Decisions

H.E. No. 84-54

Synopsis:

A Hearing Examiner of the Public Employment Relations Commission recommends that the Commission find that the Department of Higher Education committed an unfair practice when it unilaterally and without negotiations reduced the working hours of certain part-time employees. Said employees were considered and paid as part-time hourly employees by the College and received none of the benefits in the pertinent CWA--State contracts. It was found that these employees, having worked more than 20 hours a week continuously for more than a 6 month period, were in fact permanent part-time employees under the contract and were entitled to the benefits thereunder. It was further found that the College reduced the hours of said employees in order to remove these employees from the protection of the contract when an employee, Abbey Demel, publicly protested the College's refusal to provide fringe benefits for these employees. Even though the College considered these employees under the title of Special Services it was determined that pursuant to Civil Service rules they should be considered provisional and accordingly within the contractual units. The Hearing Examiner recommends that the Commission find that the Division of Education violated §5.4(a)(1), (3) 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 conclusion of law.

PERC Citation:

H.E. No. 84-54, 10 NJPER 237 (ś15118 1984)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

71.13 71.14

Issues:

Decisions	WordPerfect	PDF

NJ PERC:	.	- HE 84-054.pdf

Appellate Division:

Supreme Court:

H.E. NO. 84-54 1.

H.E. NO. 84-54 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. 84-54 1.

STATE OF NEW JERSEY
BEFORE A HEARING EXAMINER OF THE
PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

STATE OF NEW JERSEY,
DEPARTMENT OF HIGHER EDUCATION,

Respondent,

-and- Docket No. CO-81-22-45

NEW JERSEY CIVIL SERVICE
ASSOCIATION, MERCER COUNCIL #4,

Charging Party.

Appearances:

For the Respondent
Irwin Kimmelman, Attorney General
(Michael L. Diller, D.A.G.)

For the Charging Party
Reitman, Parsonnet, Maisel & Duggan
(Sidney Reitman and Bennet Zurofsky, of Counsel)

