H.E. NO. 78-1

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

MAYWOOD BOARD OF EDUCATION,

Respondent in Docket No. CO-76-96-53,

Charging Party in Docket No. CE-76-17-54,

-and-

MAYWOOD EDUCATION ASSOCIATION,

Charging Party in Docket No. CO-76-96-53,

Respondent in Docket No. CE-76-17-54.

Appearances:

For the Maywood Board of Education, Gerald L. Dorf, P.A. (Thomas J. Savage, Of Counsel; Stanley Schwartz, On the Brief)

For the Maywood Education Association, Goldberg, Simon & Selikoff (Theodore M. Simon, Of Counsel; Louis P. Bucceri, on the Brief)

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

The Maywood Education Association (the "Association"), employee representative of the certificated, non-supervisory personnel employed by the Maywood Board of Education (the "Board"), filed an Unfair Practice Charge with the Public Employment Relations Commission (the "Commission") on October 6, 1975, alleging that the Board had committed an unfair practice within the meaning of the New Jersey Employer-Employee Relations Act (the "Act")1/ by its action in refusing to negotiate both its decision to lay-off several teachers and to negotiate the impact of that decision as to the laid-off teachers and the remaining teachers affected by the decision. On November 3, 1975, the Association amended its charge, alleging that the Board had also committed an unfair practice by refusing to negotiate over other changes in terms and conditions of employment.

The Maywood Board of Education filed an Unfair Practice Charge with the Commission on October 7, 1975, alleging that the Association had committed an unfair practice within the meaning of the Act2/ by its action in refusing to negotiate for 1975-76 salaries, pursuant to a salary reopener clause in the existing agreement, unless other issues were also negotiated.

It appearing that the allegations of the charges, if true, might constitute unfair practices within the meaning of the Act, two Complaints and Notices of Hearing were issued on December 17, 1975, along with an Order Consolidating Cases, and hearings were held before the undersigned on January 20, April 13, and May 20, 1976.3/

***

On August 12, 1975, William Monahan, President of the Association, received a telephone call from Harry Kickuth, President of the Board, informing him that at a workshop meeting the previous evening, the Board had decided to furlough four teachers: Joan Conley, a librarian with tenure; Jill Bigler, a music teacher without tenure; Constance Mandrioli, a second grade teacher without tenure; and Sharry Freeburg, a speech therapist. Kickuth said the decision not to retain the four teachers for the forthcoming school year would be announced at the next public Board meeting on September 8, 1975.4/

Monahan called the Association's New Jersey Education Association ("N.J.E.A.") field representative, Joseph Vender, and then contacted Louis Cirangle, Superintendent of Schools, in an effort to arrange a meeting with the Board. Cirangle explained that many Board members were away and no meeting could take place then.

On September 8, 1975, just prior to the public Board meeting, Monahan and other Association officers met briefly with the Board. They questioned Board members as to why the reduction in force ("RIF") decision had been made and attempted to discuss the impact of the decision. The Board said the RIF decision was made for financial reasons and it would not discuss the matter further.

Pursuant to a salary reopener provision in the collective negotiations between the Association and the Board, [this agreement covered the period from July 1, 1974 through June 30, 1976], the parties met on September 18, 1975 and began negotiations for the 1975-76 salary guide. At this meeting, Vender attempted to get the Board to also discuss the RIF decision and its impact on the terms and conditions of employment of the remaining teachers. The Board refused to negotiate anything but salary, claiming the other issues were non-
negotiable.

On October 2, 1976, the parties met again, this time assisted by a mediator, Dr. Samuel Ranhand. Again Vender attempted to discuss the RIF and its impact and again the Board refused.

The Association filed its charge against the Board four days later on October 6, alleging refusal to negotiate the RIF decision and its impact. On October 7, the Board filed its charge against the Association alleging the Association refused to negotiate salary unless the RIF decision and its impact were also negotiated. On November 3, the Association amended its charge to allege that the Board had also refused to negotiate over other unilateral changes in terms and conditions of employment: twenty-minute expansion of the working day for kindergarten teachers, and an increase in pupil-contact time for two physical education teachers.

On November 6, 1975, the parties met again with the mediator and after an all-night session reached an agreement5/ on some issues; they settled the salary issue and agreed that the Association would withdraw some of the issues raised in its amended charge of November 3.6/ They agreed that the Association would request that the Commission postpone action on the Association's charge for thirty days.

