H.E. No. 84-60

Synopsis:

A Hearing Examiner of the Public Employment Relations Commission recommends that the Commission find that the Spotswood Board of Education violated the New Jersey Employer-Employee Relations Act when it failed to release its school secretaries early on the day before Thanksgiving. This particular day was scheduled as an early release day for students and teachers and the Hearing Examiner found that the contract provision which stated that the school secretaries would work the same calendar as professional staff granted the secretaries the same 1/2 day schedule as enjoyed by the teachers in the district. The Board's refusal to release the secretaries early on the day in question constituted a violation of subsections 5.4(a)(1) and (5).

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. 84-60, 10 NJPER 318 (¶15152 1984)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

43.151 72.652 72.664

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- HE 84-060.pdf
Appellate Division:
Supreme Court:

H.E. NO. 84-60 1. H.E. NO. 84-60 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. 84-60 STATE OF NEW JERSEY BEFORE A HEARING EXAMINER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of SPOTSWOOD BOARD OF EDUCATION, Respondent, -and- Docket No. CO-82-262-138 SPOTSWOOD OFFICE PERSONNEL ASSOCIATION, Charging Party. Appearances: For the Respondent Golden, Shore, Zahn & Richmond (Philip H. Shore, of Counsel) For the Charging Party Klausner & Hunter (Stephen E. Klausner, of Counsel) HEARING EXAMINER = S RECOMMENDED REPORT AND DECISION On April 26, 1982, the Spotswood Office Personnel Association ( A Association @ ) filed an Unfair Practice Charge with the Public Employment Relations Commission ( A Commission @ ) alleging that the Spotswood Board of Education committed an unfair practice on November 25, 1981. It was alleged that the secretaries employed by the Board on a ten-month basis historically were allowed to go home early on the days before Thanksgiving and Christmas. A change in the contract was negotiated between the parties so that secretaries employed by the Board on a twelve-month schedule would be able to enjoy this same benefit. However, on November 25, 1981, the day before Thanksgiving, both ten-month and twelve-month secretaries were required to work the normal work day until 4:00 p.m. and not go home early. This, it was alleged, was violative of N.J.S.A. 34:13A:5.4(a)(1), (3), (5) and (7) of the Act.1/ It appearing that the allegations of the charge, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on June 11, 1982 whereupon the parties requested that this Complaint and Notice of Hearing be held in abeyance while the parties engaged in settlement talks. This request was granted. However, said talks were unsuccessful and, pursuant to a A Motion For a More Definite Charge or Dismissal of Charge @ filed by the Respondent, on November 15, 1982, the undersigned dismissed the allegations of the charge that subsections 3 and 7 of the Act were violated. No facts were alleged which constituted violations of these subsections. It was further ordered that certain paragraphs of the charge be amended since their clear meaning could not be readily ascertained from a simple reading of the charge. The charge was so amended and on December 15, 1982, the Respondent filed an answer admitting that the secretaries were required to work a full day on the day before Thanksgiving and were not dismissed early. It was, however, denied that this action was violative of the contract and, accordingly, this was not a unilateral change in the terms and conditions of employment of said secretaries. On January 17, 1984, a hearing was held before the undersigned at which time the parties were given an opportunity to examine and cross-examine witnesses, present evidence and argue orally. Both parties submitted briefs and a reply brief was submitted by the respondent on April 25, 1984. The Spotswood Board of Education and the Spotswood Office Personnel Association are parties to a collective negotiations agreement. The Association represents secretaries and clerks employed by the Board. The employees in question are school secretaries. There are two types of secretaries, twelve-month, who are assigned to the Board = s administrative offices and ten- month, who are assigned to the various schools in the district.2/ The contract, prior to the 1980-81 contract, provided that ten-month secretaries A worked the same calendar as professional staff when school is in session. @ There was no such provision for twelve-month secretaries. In the 1980-81 contract,3/ the contract was revised so that twelve-month secretaries would also work A the same calendar as the professional staff when school is in session. @ On the day before Thanksgiving, November 25, 1981, all secretaries employed by the Board were required to work a full- day, that is until 4:00 p.m. It is the Association = s contention that the secretaries should have been released early, thirty to forty-five minutes after the teachers left their buildings. Prior to the 1980-81 school year, the days before Thanksgiving and Christmas were typically half-days in the school district. On those days the secretaries in the schools (i.e. the ten-month secretaries) would be released thirty to forty-five minutes after the teachers left the school buildings. The twelve-month secretaries, those in the administrative offices, did not leave early. In 1980-81, the first year under the contract in question, the school board did not allow the secretaries to leave early (although, apparently, some did), yet the Association did not contest the Board = s action at that time. This does raise the question of why the Association slept on its rights if it believed the secretaries were entitled to the time off. Nevertheless, the Association argues that the parties negotiated for early dismissal for the 12 month secretaries and the secretaries had to receive a proportionate reduction in salary in order to get this new provision. The Association witnesses testified that A professional staff @ referred to teachers and the teachers in the district were released early on the days before Thanksgiving and Christmas. The Board maintains that the term A Professional Staff @ in the contract refers to the administrators and that the secretaries had to work the administrators = hours on the days before Thanksgiving and Christmas. The Association, however, produced in evidence