H.E. NO. 83-2

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

ESSEX COUNTY EDUCATIONAL SERVICES

COMMISSION,

Respondent,

-and-	Docket No. CO-82-190-137

EDUCATIONAL SERVICES TEACHERS ASSOCIATION,

Charging Party.

Appearances:

For the Respondent

Petit-Clair & Graves, Esqs.

(Edward F. Petit-Clair, Esq.)

For the Charging Party

Greenberg, Kelley & Prior, Esqs.

(James F. Schwerin, Esq.)

DECISION AND ORDER ON CHARGING PARTY'S

MOTION FOR SUMMARY JUDGMENT

An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the "Commission") on February 1, 1982 by the Educational Services Teachers Association (hereinafter the "Charging Party" or the "Association") alleging that the Essex County Educational Services Commission (hereinafter the "Respondent") 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 "Act"). The Respondent is authorized to employ principals, teachers and other employees under Title 18A for employment in public schools and did employ such personnel for the 1979-80 school year; the President of the Charging Party did during the Fall of 1979 request recognition by the Respondent of the Charging Party as the exclusive negotiating representative for the teaching personnel employed by the Respondent; under date of December 19, 1979, the Executive Director of the Respondent advised the President of the Charging Party that the Respondent had on December 13, 1979 formally recognized the Charging Party as the exclusive representative for teachers employed by the Respondent; by resolution of July 1, 1980 the Respondent terminated the employment of all teachers represented by the Charging Party; the Respondent immediately thereafter subcontracted said teaching services to a private contractor for the 1980-81 school year; as a result of legal proceedings instituted by the Charging Party the Appellate Division on October 15, 1981 held that the Respondent had no legal authority to subcontract teaching services; after another effort to subcontract, the Respondent commenced employing teachers for the 1981-82 school year; on October 22, 1981 counsel for the Charging Party demanded negotiations for a collective negotiations agreement, which had not previously been consummated; on October 26, 1981 counsel for the Respondent declined to enter into collective negotiations on the ground that an Unfair Practice Charge was pending under Docket No. CO-81-69 and that, thus, a demand for negotiations was premature; all of which is alleged to be a violation of N.J.S.A. 34:13A-5.4(a)(1) and (5) of the Act.1/

It appearing that the allegations of the Unfair Practice Charge, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on June 7, 1982. Thereafter, on June 15, 1982, prior to the filing by the Respondent of its Answer, the Charging Party filed a Motion for Summary Judgment with a supporting brief. On June 25, 1982 the Respondent filed its Answer, which raises no genuine issues of material fact. The Respondent filed its response to the Motion for Summary Judgment on July 12, 1982.2/

Pursuant to N.J.A.C. 19:14-4.8(a), the Chairman of the Commission referred the Charging Party's Motion for Summary Judgment to the instant Hearing Examiner under date of July 21, 1982.

Upon the record papers filed by the parties in the instant proceeding to date, the Hearing Examiner makes the following:

UNDISPUTED FINDINGS OF FACT

1.	The Essex County Educational Services Commission is a public employer within the meaning of the Act, as amended, and is subject to its provisions.

2.	The Educational Services Teachers Association is a public employee representative within the meaning of the Act, as amended, and is subject to its provisions.

3.	The Respondent is an educational body organized pursuant to N.J.S.A. 18A:6-52 and for 1979-80 school year it employed 103 teachers for the delivery of direct services to non-
public school children pursuant to the N.J.S.A. 18A:46A-1 et seq. and N.J.S.A. 18A:46-19.1 et seq.

4.	In the Fall of 1979 the President (pro-tem) of the Charging Party requested in writing that the Respondent recognize the Charging Party as the exclusive negotiating representative for its teachers, supra.

5.	On December 13, 1979 the Respondent formally recognized the Charging Party as the exclusive representative for the said teachers and this action was communicated to the President of the Charging Party by the Respondent's Executive Director under date of December 19, 1979.

