H. E. No. 85-53 1. STATE OF NEW JERSEY
BEFORE A HEARING EXAMINER OF THE
PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the Matter of
COLLINGSWOOD BOARD OF EDUCATION,
Respondent,
-and- Docket No. CO-84-165-108
COLLINGSWOOD PRINCIPALS
ASSOCIATION,
Charging Party.
Appearances:
For the Board
Brown, Connery, Kulp, Willie, Purnell & Greene, Esqs.
(Joseph F. Greene, Jr., of Counsel)
For the Association
Wayne J. Oppito, Esq.
N. J. Principals and Supervisors Association
HEARING EXAMINER'S
RECOMMENDED REPORT AND DECISION
An Unfair Practice Charge was filed with the Public Employment Relations Commission ("Commission") on December 20, 1983, and amended on December 30, 1983, by the Collingswood Principals Association ("Association") alleging that the Collingswood Board of Education ("Board") had engaged in unfair practices within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq . ("Act"). The Association alleged that the Board unlawfully and intentionally kept the evaluations of certain unit members lower than in past years in order to avoid paying them an 8%
increase; that the Board unlawfully failed and refused to give unit
employees, McDonnell and Snyder, an additional 5% and 2% salary increase respectively for longevity; and, that the Board unlawfully failed to give unit employees tuition reimbursement, all of which is alleged to be in violation 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 Unfair Practice Charge may constitute an unfair practice within the meaning of the Act, a Complaint and Notice of Hearing was issued on March 1, 1984. The Board submitted an Answer on March 14, 1984 denying the allegations in the Charge. The Board asserted in part that there had been no collectively negotiated agreement covering the employees in question, and that the employees had not been in a recognized or certified collective negotiations unit during the time that a collective negotiations agreement had allegedly been negotiated.
Hearings were held in this matter on August 29 and December 10 and 11, 1984, in Trenton, New Jersey, at which time the parties
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 approrpriate unit concerning terms and conditions of employment of employees in that unit,
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had the opportunity to examine and cross-examine witnesses, present relevant evidence and argue orally. 2/ By agreement of the parties witness John W. Heck was deposed by both attorneys before a certified shorthand reported on January 7, 1985 outside my presence. The parties agreed to submit that deposition as part of the record in this matter. 3/ At the close of hearing both parties filed post-hearing briefs which were received on February 22, 1985. The Board submitted a reply brief which was received on March 4, 1985.
An Unfair Practice Charge having been filed with the Commission, a question concerning alleged violations of the Act exists, and after hearing, and after consideration of the post-hearing briefs, this matter is appropriately before the Commission by its designated Hearing Examiner for determination.
Upon the entire record I make the following:
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or refusing to process grievances presented by the majority representative; and (7) Violating any of the rules and regulations established by the commission."
2/ This matter was originally assigned to Hearing Examiner Charles Tadduni who scheduled and conducted the first hearing on August 29, 1984. Pursuant to N.J.A.C . 19:14-6.4, I was assigned as Hearing Examiner in this matter on September 21, 1984.
3/ The parties were advised that since Heck was to be deposed outside my presence I would be unable to make any credibility judgments with respect to his testimony. The parties, however, did not expect his testimony to raise credibility issues (Transcript "T" 3 p. 107).
Findings of Fact
1. The Collingswood Board of Education is a public employer within the meaning of the Act and is subject to its provisions and is the employer of the employees involved herein.
2. The Collingswood Principals Association is a public employee representative within the meaning of the Act and is subject to its provisions, and is the majority representative of the employees involved herein.
3. The Association's unit consists of seven employees, five principals and two assistant principals, including employees Sandall, Ridinger, Kurkian, Rickerhauser, Cochrane, McDonnell, and Snyder. In their 1982 evaluations all seven employees received a commendable evaluation (a point score of 6.5 or above) which entitled them to an 8% salary increases for 1982-83. However, in 1983 only Ridinger, Snyder and Rickerhauser received commendable evaluations, and Sandall, Kurkian, Cochrane and McDonnell received only satisfactory evaluations (below 6.5) which only entitled them to 6% salary increases for 1983-84. The Association alleged that the Board's Superintendent intentionally lowered the evaluations of these four employees in order to avoid paying them an 8% salary increase. The Association alleged that action to be a violation of the Act. A critical element in deciding that issue is whether the parties had been engaged in a negotiations relationship during the relevant time period.
The facts show that on June 28, 1979 former Assistant Superintendent Charles Mullin sent a memorandum (Exhibit P-1) to
several people, including principal Ed Kurkian, regarding the scheduling of an "Administrative Negotiation Meeting" on July 5, 1979. Principal Wayne Cochrane testified that the Association's negotiating committee consisted of Sandall, Ridinger, Kurkian and McDonnell, and that the Board's negotiating committee at that time consisted of Board members Vera Harte, Ed Bohn, and H. R. Rossell (T 1 pp. 20-21).
The two committees met on July 5 and signed a document (Exhibit P-2) that was entitled "Administrative Salary Guide" and included a procedure for computing administrative salaries which tied the amount of a principal's percent salary raise to his performance evaluation score. The last sentence of P-2 was:
The final decision on percentage raise shall be the assistant superintendent/Superintendent's.
Exhibit P-2 was signed by the three Board members and four principals4 / and was effective beginning July 1, 1979.5/
On June 1, 1981, Ed Sandall, Chairman of the Association's negotiations committee, sent Joseph Fittipaldi, Chairman of the Board's Personnel Committee, a memorandum (Exhibit P-5) pursuant to
4/ In addition to Sandall, Ridinger and Kurkian, P-2 was signed by Cochrane, but not McDonnell.