HEARING EXAMINER = S RECOMMENDED
REPORT AND DECISION

On July 25, 1980, New Jersey Civil Service Association, Mercer Council #4 ( A Mercer Council #4 @ ), filed an unfair practice charge with the Public Employment Relations Commission ( A Commission @ ) alleging that the State of New Jersey, through the Department of Higher Education engaged in an unfair practice within the meaning of N.J.S.A. 34:13A-5.4(a) Subsections (1) and (5)¹^/ when, A during the second week of July, 1980, permanent part-time employees at Kean College of New Jersey represented by contractual agreement by NJCSA, SEA in the professional and clerical units, were notified their work hours would be cut from 20 hours to 15 hours. @ This was alleged to be an arbitrary and capricious act on the part of the College and in violation of the then existing agreement between the State of New Jersey and the New Jersey Civil Service Association and State Employees Association (CSA/SEA) A which stipulates that changes in working conditions must be negotiated. @
On February 5, 1982, the charge was amended and the charging party was identified as New Jersey Civil Service Association, Mercer Council #4 and Local 1040, Communications Workers of America (CWA), successor to said Mercer Council #4.
The amendment expanded the allegations of the original charge in alleging that, commencing in or about November, 1979, Abby Demel and other employees protested to representatives of Kean College and the State of New Jersey that the regular part- time employees work 20 hours per week or more were not receiving the benefits enumerated in the then current contracts between NJCSA/NJSEA and the State of New Jersey.
A In January 1980, Demel appeared before a special Task Force on Human Relations appointed by the Governor to urge that said part-time employees be accorded all of the benefits provided by said collective agreement during the spring of 1980 and thereafter, Demel and other part-time employees continued to press for contractual benefits by communicating with officers of Kean College and the State of New Jersey. @
A In July of 1980 Demel and all other part-time employees working 20 hours per week or more were notified that their hours would be reduced to no more than 15 hours a week. @
It was further alleged that this reduction was in retaliation for the efforts and demands of Demel and other part- timers to receive benefits under the contract and the charge alleged the State of New Jersey violated ' 5.4(a)(3) of the Act.²^/
It appearing that the allegations of the charge, if true, might constitute unfair practices within the meaning of the Act, the Director of Unfair Practices issued a Complaint and Notice of Hearing on November 10, 1981.
On February 23, 1982, the State of New Jersey filed its answer. Although it admitted that Abby Demel and other part-time workers at Kean College were notified their hours were reduced to 15 hours a week, it was claimed that this reduction was for budgetary reasons and not for any unlawful motivation. Further, it was alleged that the employees were casual employees and were not covered by the contract.
The State further raised several affirmative defenses, specifically, the charging party had no standing to bring this action, the charge was filed out of time and P.E.R.C. has no jurisdiction to decide this matter.
Hearings were held on June 28 and 29, July 1, August 16, September 7, October 28 and 29, November 19 and December 7, 8, and 9, 1982 at which time the parties were given an opportunity to present evidence, examine and cross-examine witnesses and argue orally. Both parties filed post-hearing briefs and supplemental documents, the last of which was received by October 7, 1983.
At the formal hearings, the State moved to dismiss the complaint on the same grounds as stated in the affirmative defenses. The motions were denied, but the arguments have been raised in the State = s brief. Accordingly, these issues will be disposed f prior to addressing the substance of the union = s allegations.
The State argues that only the designated majority representative can bring a ' (a)(5) charge against an employer. When the instant charge was filed the majority representative was a joint representative, NJCSA/SEA, yet the charge was brought in the name of Mercer Council #4 only. Further, the complaint was litigated in the name of Local 1040, CWA, who is not the current majority representative. The current representative is the national CWA.
In regards to NJSEA/NJCSA = s standing as majority representative, the Appellate Division, in an unreported decision, AFSCME v. PERC, App. Div. Docket No. A-989-72 (1973) held, as to NJCSA/NJSEA = s status, A both organizations will be under an affirmative obligation to those whom they represent to jointly agree upon, and to pursue a single, unified policy and position on all issues. @
In following this holding, the Commission in State of New Jersey, P.E.R.C. No. 81-94, 7 NJPER 105, 107 ( & 12044 1981) held that one of these two Associations acting on its own does not carry the authority of the designated majority representative.
Further, at the hearing, Genevieve McMenamen, who was President of NJCSA at the time the initial charge was filed, testified that David Fox as Attorney for the joint organization was the only person authorized by the NJCSA to file unfair practice charges with PERC and he was directed to confer with both parties prior to the filing of such charges.
The Commission, in departing from National Labor Relations Board precedent, has placed restrictions on who may bring a ' 5.4(a)(5) charge against an employer.³^/