a memo of agreement which although unsigned, states: A Twelve (12) month secretaries will work the teachers = calendar when school is in session. @ It is the Association = s contention that this was the language which was negotiated and without its knowledge or consent, when the Board had the contract printed, A teacher @ was deleted and A professional staff @ was substituted in its place. Although the Board objected to the consideration of this memorandum, since it was unsigned, there is no evidence which calls into question the document = s authenticity. The Board = s witness, the superintendent of schools, could not recollect negotiations concerning this provision. Since the memo clarifies an ambiguity in the contract language and does not contradict the language of the contract, the memo is admissible. The memorandum is compelling evidence that professional staff in the contract is a reference to the teachers in the district. I so find that A same calendar as professional staff @ refers to teachers not administrators. The Board also argued that the contract provision does not cover the instant situation. The Board maintains even if the secretaries were entitled to follow the teachers = calendar under the contract the contract was not violated. This dispute, it is argued, does not concern the school calendar; the dispute concerns hours worked on one particular day. The Board relies on the dictionary meaning of the word calendar, i.e., the division of time into years, months, weeks and days, but not the hours in any particular day. However, the Board = s own historical use of the word calendar was more expansive than the definition it now urges. The Board printed and distributed calendars at the beginning of each school year. These school calendars identify the days before Christmas and Thanksgiving as A four hours session(s). @ The Board = s own calendars support the Association = s definition of calendar. It is noted that school calendars commonly include 1/2 days.4/ Accordingly, the Board = s argument as to the meaning of the word calendar must be rejected. There was testimony at the hearing to the effect that secretaries were never free to leave at the conclusion of the four-hour sessions. Granting of said leave was solely at the discretion of the superintendent. The superintendent or other administrator in charge would wait until all students, particularly those from outside of the school district, had an opportunity to arrive home safely. Once the administrator was satisfied that this had happened, he, or she, would then call up the various schools and announce to the principals that they were free to send the secretaries home. This testimony, however, does not establish that the secretaries did not have the contractual right to be released early. Rather, the Board was simply exercising its non-negotiable right to have employees available if any students needed assistance before they arrived home. The Association never challenged this right in the past nor do they do so in the instant action. The 10 month secretaries historically were released thirty to thirty-five minutes after the teachers were released on four-hour session days. The contract language envisions that, on days when the school calendar provides for four-hour sessions, all secretaries would be released from their duties after the conclusion of a four-hour session, subject to the Board = s legitimate policy on allowing sufficient time for all students to return home. The Board = s refusal to release the secretaries on the day before Thanksgiving after the four-hour session as stated in the calendar, constitutes a violation of subsection 5.4(a)(5) and, derivatively, subsection (a)(1). In this regard see In re Wharton Bd. of Ed., P.E.R.C. No. 83-35, 8 NJPER 570 ( & 13263 1982); In re Morris Park Commission, P.E.R.C. No. 83-31, 8 NJPER 561 ( & 13259 1982). The Commission has held that during the term of an agreement, if a public employer desires to alter an established practice governing working conditions which are not an implied term of the agreement, the employer must first negotiate such proposed changes with the employees = representative prior to its implementation. RECOMMENDED ORDER Accordingly, it is hereby recommended that the Commission issue the following 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 attempting to alter the provisions of the current agreement as to the calendar to be worked by both 10 and 12 month secretaries. 2. Unilaterally making changes or modifications in the collective negotiations agreement unless and until agreed upon by the Association. B. That the respondent Board take the following affirmative action: 1. Reimburse all 10 and 12 month secretaries in the district who worked a full day on November 26, 1981 for the additional 1 1/2 hours they had to work on that day in violation of the contract. This compensation will be based on the hourly equivalent of their respective salaries on that date, together with interest at the rate of 12% per annum since that date. 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 taken by the Respondent Board to insure that such notices are not altered, defaced or covered by other materials. /s/Edmund G. Gerber Chief Hearing Examiner DATED: May 30, 1984 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 attempting to alter the provisions of the current agreement as to the calendar to be worked by both 10 and 12 month secretaries. WE WILL NOT unilaterally make changes or modifications in the collective negotiations agreement unless and until agreed upon by the Association. WE WILL reimburse all 10 and 12 month secretaries in the district who worked a full day on November 26, 1981 for the additional 2 1/2 hours they had to work on that day in violation of the contract. This compensation will be based on the hourly equivalent of their respective salaries on that date, together with interest at the rate of 12% per annum since that date. 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; (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 right 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/ There are certain exceptions which are not relevant to this discussion. 3/ This contract was in effect for the year in question. 4/ The Commission may use its expertise to take administrative notice of commonly accepted practices in public sector labor relations. Docket No. Spotswood 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 84-60 *****