H.E. NO. 83-22

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

TENAFLY BOARD OF EDUCATION,

Respondent,

-and-	Docket No. CO-82-301-10

TENAFLY CUSTODIAL & MAINTENANCE

ASSOCIATION,

Charging Party.

Appearances:

For the Tenafly Board of Education

Aron, Till & Salsberg, Esqs.

(Stephen R. Fogarty, Esq.)

For the Charging Party

Bucceri & Pincus, Esqs.

(Sheldon H. Pincus, Esq.)

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the "Commission") on June 7, 1982 by the Tenafly Custodial & Maintenance Association (hereinafter the "Charging Party" or the "Association") alleging that the Tenafly Board of Education (hereinafter the "Respondent" or the "Board") had 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"), in that in May 1982 the Board unilaterally without notice to the Association and without negotiations altered the shift hours of certain members of the collective negotiations unit, effective July 1, 1982. On May 26, 1982 the Association demanded negotiations and the Respondent replied that shift changes were non-negotiable, all of which was alleged to be a violation of N.J.S.A. 34:13A-5.4(a)(1) and (5).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 July 26, 1982. Pursuant to the Complaint and Notice of Hearing, a hearing was held on November 12, 1982 in Newark, New Jersey, at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. Oral argument was waived and the parties filed post-hearing briefs by January 6, 1983.

An Unfair Practice Charge having been filed with the Commission, a question concerning alleged violations of the Act, as amended, exists and, after hearing, and after consideration of the post-hearing briefs of the parties, the matter is appropriately before the Commission by its designated Hearing Examiner for determination.

Upon the entire record, the Hearing Examiner makes the following:

FINDINGS OF FACT

1.	The Tenafly Board of Education is a public employer within the meaning of the Act, as amended, and is subject to its provisions.

2.	The Tenafly Custodial & Maintenance Association is a public employee representative within the meaning of the Act, as amended, and is subject to its provisions.

3.	The last collective negotiations agreement between the parties was effective during the term July 1, 1980 to June 30, 1982 (CP-1). Negotiations for a successor agreement commenced in February 1982 and are still in progress.

4.	During the 1981-82 school year there were 42 custodial and maintenance employees assigned to the Board's four elementary schools, one Middle School and one High School. There was one Head Custodian at each school and at the Middle School and at the High School there was an Assistant Head Custodian. The instant Unfair Practice Charge concerns only the hours of three Head Custodians: Anthony J. Saraceno, George J. Boissonneault and Alvin Spencer.

5.	During the 1981-82 school year the Head Custodian at each school was scheduled to work from 7:00 a.m. to 3:30 p.m. and the two Assistant Head Custodians at the Middle School and High School were scheduled from 3:00 p.m. to 11:30 p.m.

6.	On March 17, 1982, the Superintendent, Harry Jaroslaw, summoned Anthony J. Saraceno, who was also the President of the Association, and Zenon Ushak, the President of the Tenafly Education Association, to a meeting where Daniel Knueppel, an Assistant Superintendent, was also present. The purpose of the meeting was to inform Saraceno and Ushak of the results of a staffing study of the Board's custodial-maintenance operation, which was prepared by Stanton Leggett & Associates, Inc. (R-1). Part of the proposal of Stanton Leggett was to RIF some employees and change the shifts of others, including the Head Custodians. At one point in the proposal a certain "Recommendation No. 3" indicated that some changes "might require negotiations" (R-1, p. 100). The reaction of Saraceno and Ushak to the proposals was negative.

7.	Under date of March 22, 1982 Ushak wrote to Jaroslaw requesting that he "cease and desist" from implementing the reorganizational plan for custodial and maintenance personnel and "bring this to the bargaining table..." (R-7).

8.	Under date of March 24, 1982 Jaroslaw wrote to Ushak stating that implementation of the plan was necessary to provide more efficient custodial services for the District and that the implementation of the plan "...is a nonnegotiable (sic) managerial prerogative..." (R-8).

9.	At a meeting of the Board on March 29, 1982 four custodian and maintenance positions were abolished, including the Assistant Head Custodians at the Middle School and the High School. Additionally, new job descriptions were adopted for the Head Custodians at the elementary schools, the Middle School and the High School (R-4, p. 3).

