H.E. No. 82-44

Synopsis:

A Heraing Examiner recommends that the Public Employment Relations Commission find that the Board did not violate Subsections 5.4(a)(1) and (5) of the New Jersey Employer-Employee Relations Act when it unilaterally and without negotiations with the Association, increased the daily teacher-pupil contact time by 10 minutes for certain of its elementary school teachers. Since only eight out of 120 teachers were affected and since the school day was not lengthened, the Hearing Examiner concluded that any violation of the Act was de minimis, citing Caldwell West-Caldwell Ed. Ass'n v. Caldwell-West Caldwell Bd. of Ed., 180 N.J. Super. 440 (1981).

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. 82-44, 8 NJPER 265 (¶13114 1982)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

43.617 72.661

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- HE 82-044.pdf
Appellate Division:
Supreme Court:

H.E. NO. 82-44 1. H.E. NO. 82-44 STATE OF NEW JERSEY BEFORE A HEARING EXAMINER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of BOUND BROOK BOARD OF EDUCATION, Respondent, -and- Docket No. CO-81-99-105 BOUND BROOK EDUCATION ASSOCIATION, Charging Party. Appearances: For the Bound Brook Board of Education Westling, Lime & Welchman, Esqs. (William P. Westling, Esq.) For the Bound Brook Education Association Mandel, Wysoker, Sherman, Glassner & Weingartner, Esqs. (Jack Wysoker, Esq.) HEARING EXAMINER = S RECOMMENDED REPORT AND DECISION ON REMAND An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the A Commission @ ) on October 6, 1980 by the Bound Brook Education Association (hereinafter the A Charging Party @ or the A Association @ ) alleging that the Bound Brook Board of Education (hereinafter the A Respondent @ or the A Board @ ) had engaged in unfair practices within the meaning of the New Jersey Employer-Employee Relations Act, as amended, N.J.S.A. 34:13A-1 et seq. (hereinafter the A Act @ ), in that the Respondent without negotiations with the Charging Party extended the teacher pupil contact time and workload for certain elementary school teachers in August 1980, all of which was alleged to be a violation of N.J.S.A. 34:13A- 5.4(a)(1) and (5) of the Act.1/ It appearing that the allegations of the Unfair Practice Charge, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on February 23, 1981. Pursuant to the Complaint and Notice of Hearing a hearing was held on April 10, 1981 in Trenton, New Jersey, at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. Oral argument was waived and the parties filed post-hearing memoranda by May 4, 1981. The Hearing Examiner issued a Recommended Report and Decision on May 8, 1981, in which he found a violation of Subsections (a)(1) and (5) of the Act: H.E. No. 81-43, 7 NJPER 279 (1981). Under date of August 18, 1981 the Commission remanded the matter to the Hearing Examiner A ...for the purpose of reopening the record to receive testimonial and documentary evidence as well as additional legal argument with respect to all relevant issues bearing upon the Complaint in this matter... @ P.E.R.C. No. 82-22, 7 NJPER 508, 509 (1981). Thereafter, efforts were made by parties to settle the matter amicably and when these efforts failed a hearing was scheduled and held in Newark, New Jersey on January 18, 1982. Oral argument was again waived and the parties filed their second post-hearing memoranda by March 15, 1982. * * * An Unfair Practice Charge having been filed with the Commission, a question concerning alleged violations of the Act, as amended, exists and, after hearing and after consideration of the two post-hearing memoranda of the parties, the matter is appropriately before the Commission by its designated Hearing Examiner for determination. Upon the entire record, the Hearing Examiner makes the following: FINDINGS OF FACT 1. The Bound Brook Board of Education is a public employer within the meaning of the Act, as amended, and is subject to its provisions. 2. The Bound Brook Education Association is a public employee representative within the meaning of the Act, as amended, and is subject to its provisions. 3. The relevant collective negotiations agreement between the parties was effective during the term July 1, 1978 through June 30, 1981 (J-1). 4. Article 1:1 of the said collective negotiations agreement provides, inter alia, that the Association is recognized as the exclusive representative for all teachers employed by the Respondent Board (J-1, pp. 1, 2). 5. Article 13:1 of the said collective negotiations agreement provides as follows: Length of the regular workday for elementary school teachers (K through 6) will be 7 hours and 15 minutes, including the lunch period. The length of the regular workday for secondary school teachers (7 through 12) will be 7 hours and 25 minutes, including the lunch period. On Fridays the teachers = workday will normally cease at the end of the students = day. (J-1, p. 32). 