The Commission held in N.J. Turnpike Authority & Jeffrey Beall, P.E.R.C. No. 81-84, 6 NJPER 560 ( & 11384 1980) that individual employees cannot challenge the interpretation of an agreement arrived at by the employer and majority representative in the processing of a grievance, provided that the interpretation was arrived at in good faith. Also, In re Township of Cherry Hill & FOP Cherry Hill Lodge 28, D.U.P. No.81- 18, 7 NJPER 286 ( & 12128 1981) and In re Council of N.J. State College Locals, D.U.P. 81-8, 6 NJPER 531 ( & 11271 198__) the Director of Unfair Practices found a minority organization has no standing to bring a ' 5.4(a)(5) charge where there is no companion charge against the majority representative claiming a violation of the duty of fair representation.
The thrust of these cases is that it is disruptive of labor peace of a minority association to contest the conduct of the employer in negotiations. Only the majority representative can judge the employer = s conduct in negotiations and ultimately challenge same in an unfair practice charge.
Here, however, the procedural history of this matter demonstrates the majority union has clearly adopted the instant action. The charging party is no adversarial, minority party but rather it is an instrument of the majority representative.
On January 29, 1980, the Director of Representation, Carl Kurtzman, wrote to Robert Yaeger of Mercer Council #4 and Michael Diller, Deputy Attorney General, State of New Jersey, relating that the State questioned the standing of the Mercer Council #4 to bring the instant charges. The certified majority representative for the unit in question was the joint association. Yet, the joint representatives had taken different positions on a question concerning representation of State employees then before the Commission. Accordingly, the instant charge (along with several others) was held in abeyance pending the disposition of said representation proceeding.
In April of 1981, the CWA, through Larry Cohen, a national representative, requested that the Commission proceed with the instant charge. The request was denied, for, at that time, the CWA was not yet certified for all the disputed units. Cohen again wrote to the Commission in July of 1981, several weeks after the CWA became certified for all the disputed units, and again requested that the Commission process the instant matter. The complaint was ultimately issued on November 10, 1981. The position of the majority representative was made manifest. The CWA has, at a minimum, adopted this charge and, under the circumstances, the respondent employer has no basis to challenge the standing of CWA Local 1040 to bring this charge. The charge as originally filed by Mercer Council #4 may have been defective, but during this same time the State was challenging the majority status of CSA/SEA itself as the joint majority representative. (See State of New Jersey, supra.) Therefore, the Commission, through the Director of Unfair Practices, declined to process the charge until the question concerning representation was resolved. As soon as this issue was resolved, i.e. CWA won the State representation election, and the CWA adopted the charge and any defects in the charge were cured.
In a similar manner, the State = s argument that the charge is untimely must fall. ' 5.4(c) provides that A no complaint shall issue based upon any unfair practices occurring more than 6 months prior to the filing of the charge, unless the person aggrieved thereby was prevented from filing such charge, in which event the 6 month period shall be computed from the day he was no longer so prevented. @ The State Supreme Court in Kaczmarek v. N.J. Turnpike Authority, 77 N.J. 329 (1978) found that this rule is a simple statute of limitation and not a jurisdictional prerequisite. The legislature, by its very choice of expression evinced a purpose to permit equitable considerations be brought to bear in applying the sixth month rule.
In the instant case, the original charge, although not perfected, satisfied the intent of the statutory purpose, that is, to compel the exercise of a right of action within a reasonable time so that the opposing party has a fair opportunity to defend the charges. NLRB v. Laborers Union Local 264, 529 F.2d 778, 17 LRRM 2209 (CA, 1976).⁴^/
The State argues, however, that the contract language upon which the instant charge was brought (see below) existed more than six months prior to the bringing of the instant charge. Therefore the action should be barred by the 6 month statute of limitation. It is noted, however, that, for as long as an employee continues to be denied rights under the Act when an employer refused to negotiate concerning terms and conditions of employment with the majority representative, or otherwise alter terms and conditions of employment, that employer commits a continuing violation and the 6 month statute of limitation will not run against such an unfair practice. Local 1424 v. I.A.M. NLRB (Byron MFS), 362 U.S. 411, 45 LRRM 1312 (1960).
Here, not only has the union alleged a continuing violation but the action taken against Demel itself falls within the six month period. Accordingly, this action should not e barred by the operation of the six month limitation.
Finally, the State argues that the issues presented are questions for Civil Service and P.E.R.C. has no jurisdiction to hear them. This argument is misplaced. As the State Supreme Court stated in Bernard Tp. Bd. of Ed. v. Bernard Tp. Ed. Assn., 79 N.J. 311, 316 (1979):
In Carrying out its duties, PERC will at times be required to interpret statutes other than the Employer-Employee Relations Act. Indeed, in no other way could that body implement our holding in State Supervisory Employees that the terms of a collective agreement cannot contravene a specific legislative enactment. To therefore hold that PERC is ousted of jurisdiction in any controversy involving an asserted conflict between a collective agreement and a statute not part of the Employer-Employee Relations Act would deprive our courts of that body = s expertise in a large class of scope of negotiations disputes. [79 N.J. at 316-317]

