It appearing that the allegations of the above charge, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on June 30, 1977.

Pursuant to the Complaint and Notice of Hearing, a hearing was held on September 20, 1977 in Trenton, New Jersey, at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. By agreement post- hearing briefs were submitted by the parties on January 9, 1978.

An Unfair Practice Charge having been filed with the Commission, a question concerning alleged violations of the Act, as amended, exists and, after hearing and after the consideration of briefs by the parties, the matter is appropriately before the Commission, by its designated Hearing Examiner, for determination.

Upon the entire record, the Hearing Examiner makes the following:

2. The Warren Hills Regional Education Association is a public employee representative within the meaning of the Act, as amended, and is subject to its provisions.

3. Prior to the 1976-77 school year the Board leased classrooms at a private religious facility. This facility was denied to the Board commencing with the 1976-77 school year.

4. In February 1976 the Board made a decision to go on split sessions in the seventh grade only commencing with the 1976-77 school year.

5. Thereafter there were three meetings held with the faculty of the junior high school, two conducted by the principal and one conducted by the superintendent, the latter in May 1976. The grievance chairman of the Association learned of the split sessions at a faculty meeting. The Board did not formally communicate the decision on split sessions to the Association.

6. Early in August 1976 the President of the Association asked for negotiations on the impact of the split session.

7. Between September 1976 and December 1976 there were three or four negotiations sessions of the parties where the subject was the impact upon the 12 seventh grade teachers who went on split sessions as of September 1976.

8. Under date of October 19, 1976 the Association by its negotiations chairman presented to the Board five proposals for resolving the impact, as follows:

1. No teacher be assigned more than five (5) periods of instruction per day.

2. That teachers be selected to teach in the split session program on the basis of seniority preference.

3. Length of teaching period should be uniform for all teachers in the district, i.e., forty-eight (48) minutes.

4. Provision should be made to facilitate attendance at Association meetings which would not require an inordinate waiting period for split session teachers who teach the morning session or bar second session teachers from attending the Association meetings because of the length of their work day.

5. That any split session teacher who is called upon to substitute during the other session because another substitute is not available shall be compensation at $6.00 per period.

9. The Board made a response to each of the five proposals of the Association and agreed to the fifth proposal above, namely, that $6.00 be paid per period, and the Board is currently making such payment.

10. The Association also demanded $3,000 per year for each teacher on split session. The Board counter proposed that it would grant compensatory time. There has been no resolution of this matter between the parties.

11. There have been no negotiations on the impact of split sessions since December 1976.

12. The impact upon teachers in the seventh grade on split sessions is illustrated by the following:

(a) Seventh grade teachers, who had 100 to 125 pupils for five periods, now with split sessions have 155 to 180 pupils for six periods.

(b) Seventh grade teachers, prior to split sessions, had an individual A prep @ period and now, with split sessions, have a combined A prep @ and lunch period.

(c) By virtue of the increased number of pupils on split sessions, each seventh grade teacher has had a proportional increase in the number of reports to complete, and the number of homework assignments and pupil-parent conferences.

13. The length of the teaching periods for teachers on the split session in the seventh grade is 40 minutes per period so that six periods totals 240 minutes. A regular teacher, not on split session, teaches 49 minutes per period so that a teacher who teaches six periods teaches 294 minutes and a teacher who teaches five periods teaches 245 minutes. Thus, the A split session @ teacher teaches fewer minutes per day than the regular teacher.

14. The length of the school day for the A split session @ teacher is five hours and 40 minutes while the regular teacher = s school day is 7 hours and 30 minutes.

2. Did the Board negotiate in good faith with the Association with respect to the impact of split sessions upon the 12 affected seventh grade teachers?

It is the position of the Charging Party that the Respondent had an obligation to negotiate the decision to institute split sessions for the seventh grade for the 1976-77 school year. This obligation, the Charging Party contends, arises from Section 5.3 of the Act, which provides, in part, that: A ...Proposed new rules or modifications of existing rules governing working conditions shall be negotiated with the majority representative before they are established... @ The Charging Party also contends that the Board did not negotiate in good faith with respect to the impact of the decision to go on split session in the seventh grade. The Charging Party seeks monetary damages for the 12 seventh grade teachers with respect to the impact of the Board = s decision.

