H.E. NO. 82-36 1.
H.E. NO. 82-36 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. 82-36 1.
H.E. NO. 82-36
STATE OF NEW JERSEY
BEFORE A HEARING EXAMINER OF THE
PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the Matter of
BOARD OF EDUCATION OF THE
BOROUGH OF OAKLAND,
Respondent,
-and- Docket No. CO-79-110-78
OAKLAND TEACHERS = ASSOCIATION,
Charging Party.
Appearances:
For the Respondent
Parisi, Evers & Greenfield, Esqs.
(Irving C. Evers, Esq.)
For the Oakland Teachers = Association
Bucceri & Pincus, Esqs.
(Louis P. Bucceri, 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 2, 1978 (Count I),1/ and amended on November 6, 1978 (Count II), by the Oakland Teachers = Association (hereinafter the A Charging Party @ or A Association @ ) alleging that the Board of Education of the Borough of Oakland (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 for at least five years past there had been no requirement that credits utilized to advance on the salary guide from A MA @ through A MA + 45" need be taken in any particular order of priority and that the only requirement had been that such credits be taken in accredited institutions of learning. Notwithstanding the foregoing the Respondent in October 1978, without notification to or negotiations with the Charging Party, unilaterally adopted a policy requiring that graduate courses must be taken after receipt of the respective degree in order to receive credit for the said courses for advancement on the salary guide, all which was alleged to be a violation of N.J.S.A. 34:13A-5.4(a)(1) and (5) of the Act.2/
It appearing that the allegations of the Unfair Practice Charge, as amended, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on April 12, 1979. Pursuant to the Complaint and Notice of Hearing, a hearing was held on November 24, 19813/ 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 January 18, 1982.
An Unfair Practice Charge, as amended, 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. BACKGROUND TO INSTANT PROCEEDING In or about the time of the filing of Count II of the instant Unfair Practice Charge on November 6, 1978, four teachers employed by the Respondent filed petitions with the Commissioner of Education based upon the Respondent = s rejection of their applications for movement on the A M.A. + @ salary guide utilizing credits earned prior to attaining the Master = s Degree. Two of these teachers are claimants herein and are represented by the Charging Party, i.e., Mary Siebold and Catherine Dykstra.4/
Siebold had attained her Master = s Degree in 1975 and applied for A M.A. + 15" on the salary guide in September 1978. Dykstra obtained her Master = s Degree in 1978 and applied for A M.A. + 15" on the salary guide in February 1979.
Prior to October 1978 the Respondent had a policy pertaining to advanced degrees, which was adopted in 1972, but which contained no criteria for determining whether credits earned prior to the advanced degree, i.e., A M.A. + @ could be utilized for placement on the salary guide. However, in October 1978 the Board amended this policy to require that before graduate courses could be applied to the salary guide for advanced degrees A ...said courses must be taken after the Bachelor = s or Master = s degree, respectively, has been completed. @
On March 31, 1980 an Administrative Law Judge (ALJ) decided the claims of Siebold and Dykstra. He granted Siebold = s claim since hers was made in September 1978, prior to the October 1978 change in policy, supra, but denied Dykstra = s claim since hers was made in February 1979, several months after the October 1978 change in policy.5/
The Commissioner of Education affirmed the decision of the ALJ on June 2, 1980 and the State Board of Education affirmed the Commissioner on October 1, 1980. Thereafter, the matter was appealed to the Appellate Division, which on June 3, 1981 affirmed all prior proceedings (Docket No. A-787-80).6/ * * * Upon the entire record, the Hearing Examiner makes the following: FINDINGS OF FACT 1. The Board of Education of the Borough of Oakland is a public employer within the meaning of the Act, as amended, and is subject to its provisions.
2. The Oakland Teachers = Association is a public employee representative within the meaning of the Act, as amended, and is subject to its provisions.
3. A policy of the Respondent, revised in 1972, and entitled A Professional Personnel Compensation Guides and Contracts @ provided as follows:
Personnel shall be individually responsible for officially informing the school administration, and providing the required supporting evidence, of increments due them for completion of approved training toward advanced degrees.