***

The issues in this case revolve about the negotiability of certain matters in dispute and whether such matters were, indeed, negotiated in good faith. Specifically, the issues are: (1) Was the decision to lay-off certain teachers for financial reasons mandatorily negotiable or strictly within the management prerogative of the Board? (2) Was the impact of such decision mandatorily negotiable prior to implementation? (3) Did the Board negotiate the impact of the RIF decision in good faith with the Association? (4) Was the change in workload for the kindergarten and physical education teachers mandatorily negotiable prior to implementation? (5) Did the Board negotiate this workload change or its impact in good faith with the Association prior to implementation? (6) did the Association negotiate salary in good faith with the Board prior to October 7? (7) Is evidence of what took place between the parties subsequent to the filing of all charges and the amendments thereto relevant to a determination of whether the parties had engaged in unfair practices as charged?

1.	The Board claimed that its RIF decision was made solely because there was not enough money to rehire all of the teachers in the school system for the 1975-76 school year. The Association did not charge the Board with discrimination in its selection of the teachers who would not be retained, and no evidence was introduced to dispute the Board's expressed reason for its decision. Under the education laws, a Board of Education does have the right to unilaterally reduce the number of teaching positions in the system for reasons of economy.7/ Such unilateral decision-making under the education laws does not of itself violate the provisions of the Act requiring negotiations of changes in terms and conditions of employment prior to implementation.8/ An actual RIF decision, as previously decided by the Commission, is not mandatorily negotiable.9/

2.	However, when the Board's decision to reduce the number of teachers in the system was translated into a decision not to rehire three particular teachers, there was a fundamental impact on the terms and conditions of employment of those three individuals. They were about to become unemployed.

The Commission recognizes the distinction between a managerial decision and its impact. The impact, as it affects terms and conditions of employment is mandatorily negotiable.

The Commission, on several occasions, ordered boards of education to negotiate with their respective teacher associations over procedures to be followed in implementing RIF decisions.10/ While the Commission did not distinguish between tenured and non-
tenured teachers, each of the cases in question involved non-
tenured teachers only. However, two of these decisions have been reversed by the Appellate Division in Board of Education of the City of Englewood v. Englewood Teachers Association, ___ N.J. Super. ___ (App. Div. 1977) (not yet approved for publication), and Union County Board of Education v. Union County Teachers Association, 145 N.J. Super. 436 (App. Div. 1976) certif. den. ___ N.J. ___ (19 ). In both of these decisions the court relied on the fact that the teachers involved in the RIF were non-
tenured. The court went beyond the right to negotiate procedures and dealt with substantive rights. As stated in Union County, supra, at 437,

Under the statutory scheme established by the Legislature for the administration and operation of our public school system, N.J.S.A. 18A:1-1 et seq., non-tenured teachers have no right to the renewal of their contracts, the local boards of education, in turn, are invested with virtually unlimited discretion in such matters, and non-tenured teachers whose contracts of employment are not renewed by reason of a reduction in force plainly are denied any reemployment rights, whatever, N.J.S.A. 18A:28-5, 9, 10, 11 and 12;...

and in Englewood, supra, the Court ruled, "the determination not to renew the contract of a non-tenured teacher is a discretionary matter for the local board and where it results from a reduction in force there exists no right of reemployment"

At present, the undersigned must accept the view of the Appellate Division as the law in New Jersey. Accordingly, I can recommend no redress for Jill Bigler and Constance Mandrioli, the two non-tenured teachers who were not rehired as a result of the Board's RIF decision. But the Court's explicit reference to the non-tenured status of teachers who were not retained demonstrates that the Court perceived a distinction between the rights of tenured and non-tenured teachers and accordingly, leads the undersigned to conclude that the impact of the RIF decision as to tenured teachers is mandatorily negotiable. Therefore, the Board must negotiate the impact of its RIF decision on the terms and conditions of employment of Joan Conley, the tenured librarian who was let go.11/ Further the Board must negotiate terms and conditions of employment of all teachers remaining in the system, whether tenured or non-tenured, who may have been affected by the RIF.12/ Such negotiation properly takes place prior to implementation of a RIF decision.13/

3.	The Board, while it disputes the requirement to negotiate impact, maintains that it did, in fact, negotiate impact, and therefore committed no unfair practice in that regard.