5/ Superintendent Walter Ande testified that Exhibit R-14 which is entitled "Administrative Salary Policy Replacement" was an "addition to P-2," but he also indicated that R-14 was never officially adopted (T 3 p. 11). R-14 is essentially the same as P-2 and does not appear to be of any particular importance.
Fittipaldi's request concerning the principals' contractual agreement for 1981-82. That information presented the rationale for the principals' recommended salaries for 1981-82.
On September 10, 1981, Superintendent Walter Ande sent Sandall a letter (Exhibit P-6) with copies to five other principals and Vera Harte, regarding "Negotiation Meeting." Ande indicated in that letter that the Personnel Committee wanted a meeting. He stated in pertinent part that:
I am writing to advise you that the committee has directed that a meeting be established as soon as some preliminary planning has been established by the committee.
It is my expectation that a meeting with the principal's representatives and the personnel committee will be scheduled during the month of September 198l. 6/
6/ Ande testified that he did not intend the term "negotiation" in P-6 to mean a proceeding leading to a written contract between the principals and the Board, and he referred to the meeting as a "preliminary planning meeting" between the Committee and the Principals (T 3 pp. 78-79). I do not credit Ande's explanation attempting to distinguish the term "negotiations" from the term "preliminary planning meeting." P-6 is clear on its face and refers to the scheduling of a negotiations meeting and not a planning meeting. In fact, the language in the first sentence of the above-cited paragraph indicates that the meeting would be established as soon as the committee (the Board's committee) had established some preliminary planning. P-6 did not state that the meeting was for planning. Ande's explanation is nothing more than unsupported parol evidence which expresses an interpretation at variance with the clear language in P-6, and which is wholly unexpressed in P-6 and is therefore inadmissible to alter P-6. See Casriel v. King, 2 N.J. 45 (1949); Atlantic Northern Airlines, Inc. v. Schwimmer, 12 N.J. 293 (1953);
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In early November 1981 the Association, through its negotiations committee consisting of Sandall, Cochrane, Kurkian and Ridinger, presented a proposed administrative compensation plan (Exhibit P-7) to the Board's Personnel Committee which consisted of Vera Harte, Bernard Beals, Larry Davis and Betty Busch (T 1 pp.
41-42, T 2 pp. 5-6). That proposal consisted of a base salary rate, a percentage salay ratio, a longevity plan, a merit compensation plan, and a compensation formula. At a meeting on November 16, 1981, the Association presented the Personnel Committee with proposed salaries for the principals for 1982-83 and 1983-84 (Exhibit P-8). The following day Sandall thanked Personnel Committee Chairperson Harte for her responsiveness on November 16 (Exhibit P-9). Then on November 24, 1981 Sandall and Cochrane submitted a new compensation proposal to Harte (Exhibit P-10) addressing certain Board concerns that had been expressed regarding P-7 (T 1 pp. 44-45).
On January 27, 1982, Sandall sent a letter to Harte (Exhibit P-11) to confirm the scheduling of a negotiations meeting for February 16, 1982. On February 19, 1982, the Association submitted a revised salary proposal for the principals for 1982-83 (Exhibit P-12), in response to the Personnel Committee's request that adjustments be made to P-8 (T 1 pp. 47-48).
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Cherry Hill Bd.Ed. v. Cherry Hill Assoc. of School Administrators , App. Div. Docket No. A-26-82T2, December 23, 1983.
Subsequent to February 16, 1982, Board member Larry Davis became chairman of the Personnel Committee. On March 22, 1982 Cochrane met with Davis and Ande and made final adjustments to the Principals Compensation Plan which was then initialed by Davis and Cochrane (Exhibit P-13)(T 1 pp. 50-51). P-13 included a base rate, position ratios, a longevity plan, a merit compensation plan, and a compensation formula. It was made effective from July 1, 1982-June 30, 1984. 7/ The paragraph under the position ratio in P-13
provided that:
Initial placement on the guide would be at the first step unless, in cases of promotion, transfer, or credit for previous administrative experience, consideration is given. This would then be negotiated between the candidate and the Board of Education in consultation with the Collingswood Principals' Association.
P-13 did not include the last sentence in P-2 giving the Superintendent the final decision on the percentage raise (T 3 pp. 76-77). The last sentence in P-13 provided:
Parties to this agreement will make a reasonable and good faith effort to conclude a successor agreement by February 28, 1984.
The Board adopted P-13 in its entirety entitled "Principals' Compensation Plan - 7/1/82-6/30/84" at the Board meeting on March
7/ Although P-2 did not specifically set a beginning and ending effective date, the record reflects that P-2 was effective throughout the negotiations for P-13 and expired on June 30, 1982, the day before P-13 became effective.
22, 1982 (Exhibit J-1).8/
The Association argued that P-2 and P-13 were reached through negotiations with the Board (T 1 pp. 18, 24, 50). The Board, however, denied that "negotiations" took place. Personnel Committee member Bernard Beals testified that he was unaware of any bargaining group or unit composed of principals and assistant principals, that he was unaware of any majority representative for a unit composed of principals and assistant principals, and that he had no knowledge of any written agreements (T 3 pp. 84-85). However, Personnel Committee member Betty Busch disagreed with Beals. She testified that the Committee had engaged in negotiations with the Association and that P-13, in particular, had been negotiated (T 2 pp. 5-6). I credit Busch's testimony and discredit Beals' testimony. Both Busch and Beals were on the Personnel Committee when P-13 was negotiated.
