1/ These provisions 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. (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."

The charge was accompanied by an application for interim relief with supporting documents. An order to show cause was executed on September 18, 1998 and a return date was scheduled for October 8, 1998. The parties submitted briefs, affidavits and exhibits in accordance with Commission rules; the parties argued orally on the established return date.

It appears that the Association represents a negotiations unit consisting of classroom teachers and other teaching staff members, office personnel and custodial, maintenance and ground employees. Custodial, maintenance and ground employees and some office personnel are employed on a 12-month basis. The remaining office personnel, as well as the teaching staff members are employed in 10-month positions.

The parties appear to have entered into a collective agreement covering the period July 1, 1996 through June 30, 1998. It appears that the parties have engaged, and continue to engage in collective negotiations in an effort to arrive at a successor agreement commencing July 1, 1998. The Association claims, and the Board does not dispute, that since the expiration of the 1996-1998 agreement, no increments have been paid to any unit employees. The union claims that employees working a 12-month calendar were entitled to receive increments effective July 15, 1998. The

Association further claims that unit employees working on a 10-month basis were entitled to receive increments on September 15, 1998.

The Board asserts that the status quo does not require the automatic payment of salary increments to unit employees once the 1996-1998 collective agreement expired. The Board argues that when the expired collective agreement is for less than three years, the New Jersey Supreme Court decision in Board of Education, Township of Neptune v. Neptune Township Education Association , 144 N.J . 16 (1996) requires that salary schedules be limited to the term of the agreement, even if the duration of the agreement is less than three years.

The Board also argues that there are circumstances where it is appropriate to withhold the increment, regardless of the term of the collective agreement. The Board states that if the payment of the increment does not represent the "status quo" then payment is neither mandatory nor automatic. The Board contends that the collective agreement contains express language which establishes that increments are not automatic for teachers. Article XVII(A) of the expired collective agreement provides as follows:

Teachers who do satisfactory work will be recommended to the Board of Education by the Superintendent for a salary increment in accordance with the approved teachers' salary guide. This recommendation must be acted upon by the Board of Education.

However, the Board may withhold such increment for inefficiency or other just cause, provided the inefficiency is established in keeping with the following principle:

To obtain interim relief, the moving party must demonstrate both that it has a substantial likelihood of prevailing in a final Commission decision on its legal and factual allegations and that irreparable harm will occur if the requested relief is not granted. Further, the public interest must not be injured by an interim relief order and the relative hardship to the parties in granting or denying relief must be considered. Crowe v. De Gioia, 90 N.J. 126, 132-134 (1982); Whitmyer Bros., Inc. v. Doyle, 58 N.J. 25, 35 (1971); State of New Jersey (Stockton State College), P.E.R.C. No. 76-6, 1 NJPER 41 (1975); Little Egg Harbor Tp., P.E.R.C. No. 94, 1 NJPER 37 (1975).

This case is not the first where a board of education, relying upon Neptune , has refused to pay increments to employees included in a mixed unit of teaching and non-teaching staff after the expiration of a two-year collective agreement. In Mahwah Bd. of Ed., I.R. No. 98-8, 23 NJPER 593 ( & 28290 1997), a case decided subsequent to Neptune , the Commission Designee ordered the payment of increments to a mixed unit of teaching and non-teaching staff members after the expiration of a two-year collective agreement. The Commission Designee stated:

The refusal to pay increments is a unilateral alteration of the status quo and a per se illegal refusal to negotiate in good faith. Such conduct so interferes with the negotiations process that a traditional remedy at the conclusion of the hearing process would not effectively remedy the violations of the Act. [Citations omitted. 23 NJPER at 593-594.]