In compliance with the education laws, [Title 18A] the tenured librarian was given sixty days' notice and the impact of her not being rehired was not felt until she left October 15. Again in compliance with the education laws, the two non-tenured teachers were given thirty days' notice and paid until September 15. However, the impact of their leaving was felt by other teachers as soon as school opened at the beginning of September, since these teachers were not sent into the classroom at all for the 1975-76 school year.14/

Ample evidence was introduced15/ indicating that due to the loss of the librarian, the responsibilities of Ann Glagola, the only remaining librarian, were increased significantly and, due to the loss of the librarian and the music teacher, the kindergarten and elementary teachers were required to spend additional time in the classrooms with their students, anywhere from twenty-five minutes to almost an hour per week. Testimony was in dispute as to whether this time had previously been free time during which teachers could do as they pleased, or whether it was assigned as preparation and planning time, but the undersigned finds it unnecessary to resolve this dispute. Regardless of whether teachers lost free time or preparation and planning time, the terms and conditions of their employment were still changed. The changes, therefore, were mandatorily negotiable.16/

The Board's RIF decision was made August 11, communicated to the Association President August 12, officially announced to the public September 8, and officially implemented partially on September 15 and completely by October 15, 1975. The impact of the decision, however, began to be felt in early September. Monahan testified that he had requested, through proper channels, a meeting with the Board shortly after learning of the RIF decision in August, but was denied a meeting at that time.

There is no dispute that no meeting took place until the evening of September 8 when the parties met for a short time just prior to the public Board meeting. The Board initially claimed this was a negotiating session, but the Association disagreed, claiming that the Board flatly refused to discuss the RIF decision or its impact because they believed the matters to be non-negotiable. Later, the Board admitted, in testimony and in its brief, that the first negotiating session was September 18. The Board, therefore, did not meet its obligation to negotiate the impact of its RIF decision prior to implementation,17/ or upon demand in August, September and October.

4.	At the beginning of September, 1975 the Board unilaterally increased the working day of kindergarten teachers by twenty minutes, claiming it was motivated by reasons of student safety. At the same time, it increased the teaching load of two physical education teachers, claiming it was merely trying to equalize the workload of these two teachers with that of other physical education teachers. Assuming the expressed motive in each case to be both accurate and laudable, the fact remains that the primary effect of both moves was a significant change in the terms and conditions of employment of these kindergarten and physical education teachers. The changes themselves, therefore, just as the impact of the RIF decision, were mandatorily negotiable.18/

5.	Failure to negotiate the impact of these working hours and workload changes was not alleged by the Association in its initial charge filed October 6, 1975, but was alleged in the Association's amended charge filed November 3, 1975. From all of the testimony, it is apparent that aside from the salary question, the Association's main concern throughout the fall of 1975 was the RIF and its impact. Vender testified the other charges were omitted from the original charge in the hope that the Board could be persuaded to negotiate over the working hours and workload changes. There is no dispute that on September 18 the Association specifically requested that the Board negotiate over those items, or that the Board refused, claiming they were non-negotiable. Dorf could not refer to any negotiating session prior to the filing of the Association's amended charge where the Board did, in fact, discuss these items, although he indicated vaguely that at the September 18 meeting, he personally told the Association that the Board would discuss the impact of the RIF decision at a later date, "if need be."19/

The Board maintains in its post-hearing brief that the changes in working hours for kindergarten teachers were non-
negotiable, and in referring to its alleged negotiation of the impact of the decision, simply notes generally the number of meetings and telephone communications between the parties throughout the fall of 1975, but refers to nothing specific prior to the filing of the Association's amended charge. The undersigned finds, therefore, that the Board did not negotiate over the change in the kindergarten teachers' working day either prior to implementation of the change as it should have,20/ or prior to the Association's November 3 charge.

As to the increase in pupil-contact time for two physical education teachers, Alino and Peters, the Board, in its post-
hearing brief, still maintains that the item is non-negotiable. Its rationale is that the two teachers simply had their workloads increased to bring them in line with other physical education teachers similarly qualified and similarly paid. Therefore, the Board reasons, their "terms and conditions of employment" were not changed, and there was nothing to discuss. The Board claims no violation could be found unless the Board increased a teacher's workload beyond that of other teachers similarly situated, which it did not do.

