Back

H.E. No. 78-9

Synopsis:

In a Recommended Report and Decision, a Hearing Examiner recommends to the Commission that it finds the New Brunswick Board of Education guilty of unfair practices.

The Hearing Examiner found the Board unilaterally changed the salary of its professional summer staff for the summer of 1976 without negotiating this change with the Association. The Board claimed that it simply was paying said personnel in accordance with the salary schedule in the existing collective negotiations agreement. The Hearing Examiner found, however, that the schedule had not been in use for a number of years and the established practice for paying for the work in dispute governed the salary of the employees in question.

Accordingly, the Hearing Examiner recommends to the Commission that it order the Board to pay all its regular summer staff who worked in the summer of 1976 the difference between what they in fact earned and what they should have earned and further to negotiate with the Association over the regular summer staff who did not work in the summer of 1976 in an effort to make these employees whole.

PERC Citation:

H.E. No. 78-9, 3 NJPER 341 (1977)

Appellate History:



Additional:



Miscellaneous:



NJPER Index:

540.40 505.20

Issues:

    DecisionsWordPerfectPDF
    NJ PERC:.HE 78-009.wpdHE 78-009.pdf - HE 78-009.pdf
    Appellate Division:
    Supreme Court:


    H.E. NO. 78-9 1.
    H.E. NO. 78-9
    STATE OF NEW JERSEY
    BEFORE A HEARING EXAMINER OF THE
    PUBLIC EMPLOYMENT RELATIONS COMMISSION

    In the Matter of

    NEW BRUNSWICK BOARD OF EDUCATION,

    Respondent,

    -and- Docket No. CO-76-330-75

    NEW BRUNSWICK EDUCATION ASSOCIATION, INC.,

    Charging Party.

    Appearances:

    For the New Brunswick Board of Education,
    Murray, Meagher & Granello
    (Robert J. Hrebek)

    For the New Brunswick Education Association, Inc.
    Rothbard, Harris & Oxfeld
    (Sanford R. Oxfeld)
    HEARING EXAMINER = S RECOMMENDED
    REPORT AND DECISION

    The New Brunswick Education Association, Inc. (the A Association @ ), employee representative of all certified nonsupervisory personnel employed by the New Brunswick Board of Education (the A Board @ ), filed an Unfair Practice Charge with the Public Employment Relations Commission (the A Commission @ ) on June 9, 1976, alleging that the Board had committed an unfair practice within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq., (the A Act @ )1/ by unilaterally shortening the regular work year for guidance counselors from eleven to ten months, and then offering the same or substantially similar guidance counselor work during the summer at greatly reduced rates of pay.2/
    It appearing that the allegations of the charge, if true, might constitute an unfair practice within the meaning of the Act, a Complaint and Notice of Hearing was issued on January 4, 1977 and a hearing was held before the undersigned in Newark, New Jersey on March 22, 1977.3/
    FINDING OF FACTS