The Commission Designee, applying Neptune , ordered the Board to pay increments to all unit employees. In denying Mahwah Board of Education's motion for reconsideration, P.E.R.C. No. 98-105, 24 NJPER 133 (& 29067 1998), the Commission noted that the Designee issued a decision consistent with Commission precedent. I find Mahwah to be particularly instructive since the alleged factual elements of a two-year agreement covering a mixed unit which includes both teaching and non-teaching staff members appear in both cases. Also, the Commission has had some opportunity to provide

I note that prior to Neptune , the Commission, following Galloway Tp. Bd. of Ed. v. Galloway Tp. Ed. Assn., 78 N.J . 25 (1978), consistently held that good faith negotiations requires the maintenance of established terms and conditions of employment, i.e ., the "dynamic status quo", and the payment of increments as part of that status quo. The refusal to pay increments has been found under Galloway to constitute a unilateral alteration of the status quo and a refusal to negotiate in good faith. Historically, it has been found that such conduct so interferes with the negotiations process that a traditional remedy at the conclusion of the hearing process would not effectively remedy the violations of the Act. Evesham Tp. Bd. of Ed, I.R. No. 95-10, 21 NJPER 3, 4 ( & 26001 1994); Hudson Cty and Hudson Cty PBA Local 51, P.E.R.C. No. 78-48, 4 NJPER 87 (& 4041 1978), aff'd NJPER Supp.2d 62 ( & 44 App. Div. 1979); Rutgers, the State University and Rutgers University College Teachers Association , et al., P.E.R.C. No. 80-66, 5 NJPER 539 ( & 10278 1979),

2/ Essex Cty. Voc. and Tech Bd. of Ed., I.R. No. 97-4, 22 NJPER 343 (& 27178 1996) also concerns a situation involving a two-year agreement covering a mixed unit of teaching and non-teaching staff members. The Commission Designee in Essex Cty. Vo. Tech . refused to grant the charging party's application for interim relief. However, the Commission Designee in East Hanover Tp. Bd. of., I.R. No. 98-4, 23 NJPER 537 ( & 28264 1997), notice of app. dism. App. Div. Dkt. No. A-000345-97T2 (12/15/97), enf. action w/d Law Div. Dkt. No. MER-L-000029-98 (6/11/98), declined to follow Essex Cty Vo. Tech. Mahwah , having gotten some Commission review, provides better guidance than Essex Cty. Voc. Tech.

I am not persuaded that the Board's claim that the express language of the collective agreement defeats the automatic nature of increment payments in this case. The language cited by the Board appears to be in the nature of language which typically allows the Board to withhold increments based on teaching performance or inefficiency. While the Board cites Hawthorne in support of its argument, the language contained in the Hawthorne collective agreement differs significantly from that contained in the Waldwick contract. The language in the Hawthorne agreement provides:

Individual secretarial personnel are not entitled to an automatic salary increment. Said increment shall be paid subject to the recommendation of the Superintendent of Schools and approved by the Board of Education.

In accordance with Galloway , the Commission has consistently held that irreparable harm exists when an employer refuses to apply automatic increments because such action changes the established terms and conditions of employment. The Court in Galloway stated:

Indisputedly, the amount of an employee's compensation is an important condition of ...employment. If a scheduled annual step increment in an employee's salary is an 'existing rul[e] governing working conditions,' the unilateral denial of that increment would constitute a modification thereof without the negotiation mandated by N.J.S.A. 34:13A-5.3 and would thus violate N.J.S.A . 34:13A-5.4a(5). Such conduct by a public employer would also have the effect of coercing its employees in their exercise of the organizational rights guaranteed them by the Act because of its inherent repudiation of and chilling effect on the exercise of their statutory right to have such issues negotiated on their behalf by their majority representative. [78 N.J. at 49.]

Accordingly, in accordance with the traditional application of Galloway to the circumstances in this case, I find that the Association has established that it will suffer irreparable harm as the result of the Board's failure to pay increments.

In balancing the parties relative hardship, I find that the chilling effect which results from the Board's failure to pay increments and the irreparable harm which is suffered by the employee organization as the result of the Board's unilateral change in conditions of employment during the course of negotiations outweighs any harm suffered by the Board as the result of maintaining the status quo by granting increments to unit employees. Accordingly, absent Commission direction to the contrary, I am constrained by precedent to order the Board to immediately pay increments to unit employees.