H.E. NO. 94-13

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

EWING TOWNSHIP BOARD OF EDUCATION,

Respondent,

-and-	Docket No. CO-H-93-97

EWING TOWNSHIP ADMINISTRATORS

ASSOCIATION,

Charging Party.

Appearances:

For the Respondent, Carroll & Weiss, attorneys

(Robert J. Merryman, of counsel)

For the Charging Party, Lake & Schwartz, attorneys

(Robert M. Schwartz, of counsel)

HEARING EXAMINER'S REPORT

AND RECOMMENDED DECISION

On September 14, 1992, the Ewing Township Administrators Association ("Association") filed an Unfair Practice Charge (C-2)1/ with the Public Employment Relations Commission ("Commission") against the Ewing Township Board of Education ("Board"). The Association alleges that the Board violated the New

1/	Exhibits received in evidence marked as "C" refer to Commission Exhibits, those marked "J" refer to joint exhibits, and those marked "CP" refer to the charging party's exhibits. The transcript citation "T1" refers to the transcript developed on October 13, 1993, at page 1.

Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. ("Act"), specifically subsections 5.4(a)(1), (3) and (5)2/ by unilaterally assigning teaching responsibilities to the position of supervisory subject area coordinator ("coordinator") and thereby increasing worktime and workload without prior negotiations.

On April 22, 1993, the Director of Unfair Practices issued a Complaint and Notice of Hearing (C-1). On May 6, 1993, the Board filed its Answer (C-3) denying that the teaching duties assigned to the coordinators resulted in any increase in worktime or workload, and denying that its actions violated the Act. A hearing was conducted on October 13, 1993, at the Commission's Offices in Trenton, New Jersey. The parties were afforded the opportunity to examine and cross-examine witnesses, present relevant evidence and argue orally. At the conclusion of the hearing, the parties waived oral argument and established a briefing schedule. Briefs were filed by December 23, 1993.

Upon the entire record, I make the following:

2/	These subsections 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. (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. (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."

FINDINGS OF FACT

1. The parties stipulated that the Board is a public employer and the Association is a public employee representative within the meaning of the Act (T8). The parties also stipulated that employees serving in the title supervisory subject area coordinator are employees within the meaning of the Act (T8).

2. The collective agreement between the Board and the Association covering the period July 1, 1990 through June 30, 1993, includes in Article I, Recognition, the title of supervisory subject matter coordinator (J-1; T75).3/ All coordinators are paid in accordance with salary guides set forth in Appendix A of the collective agreement. Salaries set forth in Appendix A are exclusive of stipends (T76). The collective agreement does not include a work hour provision for coordinators (T77).

3. Howard Young began teaching science and math in Ewing in 1968 (T14). In 1976, Young became coordinator of science (T12-T13). The coordinator of science position involved only teaching responsibilities and contained no supervisory duties (T12-T13). In 1980, Young's position was changed to supervisory coordinator of science. Accompanying the title change, all of

3/	While the Recognition Article in the collective agreement shows the title as supervisory subject matter coordinators, the job descriptions (J-2 and J-3) show the title as supervisory subject area coordinator. Apparently, these titles refer to the same job.

Young's teaching duties were removed, and he was assigned only supervisory responsibilities (T13-T14). When his title was changed in 1980, Young was provided with J-3, the job description for the supervisory subject area coordinator position (T13). From 1980, when Young first became a coordinator, through June, 1992, Young had no regular teaching assignment. On occasion, Young would teach a demonstration lesson in the classroom when the regular teacher was uncomfortable with the material or the means to present it (T15).

4. On June 22, 1992, the supervisory subject area coordinator job description was revised (J-2). Among other, more minor changes made in the new job description (J-2), paragraph 7.c. was revised to provide that the coordinator "[r]emains an active teacher practitioner by providing direct instructional services to students as assigned" (T17). In accordance with J-2, beginning with school year 1992-1993, Coordinators Young, Solomon and Saxton were assigned regular classroom teaching responsibilities (T17; T30; T56). For example, Young was assigned to teach one daily period of biochemistry at the high school, and Solomon was assigned to teach one daily period of English at Fischer Junior High (T17; T56). Although the three coordinators were given these additional regular teaching assignments, none of their supervisory responsibilities were removed (T21; T23-T24; T57).