8/ When the Association proposed Exhibits P-7, P-10, and P-13 to the Board those Exhibits included position ratios for the superintendent and assistant superintendent in addition to those ratios for the principals and assistant principals. In fact, the Board included those ratios in J-1 when P-13 was adopted by the Board. The inclusion of those titles in those exhibits, however, is not indicative of an Association intent to represent those titles. First, the Association did not purport to represent those titles by any other action, and the pricing samples which it submitted as the proposed salaries, Exhibits P-8 and P-12, only included the principals and assistant principals. Second, p. 1640 of J-1 clearly indicated that the superintendent's salary was reviewed by the Board in an executive session, and the Board approved an additional 1.7% above what he received in the public meeting of the Board. The granting of the additional percentage evidenced the lack of participation by the Association in the determination of the superintendent's salary.
Beals knew that there was a group of principals presenting proposals on behalf of all principals and assistant principals. He also knew that the Association had submitted additional proposals to address certain Board concerns, and he had to know that the Personnel Committee and the principals reached an agreement. Accordingly, I cannot accept Beals' testimony that the principals had no bargaining group and that the Association had not negotiated an agreement with the Board.
4. On April 22, 1983 Superintendent Ande sent all seven principals and certain other employees a letter (Exhibit R-12) informing them that all contracts would be presented to the Board on May 23, 1983. Ande indicated that he needed time to review all evaluations. On May 23, 1983 the principals presented the Board with two letters (Exhibits R-1 and R-2), advising the Board of their intent to organize, and requesting recognition as the Collingswood Administrators' Association. Both R-1 and R-2 were signed by all seven principals. 9/ The Personnel Committee reviewed the Association's recognition request on June 1, 1983 (Exhibit R-4).
At a Board meeting on June 27, 1983 the Board approved salaries for the principals for 1983-84 as recommended by the Superintendent (Exhibit R-10). Those salaries were not fixed in accordance with P-13 or J-1. The following day Board President
9/ The Board inserted R-1 and R-2 in its minutes of May 23, 1983. Exhibit R-23.
Beals acknowledged receipt of the Association's request for recognition (Exhibit R-18), and he raised a question regarding the appropriateness of the unit. On June 30, 1984, the Association submitted a letter to Ande and certain Board members (Exhibit P-14) complaining about the salaries fixed by the Board in R-10. The Association in R-10 maintained that the salaries fixed in June did not comply with the compensation plan that had been agreed upon by the Board in P-13 and J-1 which would result in a 6% or 8% increase based upon one's evaluation score. The Association also alleged that several evaluation scores were tailored to meet caps in the principals' salaries. The Association asked that the salaries and
inappropriate evaluations be resolved at the Board meeting on August 22, 1983.
On July 22, 1983 Cochrane, in response to Beals' request, provided Beals with a memorandum (Exhibit P-15) explaining what the principals' salaries should be in accordance with J-1. At the Board meeting on August 22, 1983 the Board recognized the Association as the majority representative for certified administrators and supervisors (Exhibit R-5).
Finally, on September 26, 1983 the Board officially (Exhibit R-11) increased the salaries of six of the seven principals in order to minimally comply with P-13 and J-1 (T 3 p. 74). The results of that action left Sandall, Kurkian, Cochrane and McDonnell with 6% increases, and Ridinger, Snyder and Rickerhauser with 8% increases (T 1 p. 85).
5. Part Four of P-13 and J-1 indicated that the Annual Merit Compensation for principals was a 6% salary increase for those employees receiving a satisfactory evaluation, and an 8% salary increase for those employees receiving a commendable evaluation. The evaluation instrument itself (Exhibit P-3) indicated that a satisfactory evaluation could fall anywhere between a 3.5 and 6.4, and a commendable evaluation began with a 6.5 through 9.0. There are 68 evaluation items on P-3 that may be rated between one and nine. A total is then taken and the average is determined to arrive at the evaluation score.
The record shows that Wayne Cochrane received a commendable evaluation with a 7.5 or better average for 1979, 1980, 1981 and
1982 (Exhibit P-17). Cochrane was first evaluated by Superintendent Ande for 1981-82 at which time he received his highest evaluation score (T 1 pp. 90-93). In 1982 Ande gave Cochrane a total point score of 536 which resulted in an average of 7.88. At that time Ande informed Cochrane that he (Ande) was proud to give him (Cochrane) the highest evaluation he (Cochrane) had ever received, and Ande told him that he had earned it and that he was an outstanding administrator (T 1 p. 93). In 1983, however, Ande gave Cochrane the lowest evaluation score he had received in over five years. Cochrane received a total point score of 409 with an average of 6.01. Ande did not offer any educational justification for Cochrane's lower evaluation score.
Ed Kurkian has also received commendable evaluations with an 8.06 or better average for 1980, 1981 and 1982 (Exhibit P-18).
Kurkian was first evaluated by Ande in 1982 at which time he also received his highest evaluation score (T 2 p. 57). In 1982 Ande gave Kurkian a total point score of 571 which resulted in an average of 8.39. However, for the following year, 1983, Ande gave Kurkian his lowest evaluation with a total point score of 415 which resulted in an average of 6.10. Although Ande testified that Kurkian's performance diminished (T 3 p. 69), Ande did not offer any evidence to support an educational justification for the dramatic lowering of Kurkian's evaluation score. Consequently, I do not credit Ande's bare allegation regaring Kurkian's performance.
Ed Sandall also received commendable evaluations with a 7.6 or better average for 1979, 1980, 1981 and 1982 (Exhibit P-19).
