H.E. No. 83-25

Synopsis:

A Hearing Examiner recommends that the Public Employment Relations Commission find that the Respondent Board violated Subsections 5.4(a)(1) and (5) of the New Jersey Employer-Employee Relations Act when its Superintendent made threatening and coercive statements to two of its nurses regarding the filing and processing of a grievance over the issue of interruptions in the taking of the duty-free lunch by school nurses and, further, the refusal of the Respondent Baord to negotiate with the Charging Party over the issue of additonal compensation for school nurses due to the foregoing interruptions. There exists ample Commission precedent regarding the conduct of the Superintendent and the refusal of the Board to negotiate a "workload" issue.

A Hearing Examiner's Recommended Report and Decision is not a final administrative determination of the Public Employment Relations Commission. The case is transferred to the Commission which reviews the Recommended Report and Decision, any exceptions thereto filed by the parties, and the record, and issues a decision which may adopt, reject or modify the Hearing Examiner's findings of fact and/or conclusions of law.

PERC Citation:

H.E. No. 83-25, 9 NJPER 173 (¶14081 1983)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

72.131 43.46 72.661

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- HE 83-025.pdf
Appellate Division:
Supreme Court:

H.E. NO. 83-25 1. H.E. NO. 83-25 1. NOTICE TO EMPLOYEES PURSUANT TO AN ORDER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION AND IN ORDER TO EFFECTUATE THE POLICIES OF THE NEW JERSEY EMPLOYER-EMPLOYEE RELATIONS ACT, AS AMENDED, We hereby notify our employees that: H.E. NO. 83-25 STATE OF NEW JERSEY BEFORE A HEARING EXAMINER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of SALEM CITY BOARD OF EDUCATION, Respondent, -and- Docket No. CO-82-242-9 SALEM TEACHERS ASSOCIATION, Charging Party. Appearances: For the Salem City Board of Education William C. Horner, Esq. For the Salem Teachers Association Selikoff & Cohen, Esqs., P.A. (Barbara E. Riefberg, Esq.) HEARING EXAMINER = S RECOMMENDED REPORT AND DECISION An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the A Commission @ ) on March 16, 1982, and amended on August 19, 1982, by the Salem Teachers Association (hereinafter the A Charging Party @ or the A Association @ ) alleging that the Salem City Board of Education (hereinafter the A Respondent @ or the A Board @ ) had engaged in unfair practices within the meaning of the New Jersey Employer- Employee Relations Act, as amended, N.J.S.A. 34:13A-1 et seq. (hereinafter the A Act @ ), in that the Respondent by its Superintendent threatened to cause a reduction in force of school nurses should a grievance be filed challenging the Superintendent = s directive of October 7, 1981, which mandated that school nurses must take lunch each day within the building to which they are assigned, and that on June 25, 1982 the Respondent by its Superintendent rejected a demand by the Charging Party to negotiate the issue of additional compensation for school nurses resulting from the Respondent = s directive of October 7, 1981, supra, all of which is alleged 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, as amended, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on July 26, 1982. Pursuant to the Complaint and Notice of Hearing, a hearing was held on December 1, 1982 in Trenton, New Jersey, at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. Oral argument was waived and the parties filed post-hearing briefs by January 24, 1983. An Unfair Practice Charge, as amended, having been filed with the Commission, a question concerning alleged violations of the Act, as amended, 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 1. The Salem City Board of Education is a public employer within the meaning of the Act, as amended, and is subject to its provisions. 2. The Salem Teachers Association is a public employee representative within the meaning of the Act, as amended, and is subject to its provisions. 3. The current collective negotiations agreement between the parties is effective from July 1, 1981 through June 30, 1984 (J-1). 4. School nurses are covered by the Recognition Clause (Article I) of the collective negotiations agreement (J-1, p. 1). 5. Under Article XIII, Section B, teachers (including school nurses) shall have a duty-free lunch period of not less than thirty (30) minutes (J-1, p. 15). The agreement does not specify where the duty-free lunch is to be taken. 6. Upon learning that all school nurses were not taking their duty-free lunch within their respective school buildings, the Superintendent on October 7, 1981 issued a directive that nurses were to be on duty for the full school day and that the duty-free lunch was to be taken within the school building to which they were assigned (J-2). 