H.E. NO. 84-1

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

BOARD OF EDUCATION OF THE ESSEX

COUNTY VOCATIONAL SCHOOLS,

Respondent,

-and-	Docket No. CO-82-39-127

ESSEX COUNTY VOCATIONAL &

TECHNICAL TEACHERS' ASSOCIATION,

Charging Party.

Appearances:

For the Respondent

Schwartz, Pisano & Simon, Esqs.

(Nathanya G. Simon, of Counsel)

For the Charging Party

Rothbard, Harris & Oxfeld, Esqs.

(Arnold S. Cohen, of Counsel)

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

An Unfair Practice Charge was filed with the Public Employment Relations Commission (the "Commission") on August 26, 1981 by the Essex County Vocational and Technical Teachers Association (the "Charging Party" or the "Association") alleging that the Board of Education of Essex County Vocational Schools (the "Respondent" or the "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. (the "Act") in that since 1975 the Respondent's technical and vocational school conducted 11-month training programs requiring an 11-month school year, that professional staff members were required to agree to work 11 months, and that the Respondent unilaterally and without negotiations with the Charging Party refused to employ professional staff members in July 1981 and did not compensate these employees for that month. The Charging Party alleged this to be a violation of N.J.S.A. 34:13A-5.4(a)(1) and (5) of the Act.1/

It appearing that the allegations of the Unfair Practice Charge, if true, may constitute unfair practices within the meaning of the Act, the Director of Unfair Practices issued a Complaint and Notice of Hearing on May 19, 1982. On June 4, 1982 the Board filed an Answer denying the allegations of the charge and raising affirmative defenses that the employees were employed on a ten-month basis with an optional eleventh month of work offered at the Board's option and subject to Board approval and that the Board exercised a managerial prerogative to close the Center in July and August 1981.

Pursuant to the Complaint and Notice of Hearing, a hearing was held on October 28, 1982, in Newark, New Jersey, at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. Post-hearing briefs and reply brief were filed by December 19, 1982.

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 of 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:

FINDINGS OF FACT

The Board of Education of Essex County Vocational Schools is a public employer within the meaning of the Act and is subject to its provisions. The Essex County Vocational and Technical Teachers Association is a public employee representative within the meaning of the Act and is subject to its provisions.

Since 1974 the Board has provided post-secondary technical and vocational education at the Technical Guidance Center (the "Center"). The Center was financed in part by a grant from the U.S. Department of Commerce. Under the terms of this grant the Board had been required to remain open "the entire year." (J-3 in Evidence)

Initially, in 1975, the Center provided a continuous 12-
month school program. After about two years the Board received permission from the Federal Government to reduce the school year to eleven months, according to School Superintendent George O'Connor. (Tr. pp. 40, 41) On April 30, 1979, at the request of the Board, the Department of Commerce amended the grant and eliminated the requirement that the Center remain open "the entire year." (J-5 in Evidence)

All full-time instructors at the Center have signed ten-
month contracts of employment. Since 1975, with limited exceptions discussed below, the teachers have worked an eleventh month and are paid 1/10th of their annual salary for that month.2/

The Superintendent testified credibly that he described the work year to teachers in their initial job interview as follows:

I cannot recall the specific words, but I can indicate to you that at the time of interview knowing there would be summer employment that I would certainly not deny the fact that I encouraged those people that I spoke to to take the summer employment for very obvious reasons. This was a continuing program. If we had to look for substitutes during that period of July/August, there could very easily be a breakdown in the continuity of the program, and I, as the person in charge of personnel and to a degree in charge of the program at that particular time, I certainly would encourage those people that I was interviewing for a 10-month position to take the opportunity of adding an additional month of salary and the continuity of the program, I would not deny that.

Q.	Now, did you go to the Board each summer for approval for the summer programs in staffing?

A.	I went to the Board each summer, prior to each summer, requesting permission to operate the program and requesting permission to employ those people who had indicated their intent to work for the summer. This followed the same practice as started in 1974 when Mr. Andrasko was superintendent.

The Superintendent recalled only two instances in which a staff member did not work an eleventh month prior to 1980. On April 28, 1980 eleven professional staff members at the Center were advised that a reduction in force had been authorized by the Board because of budgetary constraints and that their employment was terminated effective June 30, 1980. These employees were then rehired as of September 1, 1980 for the 1980-81 school year. The Center did remain open in July sans the eleven teachers.