Adjustments due to new training status shall be considered twice annually in September and February. The changes shall become effective at the time specified in the official Board approval. (J-1).
4. The foregoing policy was changed by the Respondent in October 1978 to provide as follows:
In order for graduate courses to be applied to the Bachelor = s plus 15 or the Master = s plus 15, 30 or 45, training levels on the teachers = salary guide, said courses must have been taken after the Bachelor = s or Master = s degree, respectively, has been completed. (J-1) (Emphasis supplied).
5. The October 1978 change in Board policy (see Finding of Fact. No. 4, supra) was undertaken without notice to or negotiations with the Charging Party (Tr. 12).7/
6. The collective negotiations agreements between the parties have always contained the negotiated salary guide, which has specified the salary differential based on academic achievement, but which has never specified any chronological order for the taking of credits for movement on the salary guide. There was received in evidence as J-2 the pertinent salary guides for the school years 1978-79 through 1981-82, which set forth the salaries for A BA @ through A MA + 45. @
7. The Superintendent of the Board, William Risser, testified that under the Board policy of 1972 (see Finding of Fact No. 3, supra), the A ...almost uniform practice... @ was not to permit teachers to utilize credits earned prior to the Master = s degree (Tr. 182). However, there were at least four instances where Risser exercised his A discretion @ and permitted salary credits for courses taken prior to the degree to be utilized for movement beyond A BA @ and A MA @ (Tr. 178-183). These four involved Richard Simler, who utilized 6 credits earned prior to his MA for movement to A MA + 15" and A MA + 30; @ Mary Siebold, who used course credits taken prior to her BA which were applied toward her A BA + 15; @ and similar unspecified credit to Carol Pierce and Betty Aldanburg.
8. The following teachers testified credibly regarding their efforts to apply graduate courses taken prior to the A BA @ or A MA @ degree, which they thereafter sought to utilize for movement on the salary guide beyond the A BA @ and A MA @ degree. In each instance the Hearing Examiner has set forth a summary of the amounts claimed to be due, based on the testimony of the particular teacher and the exhibits, measured against the applicable salary guides (J-2).
A. Mary Scerbo: Scerbo was hired by the Board in September 1971 as BA, Step 4. Thereafter she earned 15 more credits and attained the level of A BA + 15. @ In February 1980 Scerbo was placed at the A MA @ level. Scerbo = s MA degree was earned by utilizing only 3 of her 15 post-BA credits plus new credits. Thus, as of February 1980 Scerbo had her MA degree plus 12 other pre-MA credits, which did not count toward her MA. During the Summer of 1980 Scerbo earned 3 more credits. She then applied on August 19, 1980 for the A MA + 15" level, seeking to use her 3 new credits plus her 12 unused pre-MA credits (CP-1). The Superintendent responded by sending Scerbo a copy of J-1 with the 1978 policy circled. Scerbo responded by letter dated September 15, 1980, in which she reasserted her request (CP-2). The request was again denied (CP-3). Scerbo stated that she was not seeking to use the 12 pre-MA credits twice, but rather sought to continue to utilize them since they did not form a part of her MA degree. Based on the foregoing, Scerbo = s claim is as follows:
Year Salary Received Salary Claimed Amt. Due
1980-81 MA, Step 12 (21,929) MA + 15 1,348
Step 13 (23,277)
1981-82 MA, Step 14 (23,793) MA + 15
Step 14 (25,256) 1,4638/
$2,811