7. On October 9, 1981 a first-level grievance was filed under the agreement protesting the loss by the school nurses of the duty-free lunch period, in that they were unable to leave their school building for the said duty-free lunch. The said grievance was reduced to writing and formally filed on October 16, 1981 at level two (CP-1). The grievance was denied by the Superintendent at level three thereafter. The grievance was appealed to the Board at level four where the grievance was denied (R-1). Thereafter an effort by the Association to invoke arbitration was restrained by the Commission in a Scope of Negotiations proceeding, P.E.R.C. No. 82-116, 8 NJPER 355 (1982). 8. On October 15, 1981 the Superintendent, Frank J. Napoli, came to the office of school nurse Doris Dague when she indicated that the nurses were unhappy over the Superintendent = s directive of October 7, 1981, supra, requiring that the nurses take their duty-free lunch in their school building. Dague testified credibly that Napoli stated that if a grievance was filed and he lost he was going to A fire @ a nurse and that under State rules he was only required to have one nurse. 9. In or around the same time in October 1981 Napoli had a conversation with nurse Catherine J. Watford, to which her school Principal, Francis C. Ponti, was a witness. Napoli stated that he was aware that a grievance was going to be filed and that if it was pursued a nurse would be lost inasmuch as only one was required in the District. Ponti was called as witness and essentially corroborated Watford.2/ 10. On June 15, 1982 the President of the Association wrote to the Board demanding negotiations for increased compensation for school nurses as a result of their having to remain on school property during their duty-free lunch period, which had resulted from the Superintendent = s directive of October 7, 1981, supra, (J-3). 11. Under date of June 25, 1982 the Superintendent responded to the President of the Association, citing the decision of the Commission, supra, and refused to negotiate on the ground that he was exercising a management prerogative on behalf of the Board for the safety and welfare of the students (J-4). 12. Under date of June 8, 1982 the Superintendent sent a memo to the school principals and the school nurses suggesting that they get together to schedule a lunch period so that the nurses would not be interrupted, and indicating that if a nurse = s lunch was interrupted that it should be rescheduled for another 30-minute uninterrupted period (R-3). THE ISSUES 1. Did the Respondent Board independently violate Subsection (a)(1) of the Act when its Superintendent stated to nurses Dague and Watford in October 1981 that if a grievance was filed and processed regarding the nurses = lunch situation he intended to A fire @ or A cut @ a nurse since under A State rules @ he was only required to have one nurse for the entire District? 2. Did the Respondent Board violate Subsections (a)(1) and (5) of the Act when, upon demand, it refused to negotiate with the Charging Party over the issue of additional compensation for school nurses due to interruptions in their duty-free lunch? DISCUSSION AND ANALYSIS The Respondent Independently Violated Subsection (a)(1) Of The Act When Its Superintendent Stated To Two Nurses In October 1981 That If A Grievance Was Filed And Processed Regarding The Nurses = Lunch Situation He Intended To A Fire @ or A Cut @ A Nurse Since He Was Only Required To Have One Nurse For The Entire District The Respondent contends that the Charging Party has failed to prove by a preponderance of the evidence that Superintendent Frank Napoli made certain statements to nurses Dague and Watford in October 1981 with respect to what would happen if a grievance was filed and processed regarding the nurses = duty-free lunch situation. The Hearing Examiner finds and concludes that the Charging Party has met its burden of proof by eliciting from three witnesses, nurses Dague and Watford and Principal Francis Ponti, testimony that Napoli stated to Dague and Watford that if a grievance was filed and processed regarding the nurses = lunch situation he intended to A fire @ or A cut @ a nurse since under State rules he was only required to have one nurse for the entire school District. The Hearing Examiner likewise has no problem in finding that the Superintendent = s statements to Dague and Watford were coercive and constituted an independent violation of Subsection (a)(1) of the Act. Public employer statements and actions, which are designed to discourage the filing and processing of grievances have consistently been found to be violative of the Act: North Brunswick Township Board of Education, P.E.R.C. No. 79-14, 4 NJPER 451 (1978), aff = d. App. Div. Docket No. A-698-78 (1979); Commercial Township Board of Education, P.E.R.C. No. 83- 25, 8 NJPER 550 (1982), appeal pending; Trenton Board of Education, P.E.R.C. No. 80-130, 6 NJPER 216 (1980); and Clinton Township Board of Education, P.E.R.C. No. 78-45, 4 NJPER 78 (1978). The Commission in North Brunswick, supra, stated that individual employee conduct relating to enforcing a collective negotiations agreement and existing working conditions constitutes