10.	At a meeting of the Board on April 26, 1982, three custodial and maintenance employees were RIF'd, effective June 30, 1982 (R-5).

11.	Under date of May 20, 1982 Superintendent Jaroslaw wrote to Saraceno advising him that, as of July 1, 1982, he would be operating under a new job description entitled "Head Custodian-High School" and that his hours would be changed from his current schedule (7:00 a.m. to 3:30 p.m.) to 2:00 p.m. to 10:30 p.m., Monday through Friday (R-6).

12.	Under date of May 20, 1982 Superintendent Jaroslaw wrote to Boissonneault advising him that, as of July 1, 1982, he was being transferred from his current position as Head Custodian at the Middle School to Head Custodian at the Maugham Elementary School with no reduction in salary (R-2). There was no mention made of an hours change inasmuch as the hours remained the same: 7:00 a.m. to 3:30 p.m.

13.	Alvin Spencer was the Assistant Head Custodian at the Middle School, whose position was abolished by the action of the Board on March 29, 1982, supra. He was the successful bidder for the new position of Head Custodian-Middle School and succeeded to the vacancy created by Boissonneault's transfer to the Maugham Elementary School. Spencer's hours, effective July 1, 1982, were 2:00 p.m. to 10:30 p.m. and, thus, were identical to the shift hours of Saraceno.

14.	The parties exchanged proposals for a successor agreement to (CP-1) in February 1982. At that time the Board made no mention of any proposed shift changes. Further, since the issuance of the Stanton Leggett report (R-1) the Board has consistently taken the position that only compensation is negotiable and that the decision to change shift hours is non-
negotiable. This was confirmed by Assistant Superintendent Knueppel on cross-examination.

THE ISSUES

1.	Did the Respondent Board violate Subsections (a)(1) and (5) of the Act when it unilaterally changed the shift hours of two Head Custodians and thereafter refused to negotiate the shift change with the Charging Party upon demand?

2.	Did the Respondent Board violate Subsections (a)(1) and (5) of the Act when it unilaterally decided to transfer George J. Boissonneault from his position as Head Custodian at the Middle School to Head Custodian at the Maugham Elementary School with no reduction in salary, i.e., his salary was frozen?

DISCUSSION AND ANALYSIS

The Respondent Board Did Not Violate

Subsections (a)(1) And (5) Of The

Act When It Unilaterally Changed The

Shift Hours Of Two Head Custodians

And Thereafter Refused to Negotiate

With The Charging Party

The instant case would appear initially to be governed by the Commission's decision in Clifton Board of Education, P.E.R.C. No. 80-104, 6 NJPER 103 (1980), where a violation of Subsection (a)(5) of the Act was found under the circumstances of a unilateral change in the shift hours of custodial employees. However, upon closer examination there is involved a unilateral change in the shifts of two Head Custodians as a result of the departmental reorganization of the Board's custodial and maintenance employees. But for this fact the Hearing Examiner would have no problem in rejecting outright the contention of the Respondent that the change in shift hours of the two Head Custodians occurred as a result of a reduction in force (RIF) among certain custodial and maintenance employees. This is plainly not a "Maywood"2/ situation where changes in working conditions resulted from a RIF.

The Hearing Examiner is convinced that on this record there is no causal connection between the RIF of four custodial and maintenance employees and the change in shift hours for the two Head Custodians, one at the Middle School and one at the High School. The changes in the hours of these two Head Custodians resulted from an overall departmental reorganization which, in the opinion of the Hearing Examiner, is totally unrelated to the RIF of any custodial or maintenance employees.

