H.E. NO. 81-16

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

BOARD OF EDUCATION OF THE

TOWNSHIP OF CHERRY HILL,

Respondent,

-and-	Docket No. CO-79-166-15

CHERRY HILL EDUCATION

ASSOCIATION,

Charging Party.

Appearances:

For the Respondent, Davis & Reberkenny, Esqs.

(Kenneth D. Roth, Esq.)

For the Charging Party, Selikoff & Cohen, P.A.

(Joel S. Selikoff, Esq.)

HEARING EXAMINER'S RECOMMENDED REPORT

AND DECISION

On December 29, 1978, the Cherry Hill Education Association (the Association or Charging Party) filed an Unfair Practice Charge with the Public Employment Relations Commission (Commission) alleging that the Board of Education of the Township of Cherry Hill (Board or Respondent) 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. (Act). It was specifically alleged that on or about September 1, 1978, the Respondent, without negotiations removed work formerly performed by department chairman in the unit represented by the Charging Party and assigned the work to members of the administration and secretaries who are outside the unit as well as to other unit members. It was claimed that these acts violated §5.4(a)(1) and (5) of the Act. 1/ On January 17, 1979, the charge was amended to further allege that on September 1, 1978, the Respondent removed the position of audio-visual aide co-ordinator, a position within the unit represented by the Charging Party and assigned the duties of that position to individuals who are outside that unit, also in violation of §5.4(a)(1) and (5) of the Act.

It appears that the allegations of the charge, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on September 17, 1979. On May 16, 1980, pursuant to N.J.A.C. 19:14-6.3 (a)(9) the parties voluntarily entered into a stipulations of fact.

Briefs were submitted by both parties. The final supplement to the Respondent's brief was received by September 30, 1980.

The respondent has urged that the complaint in this matter is out of time and should be dismissed. Section 5.4(c) of the Act provides "no complaint shall issue based upon any unfair practice occurring more than six months prior to the filing of the charge." The Respondent argues that the operative event giving rise to the complaint was not on September 1, 1978, as alleged in the Association's charge. Between October 5, 1977 and March 17, 1978, several meetings were held with the Association at which time the elimination of positions in the district was discussed and on April 25, 1978, the President of the Association demanded negotiations on the changes in terms and conditions of employment of members of the unit as a result of the elimination of Department Chairperson positions. The demand for negotiations was renewed on May 19, 1978. The Board never negotiated. This second demand was made some 7-1/2 months prior to the filing of a charge.

The Respondent does concede that the decision to abolish the positions was effective on or about September 1, 1978, at the start of the school year. It further concedes that if the effective date of the abolishment of this position is the operative date for the commencement of the running of the six-
month period, the charge is timely.

The Commission has held in Jamesburg Board of Education and Jamesburg Education Association, P.E.R.C. No. 80-56, 5 NJPER 496, 497 (¶10253, 1979) and Warren Hills Board of Education and Warren Hills Education Association, P.E.R.C. No. 78-69, 4 NJPER 187 (¶4094, 1978) that "the operative event is not the decision but rather the implementation." The unfair practice is refusing to negotiate before implementation. No wrong occurs unless and until implementation occurs. If no wrong has occurred, the six-
month period cannot have commenced. If therefore follows that the operative event here is September 1, 1978, the start of the 1978-1979 school year. Accordingly the action is not barred by the six-month limitation provision of the Act.

the parties stipulated that the positions of Chairperson of Physical Education at the Heritage and Brainard Schools, of Chairpersons of Related Acts at the Beck and Brainard Schools, of Director of Guidance at the Heritage, Beck and Brainard Schools and Audio-Visual Aide Co-ordinator at the Beck School were all eliminated. None of the teachers who held these positions were let go. They all assumed regular teaching duties.

The Respondent has argues that the elimination of these positions was a reduction in force (RIF) and accordingly, pursuant to Maywood Board of Education v. Maywood Education Association, 168 N.J. Super. 45 (App. Div. 1979) cert. den. 81 N.J. 292 (1979) the impact of the elimination of the position is not negotiable.

The Board also cites N.J.S.A. 18A:28-9 in support of their argument:

"Nothing in this title or any other law relating to tenure of service shall be held to limit the right of any board of education to reduce the number of teaching-staff members, employed in the district whenever, in the judgment of the board, it is advisable to abolish any such position for reasons of economy or because of the reduction in the number of pupils or of change in the administrative or supervisory organization of the district or for other good cause upon compliance with the provisions of this article." N.J.S.A. 18A:28-9.