    Four witnesses testified for the Association at the hearing. All were cross-examined by counsel for the Board but the Board presented no witnesses of its own.
    For at least the last three or four years prior to the summer of 1976, and longer in some cases, certain personnel in the Pupil Personnel Services Department of the high school, which includes those categories of professionals listed in the original and amended charge, normally worked four weeks during the course of each summer in addition to the regular ten month school year. For this extra month = s work, they were paid 10% of their base salary for the upcoming school year.4/
    At a Board of Education meeting on April 20, 1976, a written proposal A That all guidance counselor contracts be changed to 10 month contracts effective July 1, 1976. @ 5/ The Board admits having adopted and implemented the proposal.6/ A similar proposal A That the contracts for all School Psychologists, Learning Consultants, Social Workers, and Special Education Teacher be reduced from 11 months to 10 months for the 1976-77 school year effective July 1, 1976. @ 7/ was subsequently adopted and implemented by the Board.
    Stephen Kalman, a school social worker, testified that for several years he had worked an extra month during the summer. Tenured personnel didn = t receive individual contracts from the Board, but rather a simple salary notice each year indicating their salary for the ensuing school year. Kalman = s salary notice for the 1972-73 school year specifically stated that it was for an 11 month period.8/ Subsequent notices were silent as to the term of employment.9/ But Kalman testified that every year, usually at a meeting in June, he would be notified that summer work was available and would be asked to sign up for it. The work was voluntary, he said, but he felt it was expected that he would accept it. He testified that his financial situation and family left him no choice but to accept the work that was offered in the summer; work, which he claimed varied somewhat as the needs of the school system varied, but was essentially a continuation of his work during the school year. And each year for at least the last three or four prior to 1976, Kalman claimed, he had been paid 10% of his ten month salary for the eleventh month of work. In June 1976, Kalman was offered and accepted summer work again, but for only $190 per week, instead of 10% of his ten month salary.
    Following Mr. Kalman = s testimony counsel for the Association represented that Vincent Woods, a school psychologist, and David Kerman, a learning consultant were both prepared to testify regarding their employment with the Board and that their testimony would be substantially similar to Kalman = s. Counsel for the Board agreed to stipulate that their testimony would be similar to Kalman = s. Accordingly, neither witness testified.
    Klemens Figulski, a guidance counselor in the senior high school of New Brunswick since 1956, was the Association = s next witness. Mr. Figulski testified that for about 18 years, up until 1976, he had worked in the summer and had been paid 10% of his ten month salary for the eleventh month of work. His 1972-73 salary notice state specifically that it was for 11 months.10/ He claimed that most, if not all, of his copies of his salary notices for other years up to 1976 also stated somewhere on their fact that they covered 11 month employment terms. However, the only other notices offered in evidence were submitted by the Board.11/ They covered the years 1973-74, 1974-75, 1975-76 and 1976-77. The first three were silent as to term, and the 1976-77 notice specifically for ten months.
    Unlike Kalman, and presumably Woods and Kerman as well, Figulski testified that he was not asked at a meeting each year in June if he would sign up for summer work. He said it was automatic each year until 1976.12/ Figulski testified that his 1976-77 salary notice received in April or May, specified a ten month term and he assumed the Board was economizing and cutting out summer work. Then, according to Figulski, in late May he saw the job posting for a summer guidance counselor,13/ and his building principal came to his office and told him about it stating that the salary would be $190 per week.
    Figulski claims he asked the principal if he was taking a pay cut too, but the principal did not reply and left the office. Figulski then consulted the Association President who said he would contact the Superintendent and suggested he not accept the job for that salary. Figulski took his advice. According to Figulski = s uncontroverted testimony, he made his feelings known to the other counselors; each counselor was contacted in turn and offered the summer work, and each one turned it down. Apparently, no one filled the job in the summer of 1976.
    Vincent Woods, the school psychologist referred to earlier, testified briefly, mostly regarding the effect of the Board = s action on his pension. He claimed that prior to 1976, when he worked in the summers, deductions had been made from his salary and allocated to his pension account, but when he worked in the summer of 1976 for $190 per week, no pension deductions were made. Figulski had also claimed that prior to 1976, pension deductions were made from his salary. Kalman had been questioned about his pension as well but claimed no knowledge as to the effect of the change on his pension.
    John Sincaglia, a social studies teacher and Association President, was the last witness. He testified that when the contract reductions were first proposed, he spoke to the Board President regarding the impact on the professionals involved, and received public assurances that A they weren = t expecting those people to do in 10 months what they used to do in 11. @ 14/ Only when it discovered that the Board planned to offer the same people, the same summer work for lower wages, claimed Sincaglia, did the Association decide to do something about the Board action. Sincaglia complained to both the Superintendent and the Assistant Superintendent, Earl Bartholm. Then on advice of counsel, he filed the instant charge.
    About three months later, Sincaglia testified, negotiations began for the 1977-79 contract. Although both sides knew this charge was outstanding, the Board never stated that its resolution was part of the negotiations, according to Sincaglia. And the 1977-79 contract contains the same Schedule F as the previous contract, the schedule the Board relies on to justify its payment of $190 per week for summer work in 1976. Sincaglia testified that the Association never officially proposed a change in Schedule F for the 1977-79 contract, that their priorities were not in that area.
    ANALYSIS