6.	Prior to the consummation of a collective negotiations agreement the Respondent on April 25, 1980 notified sixty-one (61) of the unit teachers that they would not be offered employment for the 1980-81 school year. Thereafter, after being informed that it could not lawfully borrow funds, the Respondent by resolution of July 1, 1980 effected a total reduction in force as to the remaining teachers represented by the Charging Party.

7.	The teaching services, which were to have been provided by the Respondent, were thereafter subcontracted to a private employer, Education & Training Consultants, Inc., which provided the said services for the 1980-81 school year.

8.	In December 1980 the Charging Party instituted legal proceedings in the Superior Court, Chancery Division, Essex County, alleging that the subcontracting by the Respondent was ultra vires.

9.	On October 15, 1981 the Appellate Division, reversing the Superior Court, held that the Respondent's subcontracting of services was ultra vires.

10.	On October 22, 1981 counsel for the Charging Party requested in writing of counsel for the Respondent that it "continue collective negotiations unlawfully terminated by your client when it acted ultra vires..." in subcontracting its services.

11.	At the time of the foregoing request for negotiations, the Respondent had resumed providing teaching services for the 1981-82 school year in response to a second law suit instituted in the Superior Court, Law Division, Essex County. Respondent has employed teachers for 1981-82 on an hourly basis rather than on an annual salary as had been the case prior to July 1, 1980.

12.	Counsel for the Respondent on October 26, 1981 declined the demand for negotiations as being premature in view of the pendency of an earlier Unfair Practice Charge filed by the Charging Party on September 18, 1980 and docketed as docket no. CO-81-69.

DISCUSSION

Based on the foregoing undisputed findings of fact, it is clear that the instant proceedings are ripe for disposition on the Charging Party's Motion for Summary Judgment: See analysis and discussion by the New Jersey Supreme Court in Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 73-75 (1954) and the New Jersey Civil Practice Rules 4:46-2. Under these authorities a motion for summary judgment may properly be granted when the record papers disclose that "...there is no genuine issue as to any material fact...and that the moving party is entitled to a judgment or order as a matter of law..." The Hearing Examiner is satisfied that the requisites for the grant of the Charging Party's Motion for Summary Judgment are met.

Further, the pendency of the Commissioner of Education proceeding in OAL, supra, raises no obstacle or impediment to the disposition by the Hearing Examiner of the Charging Party's Motion for Summary Judgment. First, the facts herein are undisputed and, thus, there can be no duplication or conflict between the facts in this proceeding and the facts developed in a hearing before an Administrative Law Judge of the OAL, such as would be precluded by the New Jersey Supreme Court's decision in Hackensack v. Winner, 82 N.J. 1 (1980). Additionally, the issues to be adjudicated in the instant proceeding vis-a-vis the issues in the OAL proceeding are completely separate and distinct from one another. Thus, there will be no conflict or overlap in the two separate adjudications. As noted previously, the question in the Commissioner of Education proceeding is whether or not individual teachers, who were terminated as of July 1, 1980, have any rights to reemployment with monetary compensation while the question in the instant proceeding is whether or not the Respondent is under a legal obligation, at the present time, to negotiate collectively with the Charging Party under our Act, namely, Subsections (a)(1) and (5).

* * *

Based on all the foregoing, and the legal arguments made by counsel for the parties, the Hearing Examiner hereby grants the Charging Party's Motion for Summary Judgment for the following reasons:

The Charging Party Has Not Lost Its

Majority Status As Collective Negotiations

Representative By The Actions Taken By

The Respondent Since July 1, 1980

The obligation to negotiate can be created either by certification after an election or by voluntary recognition. In the instant case, the obligation was created by an act of voluntary recognition. However, once the recognition is accorded, the Respondent is not free to withdraw recognition or cease negotiations at will: Atlantic County Sewerage Authority, P.E.R.C. No. 81-91, 7 NJPER 99 (1981).