See also, Hunterdon Central High School Bd. of Ed. v. Hunterdon Central High School Teachers Assn., 174 N.J. Super. 468 (App. Div. 1980). It is clear that PERC has the authority to make determinations as to Civil Service laws which are necessary to resolve the issues in this case.

* * *

The July 1, 1979 to June 30, 1981 contracts between the State and NJCSA/SEA for the Professional and Administrative- Clerical Units, provide, at Article I, A (2 a): A Included are all full-time permanent, classified, unclassified and provisional employees and all permanent full-time ten (10) month employees (classified, unclassified and provisional) and permanent part- time employees (classified, unclassified and provisional) who are employed a minimum of (20) hours per week and who are included in the classification listed in Appendix II.) @ ⁵^/ This same language is in the State-CWA contracts in these units.
Abby Demel, currently President of Local 1031 of the CWA,⁶^/ is a full time employee of the Local. Prior to her holding office in Local 1031, Demel was an employee of Kean College, a part of the State College system. Some of the College = s employees are within the Professional and Administrative and Clerical units covered by the above mentioned contract.
In August of 1978, Demel was a student at Kean College and was due to graduate from the College in February of 1979. She was looking for a job and while visiting the College Placement Office came upon a notice that the Registrar = s Office at the College was looking for an Administrative Assistant to work 20 hours a week, to be paid at an hourly rate.
Demel went for an interview at the Registrar = s Office and her qualifications were discussed. Demel spoke with the Assistant Registrar, Marta Westman. Westman expressed concern Demel might take the position as a temporary measure while looking for a permanent full-time teaching position. Demel explained that her speciality was teaching theatre but she had not been able to find work and had given up on the idea of finding a full-time teaching position. Further Demel already had another part-time job that would dove-tail with the position at Kean College. Westman specified that the position would be a regular, steady, 12 month, 20 hour a week position. Demel then met with the Registrar, Evelyn Babey, who stated that she wanted someone who was going to be permanent and cautioned Demel not to take the position if she was either thinking of getting a full- time teaching position or if she was just using it as a stop gap, and that she would be working a minimum of 20 hours a week.
Demel worked for two years at the College for a minimum of 20 hours per week (except on those weeks when Demel requested leave time).
Demel = s duties matched the job description of an Administrative Assistant position which is listed in Appendix I of the professional unit contract.
Demel received none of the fringe benefits enumerated in the contracts, such as health insurance, sick leave, vacation leave, time and a half for overtime, etc.
In November of 1979, Demel became a member of the State Employees Association (SEA) and dues were deducted by the College from her salary.
Demel became aware of a Governor = s Task Force on Human Relations. Demel planned to make a presentation to the Task Force wherein she would state that part-time employees at the College were denied benefits they were entitled to under the contracts. Babey told Demel she could appear and speak if she wanted to but she didn = t think it was going to do any good, if anything it might make things worse. Babey also stated that if the State could not save money by having part-timers who do not receive fringe benefits, there would be no point in having part- time employees and the State might very well get rid of them.
Demel circulated a petition around the College which demanded that part-timers be given the benefits due them under the contracts. She served a copy of her petition upon Nathan Weiss, President of the College.
Demel spoke before the Task Force on January 9, 1980 and expressed her belief that part-time employees at the College were wrongfully denied contractual benefits.
Barbara Taylor, the Supervisor of Records in the Registrar = s Office, and a supervisor of Demel, was excited and happy that Demel had appeared and made the speech but was concerned that the hours of part-timers would be cut.
In February of 1980 all part-time employees at the College had their hours cut to 20 hours a week.
Between February and July of 1980, Demel had several conversations with Babey. On one occasion Babey stated that it made no sense for the College to use part-time employees if the College had to pay for fringe benefits. First, the College could not afford to pay these benefits and it would make more sense under those circumstances to staff full-time employees. Demel also talked with Babey about her working on Sundays during graduation exercises. Demel stated that it didn = t seem right to her to give up a Sunday and work at her normal hourly rate. Babey appeared agitated and said A obviously Demel was very unhappy and maybe (she) would be better off seeking employment elsewhere. @ Demel asked if she was being terminated. Babey said no but she should start thinking about looking elsewhere because Demel was so unhappy there.
In July of 1980, Mrs. Babey convened a meeting in her office with eight or nine part-time employees from the Records Department. Babey stated that due to budget cuts, the hours of part-time employees were going to be cut to 15 hours a week. Demel asked how the work was going to get done; Babey said the College can hire more people at 15 hours a week. Demel then asked how the College could save money by hiring more 15 hours a week people but Babey did not respond. At this time all part- time employees, including Demel, were reduced to 15 hours a week.
Judy Dunst worked as a clerk in the Registrar = s Office from November 1975 to April 1981 in the Records Department of the Registrar = s Office. When she was first hired, Barbara Taylor, the Assistant Registrar, told her she was looking for someone to work at least 25 hours a week. Dunst was told she could work 4 days a week as long as she worked one evening a week and a minimum of 25 hours a week. Further, Taylor wanted someone who was willing to work throughout the summer and asked her not to take the job if she would not work through the summer. Dunst received no benefits but was told, and believed, her position was permanent, part-time. For the five and a half years that Dunst was employed, she worked steadily and was never sent home even when work was slow.
The office employed both part-time and full-time clerks. There was no difference between the work done by the part-timers and full-timers. Dunst = s duties matched the duties listed in the State of New Jersey Civil Service Job Description for a clerk. The job title Clerk is included in Appendix II of the Administrative and Clerical Contract between CWA and the State of New Jersey.
