H.E. No. 83-15

Synopsis:

A Hearing Examiner recommends that the Public Employment Relations Commission find that the Respondent Board did not violate Subsections 5.4(a)(1), (5) and (6) of the New Jersey Employer-Employee Relations Act when it unilaterally abolished the position of "C" Secretaries and reassigned the job duties to "A" and "B" Secretaries and Aides beginning with the 1981-82 school year. Because the Respondent "RIFFED" "C" Secretaries for economic reasons due to declining enrollment the case is governed by Maywood Baord of Education, 168 N.J. Super. 45 (App. Div. 1979) where the Court held that the decision to RIF as well as any resulting impact from the decision are non-negotiable and not violative of the Act. The Charging Party had urged that the Board, in redistributing the job duties, had, in effect, subcontracted the duties of the "C" Secretaries.

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. 83-15, 9 NJPER 6 (¶14001 1982)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

43.52 43.54

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- HE 83-015.pdf
Appellate Division:
Supreme Court:

H.E. NO. 83-15 STATE OF NEW JERSEY BEFORE A HEARING EXAMINER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of EDISON TOWNSHIP BOARD OF EDUCATION, Respondent, -and- Docket No. CO-82-115-82 EDISON TOWNSHIP ASSOCIATION OF EDUCATIONAL SECRETARIES, Charging Party. Appearances: For the Respondent R. Joseph Ferenczi, Esq. For the Charging Party Klausner & Hunter, Esqs. (Stephen E. Klausner, Esq.) HEARING EXAMINER = S RECOMMENDED REPORT AND DECISION An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the A Commission @ ) on November 25, 1981, and amended on February 5, 1982, by the Edison Township Association of Educational Secretaries (hereinafter the A Charging Party @ or the A Association @ ) alleging that the Edison Township Board of Education (hereinafter the A Respondent @ or the A Board @ ) has 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 in September 1981 unilaterally removed certain work previously performed by clerical employees in the Association = s collective negotiations unit and reassigned that work to other employees in job titles outside of the unit, all of which is alleged to be a violation of N.J.S.A. 34:13A-5.4(a)(1), (5) and (6) of the Act.1/ 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 March 1, 1982. Pursuant to the Complaint and Notice of Hearing, a hearing was held on July 9, 1982 in Newark, New Jersey, at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. Oral argument was waived and the parties filed post-hearing briefs by September 17, 1982. An Unfair Practice Charge, as amended, 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 brief 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 Edison Township Board of Education is a public employer within the meaning of the Act, as amended, and is subject to its provisions. 2. The Edison Township Association of Educational Secretaries is a public employee representative within the meaning of the Act, as amended, and is subject to its provisions. 3. The current collective negotiations agreement between the parties is effective from July 1, 1980 through June 30, 1983 (J-1). This agreement was modified with respect to matter not material hereto on October 15, 1981 (J-2). 4. Article I, the Recognition Clause of J-1, provides that the Association is recognized as the exclusive and sole representative for A ...all school secretarial and clerical employees... @ 5. Over the past four to five years the enrollment in the District = s four Junior High Schools has declined by approximately one third. 6. In each of these Schools, prior to June 30, 1981, there had been four A A @ Secretaries, eight A B @ Secretaries and four A C @ Secretaries. Effective June 30, 1981 the Board decided to abolish the positions of the four A C @ Secretaries due to the declining enrollment in the Junior High Schools, supra. 7. In each Junior High School there have for many years been two Aides, who are not in the collective unit represented by the Charging Party herein. 8. When the 1981-82 school year commenced on or about September 1, 1981 the job duties of the four A C @ secretaries, whose positions were abolished in June, were redistributed among the A A @ and A B @ Secretaries and the Aides. 9. The Aides in the four Junior High Schools had, prior to the 1981-82 school year, worked six hours per day. Commencing with the 1981-82 school year, after the four A C @ Secretaries = positions were abolished, the Aides were assigned to work an additional hour per day for a total of seven hours. 