B. George Peterson: Peterson was hired in September 1968 at BA, Step 2. He attained A BA + 15" in 1970 and in January 1980 received his MA degree without utilizing any of the 15 credits he obtained to reach the A BA + 15" level. In February 1980 Peterson was placed at MA, Step 13, despite the fact that he had 15 more credits in addition to his MA. Because he thought the Board = s October 1978 policy was binding upon him he did not make a request for placement at A MA + 15. @ After learning from the Association of his right to apply for A MA + 15" he did so on September 17, 1981 (CP-4). This request was denied by the Superintendent on September 28, 1981 (CP-5). Based on the foregoing Peterson = s claim is as follows:
Year Salary Received Salary Claimed Amt. Due
2/1/80- 1/2 MA, Step 13 1/2 MA + 15
6/30/80 (10,499) Step 13 (11,163) 664
1980-81 MA, Step 14 MA + 15,
(22,678) Step 14 (24,112) 1,434
1981-82 MA, Step 15 MA + 15,
(24,606) Step 15 (26,162) 1,556
$3,654
C. Judy Vihonski: Vihonski was hired in September 1970 at BA, Step 1. She attained A MA + 30" in February 1978 using all post-MA credits. At that time she possessed 3 pre-MA credits, which were never used for her MA or her post-MA placement. By June 1981 Vihonski had obtained 12 more credits and applied for A MA + 45" placement, in which she sought to utilize her 12 new credits and her 3 pre-MA credits. This request was denied on August 20, 1981 (CP-7). Based on the foregoing Vihonski = s claim is as follows:
Year Salary Received Salary Claimed Amt. Due
1981-82 MA + 30 MA + 45 $888
Step 12 (23,808) Step 12 (24,696)
D. Elaine Vasar: Vasar was hired in February 1966 at BA, Step 4. She received her Master = s degree in September 1976 and at that time had 6 pre-MA credits, which were not counted toward the MA degree. During the 1980-81 school year Vassar completed 9 additional credits and applied for placement at the A MA + 15" level as of September 1981. This request was denied on September 28, 1981 (CP-8). Based on the foregoing, Vassar = s claim is as follows:
Year Salary Received Salary Claimed Amt. Due
1981-82 MA Maximum (25,822) MA + 15
Maximum (27,478) $1,656
E. Peter Sinski: Sinski was hired in September 1970 at BA, Step 1. He acquired his MA in June 1980, at which time he had 30 pre-MA credits that had not been counted toward his MA degree. Believing that he could not apply for A MA + 30" status as of September 1980 because of the Board = s October 1978 policy, he did not do so until September 16, 1981 based on information that he had received from the Association (CP-9). This application was denied on September 28, 1981 (CP-10). Based on the foregoing, Sinski = s claim is as follows:
Year Salary Received Salary Claimed Amt. Due
1980-81 MA MA + 30
Step 11 (20,433) Step 11 (21,943) 1,510
1981-82 MA MA + 30
Step 12 (22,170) Step 12 (23,808) 1,638
TOTAL $3,148
F. Christene Chakmakian: Chakmakian was hired in September 1973 at BA, Step 1. She was placed at A MA @ in September 1977 and at that time had 6 pre-MA credits, which had not been applied toward her Master = s degree. By January 1980 Chakamakian had earned an additional 9 post-MA credits but did not apply for A MA + 15" status because of the October 1978 Board policy. In September 1981 Chakmakian was placed at A MA + 15" without using her 6 pre-MA credits.9/ Notwithstanding that Chakmakian has filed no application for movement above with A MA + 15" she makes a claim as follows:
Year Salary Received Salary Claimed Amt. Due
2/1/80- 1/2 MA 1/2 MA + 15
6/30/80 Step 7 (8,420) Step 7 (8,844) 424
1980-81 MA MA + 15
Step 8 (18,187) Step 8 (19,103) 916
TOTAL $1,340
G. C. Tucker Platt: Platt was hired in September 1961 at BA, Step 1. He attained his Master = s degree in September 1976, at which time he had 20 pre-MA credits that had not been applied toward his Master = s degree. Platt asked for placement at A MA + 15" at that time, which request was denied. Upon receiving information from the Association in 1981 Platt requested A MA + 15" placement on October 5, 1981 (CP-11), which was denied on the same date (CP-12). Based on the foregoing, Platt = s claim is as follows:
Year Salary Received Salary Claimed Amt. Due
1978-79 MA MA + 15
super max. (20,960) super max. (22,337) 1,377
1979-80 MA MA + 15
super max. (22,036) super max. (23,449) 1,413