Sandall's highest evaluation score was received from Ande in 1982. That year Sandall received a total point score of 577 which resulted in an average of 8.48. However, Ande gave Sandall his lowest evaluation score in 1983 (T 2 p. 84). That year Sandall received a total point score of 423 which resulted in an average of 6.22. No educational justification was offered to substantiate Sandall's lower evaluation score (T 2 p. 89).
Finally, Ed McDonnell, like the other principals, also received commendable evaluations for 1981 and 1982. In fact, Ande evaluated McDonnell in 1981, 1982 and 1983 (T 2 p. 101). Ande gave him a point score of 572 with an 8.41 average in 1981, and he gave him a point score of 573 with an 8.42 average in 1982 (Exhibit P-20).
In conjunction with his 1982 evaluation of McDonnell, Ande on March 1, 1982 issued a written document (attachment to P-20) complimenting McDonnell for his outstanding performance. 10/
However, in 1983 Ande gave McDonnell a point score of only 412 with an average of 6.05 (T 2 pp. 102-103). Although Ande alleged that McDonnell's performance diminished (T 2 p. 72), he never gave McDonnell any indication that his performance had diminished (T 2 p. 103), and he (Ande) never produced evidence of any educational justification for the dramatic drop in McDonell's evaluation score. Consequently, I do not credit Ande's testimony that McDonnell's performance diminished.
6. The overwhelming evidence established that Ande was pressured by certain Board members to lower the principals' evaluations in order to reduce the number of principals who received 8% salary increases. There was no apparent educational justification for the lower evaluations.
10/ In the March 1, 1982 attachment to P-20 Ande said in pertinent part:
"Ed McDonnell has excelled in the areas of:
-School organization
-Instructional program
-Relations with students
-Relations with fellow administrators
-Relations with the community
Ed continually evaluates the job that he is doing, and frequently meets with the superintendent. Ed McDonnell has lived up to all of the expectations. He has had a great year -- he is a true professional in every sense of the word, and he has earned the highest evaluation category.
Both Cochrane and Kurkian testified that Ande admitted that he was pressured by certain Board members to hold down the principals' salaries (T 1 p. 71; T 2 p. 59). Cochrane also testified that Ande admitted that the lower evaluations of the four affected principals were inaccurate and should have been higher (T 1 p. 94). Cochrane further testified that Beals admitted that Ande had been pressured and that the evaluations were rigged (T 1 pp. 82, 144).
Two Board members supported that testimony. Elizabeth Busch and Albert Profico testified that at Personnel Committee meetings on November 30 and December 14, 1983, Ande admitted that he had been pressured by certain Board members to lower the principals' salaries by lowering the evaluations (T 2 pp. 13-15, 46-48). In fact, Profico testified that Ande told the Personnel Committee that certain Board members told him (Ande) that "it was his (Ande's) ass" if he did not keep the money or the evaluations down (T 2 pp. 48-49). Ironically, Ande admitted that certain Board members felt that principals were too highly paid (T 3 p. 65), that he had been placed under pressure (T 3 pp. 34-35, 37), and that he did make a statement to the effect that "it was his ass if he did not keep the money or evaluations down." (T 3 pp. 37, 65).
7. The facts show that at the time P-13 was being negotiated, the Board asked the Association to determine if Snyder and McDonnell would accept a lower longevity step, allegedly in the first year of P-13, than they would otherwise normally receive (T 1
p. 48). The Board felt that if Snyder and McDonnell had received their proper amounts they would receive a total percentage raise substantially higher than other principals.
As a result of the Board's request, the Association's negotiations committee asked Snyder and McDonnell if they would defer longevity raises of 2% and 5% respectively for the first year of P-13 (1982-83), with the understanding that they would receive those amounts the following year (1983-84)(T 1 p. 48, T 2 pp. 98-99, 112). Snyder and McDonnell then agreed to defer those amounts (T 1
pp. 48, 135-136, T 2 p. 112). However, in 1983-84 Snyder and McDonnell were not given their respective 2% and 5% longevity increases. The Association alleged that the Board had agreed to defer those amounts, but the Board alleged that there was never an agreement to defer the money to a subsequent year.
The record shows that other than P-13 and J-1 which merely included the longevity plan, no document specifically provided that Snyder and McDonnell would receive their respective 2% and 5% longevity raises after they had agreed to forego those amounts in 1982-83 (T 1 p. 126, T 2 pp. 111-112). Cochrane testified that Board member Larry Davis had agreed that Snyder and McDonnell were due the 2% and 5% increases (T 1 pp. 102-103), and Board Member Busch testified that she was on the Personnel Committee when the principals were told that McDonnell and Snyder had received salary adjustments in the succeeding year (T 2 p. 18). However, Busch also testified that although the Personnel Committee recommended that
Snyder and McDonnell receive those increases, the Board rejected that recommendation (T 2 pp. 24-25).
Therefore, it is apparent that the Board never formally agreed to defer 2% and 5% increases for Snyder and McDonnell, and at most there was no meeting of the minds regarding an agreement to defer those inceases.
8. The Association maintained that the Board failed to pay its members tuition reimbursement in accordance with their agreement and/or past practice. The Board alleged that no agreement existed with the Association to provide tuition reimbursement.
The facts show that the Collingswood Education Association ("CEA") which represents teachers, but not principals, has included a tuition reimbursement article in its collective agreement for several years. The CEA 1978-80 agreement (Exhibit R-22) and the 1980-82 agreement (Exhibit R-21) provide in Article 15 and Article 18, respectively, that the Board will provide for a certain amount of tuition reimbursement based upon certain conditions. Included in both R-21 and R-22 was the following sentence:
For an adminitrator, study under this program shall normally be limited to the administrative field of the applicant.