6. Article 2:4 of the said collective negotiations agreement provides as follows: This Agreement incorporates the entire understanding of the parties on all matters which were or could have been the subject of negotiation. During the term of this Agreement neither party shall be required to negotiate with respect to any matter whether or not covered by this Agreement. (J-1, p. 4). 7. Under date of May 15, 1980 the Superintendent of the Respondent, George H. Daniel, sent a letter to the President of the Association, Edith Trautwein, advising that the Respondent was planning to institute a uniform dismissal time for all students in grades K-6 and indicated that the dismissal time would be 2:45 p.m. (J-2).2/ 8. On the same day, May 15, 1980, Association President Trautwein wrote to Superintendent Daniel and, at the end thereof, made reference to Article 13:1, supra, and then stated that she would be in touch with Daniel after an Association meeting on May 20, 1980 (CP-1). 9. On May 21, 1980 Trautwein wrote to Daniel, in which she objected on behalf of the affected teachers on several grounds, principally, that the increase in teacher-student contact time, under established past practice, would constitute a change in working conditions (CP-2). Additionally, she questioned whether or not the increase in teacher-student contact time was beneficial to the A younger students. @ 10. During the first or second week in June 1980 Trautwein met with Daniel and stated that the affected teachers felt very strongly about the proposed change, to which Daniel responded that it was easier for the parents to pick up children with a uniform release time schedule. Both Trautwein and Daniel acknowledged that this meeting was not a negotiations meeting but merely an informal discussion. Trautwein indicated that the teachers were willing to discuss the matter further. Daniel testified credibly that the Association never demanded negotiations nor requested additional compensation. 11. Superintendent Daniel testified credibly that on July 18, 1980 he met informally with Association President Trautwein in an informal discussion regarding the proposed change in dismissal time and that Trautwein made no request for additional compensation. 12. Under date of July 21, 1980 the Board adopted a resolution setting the hours of dismissal for the 1980-81 school year as follows: for K-3 elementary school teachers at 2:40 p.m.;3/ and for grades 4-6 elementary school teachers at 2:45 p.m. (J-3). 13. The proposed change in dismissal time was implemented on September 4, 1980 in accordance with the foregoing resolution without collective negotiations with the Association.4/ 14. As a result of the foregoing action of the Respondent Board the teacher-pupil contact time for eight elementary and certain special teachers in grades 1 and 2 at the Smalley and Lafayette Schools was increased by 10 minutes per day inasmuch as the dismissal time had previously been 2:30 p.m. The teacher- pupil contact time for four 3rd grade teachers at each school was reduced by 5 minutes per day inasmuch as the dismissal time had previously been 2:45 p.m. 15. There was a total of 120 teachers employed by the Board in September 1980. 16. Two affected school teachers testified that, as a result of the increase in teacher-pupil contact time of 10 minutes per day, they were required to provide for tutorial, discipline, preparation and parent-teacher conferences either earlier or later in the school date. NOTE: The Hearing Examiner sustained an objection by counsel for the Charging Party to the proffer of any evidence regarding events occurring after the implementation of the Board = s resolution on September 4, 1980 on the ground of relevance. Counsel for the Respondent made an offer of proof, including Exhibits R-1 through R-3 (for A Identification @ only), which concerned negotiations actions by the parties for a successor agreement to J-1. THE ISSUE Did the Respondent Board violate Subsections (a)(1) and (5) of the Act when, without negotiations with the Charging Party, it unilaterally increased the teacher-pupil contact time by ten minutes per day for eight elementary teachers and certain special teachers at the Smalley and Lafayette Schools for the 1980-81 school year, i.e., was this change in terms and conditions mandatorily negotiable? DISCUSSION AND ANALYSIS The Respondent Board Did Not Violate Subsections (a)(1) And (5) Of The Act When, Without Negotiations With The Association, It Unilaterally Increased The Teacher-Pupil Contact Time By 10 Minutes Per Day For Certain Elementary Teachers At The Smalley And Lafayette Schools For The 1980-81 School Year The Hearing Examiner finds and concludes that the Respondent Board did not violate Subsections (a)(1) and (5) of the Act when, without negotiations with the Association, it unilaterally increased the teacher-pupil contact time by 10 minutes per day for eight elementary teachers and certain special teachers in grades 1 and 2 at the Smalley and Lafayette Schools beginning with the 1980-81 school year. Since the issuance of the instant Hearing Examiner = s Recommended Report and Decision on May 8, 1981, supra, a significant development has occurred. The Appellate Division issued a decision on August 7, 1981 in Caldwell-West Caldwell Education Association v. Caldwell-West Caldwell Bd. of Ed., 180 N.J. Super. 