Jean Lee worked in the Registrar = s Office for three years at 24 hours a week on a full year schedule.
Joan Veale for several years worked in the Registrar = s Office in excess of 20 hours a week on a 12 month basis.⁷^/
Edna Alexander worked 24 hours a week in the Registrar = s Office in what the College called a steady job, from September of 1979 until February of 1980.
Cecille Frank worked as a part-time secretary in the Registrar = s office from 9:00 a.m. to 3:00 p.m. five days a week since March 1976 on a 12 month basis.
Lee, Veale, Alexander and Frank all performed duties which correspond to job titles listed in Appendix II of the contract, i.e. Clerks and/or Clerk Stenographers, yet none of them received the benefits under the contract and all these employees had their hours cut to 20 hours a week in February of 1980 and again reduced to 15 hours a week in July of 1980.
In addition to the employees mentioned above, evidence was introduced at the hearing that there were other part-time employees at the college who may have worked in excess of 20 hours a week for more than six months, but the evidence is inconclusive and no affirmative finding of fact can be made as to other employees.
After Demel sent a copy of her speech to the Governor = s Task Force along with a companion petition to College President Weiss, Weiss in turn sent this material to Charles Kimmet, the Assistant Vice-President for Administration of the College. Kimmet met with Edward Callaghan, the Director of Business Services for Kean College. The two agreed that the College policy of using part- time employees for a maximum of 20 hours a week had been violated at the institution. It was apparent that many part-timers were working more than 20 hours a week. They agreed that steps would have to be taken to bring the part-time situation in line with the College policy. Callaghan admitted that the first time the College administration took any steps to put this policy into effect was following Demel = s petition.
It was decided that approximately six of the hourly employees were moved to full-time positions. However, it was never ascertained how many hourly employees worked 20 hours or more at the institution.
Callaghan and Kimmet testified that the decision to reduce the number of hours the part-timers were working was made strictly for economics.
Kimmet testified that cutting the hours of part-time people to 20 hours or less would save approximately 20% on their salaries. In fact, no calculations were ever done concerning the amount of work part-timers did or whether more part-timers would have to be added to make up the work that could not be done. When the part-time hours were cut to 15 hours, there was no study done as to any savings for the College nor were any restrictions placed on the area supervisors limiting hiring new part-timers. Once part-timers were limited to 15 hours a week, area supervisors were free to hire people if there was a need and the funds were available, but supervisors had to get prior approval to assign work to experienced people if they were to work 20 or more hours a week.
The undersigned cannot accept the implication of testimony of Kimmet and Callaghan that the College administration was unaware that part-timers worked 20 hours a week or more prior to seeing Demel = s petition.
Robert Cedeno, a Personnel Law Officer I for Kean college, testified that an earlier petition was circulated in 1978, before Demel was an employee, which stated: A We the permanent part-time clerical employees of Kean College who have worked for a period of 12 months and 25 hours per week... @ requested the benefits enumerated in the Administration and Clerical contract. The petition in 1978 was not circulated outside the College Administration. Therefore the College did not have to take action. In fact, the issues raised within the petition were disposed of by Cedeno in a way that guaranteed that these employees would not receive any benefits under the contract (or under Civil Service regulations), Cedeno contacted a technician in Civil Service and simply asked if A Special Service @ employees are entitled to fringe benefits (Special Service employees are temporary employees who are hired for a period of less than six months -- clearly this six month criterion did not apply to the petition signers -- see below). Naturally, the Civil Service technician replied that special Service employees were not entitled to such benefits. Cedeno then informed the part-time employees that a Civil Service technician stated that they were ineligible for benefits. Cedeno never described the work history of the employees involved to the technician at Civil Service who only answered the abstract question asked by Cedeno.
It is interesting to note that as Dunst testified until the part-time hours were reduced in 1980, no one in the College ever referred to her or any part-timer as a A Special Service @ employee.
Frank Mason, Director of the Office of Employee Relations, testified as to the history of the negotiations which included permanent part-time employees in the unit.
the initial 1974-1975 contract between the State and CSA-SEA in both the Professional, and Administrative and Clerical Units did not include permanent part-time employees in the recognition clause. However, in June 1976 there was a subsequent side bar letter of agreement entered into between the State and CSA/SEA, signed by Frank Mason, Director of the Office of Employee Relations and Davis Fox, Attorney for CSA-SEA, in which it was agreed that all permanent part-t8me employees in the Administrative and Clerical Service unit A who are regularly scheduled to work twenty (20) or more hours per week and wh are included in the classification listed in the Appendix to the Agreement @ shall be deemed to be included in recognition clause of the contract.⁸^/
David Fox, the spokesman for the Association, originally wanted to increase the scope of the recognition clause to include A intermittent claims takers @ (Department of Labor temporary employees who are called once or twice a month to work). These employees are hired on the basis of the relatively fluctuating demand in unemployment compensation offices. They are recalled every month for short periods but have no permanency. These employees were never admitted into the unit. Mason testified that Fox agreed the recognition was limited to employees who had achieved permanency in the competitive Civil Service and in the contract of November 1976, the recognition clause provides:
2.a. Included are full-time permanent, unclassified and provisional employees and all permanent full-time ten (10) month employees (classified and unclassified) and permanent part-time employees who are employed a minimum of twenty (20) hours per week and who are included in the classifications listed in Appendix I. (emphasis supplied)