protected activity under the Act (4 NJPER at 453, footnote 16). The Respondent argues that it is insulated from any illegal conduct by its Superintendent since the Superintendent was not authorized by the Respondent to initiate conversations with Dague and Watford, nor was the Respondent aware that Superintendent had done so, and, finally, the Respondent has not ratified the conduct of its Superintendent. In this regard, it is first noted that Dr. Napoli, as Superintendent, is the chief administrative officer of the School District and is authorized by the Respondent Board to utilize his discretion in the conduct of the daily activities of the District. Clearly, many of his activities on a day-to-day basis are not separately authorized by the Board. The Commission recently rejected a like defense by a Board with respect to the conduct of its Superintendent in Commercial Township, supra. There the Superintendent had written a threatening letter to an employee and the Board objected that it should not be held responsible for this action of it Superintendent. In rejecting the Board = s position, the Commission noted that the writing of the letter in question was in connection with the discharge by the Superintendent of his normal duties, just as in the instant case, where the conversations of Superintendent Napoli with Dague and Watford were clearly within the scope and course of his duties. In finding a violation in Commercial Township, supra, it was held that in determining Board culpability there was no requirement that it formally ratify or even be aware of the illegal threats made by its chief administrative officer. For all of the foregoing reasons, the Hearing Examiner concludes that the Board independently violated Subsection (a)(1) of the Act by the statements of its Superintendent to nurses Dague and Watford. The Respondent Board Violated Subsections (a)(1) And (5) Of The Act When, Upon Demand, It Refused To Negotiate With The Charging Party Over The Issue Of Additional Compensation For School Nurses Due To Interruptions In Their Duty-Free Lunch The Commission in Salem City Board of Education, P.E.R.C. No. 82-115, 8 NJPER 355 (1982), a A scope case, @ stated in footnote 8 that it was not addressing the negotiability of any claim for additional compensation by the nurses in connection with their 30-minute duty-free lunch. Thus, that issue is properly before the Hearing Examiner in this proceeding. The Respondent argues that there is no A workday @ or workload increase since the collective negotiations agreement between the parties provides for a 7-hour, 34-minute workday, which has not been increased (see J-1: Article XIII, Section A.4). Further, the Respondent contends that there is no workload increase since the work of the nurses remains the same. Finally, the Respondent points out that the request for negotiations (J-3) refers only to the A inconvenience @ to the nurses in having to remain on school property during their duty-free lunch, which, it argues, is a de minimis violation of the Act at most. The Respondent Board cites two cases involving Randolph Township where the Commission held that even though there was a unilateral increase in workload it was permitted under the language of the contract: Randolph Township Board of Education, P.E.R.C. No. 83-41, 8 NJPER 600 (1982) and P.E.R.C. No. 81-73, 7 NJPER 23 (1980). In these cases, as well as the cases cited therein by the Commission, there was an actual increase in the work required of the affected employees, which fell within the overall number of hours and minutes in the workday as defined by the contract. Thus, the Randolph cases are not dispositive or really pertinent to the issue herein since there is no question of additional minutes of work being added within the 7-hour, 34- minute workday as defined in J-1, supra. Rather, there is an alleged contraction in the 30-minute duty-free lunch, which is not able to be made up by the nurses during the balance of the workday. In connection with the Board = s contention that the Charging Party seeks merely to negotiate A inconvenience, @ the Hearing Examiner notes the testimony of two of the three nurses that regular interruptions in their lunch period occur during the week and they are unable to recoup the time lost during the balance of the workday. Thus, the record suggests that there is some actual time lost during the 30 minutes of the duty-free lunch for some or all of the nurses. This clearly goes to issue of increased workload and is mandatorily negotiable: Newark Board of Education, P.E.R.C. No. 79-24, 4 NJPER 486 (1979), P.E.R.C. No. 79-38, 5 NJPER 41 (1979), aff = d. Docket No. A-2060-78 (App. Div. 1980); Bridgewater-Raritan Regional Board of Education, P.E.R.C. No. 81-35, 6 NJPER 449 (1980); and Dover Board of Education, P.E.R.C. No. 81-110, 7 NJPER 161 (1981). The Hearing Examiner does not agree with and rejects the Board = s citation of Maywood Board of Education, 168 N.J. Super. 