1980-81 MA MA + 15
max. (23,799) max. (25,325) 1,526
1981-82 MA MA + 15
max. (25,822) max. (27,478) 1,656
TOTAL $5,972
H. Laura Paterson: Paterson was hired in September 1967 at BA, Step 1. She applied for A MA + 30" status on June 1, 1981 (CP-13). This request was initially denied on August 20, 1981 because she had relied upon pre-MA credits (CP-14). Paterson resubmitted her application after taking a 3-credit course in June 1981 and her application was approved, effective September 1981. Paterson has sustained no monetary loss but seeks the right to apply her 2 pre-MA credits to future salary guide advancement.10/
I. Catherine Dykstra: Dykstra was hired in September 1969 at BA, Step 1. She attained her Master = s degree in February 1978, at which time she had 12 pre-MA credits, which had not been applied toward her MA degree. Upon completing 3 additional credits in the Fall of 1978 Dykstra applied for A MA + 15" status, effective February 1979. This request was denied on March 2, 1979 (CP-15). Thereafter Dykstra was placed at A MA + 15" in September 1979 without using her 12 pre-MA credits. As noted above, Dykstra was denied relief in the proceedings before the Commissioner of Education because her claimed right to A MA + 15" status did not arise until after the change in Board policy in October 1978, supra. For reasons not clear to the Hearing Examiner, Dykstra claims as follows:
Year Salary Received Salary Claimed Amt. Due
2/1/79- 1/2MA 1/2MA + 15
6/30/79 Step 9 (8,681) Step 9 (9,173) $492
J. Richard Simler: Simler was hired in September 1965 at A BA + 15, @ Step 5. Simler attained A MA @ status in 1971, at which time he had 17 pre-MA credits and, therefore, sought A MA + 15" status as of September 1971. The Superintendent agreed to allow him 6 pre-MA credits toward is A MA + 15" status. Simler achieved A MA + 15" status in September 1972. He reached A MA + 30" status in February 1976. By utilizing the remaining 11 pre-MA credits from 1971 Simler would have attained A MA + 45" status in February 1976. However, Simler has not yet been placed at A MA + 45" on the salary guide. Based on the foregoing Simler = s claim is as follows:
Year Salary Received Salary Claimed Amt. Due
1978-79 super max. super max.
MA+30 (23,367) MA+45 (24,346) 979
1979-80 super max. super max
MA+30 (24,497) MA+45 (25,494) 997
1980-81 max. max.
MA+30 (26,456) MA+45 (27,534) 1,078
1981-82 max. max.
MA+30 (28,705) MA+45 (29,874) 1,169
TOTAL $4,223
K. Mary Siebold: Siebold was hired in September 1968 at BA, Step 2. She attained A BA + 15" status in September 1972 using 12 post-BA credits and 3 pre-BA credits with the knowledge and approval of the Superintendent. Siebold reached A MA @ in September 1975 and in May 1978 requested A MA + 15" status, relying upon 9 post-MA credits and 6 of her 12 pre-MA credits. Siebold = s request was denied on June 1, 1978 (CP-16), and the Commissioner of Education proceeding, supra, ensued. During that proceeding Siebold amended her petition and sought A MA + 30" status using the remaining 6 of her pre-MA credits, supra. In the Commissioner of Education proceeding Siebold was given retroactive credit for A MA + 15" status from September 1, 1978 through June 30, 1981 and was placed at A MA + 30" as of September 1981. If full credit for pre-MA courses had been timely given to Siebold she would have reached A MA + 30" status in September 1979. Based on the foregoing, Siebold = s claim is as follows:
Year Salary Received Salary Claimed Amt. Due
1979-80 MA+15 MA+30
Step 13 (22,326) Step 13 (22,619) 293
1980-81 MA+15 MA+30
Step 14 (24,112) Step 14 (24,429 317
TOTAL $610
THE ISSUES 1. Is the Respondent Board bound, under the doctrine of collateral estoppel, by the finding and conclusion of the Commissioner of Education, affirmed on appeal, that its policy, prior to October 1978, was silent regarding placement on the teachers = salary guide for courses taken prior to completion of the Bachelor = s or Master = s degree?
