D.U.P. NO. 2001-10

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF UNFAIR PRACTICES

In the Matter of

OCEAN COUNTY COLLEGE,

Respondent,

-and	Docket No. CO-2000-163

ADMINISTRATIVE SUPERVISORS ASSOCIATION

OF OCEAN COUNTY COLLEGE,

Charging Party.

Appearances:

For the Respondent

Berry Kagan Sahradnik Kotzas & Riordan, attorneys

(Seymour Kagan, of counsel)

For the Charging Party

Bergman & Barrett, attorneys

(Michael T. Barrett, of counsel)

REFUSAL TO ISSUE COMPLAINT

On December 15, 1999 and January 11, 2000, the Administrative Supervisors Association of Ocean County College (Association) filed an unfair practice charge and amended charge, respectively, with the Public Employment Relations Commission against the Ocean County College (College). The Association alleges that the College violated the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq.; specifically 5.4a(1), (2), (5) and

(7)1/ when in September 1999 the College hired a dean of mathematics and science and unilaterally granted the new employee a stipend for additional duties which established a salary for the employee beyond that permitted by the parties' collective negotiations agreement. The Association alleges that the additional duties do not exist and that the College has failed to negotiate over the salary for the position at issue.

The Association also alleges that, in establishing employee starting salaries, the College is granting a limited amount of credit for prior experience while granting greater credit for military service.2/ The Association alleges that the effect of the College's application of the military service credit is to award compensation which was not negotiated with the Association.

The Association also asserts that the alleged actions of the College tend to interfere with the existence and administration of the unit by circumventing the parties' collective negotiations agreement.

1/	These provisions 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. (2) Dominating or interfering with the formation, existence or administration of any employee organization. (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. (7) Violating any of the rules and regulations established by the commission."

2/	This allegation appears to be unrelated to the hiring of the mathematics and science dean.

The College denies violating the Act. It argues that the parties' collective agreement permits it to set starting salaries within the pay ranges established by the agreement. Further, it asserts that it has sole discretion to assign additional duties and to set appropriate stipends for those duties. Finally, the College argues that the charge alleges at most, a breach of the parties' collective agreement, not a violation of the Act.

The Commission has authority to issue a complaint where it appears that the Charging Party's allegations, if true, may constitute an unfair practice within the meaning of the Act. N.J.S.A. 34:13A-5.4c; N.J.A.C. 19:14-2.1. The Commission has delegated that authority to me. Where the complaint issuance standard has not been met, I may decline to issue a complaint. N.J.A.C. 19:14-2.3. In correspondence dated October 23, 2000, I advised the parties that I was not inclined to issue a complaint in this matter and set forth the basis upon which I arrived at that conclusion. I provided the parties with an opportunity to respond. On November 2, 2000, the Association filed a supplemental response in which it disagreed with the conclusion suggested in my October 23, 2000 letter. No new information to support the charge was proffered in the Association's November 2 response. Based upon the following, I find that the complaint issuance standard has not been met.

The Association and the College are parties to a collective negotiations agreement which covers the period July 1, 1996 through

June 30, 2002. Article I of the agreement sets forth the positions represented by the Association. The dean of mathematics and science is included in the unit represented by the Association.

Article M of the parties' agreement, Compensation, at paragraphs two (2) and four (4) provides:

2. Salary Placement Upon Employment - Each newly hired administrator covered by this Agreement shall be placed within an entry level range. The entry level range shall be as follows:

Effective Date Minimum Maximum Effective Date Minimum Maximum

July 1, 1996 $40,400 $53,400 July 1, 1999 $41,624 $54,624

July 1, 1997 $40,804 $53,804 July 1, 2000 $42,040 $55,040

July 1, 1998 $41,212 $54,212 July 1, 2001 $42,461 $55,461

The Board of Trustees retains the exclusive right to place newly hired administrators within the entry level range. The placement of newly hired administrators within the entry level range shall not be subject to the grievance procedures of this Agreement. This section shall be prospective only.

4. Pay Adjustments for Added Duties - Occasionally, it becomes necessary to assign additional responsibility to an administrator, either on a temporary or a permanent basis. When this occurs the area Vice President and the Vice President of Personnel shall evaluate the impact of the additional responsibility. Issues of consideration shall include, but not be limited to, (a) additional employees supervised, (b) additional non-salary operating budget, (c) duties added to job description, (d) duties removed from job description, and (e) available comparative data. The area Vice President and the Vice President of Personnel shall submit a recommendation for a pay adjustment, based on the evaluation, to the President of the College for his/her consideration. The Vice President of Personnel shall provide written notice of the disposition of all recommendations for pay adjustment. This provision supersedes board Policy/Procedure #3310.

The dean of mathematics and science, hired in mid-June 1999, was given a starting salary of $49,479, an amount which the Association acknowledges is within the range set forth in the above provision of the parties' contract. The College president entered into an agreement with the new dean establishing the dean's extra duties and setting a stipend of $8,789 for the period July 1, 1999 through June 30, 2000 as compensation for the added duties.

As to the second part of the instant charge, the Association asserts that the College's application of credit for military service at a greater level than credit for prior employment constitutes compensation without negotiation and ignores or "bypasses" the terms of the collective agreement. The Association asserts that the agreement permits new employees to obtain credit for prior employment or military service or experience. However, other than the above-quoted language in Article M, Compensation, the parties' collective agreement is silent as to how compensation levels are determined.

