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H.E. No. 2020-7
Synopsis:
A Hearing Examiner grants, in part, and denies, in part, a motion for summary judgement filed by the Fort Lee Education Association (Association) on an unfair practice charge filed by the Association against the Fort Lee Board of Education (Board). The charge alleges the Board violated Section 5.4a(5) and (a)(1) of the Act by: (1) unilaterally changing the minimum number of hours unit employees must work to be eligible for health insurance benefits; (2) unilaterally reducing working hours of unit employees ; and (3) discontinuing the practice of allowing instructional aides to leave their assigned buildings during their lunch hour and no longer crediting aides’ lunch hours towards calculating health benefits eligibility. The Hearing Examiner granted summary judgment on the first claim, but denied summary judgement on the second and third claims since there were insufficient facts in the record to establish violations of the Act. On the first claim, however, the Hearing Examiner declined to issue a status quo ante remedy, as the parties in 2019 had reached an agreement on health benefits eligibility and restoring the status quo would undermine the collective negotiations process that led to that agreement.
PERC Citation:
H.E. No. 2020-7, 46 NJPER 560 (¶128 2020)
Appellate History:
Additional:
Miscellaneous:
NJPER Index:
15.1 16.43 34.34 43.131 72.611 74.31 83.3
Issues:
H.E. NO. 2020-7
STATE OF NEW JERSEY
BEFORE A HEARING EXAMINER OF THE
PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the Matter of
FORT LEE BOARD OF EDUCATION,
Respondent,
-and- Docket No. CO-2017-140
FORT LEE EDUCATION ASSOCIATION,
Charging Party.
SYNOPSIS
A Hearing Examiner grants, in part, and denies, in part, a motion for summary judgement filed by the Fort Lee Education Association (Association) on an unfair practice charge filed by the Association against the Fort Lee Board of Education (Board). The charge alleges the Board violated Section 5.4a(5) and (a)(1) of the Act by: (1) unilaterally changing the minimum number of hours unit employees must work to be eligible for health insurance benefits; (2) unilaterally reducing working hours of unit employees ; and (3) discontinuing the practice of allowing instructional aides to leave their assigned buildings during their lunch hour and no longer crediting aides’ lunch hours towards calculating health benefits eligibility. The Hearing Examiner granted summary judgment on the first claim, but denied summary judgement on the second and third claims since there were insufficient facts in the record to establish violations of the Act. On the first claim, however, the Hearing Examiner declined to issue a status quo ante remedy, as the parties in 2019 had reached an agreement on health benefits eligibility and restoring the status quo would undermine the collective negotiations process that led to that agreement.
H.E. NO. 2020-7 .
H.E. NO. 2020-7
STATE OF NEW JERSEY
BEFORE A HEARING EXAMINER OF THE
PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the Matter of
FORT LEE BOARD OF EDUCATION,
Respondent,
-and- Docket No. CO-2017-140
FORT LEE EDUCATION ASSOCIATION,
Charging Party.
Appearances:
For the Respondent, Sciarrillo, Cornell, Merlino, McKeever & Osborne, LLC, attorneys
(Dennis McKeever, of counsel)
For the Charging Party, Zazzali, Fagella, Nowak, Kleinbaum & Friedman, attorneys
(Richard A. Friedman, of counsel)
HEARING EXAMINER’S DECISION ON
MOTION FOR SUMMARY JUDGMENT On December 28, 2016 and January 14, 2020, the Fort Lee Education Association (Association or Charging Party) filed an unfair practice charge and amended charge against the Fort Lee Board of Education (Board or Respondent)1/ 11/ The Association filed a motion to amend its charge on January 13, 2020. The Board does not contest the motion and the Board consents to the amendment. Pursuant to N.J.A.C. 19:14-2.2(a), I grant the motion to amend. The charge, as amended, alleges the Board violated sections 5.4a(5) and, derivatively, (a)(1)2/ 2/ 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 the terms and conditions of employment of employees in that unit, or refusing to process grievances presented by the majority representative.” of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. (Act), by: (1) unilaterally increasing the average number of hours a unit employee must work per week to be eligible for health insurance benefits under the New Jersey School Employees Health Benefits Program (SEHBP) from an average of 25 hours per week to 30 hours per week; (2) unilaterally reducing the working hours of unit employees; and (3) requiring unit employees to remain at their workplace during their one hour lunch break and not crediting that one hour of lunch towards the number of hours an employee must work per week to be eligible for SEHBP insurance benefits. The Association asserts the changes to health benefits eligibility for unit employees, which went into effect on July 1, 2016, discontinued health insurance coverage for some unit employees without negotiations with the Association and denied health insurance benefits to unit employees hired after July 1, 2016 who worked on average between 25 and 30 hours per week.
