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 April 27, 1977, and a hearing was held before the undersigned on October 6, 1977. ^2/

Because of the days lost to the strike and the teacher holidays of October 19th and 20th the students in the district would not have completed 180 days of classes under the existing schedule as required by the State Commissioner of Education. Accordingly, the Board unilaterally scheduled four make-up days during Easter vacation and up to four extra days at the end of the school year in June. ^4/ The exact number of make-up days necessary depended upon the grade level. For the grammar schools only the four days during the Easter vacation were added to the schedule. For the seventh and eighth grades, as well as the twelfth grade the four days over the Easter vacation and one day in June were added to the calendar and for special education students and the ninth, tenth and eleventh grades, four days in June were added in addition to the four days over Easter.

However, all of the striking teachers were paid for only 176 days, although grammar school teachers worked 177 days, seventh and eighth grade teachers worked 179 days and high school teachers worked 182 days. The discrepancy between the number of days worked by the striking teachers and 180 days of classes is attributable to the fact that the schools were open for several days while the strike was in progress and the high school teachers attended a two-day orientation period at the beginning of the school year. Further, although the scheduling of twelfth grade students was different from the rest of the high school grades during the strike, no evidence was adduced at the hearing to demonstrate that there are any teachers who exclusively teach twelfth grade classes. ^5/

The Board claims that it had no obligation to negotiate either the revision of the school calendar or the impact of such revision. In the Matter of Edison Township Board of Education , P.E.R.C. No. 78-53, 4 NJPER ___ (1978), the Edison Township Board of Education was faced with a situation where because of the large number of snow days during the winter, additional days had to be made up by the students to comply with the 180 school day requirement. The school board adopted a resolution directing that the deficiency in school days be remedied by requiring students and teachers to attend school over Easter recess. This action was taken by the Board unilaterally despite the objection of the Association and without any negotiation.

The Commission in deciding this matter recognized the coexistence of two concepts: 1) the establishment of the academic or school calendar is not mandatorily negotiable, but 2) the determination of employees = work year is a term and condition of employment and is mandatorily negotiable. They held that negotiations on the work year for teachers will, as a practical matter, recognize the parameters of the school calendar. Thus, the areas of mandatory negotiability of the teacher work year must be limited to those days, both as to numbers and scheduling, in excess of the days of attendance of students scheduled by the Board to meet their required educational responsibilities. Those days of the academic calendar which are scheduled by the Board to meet the 180-day requirement of student instruction are not within the scope of mandatory negotiations even though they obviously define the bulk of the work year of the teachers. So too in the instant case. The Board had to change the schedule to ensure the 180 school days= requirement and their action was not negotiable. It is noted, however, that the charging party alleged that the make-up days were scheduled on Passover. In addition the charging party submitted a number of affidavits stating that people lost deposits for scheduled trips and missed opportunities for employment because of the change in scheduling. As stated in Edison these effects do constitute an impact on employees which require the Board to negotiate with the Association prior to the implementation of the school calendar. Accordingly, the Board = s failure to negotiate constitutes a refusal to negotiate terms and conditions of employment. It should be emphasized that such negotiations need not have involved a change in the revised schedule but rather should have only concerned ways to ameliorate the effects of these changes on the employees. The undersigned is also mindful of the fact that it was the Association itself, by engaging in a work stoppage, that forced the Board to take the action it did. Accordingly, the undersigned will recommend to the Commission that they only find a technical violation of the Act and decline to award a remedy for the Board = s refusal to bargain over the impact of the scheduling change.

The other aspect of this case concerns the refusal to pay its employees for the make-up days over Easter vacation and in June. ^6/ The Board in their brief maintained that if they were to pay for the make-up days the teachers would be profiting by their own wrongdoing, i.e. receiving money for when they went on strike. ^7/

The undersigned is not impressed by this argument for the strikers were already docked for the days they did not work. The Association is only claiming they should be paid for the days they did work. ^8/ The Board also argues that the Commissioner of Education was upheld the action of school boards that did not compensate striking teachers for make-up days. In Sommer v. Board of Education of the City of Long Branch, 1974 S.L.D . 276, 286, the Commissioner of Education held, in a situation factually similar to the instant matter, that there was no obligation to negotiate since, according to the commissioner, A an illegal absence in the form of a strike is neither a term and condition of employment nor a grievable issue. @ However, subsequent to Long Branch , supra , the courts have held that only the Public Employment Relations Commission and the appellate courts can determine what is or is not a term or condition of employment. Plainfield Board of Education v. Plainfield Education Association, 144 N.J. Super. 521 (App. Div. 1976).^9/ Nothing could be more elemental than compensation for hours worked is a term or condition of employment and, therefore, mandatorily negotiable. Board of Education of Englewood v. Englewood Teachers Association, 64 N.J. 1 (1973).

