H.E. NO. 84-39

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

RANDOLPH TOWNSHIP

BOARD OF EDUCATION,

Respondent,

-and-	Docket No. CO-81-65-159

RANDOLPH EDUCATION ASSOCIATION,

Charging Party.

Appearances:

For the Respondent

Rand & Algeier, Esqs.

(Robert M. Tosti, Of Counsel)

For the Charging Party

Schneider, Cohen & Solomon, Esqs.

(Bruce D. Leder, Of Counsel)

HEARING EXAMINER'S COMPLIANCE HEARING

REPORT AND RECOMMENDED DECISION

On June 4, 1983, the New Jersey Public Employment Relations Commission ("Commission") found that the Randolph Township Board of Education ("Board") unlawfully demoted Albert Booth from his position as a maintenance-groundsman to that of a custodian. The Commission found that Booth was demoted because the Randolph Education Association ("Association") had filed an unfair practice charge on his behalf.1/ The Commission found that prior to Booth's promotion to maintenance-groundsman he was a custodian at Step 8 of the custodian salary guide and that on July 1, 1980, he would have been moved to Step 9.2/ On July 1, 1980, Booth was promoted to a maintenance-groundsman position and placed on Step 4 of the maintenance salary guide at an annual salary of $12,791.3/ After receiving word that the Association had filed an unfair practice charge, the Board notified Booth that he was to be reassigned to his former position at his prior salary effective October 27, 1980.

The Commission ordered the Board to restore Booth to his position as a maintenance-groundsman at the fifth step of the maintenance salary guide and make him whole for lost wages from October 27, 1980. Specifically the Commission ordered the Board to, "...make payment to Booth at the rate of $555 per annum from October 27, 1980 through June 30, 1981, and thereafter at the rate reflecting the difference between Booth's salary as a fifth step custodian and the fifth step for maintenance-groundsman on the salary guide for 1981-82, together with interest at the rate of 12% per annum from October 27, 1980."

The Commission's decision was appealed by the Board, and was upheld by the Appellate Division in Randolph Education Association v. Randolph Township Board of Education, App. Div. A-
5077-81-T2 (June 24, 1983).

On September 14, 1983, the Association notified this agency that a dispute had arisen concerning the total amount of back pay owing to Booth and requested that the Commission enforce its Order. In response, the Board stated that there was a typographical error in the Commission's Order. The Board stated that the Order mistakenly required the Board to pay Booth the difference between Booth's salary as a fifth step custodian and a fifth step maintenance-groundsman rather than as an eighth step custodian.

It appearing that the Commission Order may not have been complied with and that a factual dispute regarding the computation of the award exists, a Notice of Hearing regarding compliance proceedings was issued on November 29, 1983, by the Chairman, pursuant to N.J.A.C. 19:14-10.2. This hearing was conducted on January 5, 1984, at which time the parties were given an opportunity to examine witnesses, present evidence and argue orally. The parties filed post-hearing briefs by January 17, 1984.

Upon the entire record, the Hearing Examiner makes the following findings of fact:

FINDINGS OF FACT

1.	In June of 1980 Albert Booth held the position of custodian and was at Step 8 of the custodians' salary guide earning $10,7494/ annually. He applied for the position of maintenance-groundsman and was appointed to that position effective July 1, 1980. He was then placed at step 4 of the maintenance salary guide earning $12,891 annually.

2.	On September 17, 1980, the Association filed an unfair practice charge alleging that the Board violated the Act in not placing Booth at step 9 of the maintenance salary guide. The Board then reassigned Booth to his former position as custodian effective October 27, 1980. Booth was placed at Step 9 of the custodian's salary guide rather than at Step 8 because according to the terms of the parties' collective negotiations agreement, employees would move up one step on July 1, 1980, in order to receive their yearly increment. At Step 9 Booth earned $12,336 annually.

3.	During the 1981-82 school year Booth was at Step 10 of the custodian's salary guide earning $13,436 annually. Had Booth remained a maintenance-groundsman he would have been at Step 5 on the maintenance salary guide earning $12,291.