On March 6, 2018, the Director of Unfair Practices issued a Complaint and Notice of Pre-hearing. On March 8, 2018, the Board filed an Answer denying it violated the Act. Following a pre-hearing telephone conference, the Charging Party requested its charge be held in abeyance while the parties attempted to settle this matter. The parties did not reach a settlement.
On January 13, 2020, the Association filed a motion to amend the Complaint and a motion for summary judgment, accompanied by a brief and certifications from Richard A. Friedman, Esq. (“Friedman Cert.”) an attorney representing the Association, and Association President Adrian Rodriguez (“Rodriguez Cert.”). The Board filed a brief and certification from Dennis McKeever, Esq., an attorney representing the Board, in opposition to the motion for summary judgment on February 7, 2020. On February 10, 2020, the Commission referred the motions to me for decision and on March 12, 2020 the Association filed a reply brief.
Summary judgment will be granted:
if it appears from the pleadings, together with the briefs, affidavits and other documents filed, there exists no genuine issue of material fact and the movant . . . is entitled to its requested relief as a matter of law. [N.J.A.C. 19:14-4.8(d)]
Brill v. Guardian Life Insurance Co. of America, 142 N.J. 520, 540 (1995) sets forth the standard to determine whether a “genuine issue” of material fact precludes summary judgment. The fact-finder must “. . . consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party are sufficient to permit a rational fact-finder to resolve the alleged disputed issue in favor of the moving party.” If that issue can be resolved in only one way, it is not a genuine issue of material fact. A motion for summary judgment should be granted cautiously – the procedure may not be used as a substitute for a plenary hearing. Baer v. Sorbello, 177 N.J. Super. 182 (App. Div. 1981).
Based on the parties’ submissions and this standard of review, I make the following:FINDINGS OF FACT 1. The Association is the exclusive majority representative of certain certificated and non-certificated employees, including classroom instructional aides (“aides”). (Rodriguez Cert., para. 2).
2. The Association and Board are parties to collective negotiations agreements extending from July 1, 2016 through June 30, 2019 (Agreement). (Rodriguez Cert., para. 2; McKeever Cert., para. 2)
3. The 2016-2019 Agreement is silent as to the number of hours a unit employee must work to be eligible for health insurance benefits. (McKeever Cert., para. 3; Rodriguez Cert., para. 3 and Exhibits A-C).
4. On June 6, 2016, the Board adopted Resolution No. 27786 (Resolution). (Rodriguez Cert., Exhibit D). The Resolution, which went into effect on July 1, 2016, provided that unit employees must work, on average, 30 hours per week in order to qualify for Board paid health insurance benefits under the SEHBP. (McKeever Cert., para. 5; Rodriguez Cert., para. 4). The Board adopted the Resolution without prior negotiations or notice to the Association. (Rodriguez Cert., para. 4). Prior to the change, unit employees who worked on average 25 hours per week qualified for Board paid health benefits under the SEHBP. (Rodriguez Cert., para. 4; Exhibit E to Amended Charge). The 25 hour eligibility requirement for health benefits was set by Board resolution in 2010. (Exhibit E to Amended Charge).