45 (App. Div. 1979) as having any bearing on the instant proceeding. Maywood held, inter alia, that where a RIF occurs the impact on the terms and conditions of employment of the remaining employee is non-negotiable. Plainly, no RIF is involved herein. Further, there is no State regulation involved in this case which is pertinent to the workload issue. Thus, the Hearing Examiner fails to perceive the applicability of Bethlehem Township Board of Education v. Bethlehem Township Education Association, 91 N.J. 38 (1982), which is cited by the Respondent Board. Finally, the A zipper @ clause in the collective negotiations agreement between the parties (see J-1: Article II, Section F) does not, in the opinion of the Hearing Examiner, constitute a A clear and unmistakable @ waiver of the right of the Charging Party to negotiate over an alleged contraction in the duty-free lunch of the school nurses: See State of New Jersey, P.E.R.C. No. 77-40, 3 NJPER 78 (1977), aff = d. Docket No. A-2681-76 (App. Div. 1978). The Charging Party correctly points to the controlling Commission decision on zipper clauses and negotiations: New Brunswick Board of Education, P.E.R.C. No. 78- 56, 4 NJPER 156 (1978), aff = d. Docket No. A-2450-77 (App. Div. 1979). Commenting on the basic purpose of A zipper @ clauses, the Commission there said: A ...Thus, an employer can rely on such clauses to refuse to bargain on any new proposals, whether previously discussed or not, for the life of the agreement, but it cannot utilize them to assert a right to make changes in the status quo without new negotiations... @ (4 NJPER at 157) (Emphasis supplied). See also, Clifton Board of Education, P.E.R.C. No. 80-104, 6 NJPER 103 (1980). There being, in the opinion of the Hearing Examiner, an arguable increase in the workload of some or all of the nurses due to interruptions during the duty-free lunch period, and workload being mandatorily negotiable, the Hearing Examiner will recommend that the Respondent Board negotiate with the Charging Party over the subject. * * * Upon the entire record in this case, the Hearing Examiner makes the following: CONCLUSIONS OF LAW 1. The Respondent Board independently violated N.J.S.A. 34:13A-5.4(a)(1) when its Superintendent in October 1981 made threatening and coercive statements to nurses Doris Dague and Catherine J. Watford regarding the filing and processing of a grievance as to the nurses = lunch situation. 2. The Respondent Board violated N.J.S.A. 34:13A- 5.4(a)(5), and derivatively 5.4(a)(1), when, upon demand, it refused to negotiate with the Charging Party over the issue of additional compensation for school nurses = interruptions in their duty-free lunch. 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 the conduct of its agents and representatives in making coercive and threatening statements to employees regarding the filing and processing of grievances and further, refusing to negotiate in good faith with the Charging Party over the issue of additional compensation for school nurses due to interruptions in their duty-free lunch. 2. Refusing to negotiate in good faith with the Charging Party regarding the issue of additional compensation for school nurses due to interruptions in their duty-free lunch. B. That the Respondent take the following affirmative action: 1. Post in all places where notices to employees are customarily posted, copies of the attached notice marked as Appendix A 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 by the Respondent Board to insure that such notices are not altered, defaced or covered by other materials. 2. Notify the Chairman of the Commission within twenty (20) days of receipt what steps the Respondent Board has taken to comply herewith. /s/Alan R. Howe Hearing Examiner DATED: January 27, 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 the conduct of our agents and representatives in making coercive and threatening statements to employees regarding the filing and processing of grievances and, further, refusing to negotiate in good faith with the Charging Party over the issue of additional compensation for school nurses due to interruptions in their duty-free lunch. WE WILL NOT refuse to negotiate in good faith with the Charging Party regarding the issue of additional compensation for school nurses due to interruptions in their duty-free lunch. 1/ These Subsections prohibit public 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. @ 2/ Napoli denied making the statements attributed to him by Dague and Watford. The Hearing Examiner does not credit Napoli = s denials in view of the consistent testimony of Dague, Watford and Ponti and his observation and appraisal of the demeanor of the respective witnesses. Docket No. (Public Employer) Date: By: This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced or covered by any other material. If employees have any question concerning this Notice or compliance with its provisions, they may communicate directly with the Public Employment Relations Commission, 495 West State Street, PO Box 429, Trenton, NJ 08625-0429 (609) 984-7372 APPENDIX A A @ ***** End of HE 83-25 *****