The undersigned finds this view too restrictive. A contract was in effect covering the terms and conditions of employment for 1974-75, with provision for reopening negotiations to set salaries for 1975-76. It is almost axiomatic that no changes primarily affecting terms and conditions of teachers' employment were to be made during the contract period without prior negotiations between the parties. Obviously, no one expects that each teaching day will be a replica of the previous day, or that nothing at all will change from month to month or from year to year. But teachers under contract are entitled to assume there will be no significant changes in the overall time they spend with their pupils from one contract year to the next without prior negotiation. As a result of the Board changes, each of these two physical education teachers spent approximately one hour and thirty minutes more time per week with their pupils,21/ meaning they had less free or preparation time. Teachers are protected not only collectively, but individually as well, against unilateral changes in their terms and conditions of employment. These were by no means de minimis changes22/ and should actually have been negotiated prior to implementation but at least on demand. Demand was made September 18, prior to the filing of the charge on November 3 alleging refusal to negotiate. The Board offered no credible evidence indicating negotiations had in fact taken place over these issues prior to November 3.

6. The Board filed its charge against the Association on October 7 alleging refusal to negotiate over salary. By its own admission the first session scheduled for negotiation of the salary reopener clause was September 18. The next meeting prior to the filing of the Board's charge was apparently a mediation session with Dr. Ranhand on October 2, after the parties had reached an impasse.

Monahan testified that after the Board refused to discuss the RIF decision or its impact on September 18, both sides continued to negotiate over salary. He also testified that the Association's chief concern was in reaching a salary settlement.23/ Vender, on cross-examination, stated "unequivocally that the Association had taken the position that the salary matter could not be settled without negotiation of the other matters,24/ but he also testified that the Association had negotiated salary that evening.

The Board simply presented no credible evidence to refute this testimony of Monahan and Vender, and the undersigned finds that although the Association took a hard line regarding settlement of the salary issue, insisting, quite properly, on negotiation of at least the impact of the RIF decision and other changes, it did not refuse to negotiate salary, and did do so prior to October 7.25/

7.	Much of the Board's defense against the Association charges and its efforts to substantiate its own charge against the Association rest on evidence of post-charge events. The Association argued that all such evidence was irrelevant and should not be admitted. The undersigned, however, noting the Commission's liberal rules on the admissibility of evidence, and believing such evidence might bear on any remedy ordered if any charges were proved, did admit evidence of post-charge events.

With respect to substantiation of the charges filed, post-
charge evidence can only be considered insofar as it sheds light on what actually happened prior to the filing of charges. In the instant case, evidence relating to meetings and communications between the parties after charges were filed has been considered insofar as it reveals the parties' state of mind prior to the filing of charges, since the dispute before the undersigned is whether the parties were negotiating in good faith.

Obviously, if good faith negotiations over the impact of the RIF decision occurred after October 6, such negotiations would be relevant as to the nature and extent of the remedy ordered by the Commission, but such negotiations in themselves could not alter the finding of a refusal to negotiate prior to October 6. Similarly, if the Board could prove, as it alleged in its post-
hearing brief, that the Association tried to "bully" the Board with the filing of two Unfair Practice Charges within one month, and with the maintenance of an inflexible bargaining position throughout the fall of 1975, such evidence would relate to proof of bad faith on the Association's part, but could not substantiate by itself the alleged refusal of the Association, as of October 7, to bargain in good faith over salary.26/

The Association strenuously maintained that no negotiations occurred at all on issues other than salary, and even if the discussions occurring after the filing of charges were found to constitute negotiations of such non-salary issues, viewed in their entirety, these discussions did not satisfy the Board's obligations to negotiate in good faith. Vender, the N.J.E.A. representative for the Association, on direct and cross-
examination, repeatedly stated that the Board never negotiated issues other than salary. He said the only discussion of such issues occurred with Gerald Dorf, the Board's representative, who would ask if the Association would make specified proposals which he could take to the Board. Never, maintained Vender, did the Board make an offer personally or through Dorf, by which it would agree to be bound. Vender testified he thought that Dorf honestly was trying to resolve the matter but that his hands were tied because the Board wouldn't budge from its position that issues other than salary were non-negotiable.27/

Dorf contradicted Vender's testimony characterizing any discussions over non-salary issues as either futile attempts by the Association to get the Board to negotiate or informal discussion between Vender and Dorf [or his associate], with Dorf having no authority from the Board to negotiate. Dorf testified that there were numerous discussions of non-salary issues and that several oral proposals were made. But on cross-examination, he admitted that nothing from the Board was in writing, and that he couldn't remember specifically the subjects discussed on particular days. Dorf's assertions of good faith negotiations by the Board are, therefore, little more than uncorroborated assertions. The testimony of both Vender and Monahan, together with the Board's maintenance, even post-hearing, of its position that the RIF decision impact and other work changes were non-
negotiable, is more persuasive and accordingly, I find that the Board did not negotiate non-salary issues at any time prior to the filing of all charges.