10. While some of the duties of the A C @ Secretaries were redistributed to the A A @ and A B @ Secretaries, supra, the evidence clearly indicates that the Aides in the four Junior High Schools were assigned clerical duties, which they had not performed previously. These duties include answering the telephone and intercom, typing and duplicating, counter work and tallying tardy and detention records. According to the credited testimony of the Charging Party = s witnesses, who included Secretaries and Aides, the Aides are performing at least one hour per day of clerical duties within Charging party = s collective negotiations unit. Further, according to several Charging Party witnesses, the number of clerical hours worked per day is as high as two and one-half to three hours. The witnesses for the Respondent, including the Principals of the four Junior High Schools, did not dispute the testimony of the Charging Party = s witnesses that the Aides were performing clerical duties during at least one hour per day. THE ISSUE Dit the Respondent Board violate Subsections (a)(1), (5) and (6) of the Act when it unilaterally abolished the position on A C @ Secretary and redistributed the duties to the A A @ and A B @ Secretaries and Aides? DISCUSSION AND ANALYSIS The Respondent Board Did Not Violate The Act When It Unilaterally Abolished The Position Of A C @ Secretary And Redistributed The Duties To A A @ And A B @ Secretaries And Aides The Findings of Fact, supra, indicate clearly that commencing with the 1981-82 school year the job duties of the four A C @ Secretaries, whose positions were abolished in June 1981, were redistributed among the A A @ and A B @ Secretaries and Aides. It is undisputed that the hours of the Aides in each of the four Junior High Schools were increased six hours per day to seven hours per day in the 1981-82 school year. Leaving aside what portion of the job duties of the A C @ Secretaries was redistributed to the A A @ and A B @ Secretaries, it is clear that the Aides performed the job duties of the A C @ Secretaries during at least one hour per day. The question is whether or not the Respondent Board violated the Act when it reassigned the job duties of the A C @ Secretaries, primarily among the Aides, for the 1981-82 school year in the context of the Board = s decision to RIF the A C @ Secretaries as of June 30, 1981. Legal precedent dictates the conclusion that the Board did not violate the Act and that the Complaint must be dismissed. See Maywood Board of Education, P.E.R.C. No. 78-23, 3 NJPER 377 (1977), aff = d in part, rev = d in part, 168 N.J. Super. 45 (App. Div. 1979), pet. for certif. den., 81 N.J. 292 (1979), which holds that where there is a reduction in force for economic reasons, such as in the instant case, neither the decision to RIF nor any impact which flows from the reduction is negotiable. See also Milltown Board of Education, P.E.R.C. No. 80-118, 6 NJPER 189 (1980). Thus, leaving aside the question of whether or not an affirmative remedial order could be made as to employees outside of the collective negotiations unit represented by the Charging Party, there is no way in which the Hearing Examiner can order a remedy for persons within the collective negotiations unit whose workload has been increased where the increase results from the impact of a RIP. This is clearly the lesson of Maywood, supra. The subcontracting decisions cited by the Charging Party while of interest are clearly not pertinent to an adjudication based upon the facts presented herein. The Respondent = s actions were in no sense a subterfuge to undermine the integrity of the collective negotiations unit. For all of the foregoing reasons, the Hearing Examiner must recommend dismissal of the Complaint. * * * CONCLUSION OF LAW The Respondent Board did not violate N.J.S.A. 34:13A- 5.4(a)(1), (5) and (6) when it unilaterally decided to RIF the A C @ Secretaries, effective June 30, 1981, and thereafter redistributed their duties among the A A @ and A B @ Secretaries and Aides for the 1981-82 school year. RECOMMENDED ORDER The Hearing Examiner recommends that the Commission ORDER that the Complaint be dismissed in its entirety. /s/Alan R. Howe Hearing Examiner DATED: November 15, 1982 Trenton, New Jersey 1/ These Subsections prohibit public 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. (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. (6) Refusing to reduce a negotiated agreement to writing and to sign such agreement. @ ***** End of HE 83-15 *****