    The Board claims it could not be deemed to have unilaterally altered terms and conditions of employment when it merely proposed to pay for summer work according to the terms of the collective negotiations agreement. Absent any contrary argument from the Association, the undersigned will accept that Schedule F, on its face, does pertain to the personnel in question. However, testimony at hearing clearly established that for several years this schedule had not bee followed for these personnel. They had always worked 11 months, and had been paid 10% of their ten month salary for their eleventh month of work. The Board = s action in the summer of 1976 unilaterally altered an established past practice which had been well understood by both parties.15/
    The Board also claims there was no demand for negotiation made by the Association, that the Association should have been required to pursue internal grievance procedures, and that this issue is now moot anyway because a new collective negotiations agreement has been reached since the charge was filed. Sincaglia admitted he had not made a written demand for negotiations, but nothing in the law requires demands to be in writing. Figulski complained to his building principal and then went to Sincaglia. Woods also testified that he complained vigorously to Sincaglia. Sincaglia spoke with the Board President, the Superintendent and the Assistant Superintendent. Under the circumstances, the undersigned is satisfied that a request for negotiations was made.
    It should be noted that at the time the Board announced its intention to change contracts from 11 to 10 months, the Association was unaware that the Board intended to offer summer work to these people for less pay. It assumed there would be no summer work at all. Under the rule of In re Fairlawn Board of Education, P.E.R.C. No. 76-7, 1 NJPER 47 (1975) (still good law at the time of the Board = s action),16/ the Commission had ruled that a Board of Education could unilaterally shorten the work year of its principals and must negotiate only the impact of its decision on the terms and conditions of those employees = shorter work year. Sincaglia had spoken to the Board President regarding such impact and was publicly assured there would be none, so he demanded no negotiations at the time. As soon as he found the work year was not really being shortened, but rather the pay was being decreased, he complained to the Superintendent and the Assistant Superintendent. This constituted a negotiations demand.
    Sincaglia = s uncontroverted testimony that neither the Association nor the Board ever characterized the negotiations for a 1977-79 contract as settlement negotiations for the underlying dispute is enough to refute the Board = s mootness argument. As to the Board = s claims that the Association should have gone through negotiated grievance procedures, N.J.S.A. 34:13A-5.3 clearly states that negotiated grievance procedures if any, will be utilized to resolve disputes notwithstanding procedures established by any other statute. Nowhere does the Act state or imply that parties cannot file Unfair Practice Charges prior to exhaustion of internal grievance procedures. The Commission will in some instances find that it would best effectuate the policies of the Act by deferring a matter raised in an Unfair Practice Charge to arbitration, if arbitration will resolve the underlying merits of the dispute.17/ But this is not such a case; counsel for the Board claims that Figulski = s complaint to his principal represented a Level I grievance, and that his failure to carry the matter up the grievance ladder constituted an acceptance of the Board = s action. The Board does not now recognize the Association = s continuing right to arbitration of the matter and this forum is, therefore, the appropriate one for ascertaining the merits of the controversy.
    Based upon a thorough examination of the entire record in this case, and noting especially the language of the Board = s proposals, and the cumulative testimony of several Association witnesses, not controverted by any Board witnesses, the undersigned concludes that the Board did fail to negotiate in good faith upon demand a change in terms and conditions of employment, and that such refusal necessarily interfered with employees = rights under the Act. The Board = s action was therefore, violative of N.J.S.A. 34:13A-5.4(a)(1) and (5).
    THE REMEDY
    Having found that the Respondent has engaged in an unfair practice within the meaning of the Act, I will recommend that the Commission order that the Respondent cease and desist therefrom and take certain affirmative action.
    As to those employees who worked during the summer of 1976 at $190 per week and who worked a prior summer for 10% of their regular salary,18/ they are to be paid the difference between what they should have earned, [10% of their salary for the upcoming year] and the $190 per week which they in fact paid.19/
    As to Mr. Figulski and those other employees, if any, who chose not to work20/ their decision not to work was based upon the unlawful action of the Board and accordingly, it is recommended that the Board negotiate with the Association upon demand in an effort to make them whole.21/
    RECOMMENDED ORDER
    Accordingly, for the reasons set forth above, it is hereby recommended that the Commission ORDER that the Respondent, New Brunswick Board of Education shall
    1. Cease and desist from:
    (a) Interfering with, restraining or coercing employees in the exercise of the right guaranteed to them by the Act.
    (b) Refusing to negotiate in good faith with the New Brunswick Education Association, Inc., concerning the terms and conditions of employment of professional employees in the Pupil Personnel Services Department.
    2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act:
    (a) As to those professionals in the Pupil Personnel Service Department who worked in prior summers at 10% of their salary and chose not to work in the summer of 1976, negotiate upon demand with the Association in an effort to make them whole.
    (b) Make whole those certified personnel who did work in the summer of 1976 for any pay they lost as a result of the Board = s unilateral change in pay policy by the payment of 10% of their 1976-77 salary less the salary actually paid.
    (c) Post at its central administrative building in New Brunswick, New Jersey, copies of the attached notice marked Appendix A A @ . Copies of such notice on forms to be provided by the Director of Unfair Practices of the Public Employment Relations Commission shall, after being duly signed by Respondent = s representative, be posted by Respondent immediately upon receipt thereof, and maintained by it for a period of at least sixty (60) consecutive days thereafter in conspicuous places including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced or covered by any other material.
    (d) Notify the Commission in writing, within twenty (20) days of receipt of this ORDER, what steps the Respondent has taken to comply herewith.