A careful reading of the statute discloses that the instant situation is not a RIF. The statute relates to "tenure of service" and to reducing "the number of teaching-staff members employed in the district." Here no one was let go. Rather there was a reassignment of duties. See Piscataway Township Board of Education and Piscataway Township Education Association, P.E.R.C. No. 78-81, 4 NJPER 246 (¶4124, 1978). 2/

As a general rule, reassignment of work from employees within a negotiations unit to employees outside the unit is a mandatory subject of negotiations. Rutgers, The State University v. Local 1761, AFSCME Council No. 52, P.E.R.C. No. 79-52, 5 NJPER 186 (¶10103, 1979), mot for recon., P.E.R.C. No. 79-92 5 NJPER 230 (¶10127, 1979), affmd App. Div. Docket No. A-3651-78 (July 1, 1980). As stated in Rutgers "when the same amount of work is being performed and the employer is merely revamping personnel assignments, then the logic behind permitting reduction in force does not apply and there must be negotiations."

As the Respondent correctly argues, there are a number of exceptions to this rule.

"It is well established that decisions concerning (1) reorganizing the departmental structure; (2) restructuring particular programs; and (3) reassigning supervisory duties from one group of employees to another are major educational policy matters beyond the scope of negotiations." Point Pleasant Borough Board of Education and Point Pleasant Borough Teachers Association, P.E.R.C. No. 80-145, 6 NJPER (¶ , 1980).

Here, all of the work done by the chairperson (scheduling and conducting departmental meeting, evaluations and observations of teachers within the respective department, budget preparation, scheduling and control of substitutes etc.) was transferred to the principal, vice principal and assistant principal. 3/

The elimination of these positions constitutes a reorganization of departmental structure and a reassigning of supervisory duties from one group of employees to another and such transfers are non-negotiable.

Some of the work formerly done by the guidance [counsellors] counselors and chairperson is now being done by unit member guidance [counsellors] counselors and non-unit secretaries – as the Charging Party has conceded, the decision to eliminate a position and redistribute duties previously assigned to that position among other unit members is a non-negotiable managerial prerogative. East Orange Board of Education and East Orange Education Association, P.E.R.C. No. 79-62, 5 NJPER 122 (¶10071, 1979). Therefore the transfer of work from the Guidance [Counsellor] Counselor Chairperson to other guidance [counsellors] counselors is non -negotiable.

The transfer of Guidance [Counsellor] Counselor Chairperson work to non-unit secretaries consists basically of ministerial duties such as "the processing of materials for each marking period." The shifting of this work to non-unit secretarial employees is only incidental to the shifting of supervisory functions, and therefore not negotiable. Board of Education of Woodstown-Pilesgrove Regional School District v. Woodstown-
Pilesgrove Regional Education Association, 81 N.J. 582 (1980).

The abolition of the position of Audio-Visual Co-ordinator creates different problems.

The Audio-Visual Co-ordinator job description calls for a teacher with a minimum of three years of classroom experience and a Masters Degree in Educational Media and extensive experience. the job description requires certification as an educational media specialists but the position itself is not a supervisory one. Pursuant to Rutgers, supra, one must look at the amount and type of work done before and after the transfer to determine if there was a genuine restructuring of the program of if there merely was a transfer of work to non-unit personnel. Here, the essential day-to-day care of audio-visual equipment and materials is still being done. However, no one now performs those tasks in the job description requiring a high level of professionalism. That is, the consultation and training of both teachers and students. These duties went beyond equipment and materials and included area such as curriculum planning and classroom instruction.

The elimination of professional duties indicate that the Board's action was more than a transfer of work to non-unit personnel. Eliminating, or greatly reducing, professional duties, changed the nature of the work. It is apparent that there was a genuine restructuring of the program and the actions of the Board were not negotiable.

* * * * * * * * *

Based on the foregoing, the Hearing Examiner makes the following:

Conclusions of Law

The Respondent did not violate N.J.S.A. 34:13A-5.4(a)(1) and (5).

Recommended Order

It is hereby ORDERED that the Complaint be dismissed in its entirety.

________________________

Edmund G. Gerber

Hearing Examiner

DATED: October 30, 1980

Trenton, New Jersey