2. Did the Respondent Board violate Subsections (a)(1) and (5) of the Act when, without notice to or negotiations with the Association, it unilaterally adopted in October 1978 a policy, which required that graduates courses must be taken after the completion of the Bachelor = s and Master = s degree, respectively, in order for said courses to be applied to the A BA + 15" or A MA + 15, 30 or 45" on the teachers = salary guide? If so, what shall the remedy be? DISCUSSION AND ANALYSIS The Respondent Board is Bound, Under
The Doctrine Of Collateral Estoppel,
By The Finding And Conclusion Of The
Commissioner Of Education That Its
Policy, Prior To October 1978, Was
Silent Regarding Placement On The
Teachers = Salary Guide For Courses
Taken Prior To Completion Of The
Bachelor = s Or Master = s Degree
The Hearing Examiner finds and concludes that the Respondent Board is bound under the doctrine of collateral estoppel by the finding and conclusion on the Commissioner of Education that its policy, prior to October 1978, was silent regarding placement on the teachers = salary guide for courses taken prior to completion of the Bachelor = s or Master = s degree.
Although frequently seen as related to res judicata, collateral estoppel differs in that it does not require an identity of the cause of action. Collateral estoppel bars relitigation of any factual issue, which was fully and fairly litigated in a prior action: United Rental Equipment Co. v. Aetna Life & Cas. Co., 74 N.J. 92, 101 (1977) and State v. Gonzalez, 75 N.J. 181, 186 (1977).
Put another way, collateral estoppel means that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot be raised by the same party in a future lawsuit. See Board of Directors, Ajax etc. v. First Nat = l. Bank of Princeton, 33 N.J. 456, 463 (1960) and Matter of Arlinghaus = Estate, 158 N.J. Super. 139 (App. Div. 1978).
In the Commissioner of Education proceeding, supra, the ALJ found that prior to October 1978 the Board = s A ...policy was silent as to the order in which the graduate credits and the master = s degree had to be earned until revised... @ (Slip., p. 4). The Commissioner of Education affirmed the ALJ in this regard (Slip., p. 8). Thereafter, the State Board of Education affirmed the Commissioner of Education on October 1, 1980 and the Appellate Division affirmed the prior proceedings, stating at one point A ...Between 1972 and October, 1978, the Oakland salary adjustment policy was silent as to the order in which the Master = s Degree and graduate credits had to be earned... @ (Slip. p. 2).
Even aside from the foregoing, the Commission must give due regard to the decision of a sister agency since: A ...principles of comity and deference to sibling agencies are part of the fundamental responsibility of administrative tribunals charged with overseeing complex and manifold activities that are also the appropriate statutory concern of other governmental bodies...: @ Hinfey v. Matawan Regional Board of Education, 77 N.J. 514, 531 (1978). The New Jersey Supreme Court in Hinfey, in elaborating on the A comity doctrine, @ expressly noted that collateral estoppel was included therein. See also Hackensack v. Winner, 82 N.J. 1 (1980).
Accordingly, the Hearing Examiner has no difficulty in concluding that the Respondent Board is bound by the finding and conclusion of the Commissioner of Education that the Board = s policy, prior to October 1978, was silent regarding placement on the teachers = salary guide for courses taken prior to completion of the Bachelor = s or Master = s degree under the doctrine of collateral estoppel.
The Respondent Violated Subsections
(a)(1) And (5) Of The Act When,
Without Notice To Or Negotiations
With The Association, It
Unilaterally Adopted A Policy In
October 1978, Which Required That
Graduate Courses Must Be Taken
After The Completion Of The
Bachelor = s Or Master = s Degree For
Movement Beyond A BA @ Or A MA @ On The
Salary Guide
The Hearing Examiner finds and concludes that the Respondent Board violated Subsections (a)(1) and (5) of the Act when it unilaterally adopted its October 1978 policy, supra, without notice to or negotiations with the Association. The reasons for this finding and conclusion follow.