440, which raises the question as to whether or not the Charging Party = s allegations of a violation of the Act should not be dismissed on the ground that any violation is de minimis. In Caldwell-West Caldwell, the facts essential to the instant case involved a 15-minute increase in classroom time (one mod) for certain CORE teachers, which involved an increase in preparation for classroom instruction and in more student papers to be read and graded, all of which occurred without any change in the overall length of the school day. The Court first cited Woodstown-Pilesgrove5/ where the Supreme Court held that if the dominant issue concerns an educational goal it falls within the managerial prerogative of a board of education and there is no obligation to negotiate the subject matter. The Supreme Court said, inter alia: It is only when the result of bargaining may significantly or substantially encroach upon the management prerogative that the duty to bargain must give way to the more pervasive need of educational policy decisions... (81 N.J. at 593). The facts in Woodstown-Pilesgrove concerned two additional hours that teachers were required to work on the day before Thanksgiving. The Board sought to change the dismissal time from 1:00 p.m. to 3:00 p.m., affecting all teachers, and, thus, the question concerned payment for two additional hours of work on the day before a holiday. In these circumstances the Supreme Court found no A ...particularly significant educational purpose... @ involved and it held that A ...the budgetary consideration being the dominant element, it cannot be said that negotiation and binding arbitration of that matter significantly or substantially trenched upon the managerial prerogative of the board of education... @ (81 N.J. at 594). In contrast, the Court in Caldwell-West Caldwell found that the change of one mod per day was A unquestionably @ a matter of A educational policy falling entirely within the prerogatives of the Board. @ (180 N.J. Super. at 447). The Court then said: ...The Board must have some flexibility in making managerial decisions. The concept of preexisting practices should not be so rigidly adhered to as to require negotiation of every minute deviation. Unless there is room in the joints for modification and adaptation necessary to make the system work, educational machinery would become stalled in endless dispute...Here the issue was whether a block of seven mods set aside for math and science and a like block of time set aside for English and social studies could be extended one mod or 15 minutes a day in exchange for equivalent mods of cafeteria supervision duty. Being inspired primarily by an educational objective, a board of education should have sufficient discretion to make this change without prior negotiations so long as the change is not unduly burdensome... (180 N.J. Super. at 447, 448). (Emphasis supplied) While it may be argued that seeking to achieve a common dismissal time of 2:40 p.m. for grades 1 to 3, which adversely affected eight (8) elementary teachers plus certain special teachers out of a total of 120 teachers in the district, is not in furtherance of an educational objective or purpose, the Hearing Examiner finds and concludes that although the educational component in a common dismissal time may not appear to be of great moment, the resultant additional 10 minutes per day of instruction is consistent with an educational objective or purpose as determined by the Board. Thus, the Hearing Examiner concludes that the instant case is governed by Caldwell-West Caldwell where the Court, in finding no violation of the Act, said: Thus, we are impelled to rule that a change from preexisting practice which is directly related to an educational purpose should not be measured by caliper and micrometer. Boards of education must be given some room to manage between contracts without being forced to bargain over every move they make...Disputes of a relatively minor nature arising in the interim must be quelled, and the aggregate of minor grievances should be resolved by compensatory across-the-board allowances in the next contract. (180 N.J. Super. at 449). (Emphasis supplied) The cases cited by the Charging Party do not persuade the Hearing Examiner that the result herein should be different. 