H.E. No. 82-54

Synopsis:

A Hearing Examiner recommends that the Public Employment Relations Commission find that the Respondent violated subsection 5.4(a)(5) of the New Jersey Employer-Employee Relations Act when it unilaterally denied a contractually guaranteed holiday to administrators when schools were closed for religious holidays. The Respondent argued that the clause was an illegal religious leave that violated the establishment clause of the First Amendment of the U.S. Constitution, citing Hunterdon Central H.S. Bd/Ed, P.E.R.C. No. 81-4, 5 NJPER 289 (¶10158 1979), aff'd 174 N.J. Super. 468 (1980), aff'd o.b. 86 N.J. 43 (1981). The Hearing Examiner found that the provision allowed the entire bargaining unit to have a leave day when the employer closed schools on a day that happened to be a religious holiday.

A Hearing Examiner's Recommended Report and Decision is not a final administrative determination of the Public Employment Relations Commission. The case is transferred to the Commission which reviews the Recommended Report and Decision, any exceptions thereto filed by the parties, and the record, and issues a decision which may adopt, reject or modify the Hearing Examiner's findings of fact and/or conclusions of law.

PERC Citation:

H.E. No. 82-54, 8 NJPER 351 (¶13161 1982)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

04.1 43.15 43.16 72.652 72.667

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- HE 82-054.pdf
Appellate Division:
Supreme Court:

H.E. NO. 82-54 1. H.E. NO. 82-54 STATE OF NEW JERSEY BEFORE A HEARING EXAMINER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of CHERRY HILL BOARD OF EDUCATION, Respondent, -and- Docket No. CO-81-176-160 CHERRY HILL ASSOCIATION OF SCHOOL ADMINISTRATORS, Charging Party. Appearances: For the Respondent Davis & Reberkenny, Esqs. (Kenneth D. Roth, Esq.) For the Charging Party Robert M. Schwartz, Esq. HEARING EXAMINER = S RECOMMENDED REPORT AND DECISION An Unfair Practice Charge was filed with the Public Employment Relations Commission (the A Commission @ ) on December 5, 1980 and amended on January 9, 1981 by the Cherry Hill Association of School Administrators (the A Charging Party @ or A CHASA @ ) alleging that the Cherry Hill Board of Education (the A Respondent @ or the A Board @ ) had engaged in unfair practices within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. (the A Act @ ) in that it unilaterally denied a contractually guaranteed holiday to administrators when schools were closed for religious holidays which is alleged to violate N.J.S.A. 34:13A-5.4(a)(3), (5) and (7).1/ The Board = s response is that the contractual clause is illegal because it grants religious leave which is prohibited by the First Amendment of the United States Constitution. It appearing that the allegations, if true, may constitute unfair practices within the meaning of the Act, a Complaint was issued on May 11, 1981. The parties entered into certain stipulations of fact and pursuant to N.J.A.C. 19:14-6.7 agreed to submit the matter directly to the Commission, waiving a hearing and a hearing examiner = s recommended decision. Simultaneous briefs were filed on September 28, 1981 and the matter was transferred to the Commission. Upon receipt of the stipulations and briefs, it was evident that there remained a factual dispute and the case was transferred to the undersigned for hearing. A hearing was held on February 17, 1981, in Trenton, New Jersey, at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. Post hearing briefs were submitted by March 25, 1982. An Unfair Practice Charge having been filed with the Commission, a question concerning alleged violations of the Act exists and, after hearing and after consideration of the legal arguments of the parties, the matter is appropriately before the Commission by its designated Hearing Examiner for determination. The following Stipulations of Fact agreed upon by the parties were jointly entered into evidence (J-1) and are incorporated into this report: 1. That the Cherry Hill Board of Education is a public employer within the meaning of the New Jersey Employer-Employee Relations Act and is the employer of the employees involved herein. 2. That the Cherry Hill Association of School Administrators is an employee representative within the meaning of the Act. 3. That the parties are signatories to a collective agreement dated 1980-1982, which is admitted into evidence. The relevant clauses in question herein are Article VIII, Section B(7) and Article X. 4. The issue herein is whether the Board violated the Act by unilaterally denying unit employees a holiday for religious purposes as set forth in Article VIII, Section B(7). The Board contends that Article VIII, Section B(7) is illegal pursuant to the decision in In re Hunterdon Central H.S. B/E, P.E.R.C. No. 80-4, 5 NJPER 289 ( & 10158 1979), aff = d. 174 N.J. Super. 468 (1980), aff = d. ___ N.J. ___ (No. A-98 April 30, 1981). The Association contends that the instant clause is distinguishable from the Hunterdon case and is therefore legal. 5. The parties agree that the identical clause has been in operation continuously since the 1975-77 contract. Based on the remainder of the record the undersigned makes the following: FINDINGS OF FACT The Charging Party, CHASA, represents administrators employed by the Respondent. The CHASA unit has about 40 principals and assistant principals assigned to 21 schools in the district. There are also a few other administrators in te unit, one of whom is located in the central administration office. The parties negotiated their first collective negotiations agreement in 1975. During the course of negotiations the Charging Party proposed that its members be granted certain leaves of absence, holidays and vacations. The employees in this unit are twelve- month employees whose work schedules at times are different from the school calendar that teachers and pupils follow. The Leaves of Absence proposal contained a subsection entitled Temporary Leaves of Absence which stated: All full-time administrators shall be entitled to the following leaves of absence with pay during each school year. * * * 7. All administrators shall be granted, upon request, up to three (3) days leave per school year, without reduction in pay, for observance of religious holidays where such observance precludes the administrator = s attendance at his normal place of work. This clause (7.) ultimately became part of the agreement between the parties in a changed form. A member of the Board = s negotiating team for what became the 1975-77 contract submitted contemporaneous notes made during the negotiations (R-1 in Evid.). He recalled, and his notes corroborated, that the Board wanted this clause to apply only A when schools are closed. @ (Tr. 119)2/ This concept was ultimately agreed upon by both parties and placed in the A Leaves of Absence @ section of the contract under A Temporary Leaves of Absence @ as proposed. The final wording was: 7. On religious holidays when schools are closed, administrators are entitled to take the religious holiday without being charged a personal day or vacation day.3/ This first contract was typed in final form by the Board and approved by CHASA. From 1975 through 1982 the Cherry Hill Schools have been closed for students and teachers on Rosh Hashanah and Yom Kippur when those holidays have fallen on school days. There are about 40 administrators in the CHASA unit and it had been general practice since the inception of the contract for these administrators to take those days off without submitting an absence form to the Central Office as would be required for vacation, illness or a personal leave day.4/ Attendance records of administrators are kept by a clerk in the office of Assistant to the Superintendent Towland C. Hill. Those records corroborate testimony that from 1975-76 until the 1980-81 school year absence slips were not submitted.5/ Mr. Hill testified credibly that he assumed administrators worked on the days in question since no absence reports of any type were submitted to his office (Tr. 130). He noted these administrators work in 21 locations through a 25-square mile district