First, it is undisputed that the October 1978 policy, supra, was not negotiated before or after implementation. As noted above, there was no policy in effect prior to October 1978. The Commissioner of Education did not adjudicate whether the October 1978 policy was adopted validly under our Act (Slip., p. 7). Thus, the issue is whether, in the instant proceeding, the October 1978 policy was a mandatory subject of negotiations or an illegal subject.
The Respondent cites Ridgefield Park Education Association v. Ridgefield Park Board of Education, 78 N.J. 144 (1978) in support of its contention that the October 1978 policy on salary guide placement involves the exercise of a managerial prerogative (Respondent = s brief, pp. 11, 12). The Respondent also cites State v. State Supervisory Employees Association, 78 N.J. 54 (1978), which defines negotiable terms and conditions of employment, inter alia, as those A ...on which negotiated agreement would not significantly interfere with the exercise of inherent management prerogatives pertaining to the determination of governmental policy... @ (78 N.J. at 67; Respondent = s brief, p. 13).
The Hearing Examiner is persuaded that the proper starting point in this case is the New Jersey Supreme Court = s decision in Bd. of Ed. of Englewood v. Englewood Teachers Association, 64 N.J. 1 (1973), which involved, in part, the arbitrability of the grievance of a teacher who sought placement at A MA + 30" on the salary guide. In holding the grievance to be arbitrable the Supreme Court said of the arbitration process that A ...The interpretations would directly and most intimately affect the employment terms and conditions of the five individuals involved without affecting any major educational policies...(the issues)...would appear to be eminently suitable for arbitral determination in accordance with the terms of the agreement... @ (64 N.J. at 8).
The Hearing Examiner now turns to the Commission = s decision in North Arlington Bd. of Ed., P.E.R.C. No. 79-12, 4 NJPER 448 (1978) where the Commission, in reversing the instant Hearing Examiner, relied on Englewood, supra, and held that movement on a salary guide relates to compensation, which is a mandatorily negotiable term and condition of employment that cannot be changed unilaterally. There the Board unilaterally adopted a policy, which required that the Superintendent give prior approval for courses taken for advancement on the salary guide above the Bachelor = s or Master = s level. The Commission said:
...Movement on the salary guide relates to compensation, a clear term and condition of employment which is mandatorily negotiable. In a prior decision, (Salem Community College, P.E.R.C. No. 78-22, 3 NJPER 375) we held that increments are part of salary and, as such, related to terms and conditions of employment. In support of that decision, we cited...Englewood...That case is particularly pertinent because one of the grievances which the court found arbitrable under the parties = collective negotiations agreement involved the question of whether a particular course which a teacher had completed fulfilled the requirement for placement on the salary guide at the > MA + 30' level.
Although the instant case involves movement along the salary guide based on educational attainment rather than receipt of normal increments, we are satisfied that the issue nevertheless concerns compensation and cannot be changed unilaterally. [citing Education Assn. of Passaic v. Passaic Bd. of Ed., App. Div. Docket No. A-3082-75 (1977)]. Accordingly, the Board violated the Act by unilaterally changing this term and condition of employment...[citing Galloway Twp. Bd. of Ed. v. Galloway Twp. Ed. Assn., 78 N.J. 25 (1978)]... @ (4 NJPER at 449).
Although the Respondent correctly points out that the Commission in North Arlington did not cite Ridgefield Park, supra, the Commission did cite Galloway, which was decided on August 1, 1978, the day before Ridgefield Park. Thus, the Commission was clearly aware of the Ridgefield Park holding but elected not to cite it for the obvious reason that it was not pertinent to the disposition of the case, especially in the light of Englewood, which was cited and relied upon.
In summary, on the basis of Englewood and North Arlington, supra, the Respondent Board acted illegally in October 1978 when it unilaterally adopted a new policy for movement on the salary guide, supra, without negotiation with the Association. The Hearing Examiner thus concludes that the Board violated Subsection (a)(5), and derivatively Subsection (a)(1) of the Act. There now remains the question of remedy.
