Appellate Division Strikes Down Featherbedding Practices

Posted on Friday, January 14th, 2011.

non image

By: Stephen E. Trimboli, Esq.

The Law Journal reported on this case on January 14, 2011.

On January 13, 2011, the Superior Court of New Jersey, Appellate Division, issued its decision in Morris County Sheriff’s Office v. Morris County PBA, Local 298. The Court addressed the question whether a public employer may “eliminate previously-tolerated featherbedding.” Emphatically reversing a Public Employment Relations Commission (PERC) decision to the contrary, the Court held that the managerial prerogative to “spend public funds wisely” and to allocate resources efficiently placed “the elimination of a palpably wasteful practice … firmly within the orbit of the [public employer’s] fundamental policy making authority.” Therefore, the elimination of the wasteful practice “need not be the subject of collective negotiations.”

Our firm was proud to represent the Morris County Sheriff’s Office in this case, which establishes the clear principle that featherbedding in public employment need not be tolerated.

The case arose out of the Morris County Correctional Facility. There are certain duty posts at the Facility that operate only on regular business days. These include the transportation of inmates to and from court, court liaison, the mailroom, and court records.

Apparently, a “past practice” had developed of allowing officers assigned to these posts to report to duty on holidays when there was no work for them to do. If the officers had remained home, they would have received their regular base pay and their holiday pay. However, by reporting to work, they also received an additional premium of time and one-half for every hour they “worked,” even though their services were not needed. As the Appellate Division stated, the practice appeared to be “designed merely to pay workers for performing make-work tasks, or worse, just for showing up.”

It is not clear how this curious practice began. But in 2008, the Sheriff’s Office sought to end the practice as part of an overall cost reduction strategy. However, following the filing of an unfair practice charge by the corrections officers’ union, PERC directed that the practice be reinstated. Incredibly, PERC determined that this practice of reporting for work when one’s services was not needed had become part of the officers’ “regular work schedule” and “total annual compensation.” It could not be eliminated without the union’s agreement. PERC thus held that the Sheriff was bound to continue to allow officers to report to work on holidays when there was no work for them to do, “and be paid a premium for the privilege.”

The Sheriff faced a significant obstacle in appealing PERC. Appellate courts typically defer to PERC’s administrative determinations. We were successful in overcoming this obstacle.

In taking the unusual step of reversing PERC, the Court accepted our argument that the Sheriff’s managerial prerogative to determine policy outweighed the corrections officers’ interest in being “permitted to dictate a bonus by insisting upon reporting for a holiday sinecure.” Adopting our reasoning, the Court held:

Here, the employees’ interest is the ability to earn augmented holiday pay while the employer’s interest is controlling costs and determining staffing needs. Although Morris is not engaged in a reduction in force … it is reducing staffing levels consistent with need on those thirteen annual holidays. Arguably, [this] would result in cutting the number of days that could potentially be worked by officers in those unneeded posts, with a potential decrease in those officers’ gross annual compensation. However, those officers would still enjoy the same number of paid holidays and the work schedule is not being truncated, as those officers are simply given a paid day off, but without the premium associated with showing up to dodge work.

The decision not to staff positions which have no function on holidays is “a managerial prerogative because it implicates the essential duty of government to ‘spend public funds wisely.’” Further, “the avoidance of featherbedding and make-work assignments is a ‘governmental policy determination’ because it furthers the efficient allocation of resources.”

Because “scheduling and assignment-setting to avoid non-operational posts is a managerial prerogative involving staffing determinations and is intimately linked to the conservation of the public fisc, it is not mandatory negotiable.” The Sheriff was therefore free to eliminate the wasteful practice without negotiation.

It may be surprising that the New Jersey Courts have not previously been called upon to address the issue of featherbedding. But the Morris County Sheriff’s Office decision now clearly establishes that wasteful practices, such as allowing employees to report to work when their services are not needed, are contrary to public policy and may be discontinued at the discretion of management. It is an essential duty of government to “spend public funds wisely.” This is clearly a victory for beleaguered taxpayers, and serves as a reminder that public employment truly exists to serve the public– and not the other way around.

Please contact us if you have any questions regarding the Morris County Sheriff’s Office decision and how it can assist you with issues you are confronting.

Latest News