and as part of management it is assumed they will submit absences when they are absent (Tr. 102). These administrators do not report to Mr. Hill in their chain of command. Elementary and junior school principals report to the Assistant Superintendent for A K through 8 education @ and the high school principals report directly to the Superintendent (Tr. 96). At the beginning of each school year Mr. Hill has sent a memo to all administrators (CP-1, 2, 3) setting out school holidays for personnel under their jurisdiction noting that A all personnel for which there is a negotiated agreement the agreement is the guide. @ Each year this memo also contains a chart of holidays and under the Yom Kippur and Rosh Hashanah columns for CHASA the language of the collective bargaining agreement is reproduced. In September 1980 the administrators were notified that they would be required to work on September 11 and 12 (schools were closed for Rosh Hashanah) or if they chose to be absent, would be required to take a personal day.6/ This charge was filed on December 5, 1980, alleging this was a change in a term and condition of employment without negotiations. DISCUSSION AND ANALYSIS Initially, the undersigned finds that the Charging Party has failed to allege facts, which if proven true, would constitute violations of subsections (a)(3) and (7) of the Act and I therefore recommend dismissal of that aspect of the unfair practice charge. There remains the issue of whether the Respondent Board unilaterally changed the religious leave policy that was provided in the parties = contract which would be a violation of subsection (a)(5) of the Act. The Board argues that the disputed clause provides that when schools are closed for religious holidays, individuals who observe a particular religious faith may take the day off with pay A for the purpose of observing a religious holiday and to comply with the tenants of their faith. @ They submit that this constitutes paid leave for religious purposes which violates the First Amendment of the United States Constitution. They rely on Hunterdon Central H.S. Bd/Ed v. Hunterdon Central H.S. Teachers Ass = n, 86 N.J. 43 (1981) ( A Hunterdon Central @ ). Their interpretation of a contractual clause is based on Mr. Hill = s testimony concerning memos he had written concerning school holidays, the bargaining history of this clause, and Mr. Hill = s personal interpretation of the clause. Their argument is also based on the fact that the clause is contained in the A Leave of Absence @ section of the contract rather than the A Holidays and Vacations @ section of the contract. Also, they point out that their joint stipulations submitted in this case set out the issue as whether the Board violated the Act in denying employees a holiday for religious purposes as set forth in Article VII, Section B(7). The Association distinguishes this case from Hunterdon Central arguing that the clause provides that when the schools are closed for religious purposes all administrators covered by the agreement have the right not to report to work and that this is not tied into any religious observance by the individuals. The Board acknowledges this practice but argues that it was contrary to the established Board procedures. The parties are not in disagreement that if the clause provides leave for religious purposes, which leave cannot be used for nonbelievers, favoring religion over nonreligion, the clause is violative of the Establishment Clause of the First Amendment of the United States Constitution. In Hunterdon Central the New Jersey Supreme Court upheld a Commission decision wherein the Commission held that granting additional days off with pay, i.e., not charged to personal days, vacation or any other leave available to all employees, specifically for the observance of religion, violates the constitutional prohibition against the establishment of religion. After a careful consideration of this clause, the evidence proffered concerning its bargaining history and the Commission decisions examining religious leave vis-a-vis personal leave days, the undersigned concludes that the words are clear and unambiguous and do not violate the Establishment Clause of the First Amendment. CHASA = s original proposal provided that administrators must (1) make a request for leave (2) to observe religious holidays where (3) such observance precludes the administrator = s attendance at his normal place of work. That proposal was one of seven proposed sections of CHASA = s A Temporary Leaves of Absence @ proposal. These seven sections with various changes became part of their final contract and have remained unchanged through successive contracts. Through the give-and-take of negotiations, the final agreement differed from the proposals. The final agreement on A religious holidays @ was substantially changed. There was no requirement to (1) request leave or (2) that the purpose was to observe religious holidays or (3) that it would be permitted only when such observance precluded attendance at work. However, its application was not to be limited to religious holidays when schools are closed. It provided: On religious holidays, when schools are closed, administrators are entitled to take the religious holiday without being charged a personal day or vacation day. I can only conclude that the parties intended that the words of the clause were to be given their plain meaning. The final agreement was to be applied to all administrators and it eliminated the three prerequisites because the parties agreed to do so.7/ Mr. Hill = s memos concerning leave policies for employees not in this bargaining unit is irrelevant. The contract clause covers the employees in this unit. Personal leave is a term and condition of employment and the employer has negotiated a personal leave agreement here with the majority representative. Burlington County College Faculty Ass = n v. Bd. of Trustees, Burlington County College, 64 N.J. 10, 14 (1973). I do not find that the reference in the joint stipulations to the dispute as a denial of a holiday for religious leave to be dispositive of the intent of this provision as the Board argues. The issue in dispute is the interpretation of the clause, not the characterization of the clause in a partial stipulation of facts by attorneys. In analyzing disputed contractual clauses the Commission frequently must look beyond the submission of the parties in order to determine the actual matter in dispute. I also disagree that the clause would have necessarily been placed in the holiday section of the contract and not the Voluntary Leaves section if it was to have been given general application. CHASA proposed the clause as part of the Voluntary Leaves section and it remained in that section of the contract. The holiday section of the contract lists the names of paid holidays and these leave days could just as well have ultimately been placed there. I find the clear language of this clause to be more persuasive than its integration with leave clauses that may have limited applicability, e.g., funeral leaves, personal leave which days if unused may be used for accumulated sick leave (apparent general applicability), jury duty, court appearance and professional conventions. Based on all of the above the undersigned concludes that this clause does not grant religious leave which is prohibited under Hunterdon Central. It is a leave granted to all employees in this unit when the Board closes school for students and teachers on a day that happens to be a religious holiday. See the Hunterdon Central Appellate Division decision, 174 N.J. Super. 