H.E. NO. 96-23

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

EAST BRUNSWICK

BOARD OF EDUCATION,

Respondent,

-and-	Docket No. CO-H-94-372

EAST BRUNSWICK ADMINISTRATORS/

SUPERVISORS ASSOCIATION,

Charging Party.

Appearances:

For the Respondent, Martin R. Pachman, Esq.

For the Charging Party, Lake & Schwartz, attorneys

(Robert M. Schwartz, of counsel)

HEARING EXAMINER'S DECISION

ON MOTION TO DISMISS

On June 10, 1994, the East Brunswick Administrators and Supervisors Association ("Association") filed an unfair practice charge alleging that the East Brunswick Board of Education ("Board") violated subsections 5.4(a)(1), (3) and (5)1/ of the New Jersey

1/	These subsections prohibit public employers, their representatives or agents from: "(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 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."

Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. ("Act"), by failing to negotiate a salary adjustment for Frank Noppenberger, the supervisor of athletics. The Association alleged that Noppenberger's work load and work hours were increased when, at the beginning of the 1993-94 school year, the Board eliminated the title of department chairperson of physical education and transferred some of the department chair's duties to him.

On January 18, 1995, the Director of Unfair Practices issued a Complaint and Notice of Hearing.

On January 30, 1995, the Board filed an Answer denying that it committed an unfair practice.

On February 15, 1995, the Board filed a Motion to Dismiss and supporting brief. The Board argued that it had no obligation to negotiate the impact of a work load increase resulting from a reduction-in-force and that the charge was not timely filed.

On February 24, 1995, the Association replied to the Board's motion. It argued that the issue of compensation is negotiable and severable from the Board's decision to reduce force. The Association asserts that it was unaware of the Board's refusal to negotiate the issue of salary until January 24, 1994, when Noppenberger's supervisor "denied [a] demand for negotiations." (CP-1)

On May 25, 1995, I heard argument on the Motion to Dismiss. Based upon the Complaint and uncontested documents submitted, I make the following:

FINDINGS OF FACT

1. The Board is a public employer within the meaning of the Act.

2. The Association is an employee organization within the meaning of the Act and it represents supervisors, department chairpersons, principals and vice principals employed by the Board.

3. Frank Noppenberger is employed by the Board as a supervisor of athletics.

4. At the beginning of the 1993-94 school year, the Board eliminated the position of department chairperson for physical education. The extent to which Noppenberger's work hours or work load increased in September, 1993 is disputed.

5. On or about January 14, 1994, Association President Charles King advised Superintendent Dr. JoAnn Magistro that, since no offer to negotiate Noppenberger's salary had been made, the Association was grieving the matter.

6. On or about January 24, 1994, Superintendent Magistro replied that she was unaware of any related grievance. On January 28, 1994, Magistro advised King that she met with Noppenberger that day, and he told her of his intention to grieve the matter. Magistro added that she could not resolve the issue and would pass the grievance to the next level.

7. In response to Magistro's correspondence, the Association filed a grievance demanding negotiations over Noppenberger's salary. On March 11, 1994, the Assistant Superintendent of Schools denied the grievance.

ANALYSIS

In a motion to dismiss made prior to hearing "all facts alleged in the complaint and legitimate inferences drawn therefrom are deemed admitted," and the motion may only raise issues of law. Reider v. State of New Jersey, Dept. of Transportation, 221 N.J.Super. 547, 552 (App. Div. 1987); Smith v. City of Newark, 135 N.J.Super. 107, 112 (App. Div. 1975). See also Wuethrich v. Delia, 134 N.J.Super. 400 (Law Div. 1975), aff'd 155 N.J.Super. 324 (App. Div. 1978).

I therefore assume that Noppenberger's work load and hours increased with the commencement of the 1993-94 school year. I further assume that Association President King asked Superintendent Magistro to negotiate a salary adjustment. I assume that Magistro, on January 24 and 28, 1994, indicated that she lacked the authority to address the issue and that the Association subsequently filed a grievance on Noppenberger's behalf which was denied by the Board on March 11, 1994.

Taking all of the above assumptions as true, and drawing reasonable inferences therefrom, I nevertheless grant the Motion to Dismiss.

The charge is not timely filed.

N.J.S.A. 34:13A-5.4(c) provides that no complaint shall issue based upon an unfair practice occurring more than six months prior to the filing of the charge.2/

The charge alleged that Noppenberger's work load and hours were increased (as a result of the elimination of a department chair position) "[a]t the commencement of the 1993-94 school term." Neither the filing of a grievance, nor a demand for negotiations tolls the statute of limitations. State of New Jersey and NJSFT, P.E.R.C. No. 77-14, 2 NJPER 308 (1976); Salem County, P.E.R.C. No. 87-159, 13 NJPER 584 (¶18216 1987). The charge was not filed until

2/	N.J.S.A. 34:13A-5.4(c) provides, "The commission shall have exclusive power as hereinafter provided to prevent anyone from engaging in any unfair practice listed in subsections a. and b. above. Whenever it is charged that anyone has engaged or is engaging in any such unfair practice, the commission, or any designated agent thereof, shall have authority to issue and cause to be served upon such party a complaint stating the specific unfair practice charged and including a notice of hearing containing the date and place of hearing before the commission or any designated agent thereof; provided that no complaint shall issue based upon any unfair practice 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 months period shall be computed from the day he was no longer so prevented."

June 10, 1994, approximately nine months after the alleged change in work load and hours. No facts suggest and no inference can be made that the Association was prevented from timely filing its charge. Compare Kaczmarck, 77 N.J. 329 (1978). Accordingly, the motion is granted. Please see N.J.A.C. 19:14-4.7.

Lorraine H. Tesauro

Hearing Examiner

Dated: June 5, 1996

Trenton, New Jersey