However, in its most recent agreement (Exhibit R-17 covering 1982-85) the CEA and Board deleted any reference to administrators in Article 18, the tuition reimbursement plan.
The facts show that prior to the 1983-84 school year Association unit members applied for and received tuition
reimbursement in accordance with Exhibit P-4 (T 1 p. 30, T 2 pp. 60-68). P-4 is Article 18 of R-21, the CEA 1980-82 agreement. In 1983-84 both Cochrane and McDonnell applied for tuition reimbursement but their requests were rejected (T 1 p. 30, T 2 pp. 110, 121). Superintendent Ande rejected McDonnell's request for tuition reimbursement by letter of October 5, 1983 (Exhibit R-20). That letter provided in pertinent part:
Several years ago, tuition funds for administrators were paid from funds that were budgeted in one account for teachers and administrators. However, in the present "Written Agreement" the Collingwood Eduction Association eliminated administrators from their tuition proposal.
No additional funds were budgeted for administrators for tuition reimbursement--therefore, your application for reimbursement has been denied.
Ande also testified that Article 18 of R-17 does not cover administrators (T 3 p. 44), and that the principals were denied tuition reimbursement because the CEA agreement did not provide for it (T 3 p. 60).
There was nothing included in P-2, P-13 or J-1 regarding tuition reimbursement, and there was no showing that principals specifically applied for and received tuition reimbursement for 1982-83.
Analysis
Despite the Board's argument, it is clear to me that the Board recognized and negotiated with the Association in reaching collective agreements, both P-2 and P-13. It is equally clear that
the Superintendent intentionally lowered the evaluations of four principals to keep their salaries from rising to 8%, and not as a result of any educational considerations. Given the parties' negotiations relationship, the Superintendent's actions in that regard violated the Act. However, the Board did not violate the Act by refusing to pay employees Snyder and McDonnell an additional 2% and 5% respectively, nor by refusing to grant tuition reimbursement. There was insufficient evidence to establish that the Board ever agreed to defer 2% and 5% for Snyder and McDonnell, and there was no evidence that the Association had ever negotiated for tuition reimbursement on behalf of its members.
The Negotiations Relationship
The Board presented several arguments to support its position that it had not engaged in a negotiations relationship with the Association. First, it argued that it only met with--and consulted with--the principals in compliance with its obligations under N.J.S.A. 18A:27-3.1 and 18A:29-4.3, and N.J.A.C . 6:3-1.19 and 6.3-1.21. Second, it argued that prior to the submission of R-1 and R-2 on May 23, 1983, the Association had not complied with the Commission's Rules N.J.A.C . 19:10-1.1 and 19:11-3.1 regarding recognition. In conjunction therewith, the Board argued that it did not recognize the Association as the majority representative of the principals prior to the adoption of R-5 on August 22, 1983. Third, the Board argued that neither P-2 nor P-13 were negotiated collective agreements. Rather, the Board alleged that they were
merely "salary schedules" which were adopted by the Board. Fourth, the Board questioned the appropriateness of the Association's unit, particularly the inclusion of the assistant principals in a unit with principals who may be involved in developing their yearly evaluations.
The Board's first argument has no merit. N.J.S.A . 18A:27-3.1 concerns observations and evaluations for non-tenured teaching staff, and 18A:29-4.3 requies boards of education to adopt salary schedules for teaching staff who have full-time administrative responsibilities. However, there is nothing in those statutes that otherwise required the Board to engage in negotiations with the Association, or to sign P-2 and initial P-13.
Those were voluntary acts. Indeed, the above statutes did not require the Board to agree to provide principals with longevity or with an annual merit compensation plan. The Board agreed to those items during the negotiations process. If the Board really believed that no negotiations relationship existed with the Principals as a unit, then it was not required under 18A:29-4.3 to even consult with the principals over a salary schedule. It could simply have implemented a salary schedule. However, the Board chose to negotiate the salary which supports a finding of a negotiations relationship.
The Board's reliance upon N.J.A.C . 6:3-1.19 and 6:3-1.21 is similarly rejected. Those respective sections of the Administrative Code concern the evaluation of non-tenured and tenured teaching
staff. They are primarily intended to cover non-supervisory teaching staff, not administrators. However, to the extent that administrators are covered by those rules, 6:3-1.21(c) provides that:
The policies and procedures shall be developed under the direction of the district's chief school administrator in consultation with tenured teaching staff members....
There is nothing in either section of the Code to even remotely suggest that a board must consult with staff concerning the "establishment of a salary schedule," or a longevity plan, or a merit compensation plan. N.J.A.C . 6:3-1.21(c) is limited to consultation concerning the establishment of evaluation policies and procedures. Although P-2 included certain evaluation policies and procedures, it went well beyond that area, and clearly encompassed negotiable terms
and conditions of employment. The Board's reliance upon the above statutory and code references is therefore misplaced.
The Board's second and third arguments must be considered together. The Commission's Rule, N.J.A.C. 19:10-1.1 defines "Recognition" as the:
...written acceptance by a public employer of an employee organization as the exclusie representative of employees in an appropriate unit.
Then in N.J.A.C . 19:11-3.1 the Commission estabished certain criteria to demonstrate recognition. 11/ The Board argued that the
11/ N.J.A.C. 19:11-3.1 provides as follows:
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(a) Whenever a public employer has been requested to recognize an employee organization as the exclusive representative of a majority of the employees in an apporopriate collective negotiations unit, the public employer and the employee organization may resolve such matters without the intervention of the commission.