Further, it is clear by reference to the private sector that where voluntary recognition has been granted by the employer a presumption exists that majority status continues unless and until the employer meets the burden of establishing a reasonable good faith doubt as to majority status. See NLRB v. Carilli, 648 F.2d 1206, 1214 (9th Cir. 1981) and Zim's Foodliner, Inc. v. NLRB, 495 F.2d 1131 (7th Cir. 1974). Any evidence submitted by the employer to establish a reasonable good faith doubt must be "...clear, cogent and convincing..." NLRB v. Tragniew, Inc., 470 F.2d 669, 674-75 (9th Cir. 1972).

It is plain as a pikestaff that the Respondent herein has not demonstrated in any manner whatsoever that it could have a reasonable good faith doubt as to the continuing majority status of the Charging Party. The Respondent relies solely on the fact of an earlier Unfair Practice Charge having been filed by the Charging Party with the Commission in 1980.

It appears to the Hearing Examiner that the status of the Charging Party herein as a viable majority representative is governed by the decision of the New Jersey Supreme Court in Galloway Township Board of Education v. Galloway Township Association of Educational Secretaries, 78 N.J. 1 (1978). There the unit consisted of seven secretaries, who had been represented by the Association in negotiations for an initial collective agreement. The Supreme Court found that the fact that six of the secretaries had been separated from employment did not amount to the dissolution of the Association. As the Court said:

"...the job titles which were included in the negotiating unit represented by the Association continue to exist, although different employees hold the jobs at present. No representation proceeding aimed at the replacement or ouster of the Association as the majority representative...has been initiated by the present unit employees, although the Association's certification has long since expired..." (78 N.J. at 17).

The Supreme Court in Galloway reinstated a Commission order that the Board negotiate on demand with the Association as to terms and conditions of employment. In so doing the Court said, inter alia, that:

"...The union's loss of majority status need not be attributable to the particular unfair labor practices committed by the employer. The rationale for the federal rule is the belief that a union which has been freely chosen by the unit employees as their bargaining representative must be permitted to enjoy that right..." (78 N.J. at 18, 19).

The gap in the operations of the Respondent during the 1980-
81 school year, when it subcontracted its teaching services, is irrelevant to the continuing majority status of the Charging Party. See Textile Workers Union of America v. Darlington Mfg. Co., 380 U.S. 263, 273 (1965) and NLRB v. Southern Plasma Corp., 626 F.2d 1287 (5th Cir. 1980).

As pointed out by the Charging Party, the hiatus between the collective negotiations at the end of the 1979-80 school year, and the Charging Party's demand to resume those negotiations in October 1981, is irrelevant to the ongoing majority status of the Charging Party. In Pioneer Inn Associates v. NLRB, 578 F.2d 835 (9th Cir. 1978) the union had been inactive for several years and was "...neither administering terms of the contract nor attempting to negotiate a new agreement..." Although recognizing that an extended period of inactivity could be taken into consideration, it was not enough, in and of itself, to establish the lack of majority status.

Thus, the Hearing Examiner concludes that the Respondent's obligation to negotiate is a continuing one, based on the fact that it has resumed the same operation as it had been engaged in prior to the subcontracting in 1980.

Respondent Is Obligated To Maintain

The Status Quo As Of July 1, 1980

Regarding Terms And Conditions Of

Employment Of Teachers Currently Employed

In concluding that the Respondent is committing an unfair practice if it has unilaterally changed the terms and conditions of employment of teachers represented by the Charging Party, during the course of collective negotiations, the Hearing Examiner relies upon Galloway Township Board of Education v. Galloway Township Education Association, 78 N.J. 25 (1978). That case involved the unilateral action of the Board in refraining from paying increments to teachers, who were normally entitled to them, at the commencement of the new school year. The parties were in collective negotiations for a successor agreement when this action of the Board occurred. The Court, in concluding that the Board's action constituted an unfair practice, said:

"...The basis of the rule prohibiting unilateral changes by an employer during negotiations is the recognition of the importance of maintaining the then-prevailing terms and conditions of employment during this delicate period until the new terms and conditions are arrived at by agreement. Unilateral changes disruptive of this status quo are unlawful because they frustrate the 'statutory objective of establishing working conditions through bargaining.' NLRB v. Katz, supra, 369 U.S. at 744..." (78 N.J. at 48).

