H.E. NO. 80-8

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

CUMBERLAND COUNTY COLLEGE,

Respondent,

-and-	Docket No. CO-78-76-12

CUMBERLAND COUNTY COLLEGE

FACULTY ASSOCIATION,

Charging Party.

Appearances:

For the Respondent, Kavesh & Basile, Esqs.

(Frank G. Basile, Esq., Of Counsel)

For the Charging Party, Greenberg & Mellk, Esqs.

(Arnold M. Mellk, Esq., Of Counsel)

DECISION AND ORDER GRANTING

MOTION TO DISMISS COMPLAINT

Respondent moves to dismiss the Complaint herein before answer.1/

The outstanding Complaint2/ alleges that the Respondent, Cumberland County College, failed to provide Professor Costello with the salary increase for 1977-78 which was collectively bargained for and obtained pursuant to Article VI of the collective agreement between the parties. The Complaint further claims that Costello, as Assistant Professor II in the Business Department of the College, has been a member of the faculty there for eleven years and presently possesses a master in education degree, which degree is the sole requirement for eligibility for the position of Assistant Professor II under Article VIB of the agreement. The Complaint continues that on or about March 28, 1977, Costello filed a grievance under the agreement claiming breach in the omission of his salary increase. It concludes that the College withheld Costello's increase because of his "failure" to obtain an MBA degree notwithstanding provisions of the agreement and furthermore, that the Board of Trustees of the College has refused to process Costello's grievance notwithstanding the grievance procedures collectively bargained for at Article IX of the agreement. The foregoing conduct is alleged to have violated subsections (a)(1), (2), (3), (4) and (5).3/

In its motion, the Respondent College argues that the Commission has no jurisdiction to review the College's determination to withhold a salary "increment" of an individual teacher in reliance upon Bernards, supra. In Bernards, the Supreme Court held that even though the withholding of a salary increment "directly affect[s] the work and welfare" of public school teachers and is thus an intimate part of the compensation due a teacher for services rendered, since N.J.S.A. 18A:29-14 explicitly authorizes a local board to withhold an increment is a matter of essential managerial prerogative which has been delegated by the Legislature to the board and under the Court's decisions in Ridgefield Park Education Ass'n. v. Ridgefield Park Board of Education, 78 N.J. 144 (1978); State v. State Supervisory Employees Ass'n., 78 N.J. 54 (1978) and Dunellen Board of Education v. Dunellen Ed. Ass'n., 64 N.J. 17 (1973) may not be bargained away. Thus, the Court concluded in Bernards that the parties could not agree to binding arbitration of the dispute involving the withholding of a salary increment (although they could, and, according to the Court, did agree to advisory arbitration of the same dispute) since under the statute only the Commissioner of Education has the responsibility to review the board's decision.

The Charging Party, Cumberland County College Faculty Association, argues that the Commission has primary jurisdiction over the subject matter of the Complaint, even though the Commissioner of Education has concurrent jurisdiction, under the authority of City of Hackensack v. Winner, 162 N.J. Super. 1 (App. Div. 1978), certif. granted 78 N.J. 404 (1979), appeal pending Supt. Cvt. Docket No. 15,201.

Respondent counters in its supplemental reply memorandum that the principle enunciated by the Supreme Court in Dunellen rather than that relied upon by the Appellate Division in Hackensack should govern. In Dunellen the Court reversed the trial court's denial of restraint of arbitration of the issue of the school board's consolidation of two departments. The Supreme Court concluded that the Commissioner of Education had exclusive authority grounded upon the express language of N.J.S.A. 18:6-10 to hear dismissal proceedings which superceded the authority flowing from the general terms of N.J.S.A. 34:13A-5.3 authorizing the parties to agree on grievance procedures providing for "binding arbitration as a means of resolving disputes."

The subject matter of the dispute in Hackensack arose under N.J.S.A. 34:13A-5.4(a)(1) and (3), raising issues of interference with, and discrimination to discourage exercise of, the rights guaranteed to employees by the Act. The Court was careful to note that it was not dealing with the subject matter of promotion as a term and condition of employment, as to which subject the City of Hackensack had urged, under N.J.S.A. 11:21-1 and 3, the Civil Service Commission had exclusive jurisdiction, Id. at f.n. 12, page 12 of the Court's slip. op. The Civil Service Commission's concurrent jurisdiction was grounded by the Court in Hackensack on the New Jersey Constitution (N.J. Const., 1947, Art. VII sec. 1, para. 2), the merit and fitness provision, and on various statutory provisions including N.J.S.A. 11:4-1 and 2 and 21-1 providing Civil Service full authority to inquire into the bases for appointments and promotions in the State and local Civil Service, including the "good faith" of the appointing authority, N.J.S.A. 11:1-7d (power to enforce the acts and rules and regulations), 11:6-2(e) (Authority over all personnel procedures in classified service), 11:5-1(c), (d) (power to investigate and hear appeals of persons claiming discrimination) and 11:5-1(f) (authorizing, inter alia, procedures for consideration of disputes, grievances, complaints and proposals relating to the employer-employee relationship). No one provision of the Constitution or Statute granted specific authority over the subject matter of the Hackensack dispute, viz.. a discrimination in promotion flowing from anti-union animus, as it did in Dunellen. The Hackensack Court was also dealing with two final administrative orders resulting from two completed administrative proceedings and noted it would have applied the single controversy doctrine even if the record had not established the litigation of the discrimination issue in the Civil Service proceeding, Id. at pages 29 and 30 of the Court's slip. op. Finally, the Supreme Court has granted certiorari in Hackensack and the final disposition of that issue must await the Court's review. At the same time, the Commission, with Court approval, took the position in East Brunswick, supra, even before the Supreme Court determinations in Bernards and State Supervisory Employees that the unilateral withholding of a negotiated salary increase by a board of education constitutes an illegal subject of negotiations because subject to the exclusive authority of local boards as to the initial determination and the exclusive reviewing authority of the Commissioner of Education under N.J.S.A. 18A:29-14.