4.	During the 1982-83 school year Booth was at Step 11 of the custodian's salary guide earning $14,536. On September 1, 1982, Booth was promoted to the position of Head Custodian earning $15,530 annually. Had he remained a maintenance-
groundsman, Booth would have been at Step 6 on the maintenance salary guide earning $15,691.

5.	On September 1, 1983, Booth was made a maintenance-
groundsman at Step 7 of the maintenance salary guide.

DISCUSSION AND ANALYSIS

Error in the Order

It is apparent that the Commission's Order requiring the Board to pay Booth the difference between Booth's salary as a fifth step custodian and a fifth step maintenance-groundsman was a mistake. The record clearly shows that Booth was at Step 8 on the custodian's salary guide in 1979-80 and was paid at Step 9 in 1980-81. The Commission's Order contained a typographical error which was never corrected either by the Commission or the Appellate Division. This error was overlooked by the parties as well.

Since this is a matter of first impression, it would be helpful to consider how such a situation is treated in another forum. Rule 1:13-1 of the Rules of the Superior Court provides:

Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight and omission may at any time be corrected by the Court on its own initiative, or on the motion of any party, and on such notice in terms as the Court directs, notwithstanding the pendency of an appeal.

Although this rule is not controlling, it certainly establishes appropriate guidelines for the Commission. The Commission's Order was designed to make Booth whole for monies he lost as a result of the Board's unfair practice; it was not designed to give Booth any more than he would have received had he remained a maintenance-groundsman. In the interest of fairness and equity the Board should not be held responsible for the Commission's oversight nor should Booth receive any undue benefit. For this reason the undersigned recommends that the Commission's Order be changed to reflect the fact that Booth was at the Eighth Step of the custodian's salary guide in 1979-80 and not the Fifth Step.

BackPay and Interest

In order to accurately reflect the exact amount owing to Booth, the undersigned has made the following calculations:

(a)	In 1980-81 Booth began the school year as a maintenance-groundsman at Step 4 earning $12,891 annually. On October 17, 1980 he was reassigned to his previous custodian position at Step 9 and paid $12,336 annually.

The difference between these salaries is $555 - the extra amount Booth should have received if he had worked as a maintenance-groundsman the entire year. Since he worked almost four months in that position he received just under one-third of that amount equaling $174. The difference still owed to him for the 1980-81 year is $381. Interest from July 1, 1980 to September 1, 1983 on $381 at 12% per annum equals $99, making the total amount owing to Booth for 1980-81, $480.5/

(b)	During 1981-82 Booth was paid as a Step 10 custodian earning $13,436. He should have occupied the position of maintenance-groundsman and been paid at Step 5 earning $14,291. The difference between the two figures is $855. Interest from July 1, 1982 to September 1, 1983 on $855 at 12% per annum equals $120, making the total amount owing to Booth for 1981-82, $975.

(c)	During July and August of the 1982-83 year Booth was paid as a Step 11 custodian earning $14,536. In September of 1982 Booth was promoted to the position of head custodian at Step 11 earning $15,530. For July and August Booth earned $2422, and as a head custodian for the remaining ten months Booth earned $12,940, making a total of $15,362. Booth should have earned $15,691 as a Step 6 maintenance-groundsman. The difference between the two figures is $329. Interest from July 1, 1983 to September 1, 1983, at 12% per annum equals $7, making the total amount owing to Booth for 1982-83, $336.

(d)	In the beginning of the 1983-84 year Booth was still a head custodian at the Step 12 he was earning $16,023.6/ He was promoted to maintenance-groundsman at Step 7 on September 1, 1983. For July and August of 1983 he received $2674. As a maintenance-groundsman Step 7 Booth should have earned $16,332 annually. For July and August of 1983 he should have earned $2722. The difference between the two figures is $48. Interest from July 1, 1983 to September 1, 1983, at 12% per annum equals $1, making the total owing to Booth for 1983-84, $49.

The total amount owing to Booth for the period of October 27, 1980 to September 1, 1983, equals $1840. Accordingly it is recommended that payment be made to Booth at that figure.

/s/Nathaniel L. Fulk

Hearing Examiner

DATED:	February 2, 1984

Trenton, New Jersey