REMEDY As is indicated in Finding of Fact No. 8 (pp. 5-11, supra), a number of teachers have made application to utilize pre- advanced degree course credits for movement on the salary guide after attaining either the A BA @ or A MA @ degree. These applications have been routinely denied by the Superintendent, based upon the October 1978 policy.
The tally of money damages sought the the various teachers, supra, has also been set forth in Finding of Fact No. 8. The Hearing Examiner herewith grants the damages claimed by the following teachers: Scerbo; Peterson; Vihonski; Vasar; Sinski; Platt; Simler; and Siebold.11/ The Hearing Examiner denies the claim of Chakmakian on the ground that she filed no application for the use of pre-MA credits on and after September 1981 and, also, the claim of Dykstra is denied on the ground that her movement to A MA + 15" status in September 1979 did not involve the claim to use pre-MA credits.
The Hearing Examiner will also award interest under the authority of Salem County Bd. for Vocational Ed. v. McGonigle, App. Div. Docket No. A-3417-78 (1980) and County of Cape May, P.E.R.C. No. 82-2, 7 NJPER 432 (1981) at the rate of 12% per annum, based on the current rate for interest on judgments in the State of New Jersey [Rule 4:42-11(a)].
Finally, the Hearing Examiner denies that teachers = claims to use the pre-advanced degree credit utilized herein for A future salary guide advancement @ since this would plainly involve using the same courses twice for movement on the salary guide. * * * Upon the foregoing, and upon the entire record in this case, the Hearing Examiner makes the following:
CONCLUSION OF LAW The Respondent Board violated N.J.S.A. 34:13A-5.4(a)(5), and derivatively 5.4(a)(1), when it unilaterally adopted a policy in October 1978, without notice to or negotiations with the Association, which required that graduate courses must be taken after the completion of the Bachelor = s and Master = s degree, respectively, in order for said courses to be applied to the A BA + 15" or A MA + 15, 30 or 45" on the teachers = salary guide. RECOMMENDED ORDER The Hearing Examiner recommends that the Commission ORDER:
A. That the Respondent Board 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 unilaterally adopting a policy in October 1978 without notice to or negotiations with the Oakland Teachers = Association, which required that graduate courses must be taken after the completion of the Bachelor = s and Master = s degree, respectively, in order for said courses to be applied to the A BA + 15" or A MA + 15, 30 or 45" on the teachers = salary guide.
2. Refusing to negotiate in good faith with the Oakland Teachers = Association concerning terms and conditions of employment of teachers in the unit, particularly, by unilaterally adopting a policy in October 1978 without notice to or negotiations with the Association, which required that graduate courses must be taken after the completion of the Bachelor = s and Master = s degree, respectively, in order for said courses to be applied to the A BA + 15" or A MA + 15, 30 or 45" on the teachers = salary guide.
B. That the Respondent Board take the following affirmative action:
1. Forthwith make payment of the following sums of money to the eight (8) teachers named below together with interest at the rate of 12% per annum, said interest attaching to the monies due on June 30th of any given school year as follows:
Mary Scerbo: C. Tucker Platt:
1980-81 $1,348 1978-79 $1,377
1981-82 $1,463 1979-80 $1,413
$2,811 1980-81 $1,526
1981-82 $1,656
$5,972
George Peterson: Richard Simler:
1979-80 $ 664 1978-79 $ 979
1980-81 $1,434 1979-80 $ 997
1981-82 $1,556 1980-81 $1,078
$3,654 1981-82 $1,169
$4,223
Judy Vihonski: Mary Siebold:
1981-82 $ 888 1979-80 $ 293
1980-81 $ 317
Elaine Vasar: $ 610
1981-82 $1,656
Peter Sinski:
1980-81 $1,510
1981-82 $1,638
$3,148
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 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 Board has taken to comply herewith.
