H.E. No. 79-30

Synopsis:

A Hearing Examiner recommends to the Commission that they find that the Borough of Avalon committed an unfair practice when it failed to renew the Captain and a Lieutenant of the Lifeguards for the 1977 and 1978 summer seasons. It was found that the Captain and the Lieutenant were active in an employee association and it was because of their activity in the association on behalf of the lifeguards that they were not renewed. The Captain and the Lieutenant have since been rehired to their respective positions by the Borough and, therefore, it was recommended taht the remedy be limited to any monies actually lost by the Borough's failure to rehire them to their summer positions for the 1977-1978 summer seasons.

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. 79-30, 5 NJPER 71 (¶10044 1979)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

72.3 72.323 72.339 16.44 72.365 16.1 16.3

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- HE 79-030.pdf
Appellate Division:
Supreme Court:

H.E. NO. 80-30 1. H.E. NO. 80-30 STATE OF NEW JERSEY BEFORE A HEARING EXAMINER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of MILLTOWN BOARD OF EDUCATION, RESPONDENT, -and- Docket No. CO-80-38-36 MILLTOWN EDUCATION ASSOCIATION,1/ CHARGING PARTY. Appearances: For the Milltown Board of Education, Russell Fleming, Jr., Esq. For the Milltown Education Association, Stephen E. Klausner, Esq. HEARING EXAMINER = S RECOMMENDED REPORT AND DECISION An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter A Commission @ ) on August 23, 1979, and amended November 7, 1979, by the Milltown Education Association (hereinafter the A Charging Party @ or the A Association @ ) alleging that the Milltown 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 had by notice dated April 10, 1979 advised three part-time custodians, represented by the Association, that they would not be employed for the 1979-1980 school year due to lack of work, and further, that since the severance of these three part-time custodians the custodial work previously performed by them is being performed by Respondent = s supervisory staff, all of which is alleged to be a violation of N.J.S.A. 34:13A-5.4(a)(1),(3) and (5) of the Act. 2/ 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 November 21, 1979. Pursuant to the Complaint and Notice of Hearing, a hearing was held on January 3, 1980 in Newark, New Jersey, at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. Both parties filed post-hearing briefs by January 30, 1980. 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 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 Milltown Board of Education is a public employer within the meaning of the Act, as amended, and is subject to its provisions. 2. The Milltown Education Association is a public employee representative within the meaning of the Act, as amended, and is subject to its provisions. 3. Since at least July 1, 1977 Respondent = s building custodians have been included in a collective negotiations unit of non-certificated personnel together with certain secretaries and teacher aides. This unit also includes part-time custodians who work at least 20 hours per week. The most recent collective negotiations agreement for the foregoing unit was effective during the term July 1, 1977 through June 30, 1979 (J-1). 3/ 4. Prior to the 1979-80 school year the Respondent = s school included two schools know as Parkview School (grades K-4) and Joyce Kilmer School (grades 4-8). The assignment of custodians to these two schools was as follows: at Parkview - one full-time custodian working days and two part-time custodians working evenings; and at Joyce Kilmer - one full-time custodian working days and one full-time custodian and two part-time custodians working evenings. 5. The Joyce Kilmer School consists of four wings built in the years 1907, 1914, 1921 and 1952. As the result of a decision of the Department of Education the Board was directed to close the 1907, 1914, 1921 wings of the Joyce Kilmer School no later than the 1979-80 school year, which deprived the Board of eight classrooms, certain offices and the industrial arts shop in the basement. To compensate for the said classroom deficiency, the Board leased four classrooms from the United Methodist Church (to house the 5th grade) and two classrooms form St. Paul = s Church (to house the kindergarten). The two additional classrooms were gained by placing the 7th and 8th grades on a split-shift at the Joyce Kilmer School. 6. Upon receiving a recommendation evaluating custodial needs for the 1979-80 school year from the Supervisor of Buildings and Grounds, Charles A. Miller, the Board = s Superintendent, Patrick J. Wilder, decided that the employment of three part-time custodians was no longer required. Under date of April 10, 1979 an identical letter was ent to the three part-time custodians by Mr. Miller, which explained the reason for termination, namely, lack of work due to the closing of the three wings of the Joyce Kilmer School (CP-1). This letter of Mr. Miller = s was confirmed by the Superintendent in a separate letter in May of 1979, which was not offered in evidence. 7. At the request of the affected custodians and their NJEA Consultant, James Patton, a meeting was held with the Superintendent in May 1979 where the Superintendent gave his reasons for the termination due to lack of work, stating that the existing workload would be reallocated, and that if there was any extra need for custodial services the work would be performed by Mr. Miller. 