    _______________________
    Edmund G. Gerber
    Hearing Examiner

    DATED: October 7, 1977
    Trenton, New Jersey


    1/ It is specifically alleged that the Board violated N.J.S.A. 34:13A-5.4 (a)(1) and (5). These subsections provide that an employer, its representatives and agents are prohibited 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/ The original charge anticipated that the Board would take similar action with respect to school psychologists, learning consultants, social workers and special education teachers. The undersigned allowed the charge to be formally amended at the beginning of the hearing to allege that such action had, in fact been taken by the Board.
      3/ All parties were given an opportunity to examine witnesses, to present evidence and to argue orally. Each party filed either a post-hearing memorandum or brief by July 14, 1977. Upon the entire record in this proceeding, I find that the Board is a public employer within the meaning of employee representative within the meaning of the Act and is subject to its provisions. An Unfair Practice Charge having been filed with the Commission alleging that the Board has engaged or is engaging in an unfair practice within the meaning of the Act, questions concerning alleged violations of the Act exist and these matters are appropriately before the Commission for determination.
      4/ It should be noted that summer work is considered part of the upcoming, not the preceding school year.
    5/ Proposal attached to Complaint, Exhibit C-1.
      6/ Answer, Exhibit C-2.
      7/ Proposal attached to Complaint, Exhibit C-1.
      8/ Exhibit B-2.
      9/ Exhibits B-1, B-3 and B-4. No salary notice for Stephen Kalman for the 1973-74 school year offered in evidence.
      10/ Exhibit B-6.
      11/ Exhibits B-5, B-7, B-8 and B-9.
      12/ Transcript, p. 58.
      13/ Attached to Complaint, Exhibit C-1.
      14/ Transcript, p. 96.
      15/ The Commission has held that terms and conditions of employment can arise from A some other source @ than the collective negotiations contract. Galloway Township Board of Education v. Galloway Township Education Association, P.E.R.C. No. 76-32 (1976), 149 N.J. Super 353 (App. Div. 1977); cert. granted Sup. Ct. Docket No. C-890 & C-891, vac. as moot, in accord Burlington City Board of Education, P.E.R.C. No. 77-4, 2 NJPER 256 (1976).
      16/ Fairlawn has since been reversed by In re Piscataway Tp. Board of Education, P.E.R.C. No. 77-37, 3 NJPER 256 (1976).
      17/ See In re City of Trenton, P.E.R.C. No. 76-10, 1 NJPER 58 (1975); In re Board of Education of East Windsor E.D. No. 76-6, 1 NJPER 59 (1975).
      18/ The undersigned is not aware of anyone who worked in the summer of 1976 who had not worked in prior summers. If such a class of employees exist they would not be entitled to any award as their salary would have been governed by the contract.
      19/ In Galloway Township Board of Education v. Galloway Township Association of Educational Secretaries, P.E.R.C. No. 76-31 (1976), aff = d in part, rev = d in part, 149 N.J. Super 346 (App. Div. 1977), cert. granted, __ N.J. __ Sup. Ct. Docket No. C-892 & C-893, July 20, 1977, the Court voided the Commission = s order requiring the employer to make payment to employees whose hours were unilaterally reduced in violation of the employer = s negotiation obligation under the Act. The Court voided such payments as ultra vires because they would be made for services not rendered. In the instant matter, the individuals in question were denied their proper salary for a time actually worked.
      20/ Counsel for the Association recognizes the difficulty of fashioning a remedy for those employees who chose not to work, as stated in his brief, A the individuals herein are not seeking to be paid for work not performed but are rather seeking to be paid their appropriate rate of pay for work which they had performed. @
      21/ Perhaps this could be achieved through a prospective, temporary, lightening of duties without reduction in pay, or through voluntary assumption of additional duties for additional pay. It is also noted that there is a possible limitation to this part or the award; again, this would depend upon whether or not a class of employees exist who worked in the summer of 1976, but never worked in the summer before. If the Board did expend money on salaries for such a class of employees, the money spent on these salaries must be deducted from the total pool of money available to comply with the portion of the award. This pool of money is equal to the amount of money that the board would have paid in salaries in the summer of 1976 if they did not violate the law. It is not expected that the Board should pay out more money for summer school salaries as a result of this award, than they would have paid the employees in question at the rate of 10% of their regular salaries of course, if there is no class as described above, there is no problem.
    ***** End of HE 78-9 *****