However, further in Article I at C(15), the definition of permanent, part-time employee states: A Employees in this category may be classified permanent or provisional or unclassified, depending upon title and stature of appointment. @
It is also noted that in the July 1979 contract the recognition clause was changed to the current language:
2.a. Included are all full-time permanent, classified, unclassified and provisional employees and all permanent full- time ten (10) month employees (classified, unclassified and provisional) and permanent, part-time employees (classified, unclassified and provisional) who are employed a minimum of twenty (20) hours per week and who are included in the classifications listed in Appendix II.

In this regard Mason = s testimony is inconsistent with the clear language in the contracts that unclassified and provisional part-time employees are included in the contract, for provisional employees do not have permanency in the competitive service.
Mason = s testimony here constitutes parol evidence. The Courts and the Commission have frequently held that parol evidence is admissible only as an aid in interpreting an agreement, but not to change the clear meaning of the words. See Casriel v. King, 2 N.J. 45 (1949); Atlantic Northern Airlines Inc. v. Schwimmer, 12 N.J. 293 (1953); In re Twp. of Vernon, P.E.R.C. No. 84-41, 9 NJPER 655 ( & 14283 1983); In re Borough of Bergenfield, P.E.R.C. No. 82-1, 7 NJPER 34 ( & 12014 1980), and In re Raritan Twp. v. M.U.A., P.E.R.C. No. 84-94, 10 NJPER 147 ( & 15072 1984).
The Appellate Division recently upheld the Commission = s rejection of an employer = s attempt to invoke parol evidence in support of its position. See Cherry Hill Bd. of Ed. v. Cherry Hill Assoc. School Admin., App. Div. Docket No. A-26-82T2, December 23, 1983.
By operation of law all parol evidence whish is contrary to the contractual language must be rejected. Accordingly, the term permanent part-time in the contract is not limited to those employees in the competitive classified service.
Stuart Reichman of the Office of Employee Relations testified that in December of 1979, the State and Fox entered into a side bar agreement that the CSA/SEA could seek a clarification of unit petition with PERC concerning part-time workers. Such petitions were filed with the Commission for the Administrative and Clerical Unit and the Professional Unit, Docket Numbers CU-80-11 and CU-89-12. However, these petitions related to hourly employees, including intermittent claims takers and those employees who work less than 20 hours per week.⁹^/ and concern employees with vastly different employment histories from the employees in the instant proceeding.
Similarly, Reichman also testified that in the 1981 negotiation, the C.W.A. included a demand that the part-time minimum of 20 hours a week be excluded from the recognition clause so part-time employees working less than twenty hours a week would be included in the unit. This demand was ultimately abandoned. This testimony does not shed any light on the issue at hand; the employees in the instant matter all worked in excess of 20 hours a week. Moreover, Reichman admitted that Kean College employees were not discussed during negotiations.
The State did argue in its brief that these part-time employees are temporary A Special Service @ employees that is part- time hourly and are not included in the contracts.
According to Joseph DiLascio, Director of Classification and Compensation for the Department of Civil Service for the State of New Jersey, the term A special services @ and A part-time hourly @ are not defined anywhere in the Civil Service law.
Classified positions are A line item positions @ created either by the Legislative = s annual budget appropriations or through the Office of the Budget and Accounting on the basis of power delegated by the Legislature to the Governor and then subsequently delegated to Budget and Accounting.
Classified, unclassified and provisional employees all fill classified positions are hired into the position created by that budget line item and are paid out of an account that is set up for that position; that is, individuals are paid out of a particular line account.
Special Service, part-time hourly employees on the other hand are typically paid on a supplemental payroll. For each pay period, the appointing authority sends a payroll proof with the names of people on it who were paid the last time in that particular payroll and that particular amount.
The employees in question have been paid in the same manner as Special Service employees. The State argues that, therefore, these part-timers are Special Service employees.
However, the Rules of Civil Service at N.J.A.C. 4:1-14-5 provide:
Renewal of Temporary Appointment

No temporary appointment shall extend beyond six months in State service nor four months in local services. Should a temporary position not be terminated at the expiration of such respective periods, the position shall be considered a permanent position and the Department of Civil Service shall act to fill such position in accordance with these rules concerning permanent positions.

And, In the Matter of Bus Drivers, Department of Human Services, an unreported Administrative appeal before the State of New Jersey Civil Service Commission, this rule was applied. Certain employees, hired to work 20 hours a week as Bus Drivers, were considered A Special Service Employees. @ As a result of a Civil Service investigation it was determined that the Bus Drivers were working more than 20 hours per week; however, supervisors then requested the Bus Drivers to limit their hours, and compensation for time worked in excess of 20 hours was postponed and paid in periods when employees worked less than 20 hours a week. The Department of Human Services argued that keeping the employees as Special Service employees without benefits is the most economical and efficient manner of transporting clients and to consider these employees as regular part-time employees would greatly increase costs since they would be entitled to sick, vacation and holiday benefits.
The Civil Service Commission found that the A bus drivers are hired on a regular part-time basis and cannot be considered as Special Service. @ These positions were converted to regular part-time positions and given permanent status in the non- competitive division. The Commission also stated: A In determining whether positions should be allocated to the classified service or Special Service, financial impact may not be considered. @
Further, DiLascio, who was called by the State, testified that, the Civil Service rules speak to the issue of the length of time that a position may be temporary, which is 6 months, as opposed to the length of time that a person may serve in it. As far as the Civil Service Department is concerned, if an employee is hired in a temporary position, and the position is extended beyond 6 months, then the employee status becomes provisional, at which point in time the position is then subject to certain classifications from the eligible roster. The position that exists beyond 6 months is considered to be one to which a permanent appointment may be made. After 6 months in a temporary position, under Civil Service rules, the employee who occupied that position is termed a provisional employee and the position itself becomes a permanent position although the position may be referred to as a temporary one by the employer.
The evidence is ample and uncontroverted that the employees in the instant case functioned as permanent part-time employees for years. They have performed functions listed in the job classification of Appendix II of the contracts and must be included in their respective units and are entitled to the benefits of the respective collective bargaining contract.
The State has argued that if it is found that their employees are permanent part-time, then the appointing authority would have to terminate such employees or employ them solely on a casual or intermittent basis. In fact the State would have no right to so act. As Civil Service has held, intermittent employees can only be used in certain situations.
On June 23, 1983 the Civil Service Administration issued Memorandum #34-83 to serve as a guide for the establishment of Special Service positions:
Special Services may be used for projects of a short term or to address peak work loads or temporary backlogs.

A Special Services request may be considered valid when:

1. The project or program is of short duration and employment is on an intermittent or part-time basis; or

2. A project of long duration which will employ numerous people, each for varying short periods of time on an irregular basis; or

3. Situations exist which require employment of individuals for fixed but short duration in work for which the Department of Civil Service has indicated it is not feasible to establish specific class titles.