It is the position of the Respondent Board that it had no obligation to negotiate with the Charging Party with respect to the decision to go on a split session in the seventh grade for the school year 1976-77. The Respondent cites cases such as Burlington County College Faculty Association v. Board of Trustees of Burlington County College , 54 N.J . 10 (1973) and other decisions of P.E.R.C. in support of its position. The Board notes further that even assuming it was obligated to negotiate with respect to this decision the Charging Party is time-barred under Section 5.4(c). The Board contends finally, that it did negotiate in good faith with respect to impact and that considering the A totality @ of its conduct there was no violation of the Act.

The Decision of the Board to go
on Split Sessions for the Seventh

Grade was a Major Educational
Policy Decision

The Hearing Examiner concludes, based on decisions of the courts and P.E.R.C., that the February 1976 decision of the Respondent Board to go on split shifts for the seventh grade in the 1976-77 school year was a major educational policy decision and thus not mandatorily negotiable. See, for example, Burlington County College, supra; Rutgers, The State University, P.E.R.C. No. 76-13, 2 NJPER 13 (1976); Newark Firemen = s Union of New Jersey , P.E.R.C. No. 76-40, 2 NJPER 139 (1976); Board of Education of the Borough of Ridgefield, P.E.R.C. No. 77-9, 2 NJPER 284 (1976); and Green Brook Township Board of Education , P.E.R.C. No. 77-11, 2 NJPER 288 (1976). However, under the foregoing P.E.R.C. decisions the Board = s decision was permissively negotiable.

The Hearing Examiner is unable to conclude that the decision to go on split sessions was a A proposed new rule or modification of existing rules governing working conditions @ , as to which there would have to be mandatory negotiations with the Association before institution of the decision, as provided in Section 5.3 of the Act. A decision to place teachers on split sessions is clearly the discharge of an educational function of the Board and not the proposal of a new rule or the modification of existing rules governing working conditions. The matter of impact upon working conditions, as to which there is a mandatory obligation to negotiation, will be discussed hereinafter.

Further, the Hearing Examiner is of the opinion, and concludes, that even if the February 1976 decision of the Board to go on split sessions in the seventh grade was mandatorily negotiable, the Association would have had to file a charge of unfair practices within the six-month limitation period established by Section 5.4(c) of the Act, or, by September 1976. The Association did not file charges of unfair practices until April 12, 1977, a date clearly beyond the six-month period.

The Respondent Board Negotiated in
Good Faith with Respect to the Impact

of the Decision to go on Split Sessions
and did not Violate the Act

Considering the negotiating conduct of the Respondent Board, in its totality, in the light of applicable authorities, infra , the Hearing Examiner is of the opinion that the Board fulfilled its collective negotiations obligation to the Association and did not negotiate in bad faith. See State of New Jersey and Council of New Jersey State Colleges, etc ., E.D. No. 79, 1 NJPER 39, aff = d., State of New Jersey v. Council of New Jersey State College Locals, etc ., 141 N.J. Super. 470 (App. Div. 1976) and Township of Hillside , P.E.R.C. No. 77-47, 3 NJPER 98 (1977).

In State of New Jersey, supra , the Executive Director of the Commission refused to issue a Complaint upon a charge alleging that the State = s failure to acquiesce during negotiations on salaries and fringe benefits constituted A bad faith bargaining @ . The Executive Director, drawing upon established principles of labor law in both the private and public sectors, found that: A It is necessary to subjectively analyze the totality of the parties = conduct in order to determine whether an illegal refusal to negotiate may have occurred...The object of this analysis is to determine the intent of the respondent, i.e., whether the respondent brought to the negotiating table an open mind and a sincere desire to reach an agreement, as opposed to a predetermined intention to go through the motions, seeking to avoid, rather than reach, and agreement. @ (Emphasis supplied). (1 NJPER 40).