This action was the subject of a proceeding before the Commission. In Board of Education of Essex County Vocational Schools, P.E.R.C. No. 81-102, 7 NJPER 144 (¶12063 1981) ("Essex County Vo Tech case") the Commission found the Board violated the Act by terminating professional staff employees prior to the end of their work year and rehiring them for the next school year.

In July 1981, with one exception, the Center program did not operate. The one exception is the practical nursing program which was continued during the summer in order to meet State licensing requirements.

The following 22 employees were employed at the Center during the 1980-81 school year, but did not work at the Center during the summer of 1981 and were not paid for any summer employment: Sam Cardinale, Corinne Carpenter, Stanley Cossley, Phyllis DeCosta, Edward Logue, Leroy Lynch, Mary Ann Lynch, Paul Nadolski, Charles Nankwell, Anthony Napolitano, Anthony Rosato, John Russo, George Sigmund, Arnold Talbot, George Theos, Wayne Williams, Robert Beach, Norma Del Sordi, Charles Scheller, Carol Caprio, Fred Kanig, Rosa Thornton.3/ Carol Caprio, Fred Kanig and Rosa Thornton are guidance counsellors.

The teachers and guidance counsellors are represented by the Association and are included in the recognition clause of a collective negotiations agreement between the parties (J-2 in Evid.). The one reference to the length of school year covers guidance counsellors.

Schedule E provides:

Guidance Counselors will be on the Teacher Salary ten (10) month schedule and shall be required to be on duty from September 1 to June 30; however, their pay for the summer coverage if required to work shall be computed in the regular manner on the basis of their base salary.

There were no negotiations between the Board and the Association concerning the closing of the Center for July 1981.4/

DISCUSSION AND ANALYSIS

The Association argues that the doctrine of collateral estoppel should be applied to this case because the same issue was litigated in the prior Essex County VoTech case and that this subsequent action raises the same factual and legal issues as the prior action. Counsel for the Respondent notes that the Hearing Examiner in the prior Essex County VoTech case pointed out that if it had been established that there was "no employment opportunity for the instant employees in July 1980" his conclusion might have been otherwise. I agree with the Hearing Examiner only to the extent that this case is not appropriate for the application of collateral estoppel because there are other factual issues that have been litigated in this case.

The Appellate Division said in In re Piscataway Twp Bd/Ed, 164 N.J. Super. 98, 100:

We have no doubt that the matter of length of work year and its inseparable concomitant - compensation - are terms and conditions of employment, within the Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq., and consequently the subject of mandatory negotiations before being put in effect by a public employer.

The dispute in this case is not whether length of work year is a mandatory subject of negotiations but rather what the length of the work year was for these 22 employees.

The Respondent points out that while the Commission and the courts have found length of work year to be negotiable, the Commission has distinguished cases where employees worked a particular work year and were offered a separate position for a summer program as in the case of Caldwell-West Caldwell, P.E.R.C. No. 79-89, 5 NJPER 226 (1979).

Respondent argues that these are ten-month employees who sign a ten-month contracts of employment and are offered an extra month of employment each summer. To further support this argument Respondent relies on the contractual language set out in the findings of fact, together with the fully bargained clause of the contract. (Article XXXIII of J-2 in Evid.) The one reference to length of work year in the contract is in the guidance counselor provision. That section refers to a Teachers Salary ten (10) month schedule; however, there is no other reference to a teachers salary ten month schedule in the contract.

The undersigned cannot conclude that a contractual reference to a "ten month schedule" defines the length of the work year.5/

The court and the Commission have found it necessary at times in analyzing an issue in dispute to look beyond what a party labels a dispute and examine the facts surrounding the matter. The Appellate Division noted in Newark Bd of Ed and Newark Teachers Union, Local #481, AFT, AFL-CIO, P.E.R.C. No. 79-
24, 4 NJPER 486 (¶4221 1979), P.E.R.C. No. 79-38, 5 NJPER 41 (¶10026 1979), affmd App. Div. No. A-2060-78 (2/26/80):

The Board's initial contention is that PERC avoided the abstract legal issue presented and looked instead at the factual issue alleged by the union in its original grievance....It is clear that in order for PERC to define the subject matter in dispute and isolate the abstract issue presented it must look to the grievance.