Both parties agree that the Chancellor of Higher Education has jurisdiction under N.J.S.A. 18A:29-14 to review the College's withholding of Professor Costello's salary increase "for inefficiency or other good cause". (See 18A:64A-13 granting teaching staff employees and administrative officers other than the president of the county college all the rights and privileges of teachers employed by local boards of education). Further, while the Respondent characterizes the dispute as involving denial of a salary "increment" and the Charging Party views the item as a salary "increase", it makes no difference4/ since East Brunswick has defined "the employment increment" and "the adjustment increment" under N.J.S.A. 18A:29-6 to encompass a negotiated salary increase.

I conclude that the Commission lacks jurisdiction over the subject matter of the outstanding Complaint, at least as to the subd. (a)(5) allegation, and, as the Complaint is inadequate as a matter of law with respect to all other allegations, the Respondent's Motion to Dismiss shall be granted.

With respect to the subd. (a)(5) allegation, drawing every inference in favor of the Charging Party, as required under the test enunciated in Township of North Bergen, P.E.R.C. No. 78-28, its best possible posture5/ still leaves it with the insurmountable handicap of a dispute over subject matter which a reading of Bernards and East Brunswick, taken together, teaches us is an exclusive matter for the College to determine, and for the Chancellor Higher Education to review.

It is the judgment of the undersigned that City of Hackensack may be appropriately distinguished for the reasons discussed, and, in any event, does not constitute a determination of the highest appeal Court in the State as does Bernards. While the subject matter here directly affects a term and condition of employment, Bernards and State Supervisory Employees state principles of law which cannot be avoided.

The Charging Party's claim at page 10 of its memorandum that East Brunswick did not involve a question of jurisdiction ignores the fact that both the Commission and Appellate Division determinations preceded Bernards. In light of Bernards, at least with respect to the subd. (a)(5) unfair practice portion of the consolidated proceeding, the Commission would be constrained to dismiss on jurisdictional grounds were East Brunswick to be decided today.6/ The Charging Party is also incorrect when it asserts at page 9 of its memorandum that this proceeding does not involve a question of negotiability. Central to the subd. (a)(5) allegation is the question as to whether the denial of a salary increase is a mandatory subject of negotiations. The Charging Party also cites Education Association of Passaic v. Passaic Board of Education, Docket No. A-3082-75 (App. Div. 3/25/77) (Unpublished Opinion) for the proposition that the unilateral withholding of a salary increment for failure to comply with a board policy requiring graduate credits imposes a standard of good cause beyond the requirements of N.J.S.A. 18A:29-14 ("inefficiency or other good cause") and is therefore within the scope of negotiations under the Act. While Charging Party concedes in its memorandum at f.n., page 11 that certain procedural aspects of the case are of questionable validity in light of State Supervisory Employees and Bernards, supra, I am compelled to conclude that its holding on the merits has been overruled as well. First, the Supreme Court in Bernards notes at page 8 of the slip. op. that "The precise question herein posed has already arisen in three suits aside from the present one" and cites Passaic among the three. Second, the Supreme Court at page 16 of the slip. op. concludes that even assuming the absence of an arbitration clause of any type, the parties could not have validly agreed to alter the "inefficiency or other good cause" standard by which the board and Commissioner are to gauge the propriety of withholding increments7/ not only because such an agreement would contravene the specific standard of evaluation established by N.J.S.A. 18A:29-14 and hence be unenforceable under State Supervisory Employees, but also because "such an agreement [would] impermissibly intrude upon matters of managerial prerogative." Thus, while recognizing the subject's direct affect upon wages, the Bernards Court is also saying that the matter of granting or withholding an increment is not a term or condition of employment as it involves factors of educational criteria and evaluation which only the employer may determine. Accordingly, the Passaic conclusion that a standard which exceeds the statutory test is thereby a term and condition of employment no longer has any validity.

The foregoing analysis concerns the subd. (a)(5) and derivative (a)(1) allegation. With respect to the subd. (a)(1), (2), (3) and (4) allegations, inasmuch as no specific allegations on interference with employee rights or discrimination related to anti-union animus appears in the Complaint, and, further, inasmuch as no claim relates to domination or interference with the Association's formation, existence or administration, and, finally, as Professor Costello's grievance8/ does not constitute the use of Commission procedures, these independent allegations shall likewise be dismissed. See Camden County Sheriff's Department and John Edward Koyak, D.U.P. No. 79-8, 4 NJPER 112 (para. 4052, 1978); See B & M Excavating, Inc., 155 NLRB 1152, 1160, 60 LRRM 1466 (1965) and Morris, The Developing Labor Law, BNA, 1971 at page 134.

ORDER

Accordingly, IT IS HEREBY ORDERED that the Complaint be, and it hereby is, dismissed in its entirety.

__________________________

Robert T. Snyder

Hearing Examiner

DATED:	September 14, 1979

Newark, New Jersey