The Executive Director then went on to note as follows:

It is well established that the duty to negotiate in good faith is not inconsistent with a firm position on a given subject. > Hard bargaining = is not necessarily inconsistent with a sincere desire to reach an agreement. An adamant position that limits wage proposals to existing levels is not necessarily a failure to negotiate in good faith. Were the State to have been inflexible on the salary issue, which it appears not to have been, a refusal to negotiate in good faith would not be found without an evaluation of its conduct throughout the negotiations on all issues. (Emphasis supplied). (1 NJPER 60)

The Executive Director concluded in State of New Jersey, supra , that while the State had been adamant on the issue of salaries it had given reasons for its position, and no indication of a desire or intention not to reach an agreement could be found, which might constitute a refusal to negotiate in good faith.

So, too, did the Commission conclude in Township of Hillside, supra , that A ...the totality of the Township = s bargaining conduct reveals no violation of the duty to bargain in good faith... @ (Emphasis supplied).

The facts in the instant case indicate clearly, that based upon the totality of the Board= s conduct in negotiations, there was no element of bad faith manifested. As indicated in the foregoing Findings of Fact, there were three or four negotiation sessions between September and December 1976 where the subject was the A impact @ upon the 12 seventh grade teachers who went on split sessions as of September 1976. Under date of October 19, 1976, the Association presented to the Board five proposals for resolving the matter of impact. The Board made a response to each of the five proposals and agreed to the fifth proposal, namely that substitute split session teachers be paid $6.00 per period, and the Board is currently making such payment.

It is true that the Board did not make written counter- proposals. There is nothing in the law of collective negotiations under P.E.R.C., or in any other jurisdiction, that requires negotiations to be conducted by written proposals and counter-proposals. The significant thing in the instant case is that the Board made a response, in some detail, to each of the five Association proposals. It is also noted that the Association made an additional demand for $3,000 per year for each teacher on split session, and that the Board did counter- propose that it would grant compensatory time.

The Hearing Examiner notes that, on the record, there have been no negotiations on impact since December 1976. The parties did not indicate on the record any explanation for the cessation in negotiations and why, for that matter, there were only three to four meetings. There was no evidence adduced that the parties were at an impasse, and no Notice of Impasse has been filed with the Commission.

So much for the consideration of the totality of conduct of the Respondent Board in negotiations.

As noted previously, the Hearing Examiner has concluded that the decision to go on split sessions was a major educational policy decision, as to which the Board was under no obligation to negotiate. Stated another way, the decision of the Board herein was not a mandatory subject of negotiations. However, it is well settled under P.E.R.C. decisions that the decision of the Board in the instant case to go on split sessions was a permissive subject to negotiations, as to which the Board is free to negotiate with the Association if it so desires. It is equally well settled under P.E.R.C. decisions that, as to a permissive subject of negotiations, the impact of the permissive decision, upon terms and conditions of employment, Is mandatorily negotiable. See, for example, Board of Education of Tenafly, P.E.R.C. No. 76-24, 2 NJPER 75, 76 (1976); Council of New Jersey State College Locals, etc. and State of New Jersey (Stockton State College) , P.E.R.C. No. 76-33, 2 NJPER 147, 148 (1976); and City of Jersey City, P.E.R.C. No. 77-33, 3 NJPER 66, 68 (1976).

As concluded above, the Board has negotiated in good faith with respect to impact upon terms and conditions of employment of the 12 seventh grade teachers who were placed on split sessions for the 1976-77 school year. The Board has, thus, discharged its obligation to negotiate in good faith on a mandatorily negotiable subject.

Under the circumstances, and for the reasons stated above, it is concluded that the Association has failed to meets its obligation under the rules of the Commission that it prove the allegations in its complaint by a preponderance of the evidence: N.J.A.C. 19:14-6.8.

2. Based upon the totality of conduct of the Respondent Board in collective negotiations conducted by the parties hereto with respect to impact, the Respondent Board did not engage in bad faith negotiations.

3. The Respondent Board did not violate the provisions of N.J.S.A . 34:13A-5.4(a)(1) and (5) of the Act.

________________________

Alan R. Howe
Hearing Examiner

DATED: January 30, 1978
Trenton, New Jersey
1/ These subsections prohibit employers, their representatives or agents from: A (1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this Act. (5) Refusing to negotiate in good faith with a majority representative of employees in an appropriate unit concerning terms and conditions of employment of employees in that unit, or refusing to process grievances presented by the majority representative. @