Legal Case Study Analysis
Howell Local 228 victory on the use of compensatory time
JAMES M. METS
BRIAN J. MANETTA
24 NEW JERSEY COPS ■ JUNE 2017
Over the last year or so, we have been confronted with a growing problem: Departments have unilaterally attempted to limit the number of officers who are allowed to use contractually earned leave time to save on overtime. Recently, in a case handled by our office, both the Public Employment Relations Commission
(“ PERC”) and an arbitrator addressed this issue in the context of compensatory time use in response to a grievance filed by Howell PBA Local 228(“ PBA”).
In 1985, Congress bestowed a great benefit upon public employers. Section 7( o) was added to the Fair Labor Standards Act(“ FLSA”), which allows public employees to receive compensatory time instead of cash for hours of work in excess of the statutory maximum. This provision serves to reduce public employer’ s overtime costs while allowing public employees, including law enforcement personnel, to take additional days off from work. State, county and municipal governments were more than willing to give compensatory time to employees in lieu of cash overtime. These same entities, however, are not so willing to grant the use of such time.
In Township of Howell-and- PBA Local 228, PERC Docket No. AR-2016-192, the Township sought to unilaterally change both the collective negotiations agreement and longstanding practice concerning how and when compensatory time was scheduled and granted. In 2013, the Township and the PBA negotiated a policy concerning the use of compensatory time, which formalized the practice that had been in effect for more than 12 years. The parties agreed that all requests for compensatory time off(“ CTO”) that did not create overtime would be approved. For requests that would create overtime, the CTO would be approved if notice was given 48 hours in advance and if the overtime slot was filled voluntarily. This policy was incorporated by reference into the parties’ CAN. On March 17, 2015, the Township manager issued a memorandum stating that no CTO would be approved if it would create overtime.
Local 228 filed a grievance and submitted the matter to binding arbitration. Prior to the arbitration hearing, the Township filed a Petition for a Scope of Negotiations Determination with PERC claiming that the PBA’ s grievance was outside the scope of collective negotiations. The Township argued that it“ had the unfettered right to deny the use of compensatory time... if such use of compensatory time is going to create additional overtime.” It also argued that the Fair Labor Standards Act(“ FLSA”) preempts negotiations over the matter because the scheduling of CTO is specifically and comprehensively controlled by federal statute.
PERC rejected the Township’ s arguments and denied its petition( see Township of Howell-and PBA Local 228, SN-2016-161, PERC No. 2017-31, Dec. 22, 2016). PERC relied upon federal cases analyzing the FLSA. Particularly damaging to the Township’ s claim was the fact that the United States Secretary of Labor, in the preamble to the federal regulation at issue, recognized and approved of this very situation:“ The Department [ of Labor ] recognizes that situations may arise in which overtime may be required of one employee to permit another employee to use compensatory time. However, such a situation, in and of itself, would not be sufficient for the employer to claim that it is unduly disruptive.”( The FLSA permits the use of compensatory time so long as such use does not“ unduly disrupt” the operations of the public agency.
The statutory language is admittedly amorphous. Many public employers claim that a request for compensatory time off that creates overtime unduly disrupts the operations of a public agency and deny the request. This argument, however, was soundly defeated in the recent arbitration between the Township of Howell and the PBA Local 228.
PERC also cited the Aug. 19, 1994 opinion of the Department of Labor’ s Wage and Hour Administrator, which read:
It is our position, notwithstanding [ a collective bargaining agreement to the contrary ], that an agency may not turn down a request from an employee for compensatory time off unless it would impose an unreasonable burden on the agency’ s ability to provide service of acceptable quality and quantity for the public during the time requested without the use of the employee’ s services. The fact that overtime may be required of one employee to permit another to use compensatory time off would not be a sufficient reason for an employer to claim that the compensatory time off request is unduly disruptive.
PERC further found that there was no evidence that the granting of CTO would prevent the Township from fulfilling its staffing requirements and therefore declined to restrain arbitration.
The issue before the arbitrator was whether the Township violated the CNA and / or past practice regarding approval of CTO. If that question was answered in the affirmative, the arbitrator was charged with fashioning an appropriate remedy. The PBA called the Township’ s recently retired Police Chief as a witness. The former chief testified that since 2001, PBA unit members had been permitted to use CTO regardless of whether its use caused overtime. He also testified that he did not negotiate the 2015 change with the PBA before implementing it because he was ordered to do so by the Township manager. The Township argued that the PBA did not establish a past practice and that the CNA unambiguously provides that the CTO is subject to the written policy of the Chief of Police.
The arbitrator sustained the grievance. She found that the PBA had established a binding past practice. The arbitrator determined that the officers had been permitted to use CTO even when it creates overtime since approximately 2001. She further found that the CNA does not explicitly grant the chief the authority to condition the use of CTO time on whether overtime is created. Therefore, the Township was not permitted to unilaterally eliminate the past practice of using CTO if it would cause