/s/Alan R. Howe
Hearing Examiner
DATED: March 1, 1982
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 unilaterally adopting a policy in October 1978 without notice to or negotiations with the Oakland Teachers = Association, which required that graduate courses must be taken after the completion of the Bachelor = s and Master = s degree, respectively, in order for said courses to be applied to the A BA + 15" or A MA + 15, 30 or 45" on the teachers = salary guide.
WE WILL NOT refuse to negotiate in good faith with the Oakland Teachers = Association concerning terms and conditions of employment of teachers in the unit, particularly, by unilaterally adopting a policy in October 1978 without notice to or negotiations with the Association, which required that graduate courses must be taken after the completion of the Bachelor = s and Master = s degree, respectively, in order for said courses to be applied to the A BA + 15" or A MA + 15, 30 or 45" on the teachers = salary guide.
WE WILL forthwith make payment of the following sums of money to the eight (8) teachers named below together with interest at the rate of 12% per annum, said interest attaching to the monies due on June 30th of any given school year as follows:
Mary Scerbo: C. Tucker Platt:
1980-81 $1,348 1978-79 $1,377
1981-82 $1,463 1979-80 $1,413
$2,811 1980-81 $1,526
1981-82 $1,656
$5,972
George Peterson: Richard Simler:
1979-80 $ 664 1978-79 $ 979
1980-81 $1,434 1979-80 $ 997
1981-82 $1,556 1980-81 $1,078
$3,654 1981-82 $1,169
$4,223
Judy Vihonski: Mary Siebold:
1981-82 $ 888 1979-80 $ 293
1980-81 $ 317
Elaine Vasar: $ 610
1981-82 $1,656
Peter Sinski:
1980-81 $1,510
1981-82 $1,638
$3,148
1/ Count I was withdrawn prior to the hearing, infra.
2/ These Subsections prohibit 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. @
3/ The delay in holding the hearing was due to prior pending proceedings instituted before the Commissioner of Education, which eventually went to the Appellate Division. The Appellate Division rendered its decision on June 3, 1981 and thereafter, after several scheduling delays, the hearing was scheduled for November 24, 1981. The issues presented to the Commissioner of Education were decided under the Education Law, Title 18A, and were separate and distinct from the issues presented to the Commission in the Unfair Practice Charge. Hence, there is no Hackensack v. Winner issue presented herein (see 82 N.J. 1).
4/ Since only Siebold and Dykstra are involved in the instant proceeding no reference need be made to the other two teachers who were involved before the Commissioner of Education.
5/ Siebold amended her petition on January 18, 1980 claiming additional graduate credits, which she said would qualify her for A M.A. + 30" on the salary guide. The ALJ denied this claim since the amendment to the petition occurred after the October 1978 change in policy.
6/ As noted in footnote 3, supra, the instant proceeding was stayed by agreement pending the outcome of the Commissioner of Education proceeding and the appeals through the Appellate Division, supra.
7/ A past President of the Association during the years 1978-80 acknowledged that the Association had never requested negotiations with respect to the October 1978 change nor had there ever been negotiations between the parties over Board policies in this area (Tr. 14, 15).
8/ The amount due for 1981-82 is as of June 30, 1982. Since the instant proceeding will in all likelihood be pending before the Commission at that time the Hearing Examiner sees no harm in utilizing this figure for purposes of his decision in the case of Scerbo and others similarly situated, infra.
9/ There was no explanation offered as to how Chakmakian could have attained A MA + 15" without having used 6 pre-MA credits since there was no evidence that other post-MA credits had been earned.
10/ All of the claimant-teachers herein involved seek in this proceeding an order that they be allowed to utilize all pre- advanced degree credits utilized in this proceeding A toward future salary credits. @ The Hearing Examiner will deal with this aspect of the claims hereinafter.
11/ The damages awarded herein are not speculative and are intended to effectuate the purposes of the Act: Galloway Twp. Bd. of Ed. v. Galloway Twp. Assn. of Educ. Secretaries, 78 N.J. 1, 16 (1978).
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| Date: | | | By: | |
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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 82-36 ***** |