The employment histories here to not come close to meeting these guidelines.
Further, pursuant to Galloway Twp. Bd. of Ed. v. Galloway Twp. Ed. Assoc., 78 N.J. 1 (1978), the union represents not only the employees; it represents the positions as well. Having found that the positions in question are within the units, the State would be obligated to provide benefits for the employees in those units no matter how often it attempts to replace these employees.
The College only acted when, through the action of Demel, the part-timers grievances went beyond the College = s confines. It cannot be persuasively argued that the College did not know that employees worked in excess of 20 hours, for there was the 1978 petition testified to by Cedeno in which the same issues were brought to the attention of the College administration.
However, the College administration took no action until Demel brought the issue of fringe benefits before the public. Then the College took immediate action in the form of the February 1980 directive limiting part-timers to twenty hours per week. It is hereby inferred from the totality of the facts, that the College apparently discovered that reducing all part-timers to twenty hours a week did not take part-timers out of the contractual units. Therefore in July 1980 the College further reduced these employees to 15 hours a week to remove them from the unit.
Contrary to the testimony of the College official, these actions were not taken for reasons of economic austerity. Admittedly, avoiding contractual benefits to the part-timers constitutes a cost savings. But these actions were not taken with the idea of reducing man-hours or otherwise effectuating any reductions in service. For supervisors at the College remained free to hire additional part-timers at 15 hours per week if work could not be done at existing manning levels. As Kimmet and Callaghan testified the action was taken when Demel took this issue public.
The College clearly took its actions in retaliation for Demel = s publicizing the College = s failure to abide by the terms of the collective negotiations agreement when she testified before the Governor = s Task Force. As stated by the Commission in Laurel Springs Bd. of Ed. and Mary Becken, P.E.R.C. N. 78-4, 3 NJPER 228, public employees are protected in activities designed to inform the public of their view of a particular issue. Such action is akin to the filing of a grievance. Since the Task Force invited testimony as to public sector employment this was a proper forum for Demel to express her and her fellow workers = grievances.
The College and, therefore the State = s action in cutting the hours of all part-time employees back to twenty and then fifteen a week interfered with the exercise of rights guaranteed to the part-time hourly employees by this Act in violation of ' 5.4(a)(1).
In Twp. of Bridgewater and Bridgewater Public Works Assn., 95 N.J. 235 (1984), the Supreme Court adopted the NLRB Wright Line test in finding ' 5.4(a)(3) violation, see Wright Line, 251 NLRB 1083, 1984-85 (1980), NLRB v. Transportation Management Corp., __ U.S. ___, 76 L.Ed. 2d, 667, 674-76 (1983). This test provides that the employee must make a prima facie showing sufficient to support the inference that the protected conduct was a motivating factor or a substantial factor in the employer = s decision. The employee must establish that retaliation for protected activity was a motivating force or a substantial reason for the employer = s action. Once that prima facie case is established, however, the burden shifts to the employer to demonstrate by a preponderance of evidence that the same action would have taken place even in the absence of the protected activity. This shifting of proof does not relieve the charging party of proving the elements of the violation but merely requires the employer to prove an affirmative defense.
Here, the reduction of the hours of part-timers was in direct response to Demel = s exercise of protected rights. The College, and therefore the State, discriminated in regard to a term or condition of employment to discourage employees in the exercise or rights guaranteed by the Act.
The State was unable to demonstrate that the hours of the part-timers would have been reduced in the absence of the protected activity. Its actions were directly and causally related to Demel = s protected activity. The State violated ' 5.4(a)(3) when it reduced the hours of the part-time employees.
Finally, the State violated ' 5.4(a)(5). As had been discussed, infra, Abby Demel, Judy Dunst, Joan Vale, Edna Alexander and Cecille Frank all worked over 20 hours a week for more than six months and all are, by definition, included in the recognition clause of the contract, yet none of them were granted the benefits which were due them by rights under the contract. The State argument that they are A Special Service @ employees and therefore not under the contract will not prevail.
Deptford Bd. of Ed., P.E.R.C. No. 81-78, 7 NJPER 35 ( & 12015 1981) affmd. App. Div. No. A-1818-08 T 8 (5-24-82) held that a conversion of a position from full-time to part-time was a change in name only to camouflage an attempt to get the work performance for less money. Such conduct is violative of ' 5.4(a)(5).
Even though the five employees may have legitimately been hired as Special Service hourly part-time employees, their positions by operation of Civil Service Rule N.J.A.C. 4:1-14-5 transferred the positions held by these five women into positions entitled to the protection of the contract. As testified to by DiLascio, after being employed for six months as temporary employees, their status was converted to that of provisional employees, and the provisional classification is included in the recognition clauses of the contract.
When the College attempted to avoid the negotiated obligation for these employees by reducing their hours to take them out of the unit (and therefore the contract = s protection), the State effectively unilaterally altered the terms and conditions of employment of these five employees¹⁰^/ and violated (a)(5). See Galloway Twp. Bd. of Ed. and Galloway Twp. Ed. Assoc., supra. In re Sayreville Bd. of Ed., P.E.R.C. No. 83-12, 9 NJPER 139 ( & 14066 1983).

