H.E. No. 84-3

Synopsis:

A Hearing Examiner recommends that the Public Employment Relations Commission find that the Respondent violated Subsections 5.4(a)(1) and (5) of the New Jersey Employer-Employee Relations Act when, without notice to or negotiations with the Charging Party, it unilaterally discontinued the July Summer program in 1982 at the University High School and failed to employ five staff members represented by the Charging Party for that month. There had been a long-standing practice, dating back to 1969, of employing staff members for the month of July and paying said staff members 1-10th of the annual salary for the month of July. The Hearing Examiner relied on a long line of Commission and court decisions, which hold that the length of employment during a school year is a term and condition of employment, which is mandatorily negotiable and may not be altered without negotiations with public employee representatives.

By way of affirmative action, the Heariang Examiner recommends that the five affected employees be paid their salary for the month of July 1982 together with interest at the rate of 12% per annum from that month.

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. 84-3, 9 NJPER 445 (¶14193 1983)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

43.43 43.44 72.612 72.651

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- HE 84-003.pdf
Appellate Division:
Supreme Court:

H.E. NO. 84-3 1. H.E. NO. 84-3 1. NOTICE TO EMPLOYEES PURSUANT TO AN ORDER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION AND IN ORDER TO EFFECTUATE THE POLICIES OF THE NEW JERSEY EMPLOYER-EMPLOYEE RELATIONS ACT, AS AMENDED, We hereby notify our employees that: H.E. NO. 84-3 STATE OF NEW JERSEY BEFORE A HEARING EXAMINER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of BOARD OF EDUCATION OF THE CITY OF NEWARK, Respondent, -and- Docket No. CO-83-118-81 CITY ASSOCIATION OF SUPERVISORS AND ADMINISTRATORS, Charging Party. Appearances: For the Respondent Dwayne Vaughn, Esq. For the Charging Party Barry A. Aisenstock, Esq. HEARING EXAMINER = S RECOMMENDED REPORT AND DECISION An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the A Commission @ ) on November 5, 1982 by the City Association of Supervisors and Administrators (hereinafter the A Charging Party @ or the A Association @ ) alleging that the Board of Education of the City of Newark (hereinafter the A Respondent @ or the A Board @ ) has 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 unilaterally eliminated the eleventh month of employment for employees represented by the Charging Party at University High School as of July 1982 without notice to or negotiations with the Charging Party, and without compensation for the affected employees for the month of July, notwithstanding a contrary practice of some 12 or 13 years, all of which is 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 March 29, 1983. Pursuant to the Complaint and Notice of Hearing, a hearing was held on June 7, 1983 in Newark, 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 briefs by July 7, 1983. 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 post-hearing briefs 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 Board of Education of the City of Newark is a public employer within the meaning of the Act, as amended, and is subject to its provisions. 2. The City Association of Supervisors and Administrators is a public employee representative within the meaning of the Act, as amended, and is subject to its provisions. 3. The Association represents, for purposes of collective negotiations, certain supervisors and administrators at the University High School. 4. Since the 1970-71 school year the University High School has been operated on an eleven-month basis. The administrative staff, as well as the teaching staff, has since 1970 been expected to perform services for 11 months of the school year commencing in September. Except for resignations, transfers or retirements it has been the practice for the staff at the University High School to work the 11 months as indicated above. 5. Each year since 1970 the Board has approved for employment in July those teachers, supervisors and administrators, whose names were submitted to the Board by the Principal of University High School. The compensation for those staff members who were approved for employment in July has always been calculated and paid on the basis of one-tenth (1/10) of the annual salary of the staff member. 6. Beginning in April 1981 the Board = s Instruction Committee raised questions about whether or not the Summer program in July, the eleventh month, should be continued since it was being utilized to offer enrichment to students who had no academic deficiencies (R-1, p. 7). However, no action was taken by the Board and thus the Summer program for July 1981 continued as in the past. 7. In the Spring of 1982 the Principal of the University High School, Willie J. Young, prepared his budget for the 1982-83 school year, including the Summer program for July 1982 (R-3). 8. The agenda for the special Board meeting of June 30, 1982 included the University High School Summer program for 1982 (R-5). Excerpts of the minutes of the executive session of the Board on that date indicate that the University High School Summer program was A pulled @ from the agenda and that the School would now go to a regular school year instead of being an eleven- month program (R-6, p. 2). 