Thus, if it were not for the reorganizational aspect of the instant case, the Charging Party would plainly prevail on the basis of Clifton, supra, and the cases cited therein.3/

The record establishes that in adopting and implementing the recommendations of Stanton Leggett the Board, in changing the shift hours of the two Head Custodians at the Middle School and at the High School, is seeking to realize more effective supervision of its custodial and maintenance employees. The supervision formerly provided by the two Assistant Head Custodians at the Middle School and at the High School is no longer available due to the abolition of the Assistant Head Custodian positions (Tr. 60, 61). When viewed in the context of the departmental reorganization with the objective of more effective and efficient supervision by the Head Custodians at the Middle School and High School, it is apparent that the shift change must be deemed a non-negotiable educational policy matter. See Cherry Hill Township Board of Education, P.E.R.C. No. 81-90, 7 NJPER 98 (1981); Point Pleasant Borough Board of Education, P.E.R.C. No. 81-145, 6 NJPER 299 (1980); East Orange Board of Education, P.E.R.C. No. 79-62, 5 NJPER 190 (1979) and Delaware Valley Regional H.S. District Board of Education, P.E.R.C. No. 79-65, 5 NJPER 1983 (1979). See also, Dunellen Board of Education v. Dunellen Education Association, 64 N.J. 17 (1973).

Having concluded that the unilateral shift changes for the two Head Custodians at the Middle School and the High School resulted from a departmental reorganization, which is a non-
negotiable subject, the Hearing Examiner has no alternative but to recommend dismissal of the Complaint with respect to the shift change allegations.

The Respondent Board Did Not Violate

Subsections (a)(1) And (5) Of The Act

When It Unilaterally Transferred

Boissonneault From His Position As

Head Custodian At The Middle School

To Head Custodian At The Maugham

Elementary School While At The Same

Time Freezing His Salary Following

The Transfer

The Respondent first argues that the Hearing Examiner should not consider the issue of compensation for Boissonneault following his transfer from the Middle School to the Maugham Elementary School since the Charging Party did not make any allegations of an unfair practice regarding Boissonneault in its Unfair Practice Charge. It is true that there are no such allegations. However, the issue was fully litigated without objection by the Respondent Board (Tr. 45, 46). The Commission has held recently that where an issue in dispute has been fairly and fully litigated, albeit not specifically pleaded, an unfair practice may be adjudicated: Commercial Township Board of Education, P.E.R.C. No. 83-25, 8 NJPER 550, 553 (1982). Accordingly, the Hearing Examiner will proceed to the merits.

On the merits, the Respondent contends that any question regarding compensation following a transfer is a non-negotiable, illegal subject, citing a recent Appellate Division decision: Plainfield Association of School Administrators v. Board of Ed. of the City of Plainfield, Docket No. A-5672-80T3 (June 21, 1982). The Hearing Examiner agrees that, under this decision, the law of the State of New Jersey is that compensation following a transfer is not negotiable. In the Plainfield case a high school principal had been transferred to the principalship of an elementary school where the rate of compensation was lower. The Court, in rejecting the decision of an arbitrator to the contrary, held that

"...The arbitration significantly interfered with a determination of governmental policy by requiring defendant to pay Williams an amount in excess of that established by the collective bargaining agreement for her position..." (Slip Opin., pp. 9, 10).

The Charging Party's demand that the Respondent Board negotiate over the compensation to be received by Boissonneault as a result of his transfer would likewise significantly interfere with a determination of governmental policy by requiring the Board to pay Boissonneault an amount in excess of that established by the collective negotiations agreement for his new position as Head Custodian at the Maugham Elementary School. Under the present state of the law in New Jersey the Charging Party cannot succeed in its contention.

Accordingly, the Hearing Examiner will recommend dismissal of the Complaint as it concerns the proofs proffered on behalf of Boissonneault.

* * *

Upon the foregoing, and upon the entire record in this case, the Hearing Examiner makes the following:

CONCLUSION OF LAW

The Respondent Board did not violate N.J.S.A. 34:13A-
5.4(a)(1) and (5) when it refused to negotiate with respect to the unilateral change in shift hours of the Head Custodians at the Middle School and at the High School and, further, when it refused to negotiate the question of compensation for George J. Boissonneault after his transfer from the Middle School to the Maugham Elementary School.

RECOMMENDED ORDER

The Hearing Examiner recommends that the Commission ORDER that the Complaint be dismissed in its entirety.

/s/Alan R. Howe

Hearing Examiner

DATED:	January 10, 1983

Trenton, New Jersey