Recommended Order

The Hearing Examiner hereby recommends that the Commission ORDER:
A. That Kean College, a College within the Department of Higher Education of the State of New Jersey cease and desist from:
1. Interfering with, restraining or coercing its employees in the exercise of the rights guaranteed to them by the Act, from discriminating in regards to a term and condition of employment to discourage employees in the exercise of the rights guaranteed to them by the Act and refusing to negotiate in good faith with the union concerning the terms and conditions of employment of employees by unilaterally reducing to weekly hours of its employees in order to avoid providing negotiated contractual benefits.
B. That Kean College take the following affirmative action:
1. Immediately offer to all part-time employees who were working 20 hours or more per week for six months or more to restore their weekly work schedule in effect at the College immediately prior to the College-wide February 1980 work week reduction.¹¹^/
2. Reimburse to all employees the difference between the salaries they earned at the College and what they would have earned had their hours not been reduced in February and again in July of 1980 by the College-wide reduction that were discussed infra.
3. Provide to all so affected employees the equivalent cash value of all fringe benefits to which they otherwise would have been entitled had those employees = hours not been reduced in February and/or July of 1980. The computation of this dollar amount shall be computed from January 25, 1980, that is from six months prior to the filing of the original complaint in this action, in compliance with the Act = s six month statute of limitation.
4. Provide to said employees all benefits enumerated in the appropriate contractual benefits and petition Civil Service to classify the position affected by this Order as provisional positions. Both provisions of this paragraph are prospective only.
5. Negotiate in good faith with the CWA regarding any future contemplated reductions of hours of unit members prior to the implementation of such reductions.
6. 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 College authorized representative shall be maintained by it for at least sixty (60) consecutive days. Reasonable steps shall be taken by the College to insure that such notices are not altered, defaced or covered by other materials.
/s/Edmund G. Gerber
Chief Hearing Examiner
DATED: April 16, 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, from discriminating in regards to a term and condition of employment to discourage employees in the exercise of the rights guaranteed to them by the Act and refusing to negotiate in good faith with the union concerning the terms and conditions of employment of employees by unilaterally reducing to weekly hours of its employees in order to avoid providing negotiated contractual benefits.

WE WILL immediately offer to all part-time employees who were working 20 hours or more per week for six months or more to restore their weekly work schedule in effect at the College immediately prior to the College-wide February 1980 work week reduction.*

WE WILL reimburse to all employees the difference between the salaries they earned at the College and what they would have earned had their hours not been reduced in February and again in July of 1980 by the College-wide reduction.*

WE WILL provide to all so affected employees the equivalent cash value of all fringe benefits to which they otherwise would have been entitled had those employees = hours not been reduced in February and/or July of 1980. The computation of this dollar amount shall be computed from January 25, 1980, that is from six months prior to the filing of the original complaint in this action, in compliance with the Act = s six month statute of limitation.*

WE WILL provide to said employees all benefits enumerated in the appropriate contractual benefits and petition Civil Service to classify the position affected by this Order as provisional positions. Both provisions of this paragraph are prospective only.

WE WILL negotiate in good faith with the Association regarding any future contemplated reduction of hours of unit members prior to the implementation of such reductions.

* Any monetary award to any employee is subject to mitigation by
appropriate subsequent employment.
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. @

/ This subsection prohibits public employers, their representatives or agents from:

(3) Discriminating in regard to hire or tenure of any term or condition of employment to encourage or discourage employees in the exercise of the rights guaranteed to them by this Act.

/ The National Labor Relations Board has no such restrictions. R. and R. Sec. 102.9, Agency Personnel, an individual, an employer, or a labor organization may file a charge alleging unfair labor practices.

NLRB Breswell Mts. Freight Lines

, 209

.2d 622, 33

LRRM

24, 59 (CA 5 1952),

NLRB v. Pennsylvania Greyhound Lines

, 303

U.S

. 261, 2

LRRM

599 (1938).

/ That National Labor Relations Act, upon which the P.E.R.C. Act is based, has the same six month statute of limitation.

/ There are hundreds of classifications listed in Appendix II in the Administrative & Clerical contract and approximately one hundred fifty in the Professional unit.

/ Local 1031 consists of employees in the nine State Colleges in the Department of Higher Education.

/ Veale initially worked as temporary replacement for a secretary out on extended sick leave; upon return of the regular secretary she was offered a job on a regular basis for 30 hours a week. Subsequently Veale asked that her hours be reduced to 22 1/2. This was agreed to by her supervisor.

/ This agreement provides, among other things, that disputes concerning whether part-time employees are eligible for coverage under any provision of the contract, or the terms and conditions of the coverage are deemed to be outside the grievance procedure contained in the contract.

/ Note--if the parties have any question concerning said CU cases, inquiry should be made to the Commission

s Administrator of Representation.

/ This action may have constituted a violation to other employees, but these five were the only ones which the CWA proved were regular part-timers who worked more than 20 hours a week over six months.

/ Any monetary award to any employee is subject to mitigation by appropriate subsequent employment.

Docket No.		State of N.J., Dept. of Higher Ed. (Kean College)
		(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 @

Docket No.

(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 84-54 *****