(b) The commission will accord certain privileges to such recognition as set forth in N.J.A.C . 19:11-2.8 (Timeliness of petitions), provided the following criteria have been satisfied prior to the written grant of such recognition by a public employer:
l. The public employer has satisfied itself in good
faith, after a suitable check of the showing of interest,
that the employee representative is the freely chosen
representative of a majority of the employees in an
appropriate collective negotiations unit;
2. The public employer has conspicuously posted a
notice on bulletin boards, where notices to employees are
normally posted, for a period of at least 10 consecutive
days advising all persons that it intends to grant such
exclusive recognition without an election to a named
employee organization for a specified negotiatins unit;
3. The public employer shall serve written notifica-
tion upon any employee organizations that have claimed, by
a written communication within the year preceding the
request for recognition, to represent any of the employees
in the unit involved, or any organization with which it has
dealt within the year preceding the date of the request for
recognition and shall contain the information set forth in
paragraph 2 of this subsection.
4. Another employee organization has not within the
10-day period notified the public employer, in writing, of
a claim to represent any of the employees involved in the
collective negotiations unit or has not within such period
filed a valid petition for certification of public employee
representative with the director of representation;
5. Such recognition shall be in writing and shall set forth specifically the collective negotiations unit
involved.
Association did not comply with 19:11.3.1 prior to May 23, 1983, and that, therefore, anything which occurred prior thereto could not be sanctioned as recognition. I do not agree. The Board apparently overlooks the evidence which shows that the Board has conferred at least de facto recognition upon the Association.
Before reviewing those facts it is important to note that the Commission has already held that the recognition requirements in N.J.A.C . 19:11-3.1 do not necessarily need to be met to establish a negotiations relationship. The Commission in In re Salem City Bd.Ed., P.E.R.C. No. 81-6, 6 NJPER 371 ( & 11190 1980) held:
These same preconditions [N.J.A.C . 19:11-3.1] do not necessarily have to be met before a negotiations obligation arises between a public employer and an employee organization which does represent a majority of the employees in an appropriate unit. Such an organization may have the right to negotiate but only so long as it can satisfy the employer that it represents a majority of the employees in the unit.
See also In re Atlantic County Sewerage Authority, P.E.R.C. No. 81-91, 7 NJPER 99 (& 12041 1981).12/
The Appellate Division has also sanctioned the concept of de facto recognition despite the wording of the Commission's recognition rules. In PBA Local 53 v. Town of Montclair, 131 N.J. Super. 505 (1974), the Town met with and negotiated with the PBA over terms and conditions of employment, but the Town, subsequently,
12/ The demand for recognition need not be stated in formal or precise terms. See Laclede Cab Co., 236 NLRB 206, 98 LRRM 1426 (1978).
unilaterally established a salary schedule. The Town argued that it
had not recognized the PBA, and further argued that the PBA had failed to comply with the Commission's recognition rules. 13/ The Court held that:
[3] Notwithstanding these provisions of the administrative codes it is clear that defendant Montclair, by its actions commencing September 1973 and continuing into February 1974, has recognized plaintiff as a designated and selected representative of all police officers and by so doing has conferred at least de facto status on plaintiff. Basic principles of fairness dictate that if Montclair was going to question the right of plaintiff to act as the majority representative of the police officers, it should have done so promptly and not acted so as to lull plaintiff over a period of months into a false sense of security and into thinking it had recognition. 1/
1 / Further support for this argument is obtained from
an examination of the procedure available under the
National Labor Relations Act The New Jersey Employer-
Employee Relations Act, N.J.S.A. 34:13A-5.1 et seq.,
parallels the National Labor Relations Act, 29
U.S.C.A. ' 141 et seq ., and can be interpreted in light
of that act. Lullo v. Intern. Ass'n of Fire Fighters,
55 N.J. 409, 424 (1970); Toltec Metals, Inc. v.
N.L.R.B., 490 F .2d 1122 (3 Cir. 1974), holds that
where an employer orally recognizes a union as the
employees' repreentative, it can not later withdraw
recognition and refuse to bargain.
That decision was vacated and remanded by the New Jersey Supreme Court, 70 N.J. 130 (1976), at least in part to give the
13/ The recognition rule in effect during the processing of that case was N.J.A.C. 19:11-1.l4 which was the predecessor rule to N.J.A.C . 19:11-3.1 and contained the same or similar language in pertinent parts.
Commission the opportunity to make the primary factual determination as to whether the PBA had achieved majority status. However, the Supreme Court did not criticize the Appellate Division's de facto
recognition analysis.14/ Therefore, given the Commission's own decision to approve recognition that did not meet 19:11-3.1 where majority status was otherwise established, and given the Appellate Division's approval of the de facto recognition concept, I find that the Association was at least de facto recognized as the majority representative of the instant employees. 15/
In that regard I find that the Association demonstrated that it represented a majority of the principals for purposes of collective negotiations. P-2 itself was signed by four of the seven principals and is evidence of majority support by the principals. Subsequently, there were negotiations between the Board Personnel Committee and a committee of four of seven principals which culminated in P-13 and J-1. The Board was fully aware that at least four of the seven principals supported the principals' collective
14/ Although PBA Local 53 v. Town of Montclair, supra , was remanded to give the Commission the opportunity to exercise its primary jurisdiction over the main issues, the Commission never issued any decision regarding that matter because the issue was resolved by the parties.
