In January 2023, the City of Englewood, New Jersey enacted a scheduling change for the Englewood Police Department, increasing working hours from 8.25 per day to 10.25 or 11 hours per day. The Englewood Police Department Supervisory Officers Association agreed to this change, but at the time, neither vacation opportunities, allocation of vacation nor vacation scheduling was discussed, changed or negotiated by the new agreement.
After supervisory officer manpower was, in most cases, increased within the usual duty periods as a result of the new schedule, the Union members’ ability to receive vacation leave was impacted by another new Department policy; had the past practices governing vacation leave eligibility been carried forward, this increase in manpower within assignments should have increased vacation eligibility.
Previously, the practice was that the normal complement of supervisors on regular patrol shift was only two, and that as long as one supervisory officer was on duty, other scheduled officers could request and receive approved vacation time off. When the complement was increased to three supervisors and the new 11-hour shift began, the number of opportunities for patrol supervisors who could select vacation days off was reduced with the new policy.
The Department referred to this new condition of employment as the “minimum manning plus one rule.” As noted by the New Jersey Public Employment Relations Commission (PERC), “This rule was simply a euphemistic manner of decreasing vacation eligibility by increasing the rule parameters governing vacation from one supervisor to two supervisors. This ‘vacation minimum manning’ only applied in a singular circumstance – when a supervisor requested vacation – and did not apply to any other circumstance such as training, sick leave, personal days, etc.”
The Union filed a grievance with respect to the policy in May 2023, which was promptly denied. But in April 2024, an arbitrator sustained the grievance. The Department issued a new scheduling order on the same day which they claimed was in compliance with the Arbitrator’s opinion and award. The Union disagreed and demanded to begin bargaining. Soon afterwards, the Union filed an unfair labor practice charge with PERC, alleging violation of the New Jersey Employer-Employee Relations Act, alongside a request to order the City to refrain unilateral implementation of new vacation rules, restore the status quo and negotiate in good faith.
The City argued that their re-worked scheduling order complied with the Arbitrator’s award, that it had managerial prerogative to change minimum staffing for the Union, and finally, that a ruling in favor of the Union would raise overtime to “catastrophic” levels for the City.
PERC held for the Union in all respects, finding that the Union “had established a substantial likelihood of success in final Commission decision on its legal and factual allegations,” and that the Union had “established irreparable harm,” reasoning that “leave time that may be wrongfully denied represents leave opportunities which are lost forever and cannot be remedied later in a Commission order. PERC ordered the Department to “cease and desist from imposing the new vacation leave policy and restore vacation leave eligibility to Union members on a given shift as long as there is at least one Union member remaining on the shift.
“The scheduling of paid time off is generally mandatorily negotiable term and condition of employment, and a public employer does not have managerial prerogative to unilaterally limit the number of employees on leave or the amount of leave time absent a showing that minimum staffing requirements or other managerial prerogatives would be jeopardized.
“I point out that no part of the employer’s submission ever states, alleges or even suggests that it would have any difficulty whatsoever filling any assignments or posts which might become open due to the granting of a vacation day under circumstances similar to that faced by the lieutenant. Indeed, other than supposition, the employer does not assert even a single instance of facing an overtime obligation-let alone a catastrophic one. There is never any suggestion, let alone any proofs, that the City cannot fill its manpower requirements with available personnel either on an overtime basis or other means.”
As to the order that the Department claimed was in compliance with the Arbitrator’s award, the Designee found that it was “not relevant to the Arbitrator’s award as the parties’ contract has a past practice clause and a grievance provision that ends in binding arbitration, which occurred in this matter.”
City of Englewood, 51 NJPER ¶ 20 (N.J. PERC ALJ, 2024).