474, 476. The disputed clause herein is neutral with respect to religion. Upon the foregoing, and upon the entire record in this case, the Hearing Examiner makes the following: CONCLUSIONS OF LAW The Respondent violated N.J.S.A. 34:13A-5.4(a)(5) when it unilaterally denied contractually guaranteed holidays to administrators when schools were closed for religious holidays. The Respondent did not violate N.J.S.A. 34:13A-5.4(a)(3) or (7). RECOMMENDED ORDER The Hearing Examiner recommends that the Commission ORDER: A. That the Respondent Board cease and desist from: 1. Refusing to negotiate with Cherry Hill Association of School Administrators prior to unilaterally altering provisions of the parties = collective negotiations agreement pertaining to contractually guaranteed holidays for the administrators in the unit when schools are closed for religious holidays. B. That the Respondent Board take the following affirmative action: 1. Restore all vacation and personal leave days that have been used by the employees in this unit for the days in 1981 and 1982 when schools were closed for students and teachers on religious holidays. 2. Post in all places where notices to employees are customarily posted, copies of the attached notice marked as Appendix A A. @ Copies of such notice, on forms to be provided by the Commission, shall be posted immediately upon receipt thereof and, after being signed by the Respondent = s authorized representative, shall be maintained by it for at least sixty (60) consecutive days thereafter. Reasonable steps shall be taken by the Respondent Board to ensure that such notices are not altered, defaced or covered by other materials. 3. Notify the Chairman of the Commission within twenty (20) days of receipt what steps the Respondent Board has taken to comply herewith. C. That the allegations in the complaint that the Respondent Board violated N.J.S.A. 34:13A-5.4(a)(3) and (7) be dismissed in their entirety. /s/Joan Kane Josephson Hearing Examiner DATED: May 28, 1982 Trenton, New Jersey 1/ These subsections prohibit public employers, their representatives or agents from: A (3) Discriminating in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage employees in the exercise of the rights guaranteed to them by this act; (5) Refusing to negotiate in good faith with a majority representative of employees in an appropriate unit concerning terms and conditions of employment of employees in that unit, or refusing to process grievances presented by the majority representative; (7) Violating any of the rules and regulations established by the commission. @ 2/ In the mid-seventies (the precise year was not recalled by any witnesses) the Cherry Hill School District began closing schools for students and teachers on Yom Kippur and Rosh Hashanah, but certain Board employees were required to work. On other religious holidays when schools are closed (e.g. Easter and Christmas), no employees are expected to work except in certain rare exceptions not relevant herein. 3/ Neither a 1975 Board representative on the Negotiations Committee, Assistant to the Superintendent Rowland C. Hill nor a CHASA representative on the Committee that year, Elementary School Principal John Morrow, could recall any specifics of the negotiations that led to the changes from the proposed to the final wording other than Mr. Hill = s recollection of the Board = s insistence on A when schools are closed. @ This was the parties = first contract and Mr. Morrow recalled the negotiations was a continuing process with many items to be resolved (Tr. 25). Mr. Hill testified: A I don = t recall all the dialogue that took place. @ (Tr. 146) 4/ Prior to the first CHASA contract, administrators were granted religious holidays with pay upon their request when school was in session for religious observance without being charged a vacation or sick day. A Anybody who had a religious holiday to observe took it off with no charge. @ (Tr. 13, 30) After the first contract the practice changed and applied only to days when schools were closed. Assistant Principal Locovaro testified that while he is not Jewish he has always taken off the above holidays without handing in absences and that to his knowledge other members of the unit also do not work on these holidays (Tr. 9). Principal Morrow (also not Jewish) corroborated this testimony (Tr. 30). Principal Tracy Miller who is also not Jewish, also corroborated the practice. He stated: A It was clear to him [his vice-principal] and myself that these were days that we did not work when the schools were closed for religious holiday. @ (Tr. 74) 5/ There were two exceptions. In 1978-79 one then high school assistant principal was charged with three A Religious @ leave days. He testified that while he always takes off the holidays he could not recall why he would have submitted absence forms in that one year. One other administrator was charged with one A Religious @ day in 1978. 6/ A substantial number of administrators took the days off in 1981 and 1982 and their absences were charged to either personal or vacation days. (R-4 in Evid.) 7/ While Assistant to the Superintendent Hill may believe today that the final clause means the same to him that the proposed clause did, the undersigned believes that that is a subjective interpretation and not the standard to be used in interpreting contract clauses. See Kearny PBA Local #21 v. Town of Kearny, 81 N.J. 208, 221 (1979). Furthermore, while Mr. Hill may have been unaware that administrators throughout the district had taken these days off for four years, Mr. Hill was not in the chain of command of these administrators. Their immediate supervisors are an assistant superintendent and the superintendent. ***** End of HE 82-54 *****