9. The affected employees represented by the Association were informed of the Board = s action of June 30, 1982 by telephone or other means. As a result none of the affected employees worked during the month of July 1982 as they had in the past. The Charging Party = s witnesses testified credibly that they were unable to find alternative employment in July 1982 due to the abrupt notice from the Board that they would not be employed for that month. 10. The affected employees have continued to work at the University High School on a ten-month basis since September 1982. 11. The witnesses for the Charging Party testified credibly that at the time of their employment at the University High School each was informed by representatives of the Respondent that they were expected to work eleven months commencing in September of the school year. 12. Gerald A. Samuels, a member of the Association = s Grievance Committee and Executive Board, testified credibly that the Board never gave notice to the Association nor offered to negotiate with it regarding the Board = s decision to terminate the July Summer program in 1982. 13. The only provision in the parties = collective negotiations agreement, effective during the term July 1, 1980 to June 30, 1982, which pertains to the length of the school year or the work year is Article X, Section D, which provides as follows: A For schedule purposes, the Personnel with the exception of Directors and Central Office Coordinators, shall work ten (10) months and ten (10) days which period shall be the regular ten (10) months teachers = schedule. They shall report on August 18, 1980 for the opening of the 1980-81 school year and on August 24, 1981 for the opening of the 1981- 82 school year. @ 14. It was stipulated that there are five staff members in the University High School, who were not employed during the month of July 1982. These individuals and the salary that they would have received are as follows: Malanga $3,528.00 Pinckney $3,275.00 White $3,495.50 Young $3,911.90 Zois $3,040.00 THE ISSUE Did the Respondent violate Subsections (a)(1) and (5) of the Act when, without notice to or negotiations with the Association, it failed to employ certain staff members represented by the Association at the University High School for the month of July 1982? DISCUSSION AND ANALYSIS The Respondent Violated Subsections (a)(1) And (5) Of The Act When Without Notice To Or Negotiations With The Association It Failed To Employ Certain Staff Members Represented By The Association At The University High School For The Month Of July 1982 The Charging Party correctly observes that, in view of the collective negotiations history of the parties, and the practice at the University High School since 1969, certain of the staff represented by the Association have worked, and have been expected to work, an eleventh month in July of each year. The testimony was uncontradicted that employees hired to work at University High School were told by the Respondent = s representatives that they were expected to work the eleventh month. Certain employees of the High School worked the eleventh month each and every year from 1969 through 1981. The Respondent unilaterally discontinued this practice without notice to or negotiations with the Association in 1982. It is noted that the Respondent recognizes that past practice may alter the contractual relationship between the parties but contends that it is not herein involved since A ...it must first be shown that the express provisions of the contract are somewhat unclear, ambiguous or that such express terms do not exist... @ Thus, we must examine the collective negotiations agreement where the only pertinent provision is found in Article X, Section D. This Article provides that, for schedule purposes, the staff shall work ten months and ten days, which shall be the regular ten months teachers = schedules. There are no other provisions in the agreement which in any way bear upon the work schedule of the staff members represented by the Association. Given Article X above, and its provision for a school year of ten months and ten days, there clearly is an ambiguity or silence in the agreement vis-a-vis the 13-year practice of work during the eleventh month in July of each year. The Commission and the courts of this State have recognized past practice and custom in the collective negotiations relationship between public employers and public employee representatives. Thus, did the Commission state in New Brunswick Board of Education, P.E.R.C. No. 78-47, 4 NJPER 84, 85 (1978), aff = d. App. Div. Docket No. A-2450-77 (1979) that: A ...Where, during the term of an agreement, a public employer desires to alter an established practice governing working conditions which is not an implied term of the agreement...the employer must first negotiate such proposed change with the employees = representative prior to its implementation... ...under N.J.S.A. 34:13A-5.3 the obligation is on the public employer to negotiate, prior to implementation, a proposed change in an established practice governing working conditions which is not explicitly or impliedly included under the terms of the parties = agreement... @ (Emphasis supplied). See also, Kearny PBA Local 21 v. Town of Kearny, 81 N.J. 208, 221 (1979); Sayreville Education Association v. Sayreville Board of Education, App. Div. Docket No. A-373-80T4 (1981); and Sayreville Board of Education, P.E.R.C. No. 83-105, 9 NJPER 138, 140 (1983). There are several other pertinent court and Commission decisions on the issue of the unilateral reduction in the duration of employment during the school year for public school employees. See Piscataway Township Board of Education v. Piscataway Principals Association, P.E.R.C. No. 77-65, 3 NJPER 169 (1977), aff = d 164 N.J. Super. 