that PERC determine whether the town's decision to "initiate and implement a three shift work schedule which rotates around the clock on a bi-weekly basis" was a required subject for collective negotiations. The matter was determined by PERC on that petition and briefs submitted by PBA and the town. PERC's decision and order that the town was required to negotiate the change was issued on July 5, 1978. The town filed a notice of appeal on August 22, 1978. On this appeal, in addition to the town and PBA, PERC has also filed a brief and argued the issue orally.

Page 542

PERC did not hold an evidentiary hearing on the scope question, apparently because, as stated by it in its written decision and order, the essential facts were not contested. However, its recital of the uncontested facts merely includes, as we summarize[407 A.2d 379] same, a statement that the town desired to "change shift assignments so that all officers in the Patrol Division work on full rotating around the clock shifts," biweekly, from the former practice whereby approximately one-third of the officers worked the midnight shift on a steady, nonrotating basis and the other officers worked alternating shifts biweekly.

However, in the brief filed with us the town not only recites the earlier history of the dispute but also asserts the reasons for the desired change. We do not find this history to have been contradicted by either PERC or PBA. We reproduce the pertinent part of said history:

Several years ago a fixed evening shift was instituted on a trial basis for Officers in the Radio Patrol Division of the Irvington Police Department. Before that time, all Officers and their Superior Officers had been on three rotating shifts. After the change, the Superior Officers continued on a rotating shift schedule. Contrary to expectations, the change to an evening fixed shift did not enhance departmental efficiency, but rather, in the opinion of the Chief and his staff, diminished it. As an example, Superior Officers complained that they were not able to enforce discipline on a continuing basis because their rotating schedule did not enable them to supervise Patrol Officers on the fixed evening shift for more than a short period of time. The decision was made, at least as early as 1975, to put the entire Patrol Division on a rotating shift schedule in order to increase departmental efficiency.

In their counterstatement of the facts, PERC and PBA note that the issue (of rotating shifts) had been negotiated without objection in the past. Also, "Thus the dispute before PERC in the scope of negotiations proceeding is whether the change * * * was a required subject of collective negotiations."

We pause to mention at this point that when PERC decided the scope question in this case it had not had the benefit of our Supreme Court's opinions which were rendered in Ridgefield Park Ed. Ass'n v. Ridgefield Park Bd. of Ed., 78 N.J. 144, 393 A.2d 278 (1978);

Page 543

State v. State Supervisory Employees Ass'n, 78 N.J. 54, 393 A.2d 233 (1978); Galloway Tp. Bd. of Ed. v. Galloway Tp. Ed. Ass'n, 78 N.J. 25, 393 A.2d 218 (1978), and Galloway Tp. Bd. of Ed. v. Galloway Tp. Ass'n of Ed. Sec., 78 N.J. 1, 393 A.2d 207 (1978), as to which we refer below. In any event, PERC and PBA have since reviewed these opinions and at oral argument they persist in their contention that the projected issue was and is mandatorily negotiable.

We deduce that PERC held that the issue was negotiable, either compulsorily or permissibly, because, as is stated by PERC and PBA, it had been the subject of negotiation in prior years. If this deduction is correct, that is the reason for PERC's further assumption that the only issue really was whether the proposed change constituted a change in "term or condition" of employment. It also explains why its opinion in part read: " * * * we are only concerned with the abstract issue of the negotiability of the disputed subject" and failed to deal with the question which underlies the negotiability issue in this case,...

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12 practice notes
  • Local 195, IFPTE, AFL-CIO v. State, AFL-CI
    • United States
    • United States State Supreme Court (New Jersey)
    • 23 Marzo 1982
    ...instances, such a decision may impinge on the ability of the governmental entity to determine policy. Cf. Irvington PBA v. Irvington, 170 N.J.Super. 539, 407 A.2d 377 (App.Div.1979) (holding that a municipal decision to initiate a three-shift work schedule that rotates around the clock for ......
  • Oches v. Township of Middletown Police Dept.
    • United States
    • United States State Supreme Court (New Jersey)
    • 1 Junio 1998
    ...on one of the most important managerial prerogatives of the Superintendent [of State Police]"); Irvington PBA v. Town of Irvington, 170 N.J.Super. 539, 545-46, 407 A.2d 377 (App.Div.1979) (taking "judicial[ ] notice that the role of the police in every community has always been of extreme i......
  • City of Jersey City v. Jersey City Police Officers Benev. Ass'n
    • United States
    • United States State Supreme Court (New Jersey)
    • 9 Julio 1998
    ...prerogatives" of the State Police Superintendent. See also Irvington Policemen's Benevolent Ass'n, Local No. 29 v. Town of Irvington, 170 N.J.Super. 539, 545-46, 407 A.2d 377 (App.Div.1979) (taking judicial notice that "the role of the police in every community has always been of extreme im......
  • Paterson Police PBA Local No. 1 v. City of Paterson
    • United States
    • United States State Supreme Court (New Jersey)
    • 16 Julio 1981
    ...A.2d 465) Accord New Jersey State PBA v. Town of Irvington, supra, 80 N.J. at 288-89, 403 A.2d 473; Irvington PBA v. Town of Irvington, 170 N.J.Super. 539, 407 A.2d 377 (App.Div.1979), certif. den., 82 N.J. 296, 412 A.2d 801 (1980). The promotion clause of this agreement deprives the City o......
  • Request a trial to view additional results
12 cases
  • Local 195, IFPTE, AFL-CIO v. State, AFL-CI
    • United States
    • United States State Supreme Court (New Jersey)
    • 23 Marzo 1982
    ...instances, such a decision may impinge on the ability of the governmental entity to determine policy. Cf. Irvington PBA v. Irvington, 170 N.J.Super. 539, 407 A.2d 377 (App.Div.1979) (holding that a municipal decision to initiate a three-shift work schedule that rotates around the clock for ......
  • Oches v. Township of Middletown Police Dept.
    • United States
    • United States State Supreme Court (New Jersey)
    • 1 Junio 1998
    ...on one of the most important managerial prerogatives of the Superintendent [of State Police]"); Irvington PBA v. Town of Irvington, 170 N.J.Super. 539, 545-46, 407 A.2d 377 (App.Div.1979) (taking "judicial[ ] notice that the role of the police in every community has always been of extreme i......
  • City of Jersey City v. Jersey City Police Officers Benev. Ass'n
    • United States
    • United States State Supreme Court (New Jersey)
    • 9 Julio 1998
    ...prerogatives" of the State Police Superintendent. See also Irvington Policemen's Benevolent Ass'n, Local No. 29 v. Town of Irvington, 170 N.J.Super. 539, 545-46, 407 A.2d 377 (App.Div.1979) (taking judicial notice that "the role of the police in every community has always been of extreme im......
  • Paterson Police PBA Local No. 1 v. City of Paterson
    • United States
    • United States State Supreme Court (New Jersey)
    • 16 Julio 1981
    ...A.2d 465) Accord New Jersey State PBA v. Town of Irvington, supra, 80 N.J. at 288-89, 403 A.2d 473; Irvington PBA v. Town of Irvington, 170 N.J.Super. 539, 407 A.2d 377 (App.Div.1979), certif. den., 82 N.J. 296, 412 A.2d 801 (1980). The promotion clause of this agreement deprives the City o......
  • Request a trial to view additional results

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