5. As a coordinator, Young is assigned to supervise all 7th grade through 12th grade math and science teachers. Additionally, Young is assigned the responsibility of supervising

and evaluating a number of non-tenured elementary teachers (T17). Young is also assigned to informally supervise approximately 50 tenured elementary teachers in regard to the math and science elements of the curriculum (T18). Young's informal supervisory responsibilities include observations of the teachers but no write-ups (T18). Young formally supervised 40 teachers in school year 1991-1992. Formal supervision includes class observations, written evaluations and post-observation conferences (T19).

6. Since school year 1992-1993, in addition to Young's supervisory responsibilities, he teaches a 46 minute daily class in biochemistry (T22; CP-2). While Young's office is located in the Antheil School, he travels daily to the high school for the biochemistry class (T22). Prior to his biochemistry teaching assignment, Young did not make daily trips to the high school (T22). Young has not been assigned a scheduled preparation period. He spends approximately 30-45 minutes per day preparing for the class and up to 30 minutes per day cleaning the classroom after class has ended (T23). As a result of the teaching assignment, Young must grade papers, complete other teaching related paperwork, and be present at the high school for department and guidance meetings and other meetings with the principal (T25). Young also has had to reschedule his supervisory duties because the junior high and elementary schools' day ends before his class at the high school. Consequently, Young now meets with the teachers he supervises only in the morning (T24-T25). Young estimates that his

work day has increased by 2 to 3 hours per day since he has been assigned classroom teaching responsibilities (T25).

7. Irene Solomon was hired as a coordinator in language arts in April, 1987. At the time of hire, she was given a copy of J-3 and told that she would have only supervisory responsibilities and no teaching assignments (T55-T56; T57).

8. Solomon's first regular classroom teaching responsibility was assigned for school year 1992-1993, just after J-2 was issued (T56). None of Solomon's supervisory responsibilities were removed when she was given the teaching assignment (T57).

9. Solomon is responsible for supervising the language arts curriculum for all elementary teachers (T58-T59). She formally supervises, observes and evaluates all language arts teachers in grades 7 through 12 (T59). Solomon is also assigned an additional 5 to 7 non-tenured elementary teachers to formally evaluate (T63-T64; T67). While not required, Solomon conducts a pre-observation conference with each teacher during the evaluation process. The pre-observation conference is normally done during the teachers conference or preparation period (T68-T69).

10. As the result of the teaching assignment, Solomon works an additional 1 to 2 hours per day, during the evening, grading students' papers (T60). While prior to the classroom teaching assignment made in school year 1992-1993, Solomon periodically brought work home in the evening, but such work was of

lesser volume and was unrelated to any classroom teaching assignment (T69; T71).

11. John Burd was hired by the Board on December 1, 1971 (T46). On May 18, 1987, Burd was appointed to the coordinator position for health and physical education (T46-T47). Burd was placed on the same salary scale as the other coordinators and was covered by the same job descriptions (T50; T53). In May, 1987, immediately after his appointment as coordinator, Burd's teaching responsibilities ceased for the balance of that school year (T54). Prior to his appointment as coordinator, Jane Van Alst told Burd that he would have to agree to accept a teaching assignment if he wanted the job (T51; T53-T54). In school year 1987-1988, Burd was assigned to teach four classes which were scheduled on one day per week (T48). In school year 1988-1989, Burd's teaching assignment increased to five classes scheduled on one day per week (T49). In school year 1992-1993, just after J-2 was issued, Burd was assigned to the junior high school and his teaching assignment doubled to ten classes per week, scheduled two classes per day, five days per week (T49).

12. Burd supervises five physical education teachers and two health specialists at the elementary level and twelve instructors at the junior high and high school levels (T47-T48). Burd has no other formal or informal supervisory responsibilities at the elementary level (T48; T50-T51).

13. Although at the time Burd was initially appointed to the coordinator position, neither the job description nor his employment contract made reference to teaching responsibilities. However, Burd always understood that his condition of employment included teaching assignments (T52-T53). Neither the Association nor Burd had ever grieved the teaching assignments (T53). The Association never raised Burd's teaching assignment during the course of negotiations, nor did it ever file an unfair practice regarding that issue.

14. The collective agreement (J-1) is silent with regard to the assignment of teaching duties to coordinators (T41). Young and Solomon knew that Burd had teaching responsibilities (T44; T70).

