H.E. No. 82-64

Synopsis:

A Hearing Examiner recommends that the Commission find that the Sayreville Baord of Eduation committed an unfair practice when it unilaterally reclassified two vacant positions from 12-month to 10-month positions and further reclassified one of those positions to a lower salary level.

It was recommended that the Commission follow the decisions of Galloway Tp. Bd. of Ed. and Galloway Tp. Ass'n of Ed. Sec., 78 N.J. 1, 17-20 (1978) and Deptford Bd. of Ed., P.E.R.C. No. 81-78, 7 NJPER (¶12015 1980), aff'd App. Div. Dkt. No. A-181-80-T8 (1982) and find that the majority representative is the exclusive representative of the job titles in the unit and not just the specific employees.

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. 82-64, 8 NJPER 419 (¶13192 1982)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

43.111 3. 72.652 72.662

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- HE 82-064.pdf
Appellate Division:
Supreme Court:

H.E. NO. 82-64 1. H.E. NO. 82-64 STATE OF NEW JERSEY BEFORE A HEARING EXAMINER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of SAYREVILLE BOARD OF EDUCATION, Respondent, -and- Docket No. CO-81-15-99 SAYREVILLE EDUCATION SECRETARIAL ASSOCIATION, Charging Party. Appearances: For the Respondent Boehm and Campbell, Esqs. (Casper P. Boehm, Jr., Esq.) For the Charging Party Rothbard, Harris & Oxfeld, Esqs. (Nancy Iris Oxfeld, Esq.) HEARING EXAMINER = S RECOMMENDED REPORT AND DECISION On July 16, 1980, the Sayreville Education Secretarial Association (Association) filed an Unfair Practice Charge with the Public Employment Relations Commission (Commission) alleging that the Sayreville Board of Education (Board) has engaged in an unfair practice within the meaning of N.J.S.A. 34:13A-5.4(a)(1) and (5).1/ It was specifically alleged that there are two classes of secretaries in the Sayreville school system, Class A A @ and Class A B. @ Class A A @ secretaries are paid on a salary guide of eight steps. Class A B @ secretaries are paid on a salary guide of nine steps, of which the first eight steps are identical to the Class A A @ step guide. In the spring of 1980 the Board posted two separate notices saying that the positions of secretary were available. Both of these positions were listed as Class A A @ positions for a 10-month period. These positions were vacant positions but were formerly held by 12-month employees. It was alleged that this constituted an unfair practice within the meaning of the Act. It appearing that the allegations of the charge, if true, might constitute an unfair practice within the meaning of the Act, a Complaint and Notice of Hearing was issued on February 11, 1981. A Hearing was held on September 24, 1981, at which time both parties were given an opportunity to present evidence, examine and cross-examine witnesses, argue orally and present briefs.2/ The Board and Association are parties to a collective negotiations agreement. That agreement provides for different clerk classifications: A A @ Clerk, 12 month; A A @ Clerk (Elem), 10 month; A A @ Clerk, 10 month; A B @ Clerk, 12 month. The A A @ and A B @ Clerk 12-month salaries are identical except that the A B @ Clerk salary has an extra step at a higher salary. The A A @ Clerk 10- month salary is substantially lower through all the steps and again has a maximum of eight steps as opposed to the nine of the A B @ Clerk. (The A A @ Clerk (Elem) 10-month has a salary schedule the same as the A A @ Clerk 10 month but is a nine-step guide as opposed to an eight-step guide. This classification is not in issue here.) The instant matter arose when the Board posted two positions which had become vacant at approximately the same time. One position in the Junior High School was a 12-month A A @ Clerk and the other in the Senior High School was a 12-month A B @ Clerk. Both of these positions were posted as 10-month A A @ Clerk positions. It is undisputed the change in classification from 12 month to 10 month resulted in a reduction in pay for these respective positions. The witness for the school board testified that the reason for changing these positions to 10-month positions was that there was essentially not enough work for these individuals to do over the summer, there was a declining enrollment in the school district and that summer employees were available to do the work that was formerly done by these individuals. It is the Association = s position that the length of the work year and the total amount of pay received by employees are essential terms and conditions of employment. In Piscataway Tp Bd/Ed and Piscataway Principals Assn, 164 N.J. Super. 