98 (App. Div. 1978); Hackettstown Education Association v. Hackettstown Board of Education, App. Div. Docket No. A-385-80T3 (1982); and East Brunswick Bd. of Ed., P.E.R.C. No. 82-111, 8 NJPER 320 (1982). In Piscataway the Court made clear that A ...the matter of length of the work year and its inseparable concomitant - compensation - are terms and conditions of employment within the intent of... @ the Act. (164 N.J. Super. at 100, 101). The instant Hearing Examiner decided a similar issue in Board of Education of Essex County Vocational Schools, H.E. No. 81-24, 7 NJPER 112 (1981), which was affirmed by the Commission in the absence of exceptions: P.E.R.C. No. 81-102, 7 NJPER 144 (1981). Except for the presence of a RIP issue in that case the facts there bear a striking resemblance to the instant case and the Hearing Examiner cites Essex as additional authority for his conclusion herein. Finally, the Hearing Examiner finds inapposite the many Commissioner of Education decisions cited by the Respondent. They clearly are not pertinent to the issue involved herein, namely, the unilateral change of an established practice governing working conditions without negotiations with the Association. No one is here raising the issue of whether or not the Respondent has the managerial prerogative to eliminate the Summer program during the month of any school year. This the Respondent can do without negotiations. What the Respondent cannot do is fail to negotiate before implementation of a reduction in the work year of affected staff members represented by the Association from eleven months to ten months where there has been a practice to the contrary covering some 13 years. The Hearing Examiner having concluded that the respondent has violated Subsections (a)(1) and (5) of the Act, an appropriate remedy will be recommended hereinafter. Upon the foregoing, and upon the entire record in this case, the Hearing Examiner makes the following: CONCLUSION OF LAW The Respondent violated N.J.S.A. 34:13A-5.4(a)(1) and (5) when, without notice to or negotiations with the Association, it failed to employ certain staff members represented by the Association at the University High School for the month of July 1982. RECOMMENDED ORDER The Hearing Examiner recommends that the Commission ORDER: A. That the Respondent cease and desist from: 1. Interfering with, restraining or coercing its employees in the exercise of the rights guaranteed to them by the Act, particularly, by refusing to negotiate in good faith with the City Association of Supervisors and Administrators regarding the five staff employees who were not employed in July 1982 in the Summer program at the University High School. 2. Refusing to negotiate in good faith with the said Association regarding the five staff employees who were not employed in the Summer program at the University High School in July 1982. B. That the Respondent take the following affirmative action: 1. Forthwith make the five staff employees at the University High School who were not employed in July 1982, and who are identified by name and amount of salary in Finding of Fact No. 14, supra, whole for the wage loss suffered for the month of July 1982 with interest at the rate of 12% per annum for the month of July 1982. 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 a period of at least sixty (60) consecutive days thereafter. Reasonable steps shall be taken by the Respondent to insure 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 has taken to comply herewith. /s/Alan R. Howe Hearing Examiner DATED: July 13, 1983 Trenton, New Jersey WE WILL NOT interfere with, restrain or coerce our employees in the exercise of the rights guaranteed to them by the Act, particularly, by refusing to negotiate in good faith with the City Association of Supervisors and Administrators regarding the five staff employees who were not employed in July 1982 in the summer program at the University High School. WE WILL NOT refuse to negotiate in good faith with the said Association regarding the five staff employees who were not employed in the Summer program at the University High School in July 1982. WE WILL forthwith make the five staff employees at the University High School who were not employed in July 1982, whole for wage loss suffered for the month of July 1982 with interest at the rate of 12% per annum from the month of July 1982, as follows: Joseph Malanga $3,528.00 Theodore Pinckney $3,275.00 James White $3,495.50 Willie Young $3,911.90 Joelle Zois $3,040.00 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. @ Docket No. Newark Board of Education (Public Employer) Date: By: This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced or covered by any other material. If employees have any question concerning this Notice or compliance with its provisions, they may communicate directly with the Public Employment Relations Commission, 495 West State Street, PO Box 429, Trenton, NJ 08625-0429 (609) 984-7372 APPENDIX A A @ ***** End of HE 84-3 *****