ANALYSIS

The Association has alleged that the College violated 5.4a(5) and, derivatively, 5.4a(1) when it awarded a stipend for additional duties to the newly-hired dean of mathematics and science without first negotiating with the Association. The Association maintains that the extra duties are fictional. The Association refers to Article M of the parties' collective agreement to support

its argument that the stipend, as awarded, was outside the parties' agreement and, therefore, the College had an obligation to negotiate over the Dean's compensation. The College points to the same contract clause as authorizing it to set the dean's starting salary, to determine additional duties, and to establish a concomitant stipend.

In State of New Jersey (Department of Human Services), P.E.R.C. No. 84-148, 10 NJPER 419, 421 (¶15191 1984), the Commission held that:

...a mere breach of contract claim does not state a cause of action under subsection 5.4(a)(5) which may be litigated through unfair practice proceedings and instead parties must attempt to resolve such contract disputes through their negotiated grievance procedures.

In the instant case, the parties' have, at best, a good faith dispute over the interpretation of Article M, paragraph 4, of their existing contract. Under Human Services, when both parties reasonably rely upon language contained in the collective agreement for their actions, the Commission will not entertain an alleged violation of 5.4a(5) of the Act. Here, the Association acknowledges that the new dean's base salary was within the contractual range. The collective agreement appears to permit stipends for additional duties. The parties disagree over whether the dean was actually assigned additional duties which would entitle the dean to a stipend under the agreement. That dispute may be resolved through resort to the agreement's grievance procedure.

Both parties rely on their respective interpretations of Article M, paragraph 4 of the collective agreement. While the Association asserts that the contract clause is specific in support of its allegation that the College is required to negotiate over stipends, the College argues that the same clause affords it sole discretion to act in this context. Thus, I find that this dispute over the College's award of the additional duties stipend to the newly hired dean represents nothing more than an alleged breach of contract.

The Association frames its charge with reference to the stipend as the College's alleged attempt to "ignore" and/or bypass the contract. To the extent that the Association seems to be alleging that the College has repudiated the parties' collective agreement, I find that there are no facts to support such a claim. In Human Services, the Commission observed that a specific claim that an employer has repudiated an established term and condition of employment may be litigated in an unfair practice proceeding pursuant to subsection 5.4a(5). A claim of repudiation may be supported by a contract clause that is so clear that an inference of bad faith arises from a refusal to honor it, or by facts alleging that the employer has changed the parties' past and consistent practice in administering a disputed clause. Human Services.

Here, there is no allegation that the College has changed the parties' past practice in administering the disputed clause. Thus, this analysis focuses on the parties' contract clause for a

determination as to whether the College repudiated the collective agreement in violation of 5.4a(5) and, derivatively, a(1) of the Act.

The College relies on the language of Article M, paragraph 4, to support how and why it established the dean's stipend. The Association interprets the language of that clause differently than the College. Therefore, I find that the facts as alleged do not support an inference of bad faith or repudiation of the parties' contract on the part of the College. Human Services. Given these facts, I find that the parties' dispute is contractual and the College's actions do not constitute a violation of 5.4a(5) or, derivatively, a(1) of the Act.

In the second count of its charge, the Association alleges that the College violated 5.4a(5) of the Act by improperly awarding starting salary credits for military service but not for past employment. The Association's charge does not allege a specific date or time period in which any operative events occurred regarding such credit. A charge must include specific dates which attach to each allegation. N.J.A.C. 19:14-1.3. In the absence of specific dates, the Commission will not assume that a charge is timely. Woodbine Bd. of Ed., D.U.P. No. 2000-7, 25 NJPER 396 (¶30171 1999). N.J.S.A. 34:13A-5.4(c) precludes the Commission from issuing a complaint where an unfair practice charge has not been filed within six months of the occurrence of any unfair practice, unless the aggrieved person was prevented from filing the charge. See No. Warren Bd. of Ed., D.U.P. No. 78-7, 4 NJPER 55 (¶4026 1977). Here,

the charge fails to allege that the College changed terms and conditions of employment without first negotiating with the Association within the six-month statute of limitations. Thus, on its face, this allegation is out of time. Accordingly, no complaint may issue on this allegation.

I next consider whether the facts alleged in the charge support a violation of 5.4a(2). In Atlantic Community College, P.E.R.C. No. 87-33, 12 NJPER 764, 765 (¶17291 1986), the Commission discussed the standards for a 5.4a(2) violation:

Domination exists when the organization is directed by the employer, rather than the employees.... Interference involves less severe misconduct than domination, so that the employee organization is deemed capable of functioning independently once the interference is removed. It goes beyond merely interfering with an employee's section 5.3 rights; it must be aimed instead at the employee organization as an entity.

The Commission has held that the type of activity prohibited by 5.4a(2) must be "pervasive employer control or manipulation of the employee organization itself...." North Brunswick Tp. Bd. Ed., P.E.R.C. No. 80-122, 6 NJPER 193, 194 (¶11095 1980). There are no facts here which would support a claim that the College dominated the Association or interfered with its existence. Therefore, I find that the allegation does not meet the Commission's complaint issuance standard. Accordingly, I dismiss the 5.4a(2) allegation.

Finally, the Association has submitted nothing to establish that the College violated any of the rules and regulations established by the Commission in violation of 5.4a(7). Thus, the

allegation that the College violated 5.4a(7) of the Act is also dismissed.

I do not believe that the Commission's complaint issuance standard has been met and I decline to issue a complaint on the allegations of this charge.3/

ORDER

The unfair practice charge is dismissed.

BY ORDER OF THE DIRECTOR

OF UNFAIR PRACTICES

Stuart Reichman, Director

DATED:	December 8, 2000

Trenton, New Jersey

3/	N.J.A.C. 19:14-2.3.