Progress was made, however, after the last charge was filed on November 3. On November 7, after an all night session with mediator Ranhand, an agreement was reached. The salary issue was settled.28/ Some minor issues were struck from the Association's November 3 charge and, at Dorf's request, the Association agreed to ask the Commission to postpone proceedings on all charges for thirty days.

On November 24, the parties met to discuss open issues, but Vender maintains that even at this late date, statements by Dorf were in the nature of a fishing expedition in an attempt to resolve the Unfair Practice Charges, and never indicated a willingness on the Board's part to negotiate over non-salary issues. Dorf, of course, denies this, but the truth of this particular point is irrelevant. Whether the discussions after November 3 were attempts merely to settle Unfair Practice Charges, in good faith or in bad, or whether they were good faith negotiations of non-salary issues is irrelevant here. All such discussions occurred after the violations are found to have occurred [and not occurred] and neither the Board's nor the Association's versions of such post-charge events, even if accepted as true, would convince the undersigned to reverse findings of fact or conclusions of law regarding the occurrence or non-occurrence of the violations charged.

***

In summary, with respect to the Association's charges against the Board, the undersigned finds that the Board did not violate the Act by refusing and failing to negotiate its RIF decision. since such decision was not subject to mandatory negotiation. I find, however, that the Board specifically violated N.J.S.A. 34:13A-5.4(a)(5) by refusing and failing to negotiate either the impact of its RIF decision or the change in working hours of kindergarten teachers, or the change in workload of two physical education teachers, as proved by a preponderance of the evidence. Further, since such refusal and failure to negotiate necessarily interferes with employee exercise of negotiating rights guaranteed by the Act, I find it is also a violation of N.J.S.A. 34:13A-5.4(a)(1).

RECOMMENDED ORDER

Accordingly, for the reasons set forth above, it is recommended that the Board's charge be dismissed in its entirety.

It is further recommended that the Commission ORDER that the Maywood Board of Education shall:

1.	Cease and desist from:

a.	Interfering with, restraining or coercing employees in the exercise of rights guaranteed to them by the Act.

b.	Refusing to negotiate in good faith with the Maywood Education Association concerning changes in terms and conditions of employment of unit employees.

2.	Take the following affirmative action which is deemed necessary to effectuate the purposes of the Act:

a.	Negotiate with the Association in an effort to make Joan Conley, the tenured librarian who was unlawfully dismissed as of October 15, 1975, whole or nearly so for the pay she lost between her dismissal and subsequent rehiring in 1976.29/

b.	Negotiate with the Maywood Education Association concerning:

(i)	the impact of Joan Conley's absence on the terms and conditions of employment of librarian Ann Glagola.

(ii) the impact of the absence of the three teachers who were dismissed on the terms and conditions of employment of the remaining classroom teachers.

(iii) the increase in the kindergarten teachers' working day for 1975-76.

(iv)	the increase in pupil-contact time in 1975-76 for physical education teachers Alino and Peters.

c.	Post at its central administrative building in Maywood, as well as at Memorial School and Maywood Avenue School, copies of the attached notice marked as Appendix "A". Copies of such notice on forms to be provided by the Director of Unfair Practice Proceedings of the Public Employment Relations Commission shall be posted by the Board immediately upon receipt thereof, after being duly signed by the Board's representative, and shall be maintained by it for a period of at least sixty (60) consecutive days thereafter in conspicuous places including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Board to insure that such notices are not altered, defaced or covered by any other material.

d.	Notify the Director of Unfair Practice Proceedings within twenty (20) days of receipt of this Order what steps the Board has taken to comply herewith.

_____________________________

Edmund G. Gerber

Hearing Examiner

DATED:	July 15, 1977

Trenton, New Jersey