15. Coordinators' hours of work have never been specifically defined (T35; T69). The coordinators' office hours are 8:00 a.m. to 4:00 p.m. and those hours constituted the normal work day (T35-T36; T69). Prior to school year 1992-1993, coordinators occasionally worked after 4:00 p.m. or brought work home (T36; T69-T70). When the coordinators were given a specific classroom teaching assignment for school year 1992-1993, they were not told that they would have to work a longer work day as the result of such new assignment (T38; T70).

ANALYSIS

N.J.S.A. 34:13A-5.3 provides as follows:

Proposed new rules or modifications of existing rules governing working conditions shall be

negotiated with the majority representative before they are established. In addition, the

majority representative and designated representatives of the public employer shall meet at reasonable times and negotiate in good faith with respect to grievances, disciplinary disputes, and other terms and conditions of employment.

Since the inception of the Act, one of the governing principles has been that teacher workload is a mandatory subject of negotiation and unilateral increases in teacher workload violate Sections 5.4(a)(5) and, derivatively, (1). Burlington County College Faculty Association v. Board of Trustees, 64 N.J. 10 (1973); In re Maywood Board of Education, 168 N.J. Super. 45, 59 (App. Div. 1979); In re Byram Township Board of Education, 152 N.J. Super. 12 (App. Div. 1977); Redbank Board of Education v. Warrington, 138 N.J. Super. 564 (App. Div. 1976); Kingwood Township Board of Education, P.E.R.C. No. 86-85, 12 NJPER 102 (¶17039 1985); Ramsey Board of Education, P.E.R.C. No. 85-119, 11 NJPER 372 (¶16133 1985), aff'd App. Div. Dkt. No. A-4836-84T1 (2/6/86); Board of Education of City of Newark v. Newark Teachers Union, P.E.R.C. No. 79-38, 5 NJPER 41 (¶10026 1975), aff'd App. Div. Dkt. No. A-2060-78 (2/26/80).

In the instant matter, the workload of the four coordinators was increased. Prior to school year 1992-1993, neither Young, Solomon nor Saxton had any regular classroom teaching

assignment. None of the coordinators' supervisory responsibilities were reduced.4/

The Board contends that the assignment of teaching duties to the coordinators is consistent with the established practice between the parties. The Board notes that a majority representative may waive its right to negotiate changes in workload through a collective negotiations agreement or past practice. Bethlehem Township Board of Education, P.E.R.C. No. 88-15, 13 NJPER 712 (¶18265 1987). The Board relies on Burd's teaching schedule as the basis for establishing that the extant practice includes regular classroom teaching assignments. The Board asserts that since Burd has had regular teaching assignments practically from the time of his appointment as coordinator, and since Burd's job description is the same as the other coordinators', the Board, in accordance with the past practice, could unilaterally make regular teaching assignments to any or all of the other coordinators without changing extant conditions of employment.

A past practice is a term and condition of employment which is not enunciated in the parties' agreement, but arises from their conduct. Caldwell-West Caldwell Board of Education, P.E.R.C. No. 80-65, 5 NJPER 536 (¶10276 1979), aff'd in pt., rev'd in pt., 180 N.J. Super. 440 (App. Div. 1981). A past practice is unequivocal,

4/	I do not suggest that had the Board lightened the coordinators' supervisory responsibilities a negotiations obligation would not still arise. See Sayreville Board of Education, P.E.R.C. No. 84-74, 10 NJPER 37 (¶15021 1983).

clearly enunciated and acted upon; readily ascertainable over a reasonable period of time as a fixed and established practice accepted by both parties, and as enforceable as any written term. Elkouri & Elkouri, How Arbitration Works at 439 (Fourth Ed. 1985), cited with approval, Passaic County Regional High School District No. 1, P.E.R.C. No. 91-11, 16 NJPER 446 (¶21192 1990). I disagree with what the Board contends is the established practice for all of the coordinators. I find that the established practice provides for no regular classroom teaching assignments to be made to Young, Solomon or Saxton. Thus, the unilateral assignment of regular classroom teaching responsibilities for Young, Solomon and Saxton represents a change in their conditions of employment without negotiations. However, in Burd's case, the established practice, i.e., that which is readily ascertainable over a reasonable period of time and accepted by both parties, provided the Board with greater flexibility with respect to teaching assignments. In school year 1987-1988, Burd was assigned to teach four classes per week. Beginning in school year 1988-1989, the Board unilaterally increased Burd's teaching load to five classes per week. The Association never filed a grievance or unfair practice regarding the Board's initial assignment of classroom teaching responsibilities nor the subsequent increased teaching load. Consequently, in accordance with the established practice, the Board maintained the unilateral right to change Burd's teaching assignments. See Monmouth County Sheriff, H.E. No. 92-9, 17 NJPER 509 (¶22251 1991) aff'd P.E.R.C. No. 93-16, 18 NJPER 447 (¶23201 1992).