1. In City of Bayonne Board of Education v. Bayonne Teachers = Association, P.E.R.C. No. 80-58, 5 NJPER 499 (1979), aff = d. App. Div. Docket No. A-945-79 (1980), pet. for certif. den. 87 N.J. 310 (1981), the Commission, after an arbitrator = s award, held that a nine-minute change in all High School teachers = duty-free time to a supervisory assignment, prior to the commencement of homeroom classes, involved a mandatorily negotiable term and condition of employment. It is first noted that the nine-minute change affected on all High School teachers.6/ Further, in Bayonne there was a specific contract provision setting forth the A sign in @ time and the time for commencement of homeroom classes, a period of 15 minutes, during which teachers had free time. An arbitrator determined, prior to the Commission = s decision, that reducing the 15-minute free time by nine minutes was a violation of the agreement and an increase in the teachers = workload. All of the foregoing distinguishes Bayonne from the instant case. 2. In East Brunswick Board of Education, P.E.R.C. No. 82- 26, 7 NJPER 542 (1981), decided after Caldwell-West Caldwell, supra, a grievance sought to be arbitrated was held to be arbitrable where all teaching staff members were directed by the Board to be at their teaching station each day 20 minutes before and after school. The Board asserted that its directive was related to student safety and security. The Association countered that it violated the existing agreement, which provided only that teachers should report to work 20 minutes before the opening of the students = day and then stated that teachers should not be required to remain 20 minutes after the close of the students = day. The Commission found that the change was negotiable and arbitrable under Bayonne, supra. The Hearing Examiner notes that, once again there was a specific contract provision involved, which was allegedly violated, unlike the instant case. Further, the Board = s action affected all teachers in the district unlike the eight A plus @ teachers involved herein. 3. Finally, in Wanaque Borough District Board of Education, P.E.R.C. No. 82-54, 8 NJPER 26 (1981), also decided after Caldwell-West Caldwell, supra, the Commission held arbitrable a grievance alleging that the school board violated the agreement when it required all teachers, on days of inclement weather, to supervise students during the 15 minutes normally used by teachers for preparation before students are admitted into the school building. The Commission relied upon an earlier Wanaque case7/ and Bayonne, supra. Unlike the instant case, once again there was in Wanaque duty-free or non-supervisory time for all teachers. Also, unlike the instant case, there was a specific contract provision, which was allegedly violated. In view of the conclusion of the Hearing Examiner that the charge should be dismissed on de minimis grounds, there is no need to consider the applicability of a case relied upon the Respondent Board herein, namely, Pascack Valley Regional High School District Board of Education, P.E.R.C. No. 81-61, 6 NJPER 554 (1980). Upon the foregoing, and upon the entire record in this case, the Hearing Examiner makes the following: CONCLUSION OF LAW The Respondent Board did not violate N.J.S.A. 34:13A- 5.4(a)(1) and (5) when it unilaterally, and without negotiations with the Association, increased the teacher-pupil contact time by 10 minutes per day for eight elementary teachers and certain special teachers in grades 1 and 2 at the Smalley and Lafayette Schools for the 1980-81 school year. RECOMMENDED ORDER The Hearing Examiner recommends that the Commission ORDER that the Complaint be dismissed in its entirety. /s/Alan R. Howe Hearing Examiner DATED: April 1, 1982 Trenton, New Jersey 1/ These Subsections prohibit public employers, their representatives, or agents from: A (1) Interfering with, restraining or coercing employees in the exercise of 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/ The dismissal time change was later modified by the Board (J-3, infra). 3/ It was stipulated that the preschool or A K @ teachers are not involved herein (2 Tr. 4, 8). It was also stipulated that certain special teachers at the Smalley and Lafayette Schools may or may not be involved depending on their teaching schedule (2 Tr. 4-8). All eight elementary teachers in grades 1 and 2 at the two schools are involved (2 Tr. 4, 5). 4/ On September 29, 1980 Superintendent Daniel told Judy Donahue, a member of the Association = s Grievance Committee, that the Board was acting within its managerial prerogative in having made the change (2 Tr. 76). 5/ See Woodstown-Pilesgrove Board of Education v. Woodstown- Pilesgrove Education Association, 81 N.J. 582 (1980). 6/ Just as all Middle School teachers were affected in Dover Board of Education, P.E.R.C. No. 81-110, 7 NJPER 161 (1981), aff = d. App. Div. Docket No. A-3380-80 (1982). 7/ P.E.R.C. No. 80-13, 5 NJPER 414 (1979). ***** End of HE 82-44 *****