4/ At the conclusion of the meeting, which the Superintendent said he considered negotiations, he advised those present that they would have to go directly to the Board with their problem.5/ 8. The Board = s utilization of the remaining custodians for the 1979-80 school year has been as follows: at the Parkview School - one full-time custodian working days and one full-time custodian working evenings; at the Joyce Kilmer School -one full- time custodian working evenings, who also performs custodial services at the churches; and one part-time custodian working evenings, who performs custodial services at the churches and in several offices. 9. Charles Miller, Supervisor of Building and Grounds, has overall responsibility for the work performance and evaluation of the custodians. Although he does not have fixed hours of work he normally reports at 7:00 a.m. and departs around 2:00 p.m. or 3:00 p.m. unless he has need to communicate personally with part- time custodians who commence work at 4:00 p.m. 10. Notwithstanding that the Superintendent testified that Charles Miller does not perform custodial services on a regular basis, the Hearing Examiner credits Charging party witness Cheryl Smith 6/ that during the 1979-80 school year she had seen Charles Miller perform such custodial services at the Joyce Kilmer School as the daily cleaning of the gym, and occasionally A setting up @ the gym, replacing lighting in the gym, raking leaves and cutting grass, cleaning windows, cleaning out the refrigerator and raising the flag daily, all of which work was done by other custodians prior to the 1979-80 school year.7/ THE ISSUE Did the Respondent Board violate the Act when it terminated the services of three part-time custodians prior to the 1979-80 school year and thereafter utilized a supervisor, Charles A. Miller, to perform certain custodial services? DISCUSSION AND ANALYSIS The Respondent Board Did Not Violate The Act When It Terminated Three Part-Time Custodians As Of June 1979 And Thereafter Used A Supervisor To Perform Certain Custodial Services During the 1979-80 School Year The Charging Party views the instant case as of one of de facto subcontracting, in that a supervisor, Charles A. Miller, is performing custodial services previously performed by the three terminated part-time custodians. The Charging Party cites, inter alia, the leading Commission decision on subcontracting in support of its position: Township of Little Egg Harbor, P.E.R.C. No. 76-15, 2 NJPER 5 (1976) where the Commission, relying principally on Fibreboard Paper Products v. NLRB, 379 U.S. 203, 57 LRRM 2609 (1964), ordered the public employer to negotiate before implementing a decision to subcontract sanitation work. 8/ Based upon the Charging party = s cited authorities the Hearing Examiner is completely persuaded that if the Charging Party was able to prove by a preponderance of the evidence that a supervisor, such as Charles Miller, was performing the unit work previously performed by one or more of the terminated part-time custodians then the Respondent Board = s conduct would thereby constitute a violation of its negotiations obligation within the meaning of Subsection (a)(5) of the Act. Under such circumstances a A cease and desist @ order and an order of reinstatement pro tanto as to one or more of the affected custodians with back pay would be appropriate. The NLRB = s decision in Creative Engineering (see footnote 8, supra) constitutes clear authority for such a remedy since, factually, it is almost A on all fours @ with the facts alleged herein. Unfortunately for the Charging party its proof fall short of establishing that Charles Miller is performing the work of one or more of the three terminated part-time custodians. Although the Hearing Examiner has previously found as a fact that the Charging Party established that Charles Miller has performed certain custodial services at the Joyce Kilmer School during the 1979-80 school year (Finding of Fact No. 10, supra), the Hearing Examiner also noted therein that the Charging Party failed to adduce any evidence which could support a finding of the actual amount of custodial work done by Charles Miller in terms of hours per day or days per week (footnote 7, supra). In the absence of such measurable proof of the amount of work done by Charles Miller the Hearing Examiner concludes that the Respondent Board did not violate the Act by the termination of three part-time custodians and subsequently utilizing Charles Miller to perform certain custodial work. The Hearing Examiner cannot speculate as to whether the amount of Miller = s custodial work is equivalent to that done by even one part-time custodian working 20 hours per week. 9/ In conclusion, the Hearing Examiner views the factual situation presented herein as a A RIF @ (reduction-in-force) involving three part-time custodians. The Respondent Board, in reaching its decision to terminate three of its part-time custodians, clearly was engaged in the exercise of a non- negotiable management prerogative10/ and provided an adequate business justification for its decision, i.e.,the mandated closing of three wings of the Joyce Kilmer School in the 1979-80 school year. Not only is the decision to A RIF @ non-negotiable, but further, the impact on either the three affected custodians or those who remained in the Board = s employ is likewise non- negotiable. 