5. As a result of the Board’s 2016 Resolution, “. . . bargaining unit members who were receiving health insurance coverage prior to the Board’s change in policy no longer met the requirements for full-time status [under the SEHBP], and therefore became ineligible for health insurance benefits.” (Rodriguez Cert., para. 5). Moreover, the Resolution meant that “newly hired bargaining unit members who would and should have been eligible for Board paid health insurance coverage became ineligible for Board paid health insurance coverage.” (Rodriguez Cert., para. 5).
6. Rodriguez certifies that “some bargaining unit members hours were reduced . . . ” and that “even for members whose work hours were not reduced, their lunch period no longer counted toward the number of hours applied for full-time employment to qualify for Board paid health insurance coverage, whereas previously it had counted for that purpose.” (Rodriguez Cert., para. 8). Rodriguez does not certify and the record does not indicate how many employee(s) hours were reduced, the amount of the reduction, nor when the reduction occurred. Rodriguez also certifies that as a result of unit employees not being credited their lunch hour towards eligibility for health benefits, some unit employees did not satisfy the 30 hour threshold for health benefits eligibility under the 2016 Resolution and therefore lost health insurance coverage. (Rodriguez Cert., para. 8).
7. In 2018 and 2019, the Board and Association engaged in collective negotiations and mediation before a Commission appointed mediator in order to reach a successor collective negotiations agreement to the 2016-2019 Agreement. Among the issues discussed during negotiations and mediation was the minimum number of hours unit employees must work to be eligible for health benefits. The Board proposed a 30 hour minimum requirement, while the Association proposed a 25 hour minimum requirement for health benefits. The Association and Board agreed to hold unfair practice charge CO-2017-140 in abeyance pending the outcome of collective negotiations. (McKeever Cert., paras. 17 and 18).
8. On November 20, 2019, the negotiations committees representing the Board and Association executed a Memorandum of Agreement (MOA) for the period July 1, 2019 through June 30, 2022. (Exhibit 10 to McKeever Cert.). In the MOA, the Association and Board acknowledge that the parties “have been engaged in negotiations in good faith in an effort to arrive at a successor agreement to a Contract which expired on June 30, 2019” and that “the parties have arrived at a [MOA] which each will present to their respective constituents, along with their recommendations for acceptance and ratification.” (Exhibit 10 to McKeever Cert.). Critically, the Association and Board agreed that “the threshold for [health] benefits shall be 28.75 hours per week” and that “upon full ratification of this [MOA], the Association shall withdraw the pending Aides Unfair Practice Charge, Dkt. No. CO-2017-140.” (Exhibit 10 to McKeever Cert.). The MOA goes on to provide that “all other proposals are hereby withdrawn by both parties” and that “all terms and conditions not contained herein shall remain [the] status quo.” (Exhibit 10 to McKeever Cert.).
9. On December 5, 2019, the Association ratified the MOA. (McKeever Cert., para. 24).
10. After the Association ratified the MOA, several instructional aides who worked 28.75 hours per week contacted the Board to enroll in the SEHBP. (McKeever Cert., para. 25). These communications led to the realization by the Board that the Association and Board did not share the same understanding of the MOA’s provision setting the “threshold” for health benefits at 28.75 hours per week. (McKeever Cert., paras. 25-26). In the Board’s view, this provision meant employees who exceeded 28.75 hours per week were eligible for SEHBP benefits, whereas the Association believed the provision meant all unit employees who work 28.75 hours or more per week were eligible for SEHBP benefits. (McKeever Cert., para. 25).
11. Since the Board believed the Association and the Board did not share a common understanding of the 28.75 hour MOA provision, the Board declined to ratify the MOA at its scheduled December 16, 2019 meeting. (McKeever Cert., para. 27). Instead, the Board sent correspondence on or about December 18, 2019 to a Commission appointed mediator, requesting a mediation session to resolve this disagreement between the Association and Board over the MOA. (McKeever Cert., para. 28 and Exhibit 11).