15/ In a recent decision, In re New Jersey Transit Bus Operations, Inc ., H. E. No. 85-46, 11 NJPER ( & 5/31/85), a different Commission Hearing Examiner also found a de facto recognition, and he held that the unilateral withdrawal of that recognition violated the Act.
negotiations efforts. In fact, P-6 was sent to six principals regarding the establishment of a negotiations meeting between the
"principals' representatives" and the Personnel Committee. That was a clear indication that the Board knew that the home grown principals association represented a majority of the principals for collective negotiations.
Another important element in finding a de facto recognition, as well as in response to the Board's third argument herein, is that both P-2 and P-13 represent collective agreements--or at the very least--memorandums of agreement--leading to formal agreements. The elements for collective negotiations were established early in the Commission's existence.
The essential elements for collective negotiations are the give and take of a bilateral relationship, through proposal and counter proposal directed towards consummation of a mutually acceptable agreement. See In re Henry Hudson Reg. Bd.Ed., E.D. No. 12 (1970); In re Township of Teaneck, E.D. No. 23 (197l)
In addition to the elements of collective negotiations, the Commission has also clearly described the type of relationship that is required to suport a claim of established practice, i.e ., a negotiations relationship. The Commission held that such a relationship requires:
...an organization regularly speaking on behalf of a reasonably well-defined group of employees seeking improvement of employee conditions and resolution of differences through dialogue (now called negotiations) with an employer who engaged in the process with an intent to reach agreement. In re West Paterson Bd.Ed., P.E.R.C.No. 77 (1973); In re West Paterson Bd.Ed., P.E.R.C. No. 79 (1973)
Those elements, as well as the established practice requirements, were satisfied in this case. Although the evidence
regarding the reaching of P-2 is sketchy, the evidence regarding the reaching of P-13 and J-l is clear. The Association engaged in a give and take relationship with the Board which included proposal and counter proposal and resulted in the reaching of a mutually acceptable agreement. The Association submitted an initial proposal for 1982-1984, P-7 and P-8, then submitted its first counter-proposal, P-10, in response to Board concerns with P-7, and submitted a third proposal, P-12, in response to the Board's concerns regarding P-8. Then the Board requested that employees Snyder and McDonnell take a lower salary and the Association agreed. Subsequently, the parties initialed the agreed upon terms P-13, and the Board adopted those terms in J-1, and implemented those terms in 1982-1983. J-1 clearly referred to P-13 as an "agreement," and Board member Busch admitted that the Personnel Committee had negotiated with the Association in reaching P-13. The parties had clerarly engaged in dialogue (negotiations) with the intent to reach an agreement.
The entire series of events leading up to J-1 is proof that the Board recognized the Association as the majority representative for principals, and is also proof that the Board engaged in negotiations with the Association resulting in the reaching of a collective agreement. I do not ascribe any great significance to
the Association's formal request for recognition on May 23, 1983. The Board suggestion that the formal recognition request negates the previous negotiations history is without merit. I am not certain why the Association formally requested recognition, but I am certain
that de facto recognition had already been achieved, and a collective agreement was already in place prior to May 23, 1983.
The Board's fourth argument is also without merit. The Act prevents the inclusion of supervisors with nonsupervisors, N.J.S.A . 34:13A-5.3, but does not automatically find inappropriate, units including different supervisory levels. Where the inclusion of higher and lower supervisors in one unit presents an actual, or substantial potential conflict of interest it is inappropriate. Board of Education of West Orange v. Wilton, 57 N.J. 404 (1971).
But where, as here, there is insufficient evidence of a substantial potential conflict of interest then the inclusion of principals with assistant principals is not inappropriate. The Commission has previously approved several units including different levels of supervision some of which include principals with vice-principals. In re City of Trenton, D.R. No. 83-33, 9 NJPER 382 ( & 14172 1982); In re Edison Twp. Bd.Ed ., D.R. No. 82-8, 7 NJPER 560 ( & 12249 1981); In re Borough of Fair Lawn , D.R. No. 79-30, 5 NJPER 165 ( & 10091 1979); In re Delaware Valley Reg. H.S. Dist. Bd.Ed., D.R. No. 79-15, 4 NJPER 496 (& 4225 1978); In re Lakewood Bd.Ed ., D.R. No. 78-44, 4 NJPER 212 ( & 4105 1978); In re Long Branch Bd.Ed ., E.D. No. 47 (1974).
Finally, in view of the fact that the Board willingly recognized the unit of principals and assistant principals in August 1983, any argument that the same unit was inappropriate prior thereto is without merit. Thus, the Board's failure to recognize P-13 and J-1 as a collective agreement with the Association violated subsection 5.4(a)(5) of the Act.
The Evaluations
The overwhelming evidence shows that Superintendent Ande lowered the evaluations of Cochrane, Kurkian, Sandall and McDonnell for economic reasons, to prevent them from receiving 8% increases. Ande had no legitimate educational basis for his actions. I fully credit Busch, Profico, Cochrane and Kurkian that Ande had been pressured to lower the evaluations for economic reasons. I further credit Cochrane that Ande admitted that the evaluations should be higher, and that Beals admitted that the evaluations were rigged. Indeed, I credit that part of Ande's testimony where he admitted he was pressured and that it "would be his ass" if he did not lower some salaries by lowering the evaluations. However, I find that Ande's assertion that Kurkian's and McDonnell's performance diminished, to be a total fabrication. It was simply not a truthful statement in relationship to his credited testimony.