Here too, the undersigned feels it is necessary to define the issue in dispute by examining all the facts.

When Essex County VoTech reduced the length of the school year in 1980 of eleven teachers at the Center they called it a reduction in force (RIF). The Commission found the action not to be a RIF but a unilateral reduction in the work year.6/ The Commission in the prior Essex County VoTech case also rejected the Board's argument that Caldwell-West Caldwell was controlling. In the Caldwell-West Caldwell case the Hearing Examiner found that the ten-month employee had a continuity in his year-long regular employment duties during the summer and recommended that the Commission find the employer violated the Act by reducing the summer work schedule. The Commission rejected the Hearing Examiner's finding of a continuity of the employee's regular employment and found the summer programs to be a separate program.

While the employees are called "ten-month employees," Essex County VoTech had no separate summer program. Since as early as 1975 and continuing therefrom (with the minor exceptions noted in the findings of fact) the length of the regular school year for these employees was at least eleven consecutive months. The personnel "customarily...work a full year," Piscataway, supra, at 101. Therefore, I find the length of their work year in 1981 to have been eleven months and that it was unilaterally reduced to ten months.

I do not find the fact that the work year was reduced for all the employees (except those in the nursing program) distinguishes this case from the prior Essex County VoTech work year case.7/ As the Commission said in East Brunswick Bd/Ed and East Brunswick Ed/Assn, P.E.R.C. No. 82-14, 8 NJPER 320 (¶13145 1982), "[w]e do not dispute that the Board may have good reasons for wishing to reduce the work year...[the cases] require it to negotiate to impasse or agreement before doing so." at 321.

Therefore, on the basis of the entire record, I recommend the Commission find that the Board of Education of the Essex County Vocational Schools violated §5.4(a)(5) and derivatively 5.4(a)(1) when it unilaterally and without negotiations reduced the length of the work year for 22 professional staff members employed at the Technical Guidance Center and refused to employ them in July 1981 and did not compensate them for that month.

RECOMMENDED ORDER

The Hearing Examiner recommends that the Commission ORDER:

A.	That the Respondent Board cease and desist from:

1.	Interfering with, restraining or coercing its employees in the exercise of the rights guaranteed to them by the Act, particularly, by refusing to negotiate in good faith with the Essex County Vocational and Technical Teachers Association regarding its professional staff employees, who had the length of their work year reduced by one month in July 1981.

2.	Refusing to negotiate in good faith with the said Association concerning terms and conditions of employment of employees in the unit represented by the Association regarding the length of the work year.

B.	That the Respondent Board take the following affirmative action:

1.	Forthwith make the 22 employees of the professional staff employed at the Respondent's Technical Career Center and identified in the findings of fact whole for lost wages, less income received in mitigation, with interest at a rate of 12% per annum from the month of July 1981.

2.	Post at all places where notices to employees are customarily posted, copies of the attached notice marked as 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 a period of at least sixty (60) consecutive days thereafter. Reasonable steps shall be taken by the Respondent Board to ensure that such notices are not altered, defaced or covered by other material.

3.	Notify the Chairman of the Commission within twenty (20) days of receipt what steps the Respondent Board has taken to comply herewith.

/s/Joan Kane Josephson

Hearing Examiner

DATED:	July 1, 1983

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, particularly, by refusing to negotiate in good faith with the Essex County Vocational and Technical Teachers Association regarding our professional staff employees, who had the length of their work year reduced by one month in July 1981.

WE WILL NOT refuse to negotiate in good faith with the said Association concerning terms and conditions of employment of employees in the unit represented by the Association regarding the length of the work year.

WE WILL forthwith make the 22 employees of the professional staff employed at the Respondent's Technical Career Center and identified in the findings of fact: Sam Cardinale, Corinne Carpenter, Stanley Cossley, Phyllis DeCosta, Edward Logue, Leroy Lynch, Mary Ann Lynch, Paul Nadolski, Charles Nankwell, Anthony Napolitano, Anthony Rusato, John Russo, George Sigmund, Arnold Talbot, George Theos, Wayne Williams, Robert Beach, Norma Del Sordi, Charles Scheller, Carol Caprio, Fred Kanig, and Rose Thornton, whole for lost wages, less income received in mitigation, with interest at a rate of 12% per annum from the month of July 1981.