The Board cites Bethlehem Township Board of Education, and Shamong Township Board of Education, P.E.R.C. No. 91-21, 16 NJPER 489 (¶21213 1990) in support of its contention that the assignment of regular classroom teaching responsibilities to coordinators Young, Solomon and Saxton was consistent with the established practice between the parties and could be implemented unilaterally without negotiations. In Bethlehem Township Board of Education, the Association alleged, inter alia, that the Bethlehem Township Board of Education violated the Act by unilaterally assigning a sixth teaching period to certain 7th and 8th grade teachers without negotiations. The Commission found that the assignment of such sixth teaching period "...was consistent with the established practice of assigning six teaching periods to the large majority of teachers in the same unit and in the same school." Bethlehem Board of Education, 13 NJPER at 713.

In Shamong Township Board of Education, the Association alleged that the Board violated the Act by unilaterally increasing the pupil contact time of kindergarten and reading teachers and kindergarten aides. The Commission looked at the range of pupil contact time which the majority of teachers worked in order to determine the established practice concerning pupil contact time. The Commission found that the Board did not violate the Act because the controverted increase in pupil contact time for kindergarten teachers and aides and reading teachers was within the established range of pupil contact time for the majority of the other teachers.

Bethlehem and Shamong are distinguishable from the instant matter. In Bethlehem and Shamong the Commission identified the established practice by looking at the extant terms and conditions of employment applied to the majority of employees related to the dispute. Once the established practice was identified, the Commission determined whether the employers' actions conformed to the established practice. In the instant matter, the Board suggests that the established practice is represented by the minority of employees involved in the dispute, i.e. the terms and conditions of employment applied to Mr. Burd. I reject the Board's attempt to so identify Burd's circumstance as the established practice applicable to the coordinator position. I find the established practice pertaining to the coordinator positions currently filled by Young, Solomon and Saxton to provide for no regular classroom teaching assignments. I also find that the Board has retained its right to unilaterally make teaching assignments to the physical education coordinator's position. Accordingly, when the Board unilaterally assigned regular classroom teaching responsibilities to Young's, Solomon's and Saxton's positions, without prior negotiations, it increased their workloads in violation of Section 5.4(a)(5) of the Act.

I find no facts in support of the Association's contention that the Board discriminated 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.

REMEDY

The unfair practice charge does not seek as a remedy the recision of the teaching assignments made to Young, Solomon and Saxton. The thrust of the Association's brief regarding remedy clearly urges that an order be issued directing negotiations with respect to compensation for the assigned teaching duties. Consequently, I recommend that the Commission order the parties to enter into immediate negotiations regarding compensation and other terms and conditions of employment related to the workload increase retroactive to school year 1992-1993.

Accordingly, based upon the entire record and above analysis, I make the following:

CONCLUSIONS OF LAW

1. The Board violated Section 5.4(a)(5) and, derivatively, (1) when it unilaterally assigned teaching responsibilities to the coordinator positions held by Young, Solomon and Saxton.

2. The Board did not violate Section 5.4(a)(3) of the Act.

RECOMMENDED ORDER

I recommend that the Commission ORDER:

A. That the Board cease and desist from:

1. Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by the Act by unilaterally changing terms and conditions of employment by assigning regular classroom teaching duties to certain employees serving in the title supervisory subject area coordinators who prior to school year 1992-1993 had no regular classroom teaching assignments.

2. Refusing to negotiate in good faith with the Ewing Township Administrators Association concerning increases in workload, compensation and other changes in terms and conditions of employment affecting certain employees serving in the title supervisory subject area coordinator.

B.	That the Board take the following affirmative action:

1. Immediately enter into collective negotiations with the Association concerning compensation and other terms and conditions of employment related to the workload increase for employees serving in the coordinator title.

2. Post in 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 at least sixty (60) consecutive days. Reasonable steps shall be taken to ensure that such notices are not altered, defaced or covered by other materials.

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

C.	That the complaint be dismissed regarding the Section 5.4(a)(3) allegation.

Stuart Reichman

Hearing Examiner

DATED: January 14, 1994

Trenton, New Jersey