The Board= s uncontested refusal to negotiate over the salary for make-up days is violative of ' (a)(5) of the Act. Admittedly the Board was forced into their actions by the conduct of the Association, and had the Board taken their action as a disciplinary measure, they perhaps would have been justified, ^10/ but the Board never introduced evidence that they were so motivated. ^11/ The only testimony on the matter came on cross- examination of the Association witness, Hrair Zakarian. He testified that school Superintendent Shine told Zakarian that A the law proscribes him from paying for the additional days. @ ^12/ The law makes no such proscription. Absent any other proof of motivation, there was a clear duty on the part of the Board of Education to negotiate the compensation. The undersigned believes an appropriate remedy would be a make-whole remedy; the employees have in essence worked without compensation. ^13/ In determining the rate of compensation the testimony is of little help for the Association witness was unable to state his actual salary for the year. ^14/ The 1975-1976 contract provides under Article IX for compensation of 1/200th of their annual salary for each day = s work over and above the normal work year under certain circumstances for certain employees. Accordingly, the undersigned recommends the use of these same figures in computing damages. ^15/

Accordingly, it is hereby recommended that the Commission find that the Board violated ' ' 5.4(a)(1) and (5) of the Act in refusing to negotiate the impact of their rescheduling of the school calendar and their refusal to negotiate the salaries for the rescheduled additional days.

It is further recommended to the Commission that they order the Board to pay the affected teachers at the following rate: grammar school teachers affected (who lost one day = s pay) - 1/200th of their annual salary for 1976-1977; junior high school teachers affected (who lost 3 days = pay) - 3/200th of their annual salary for 1976-1977; and special education and high school teachers affected (who lost 6 days = pay) - 6/200th of their annual salary.

It is further recommended that the Commission not order the Board to post a notice of violations of the Act for reasons set forth in the above report.

It is also recommended that the allegations that the Board violated ' ' 5.4(a)(3) and (7) of the Act be dismissed for no evidence was introduced at the hearing by the Association concerning such alleged violations.

___________________________
Edmund G. Gerber

Hearing Examiner

DATED: July 17, 1978
Trenton, New Jersey
1/ These sections specifically provide that employers, their representatives or agents are prohibited from: A (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; and (7) violating any of the rules and regulations established by the commission.
2/ Both parties were given an opportunity to examine witnesses, to present evidence and to argue orally. Both parties submitted briefs which were received by December 12, 1977.
3/ This stipulation was made by the Association for the purpose of this instant action only.
4/ There was also a snow day in January that had to be made up.
5/ There were some eleven teachers who chose not to strike who did not work through to the end of school in June. Article 15 of the contract between the parties provides that no teachers shall work more than 184 school days. These teachers did work 184 days and accordingly were excused from teaching. There is no dispute about these teachers.
6/ The Association does not challenge the Board = s action in docking striking teachers in October.
7/ It is undisputed that it is unlawful under common law for public employees to strike. Bd. of Educ. of Union Beach v. N.J.E.A., 53 N.J. 29 (1958).
8/ The Board cites a commissioner of education case, Thomas Hightor v. Bd. of Educ. of the City of Union, 1974 S.L.D . 193. This case is not apposite here for there the teachers did not work without pay.
9/ See also Hoboken Teachers Association v. Hoboken Board of Education , Docket No. C-3828-76 wherein Judge Kentz of the Chancery Division upheld an arbitrator = s decision in a case factually similar to the instant matter. The arbitrator upheld the right of the board to dock employees for the day they struck but ordered the board to reimburse its employees for the rescheduled make-up days.
10/ Unquestionably the Board had the right to seek court action against the strikers.
11/ This anomalous situation could be explained by the representation made in the Association = s brief that a no- reprisal clause was entered into between the parties. Such a representation, however, is not proof and was not relied upon by the undersigned in reaching his decision.
12/ T. p. 63, line 2.
13/ Therefore this situation is readily distinguishable from Galloway Twp. Bd. of Educ. v. Galloway Twp. Educ. Assn., 149 N.J. Super . 346 (App. Div. 1977), appeal pending, where the court stated the Commission is without statutory authority to order back pay for services not rendered.
14/ The contractual dispute was apparently settled by an arbitrator and retroactive pay was awarded.
15/ Galloway Twp. Bd. of Education and Galloway Twp. Education Association , 157 N.J. Super . 74 (App. Div. 1978), the court disallowed the Commission use of the 1/200th figure. In that case, however, the court stated the remedy itself was inappropriate for the teachers suffered no loss of income.