11/ The Charging party having failed to prove that supervisor Charles Miller is performing work equivalent to that performed by one or more of the terminated part-time custodians, the Hearing Examiner must recommend dismissal of the allegations that the Respondent Board violated Subsections (a)(1) and (5) of the Act. Further, no anti-union animus on the part of the Respondent Board having been established the Hearing Examiner must also recommend the dismissal of the alleged Subsections (a)(3) violation. * * * * Upon the foregoing, and upon the entire record in this case, the Hearing Examiner makes the following: CONCLUSIONS OF LAW The Respondent Board did violate N.J.S.A. 34:13A-5.4(a)(1), (3) and (5) by its termination of three part-time custodians in June 1979 and by utilizing its supervisor, Charles A. Miller, to perform certain custodial services during the 1979-80 school year. RECOMMENDED ORDER The Respondent Board not having violated the Act, supra, it is HEREBY ORDERED that the Complaint be dismissed in its entirety. _____________________________ Alan R. Howe Hearing Examiner DATED: February 4, 1980 Trenton, New Jersey 1/ As amended at the hearing. 2/ 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. A (3) Discriminating in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage employees in the exercise of the rights guaranteed to them by this Act. @ A (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. @ 3/ Exhibit J-1 indicates that the Agreement was between the Board and the A Milltown Education Association Non- Certificated Personnel. @ As a result of a petition filed with the Commission on August 1, 1979, Docket No. RO-80-16, the above described collective negotiations unit was merged into and made a part of one over-all unit of Certificated and Non-Certificated Personnel. As of the date of the hearing, negotiations for a single successor collective negotiations agreement were on-going and it was stipulated that the custodians are still governed by the terms and conditions set forth in Exhibit J-1. 4/ In so finding that the Superintendent made this reference regarding the utilization of Mr. Miller, the Hearing Examiner had credited the testimony of two Charging Party witnesses, James Patton, the NJEA Consultant, and Frederick Miller, one of the affected part-time custodians, that the Superintendent made such a statement, notwithstanding the Superintendent = s rebuttal of the respective witnesses for the Charging Party. This is further supported by Finding of Fact No. 10, infra, with respect to the work which Charles Miller has performed during the 1979-80 school year. 5/ The Superintendent testified, without contradiction, that Mr. Patten subsequently appeared at a Board meeting where he pointed out the length of service of the three affected custodians and suggested that the Board consider severance pay, a uniform allowance and a preference in rehiring, in the event that there was again an increased need for custodial services. The Board = s response, with respect to preferential rehiring and a uniform allowance for the prior work year, was set forth in a letter from the Superintendent to each affected custodian dated June 29, 1979 (CP-2). 6/ A teacher who divides her time between the Joyce Kilmer School, the Parkview School and St. Paul = s Church. 7/ The foregoing enumeration of custodial services performed by Charles Miller in the 1979-80 school year stands in contrast to the testimony of Frederick Miller, an affected part-time custodian, who testified credibly that Charles Miller performed no custodial duties after becoming the supervisor of the custodians two years ago. Further, the Hearing Examiner does not credit the testimony of the Superintendent that Charles Miller does no more custodial work at the present time then he did before the three part-time custodians were terminated. It is noted, however, that the Charging Party failed to adduce any evidence indicating the quantum of custodial work done by Charles Miller in the 1979-80 school year in relationship to that done by the three part-time custodians who were terminated. This will be discussed infra. 8/ The Charging Party also cites the following additional decisions of the Commission on subcontracting: Township of Stafford, E.D. No. 76-9, 1 NJPER 54 (1975); Camden County Bd. of Chosen Freeholders, P.E.R.C. No. 78-16, 3 NJPER 332 (1977), enf = d. App. Div. Docket No. A-1347-77; and East Windsor Board of Education, P.E.R.C. No. 80-28, 5 NJPER 394 (1979). The Charging Party additionally cites Creative Engineering, Inc., 228 NLRB No. 67, 94 LRRM 1507 (1977) and Pa. Labor Relations Board v. Mars Area School District, 99 LRRM 2441 (Pa. Supr. Ct. 1978). 9/ It is here noted that the collective negotiations agreement requires a part-time custodian to work at least 20 hours per week in order to be within the unit (see Finding of Fact No. 3, supra and J-1, p.2). 10/ See Union County Regional H.S. Bd. of Ed. v. Union County Regional H.S. Teachers Ass = n. 145 N.J. Super 435 (App. Div. 1976), certif. den. 74 N.J. 248 (1977). 11/ See Maywood Board of Education and Maywood Education Ass = n., 168 N.J. Super 45 (App. Div. 1979), certif. den. 81 N.J. 292 (1979). ***** End of HE 79-30 *****