Under the holding of the Supreme Court in Galloway, supra, the Respondent must compensate the teachers presently employed at the annual salary paid to teachers prior to July 1, 1980. This constitutes the status quo ante, which must continue until different terms and conditions are negotiated between the Charging Party and the Respondent and embodied into a collective negotiations agreement.

The authority of the Commission to order such a remedy is clear from the Galloway cases, supra. As the Supreme Court said in Hackensack v. Winner, supra, the Commission's:

"...jurisdiction over unfair practices is sufficiently broad to accommodate claims of wrongful treatment relating to the organizational rights of employees as well as to their working conditions..." (82 N.J. at 20).

Accordingly, the Hearing Examiner concludes that the Respondent must restore the status quo ante as of July 1, 1980 by compensating teachers presently employed at the annual salaries in effect on July 1, 1980, and not to compensate them on an hourly basis as is presently the case.

* * *

Upon the foregoing, the Hearing Examiner makes the following:

CONCLUSIONS OF LAW

1.	The Charging Party's Motion for Summary Judgment is granted.

2.	The Respondent, by its conduct herein, has violated N.J.S.A. 34:13A-5.4(a)(1) and (5).

RECOMMENDED ORDER

The Hearing Examiner hereby recommends that the Commission ORDER:

A.	That the Respondent cease and desist from:

1.	Interfering with, restraining or coercing its employees in the exercise of the rights guaranteed to them by the Act, particularly, by refusing to negotiate with the Educational Services Teachers Association for a collective negotiations agreement covering teachers presently employed by the Respondent.

2.	Refusing to negotiate in good faith with the Educational Services Teachers Association for teachers in the collective negotiations unit previously recognized by the Respondent, particularly, by refusing to negotiate with the Educational Services Teachers Association for a collective negotiations agreement covering teachers presently employed by the Respondent.

B.	That the Respondent take the following affirmative action:

1.	Forthwith restore the status quo ante by compensating teachers in the collective negotiations unit represented by the Educational Services Teachers Association at the annual salary in effect prior to July 1, 1980, and to make said teachers presently employed whole for lost earnings from September 1, 1981, the measure of said lost earnings being the difference between the annual salary in effect prior to July 1, 1980 and the total monies paid to said teachers since September 1, 1981, together with interest at the rate of 12% per annum from September 1, 1980.

2.	Post in all places where notices to employees are customarily posted, copies of the attached notice marked as Appendix "A." Copies of said notice, on forms to be provided by the Commission, shall be posted immediately upon receipt thereof and, after being signed by the Respondent's authorized representative, shall be maintained by it for at least sixty (60) consecutive days thereafter. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced or covered by other materials.

3.	Notify the Chairman of the Commission within twenty (20) days of receipt what steps the Respondent has taken to comply herewith.

/s/Alan R. Howe

Hearing Examiner

DATED:	July 28, 1982

Trenton, New Jersey

WE WILL NOT interfere with, restrain or coerce our employees in the exercise of the rights guaranteed to them by the Act, particularly, by refusing to negotiate with the Educational Services Teachers Association for a collective negotiations agreement covering teachers presently employed by the Respondent.

WE WILL NOT refuse to negotiate in good faith with the Educational Services Teachers Association for teachers in the collective negotiations unit previously recognized by the Respondent, particularly, by refusing to negotiate with the Educational Services Teachers Association for a collective negotiations agreement covering teachers presently employed by the Respondent.

WE WILL forthwith restore the status quo ante by compensating teachers in the collective negotiations unit represented by the Educational Services Teachers Association at the annual salary in effect prior to July 1, 1980, and to make said teachers presently employed whole for lost earnings from September 1, 1981, the measure of said lost earnings being the difference between the annual salary in effect prior to July 1, 1980 and the total monies paid to said teachers since September 1, 1981, together with interest at the rate of 12% per annum from September 1, 1981.