Given the parties' negotiations relationship, and that their collective agreement, P-13 and J-1, required the determination of the principals' annual compensation based upon their evaluation score, the Board was expected to, and indeed, required, to perform
and award the evaluations that the employees legitimately earned and deserved. The Board would have been entitled to lower the evaluations only for educational reasons, not for economic reasons. No educational reasons were established. The Board cannot lower evaluations to reduce annual compensation any more than it could unilaterally change the work year to reduce annual compensation. Piscataway Twp. Bd.Ed v. Piscataway Twp. Principals Assoc.; 164 N.J.
Super. 98 (App. Div. 1978); In re Sayreville Bd.Ed , P.E.R.C. No. 83-105, 9 NJPER 138 ( & 14066 1983).
As a result of Ande's actions in lowering evaluations and therefore reducing compensation the Board violated subsections 5.4(a)(3) and (5) of the Act. In order to properly remedy the Board's unlawful conduct the evaluations of the four administrators must be fixed based upon an average of their previous evaluations which would place all four principals well above a 6.5 score which would entitle them to an 8% increase. 16/ Then those employees should receive the difference between what they actually received at 6%, and what they should have received at 8%, plus interest.
Longevity Pay--Snyder and McDonnell
There was no dispute herein that the Association (and Snyder and Mconnell) agreed to forego a 2% longevity raise for
16/ Cochrane should receive a total of 524 equating to a 7.70 score; Kurkian should receive a total of 557 equating to an
(Footnote continued on next page)
Snyder and a 5% longevity raise for McDonnell for 1982-83. The issue is whether the parties agreed to defer those amounts until 1983-84.
I find that the Association failed to prove by a preponderance of the evidence that the parties ever actually agreed to defer that money. The Association admitted that neither P-13 nor J-1 contained any reference to a 2% and 5% deferral for Snyder and McDonnell. In fact, the record shows that the Board's Personnel
Committee specifically recommended that those amounts be deferred, but the Board rejected that recommendation. It is apparent that no meeting of the minds was reached regarding the longevity increase for those employees. Consequently, it is recommended that said portion of the Charge be dismissed.
Tuition Reimbursement
I am convinced that the only basis for the principals' receipt of tuition reimbursement was due to the provision in the CEA contract authorizing such payments. The Association, in fact, admitted that its justification for tuition reimbursement was P-4, which was the reimbursement clause in R-21, the CEA's 1980-82 agreement. The Association offered no evidence that it ever negotiated for a tuition reimbursement plan.
(Footnote continued from previous page)
8.19 score; Sandall should receive a total of 540 equating to a 7.94 score; and, McDonnell should receive a total of 573 equating to an 8.42 score.
I find that the principals' receipt of tuition reimbursement was a mere gratuity, unsupported by a quid pro quo or any consideration in collective negotiations. I similarly find that the Board's grant of tuition reimbursement did not establish a past practice. Rather, it was granted in accordance with the CEA agreement, and it ceased after the Board and CEA agreed to drop the referenc to administrators in R-17. Consequently, that portion of the Charge should be dismissed.
Finally, the alleged 5.4(a)(7) violation of the Act should be dismissed. The Association did not establish that any Commission rule or regulation was actually violated.
Accordingly, based upon the entire record and the above analysis, I make the following:
Conclusions of Law
1. The Collingswood Board of Education violated N.J.S.A . 34:13A-5.4(a)(1), (3) and (5) by lowering the annual compensation rate for four employees by intentionally lowering their evaluations, and by refusing to honor a collective agreement.
2. The Board did not violate N.J.S.A . 34:13A-5.4(a)(1), (3), (5) or (7) by refusing to defer a 2% and 5% longevity increase for Snyder and McDonnell, respectively, nor by refusing to provide unit employees with tuition reimbursement.
Recommended Order
I recommend that the Commission Order:
A. That the Board cease and desist from:
Interfering with, restraining or coercing its employees in the exercise of the rights guaranteed to them by the Act, and from failing and refusing to issue legitimate evaluations for employees Cochrane, Kurkian, Sandall and McDonnell, and from failing and refusing to pay those employees an 8% increase in accordance with their collective agreement.
B. That the Board take the following affirmativ action:
1. Immediately change the 1983 (1982-83) evaluation scores of employees Cochrane, Kurkian, Sandall and McDonnell to reflect a score equivalent to their respective average score prior to 1983. 17/
2. Pay the above affected employees the monetary difference between the amount they would have received had they
received an 8% salary increase in 1983-84, and the amounts they were in fact paid in 1983-84 to the present, plus 12% interest. 18/
3. Post at all places where notices to employees are customarily posted, copies of the attached notice marked as
17/ See note 16, infra , for the average scores.
18/ The remedy includes all money the employees would have received had they received an 8% increase for 1983-84. Thus, if salaries for 1984-85 were based upon a percentage of what the employee(s) received in 1983-84 then the Board is required to also pay the difference for 1984-85 based upon the higher salary for 1983-84, plus interest at 12% on those amounts.
"Appendix 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. Reasonable steps shall be taken to ensure that such notices are not altered, defaced or covered by other materials.
4. Notify the Chairman of the Commission within twenty (20) days of receipt what steps the Respondent has taken to comply herewith.
C. That the Complaint be dismissed regarding the following allegations:
1. That the Board unlawfully failed to pay an additional 2% and 5% to employees Snyder and McDonnell, respectively,
2. That the Board unlawfully failed to pay tuition reimbursement, and,
3. That the Board violated subsection 5.4(a)(7) of the Act.
Arnold H. Zudick
Hearing Examiner
Dated: June 28, l985
Trenton, New Jersey ***** End of HE 85-53 ***** |