12. In response, on December 27, 2019, the Association filed an unfair practice charge against the Board, bearing docket number CO-2020-173 (“2019 Charge”). (McKeever Cert., para. 29 and Exhibit 12). The 2019 Charge alleges, in pertinent part, that the Association objected to the Board’s December 18 request for another mediation session and “. . . did not agree to attend any other mediation sessions.” (McKeever Cert., Exhibit 12). The 2019 Charge also sought an order from the Commission “directing the Board to ratify and execute the successor agreement [MOA] and implement its terms and conditions of employment, including but not limited to, the 28.75 hour threshold for health benefits.” (McKeever Cert., Exhibit 12). ANALYSIS The Association’s charge, as amended, presents four counts, numbered in this order:
1. The Board violated sections 5.4a(5) and (1) of the Act by unilaterally changing the minimum number of hours a unit employee must work to be eligible for SEHBP benefits from 25 hours per week to 30 hours per week effective July 1, 2016;
2. The Board violated the Act by unilaterally reducing, on a date uncertain, an unspecified amount of work hours of an unspecified number of unit employees without negotiations with the Association;
3. The Board did not negotiate over the reductions alleged in counts (1) and (2), and even if they did, they cannot modify terms and conditions of employment without agreement by the Association; and
4. The Board violated the Act when, effective July 1, 2016, it required “ . . . bargaining unit members to remain at their buildings for their one-hour lunch break, effective July 1, 2016, without receiving compensation or credit towards their hours of work, and unlike before their lunch hours were no longer counted towards meeting the number of hours required for SEHBP benefits eligibility.” (para. 21 of Amended Charge).
For the following reasons, I grant, in part, and deny, in part, the Association’s motion for summary judgment. I find the Board violated the Act by unilaterally changing the minimum hourly work requirement for SEHBP benefits in 2016. I deny summary judgment on Counts 2, 3 and 4 of the amended charge because there are insufficient facts in the record to establish these violations without a plenary hearing.3/ 33/ Count 3 is a legal conclusion derived from the facts alleged in Counts 1 and 2. As such, while addressed in the analysis section of this decision, it does not warrant separate treatment in my recommended order. Brill v. Guardian Life Insurance Co. of America, 142 N.J. 520 (1995); Baer v. Sorbello, 177 N.J. Super. 182 (App. Div. 1981). As to remedy, I will not recommend restoration of the 25 hour work requirement for SEHBP eligibility in light of the 2019 MOA. To do so would be antithetical to the Act’s primary goals of advancing labor peace and stability and would undermine the collective negotiations process that culminated in the 2019 MOA.
Changes to Eligibility for SEHBP Benefits
Under the Act, a public employer is required to negotiate with a majority representative over mandatorily negotiable terms and conditions employment before establishing or changing those terms and conditions of employment. N.J.S.A. 34:13A-5.3. Unless preempted by a statute or regulation, health insurance benefits are mandatorily negotiable. West Orange Bd. of Ed., P.E.R.C. No. 92-114, 18 NJPER 272 (¶23117 1992), aff’d NJPER Supp.2d 219 (¶232 App. Div. 1993). A statute or regulation will not preempt negotiations over health benefits unless the statute or regulation speaks in the imperative and expressly, specifically and comprehensively sets an employment condition governing health benefits. Bethlehem Tp. Educ. Ass’n v. Bethlehem Tp. Bd. of Ed., 91 N.J. 38, 44 (1982). Where a statute or regulation gives an employer discretion to determine a unit employee’s eligibility for health benefits, the employer is obligated to negotiate with that employee’s majority representative in exercising that discretion. 91 N.J. at 44; Frankford Tp. Bd. of Ed., P.E.R.C. No. 98-60, 23 NJPER 625 (¶28304 1997); Paterson State-Operated School District, P.E.R.C. No. 2002-2, 27 NJPER 319 (¶32113 2001). {tab The Board and Association agree that, under ***** End of HE 2020-007 ***** |
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