98, 398 A.2d 880 (1978), the Piscataway Board of Education reduced the work year of certain principals from 12-month to 10-month positions which entail a proportionate reduction in salary of such persons. The employer argued that such actions constituted a reduction in force. The court there stated: We have no doubt that the matter of length of the work year and its inseparable concomitant -- compensation -- are terms and conditions of employment, within the intent of the Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq., and consequently the subject of mandatory negotiation before being put into effect by the public employer. See also Hackettstown Bd/Ed, P.E.R.C. No. 80-139, 6 NJPER ___ ( & 11124 1980), aff = d App. Div. Docket A-385-80T3 (1982), and New Brunswick Bd/Ed and New Brunswick Ed/Assn., Inc., P.E.R.C. No. 78-47, 4 NJPER 84, aff = d App. Div. Docket A-2450-77 (4/2/79), and Bd/Ed of Essex County Vocational Schools, P.E.R.C. No. 81-102, 7 NJPER ___ (1981). It is clear therefore that the Board = s failure to negotiate the shortening work year of these positions without negotiations prior to implementation is violative of the Act. The Board here attempts to distinguish between the above-cited cases and the facts in this matter. Unlike the above-cited cases there were no present employees of the Sayreville school system affected by the elimination of the 12-month secretarial positions; those positions were vacant through retirement and resignation. It was also pointed out that the employees are new employees and have therefore suffered no reduction in pay from what they formerly have earned. Contrary to the Board = s position the fact that the people filling these positions were new employees is not controlling. As the State Supreme Court noted in Galloway Tp Bd/Ed and Galloway Tp Assn. of Educ = l Secys., 78 N.J. 1, 17-20 (1978), a majority representative is the exclusive representative of the job titles in the unit, not just the specific employees who held those positions where the representative was certified or recognized. In Deptford Bd/Ed, P.E.R.C. No. 81-78, 7 NJPER ___ ( & 12015 1980), aff = d App. Div. Docket A-181-80-T8 (1982), the Commission held that a board of education was not free to unilaterally alter a salary structure of a certain position simply because a new employee was hired for that position. In the instant case the Association represented the vacant titles or positions and before those positions could be changed there had to be negotiations. There were no such good faith negotiations. Accordingly I recommend that the Commission find that the Sayreville Board of Education violated ' 5.4(a)(1) and (5) when it unilaterally reduced the positions of Guidance Counselor Junior High School Secretary and Guidance Counselor High School Secretary from 12 months to ten months and reclassified the Guidance Counselor High School Secretary from A B @ Clerk to A A @ Clerk. It is further recommended that the Commission order that the Sayreville Board of Education make the two individuals holding the secretarial positions in question whole by paying them the salaries they would have earned had their respective positions not been reclassified and had they been permitted to work a full 12 months. It is further recommended that the Commission order that the Board post the attached notice marked as Appendix A A @ in all places where notices to employees are customarily posted. 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 Board = s authorized representative, shall be maintained by it for at least sixty (60) consecutive days thereafter. Reasonable steps shall be taken by the Board to assure that such notices are not altered, defaced or covered by other materials. It is further recommended that the Board notify the Chairman of the Commission within twenty (20) days of receipt what steps the Board has taken to comply herewith. /s/Edmund G. Gerber Hearing Examiner DATED: June 23, 1982 1/ These subsections prohibit public employers, their representatives or agents from: A (1) Interfering with, restraining or coercing 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. @ 2/ All briefs in this matter were received by February 18, 1982. ***** End of HE 82-64 *****