H.E. NO. 86-56

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

RED BANK REGIONAL HIGH SCHOOL

BOARD OF EDUCATION,

Respondent,

-and	Docket No. SN-83-57

RED BANK REGIONAL EDUCATION ASSOCIATION,

Charging Party.

Synopsis

A Commission Hearing Examiner determines that certain assignments to teachers made by the Red Bank Regional High School Board of Education during the 34 minute period after the end of the normal instructional day -- a reading tutorial assignment and a typing lab supervision assignment -- implicate teachers' workload, not educational policy. Accordingly, the Hearing Examiner recommends that the Commission find the increased workload issues raised herein to be negotiable and arbitrable.

A Hearing Examiner's Recommended Report and Decision is not a final administrative determination of the Public Employment Relations Commission. The case is transferred to the Commission which reviews the Recommended Report and Decision, any exceptions thereto filed by the parties, and the record, and issues a decision which may adopt, reject or modify the Hearing Examiner's findings of fact and/or conclusions of law.

H.E. NO. 86-56

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

RED BANK REGIONAL HIGH SCHOOL

BOARD OF EDUCATION,

Petitioner,

-and-	Docket No. SN-83-57

RED BANK REGIONAL EDUCATION ASSOCIATION,

Respondent.

Appearances:

For the Petitioner

Crowell & Otten, Esqs.

(Robert H. Otten, of counsel)

For the Respondents

Oxfeld Cohen & Blunda, Esqs.

(Mark J. Blunda, of counsel)

HEARING EXAMINER'S RECOMMENDED REPORT AND DECISION

A Petition for Scope of Negotiations Determination was filed with the Public Employment Relations Commission (hereinafter the "Commission") on December 29, 1982 by the Red Bank Regional High School Board of Education (hereinafter the "Petitioner" or the "Board"), in which it sought a permanent restraint of binding arbitration of two grievances filed by the Red Bank Regional Education Association (hereinafter the "Respondent" or the

"Association").1/ In Grievance 83-2, the Association seeks compensation for the Board's assignment of Sandra Portera to tutor a student between 2:21 p.m. and 2:55 p.m., one day per week, from September 1982 through March 1983 and the assignment of a group of teachers in the Business Department to provide typing lab coverage between 2:21 p.m. and 2:55 p.m. on a rotating basis, one day per week, for the entire 1982-1983 school year.

The parties initially filed briefs and reply briefs with the Commission in support of their respective positions on the scope of negotiations issues in January, February and March 1983. In March 1983, both parties requested that an exploratory conference be scheduled herein to assist the parties in reaching an informal resolution of this case. An exploratory conference was conducted in this matter in May 1983, but the parties failed to resolve the instant dispute. Subsequent to the exploratory conference, the Board requested that a hearing be conducted to resolve certain factual issues which had been raised by the parties. The Association opposed the Board's request for a hearing. A Notice of Hearing was issued in this matter on January 18, 1984.2/

1/	The two grievances were denominated as Grievance 83-1 and Grievance 83-2. Grievance 83-1, which concerned the requirement that teachers be in their homerooms at a specified time each morning, was resolved by the parties subsequent to the hearing. Grievance 83-2 is the subject matter of the instant dispute and is the only one referred to hereinafter.

2/	At the time of the issuance of the Notice of Hearing, the parties stipulated and agreed that the undersigned Hearing

Footnote Continued on Next Page

Pursuant to the Notice of Hearing, a hearing was held on March 22, 1984, in Trenton, New Jersey, at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. Subsequent to the close of hearing on March 22, 1984, the parties stipulated to the submission of Exhibit C-9 (a copy of the parties' contract for the 1980-82 school years). Following several conversations between counsel for the Board and the Association, it became apparent to the parties that a further factual dispute had arisen concerning an issue in the case which they had thought was not in dispute. Accordingly, in June 1984, the Association requested that the record in this matter be reopened to take further evidence and testimony concerning the newly discovered dispute. An additional hearing date was scheduled on July 16, 1984; that hearing date was twice adjourned and rescheduled until, on September 25, 1984, the Hearing Examiner was informed by counsel that they had resolved the "morning dispute" aspect of this case (Grievance 83-1) and accordingly, a further hearing date was no longer needed. The parties filed post-hearing briefs and reply briefs by March 11, 1985.

2/	Footnote Continued From Previous Page

Examiner would also serve as Arbitrator of the instant grievance, in the event that the underlying subject matter was found to be within the scope of negotiations. Tr 3-9, 173; Board's brief at 1; Association's brief at 6.

A Petition for Scope of Negotiations Determination having been filed with the Commission and, after hearing and consideration of all record evidence and the briefs filed by 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 and determinations.

FINDINGS OF FACT

1. The Red Bank Regional High School Board of Education is a public employer within the meaning of the Act and is subject to its provisions.

2. The Red Bank Regional Education Association is a public employee representative within the meaning of the Act and is subject to its provisions.

3. The operative collective negotiations agreement between the parties was effective during the term July 1, 1982 through June 30, 1984 (Exhibit C-2).

4. On September 23, 1982, Woodrow Sullivan, the then-President of the Association, filed a grievance (Exhibit C-4) regarding the Board's having assigned teachers to do specific work from 2:21 p.m. to 2:55 p.m. daily with a proposed remedy being that all affected teachers receive written notice that these assignments

are "null and void" (Exhibit C-4).3/ When Sullivan was requested by the principal of the Red Bank Regional High School, Robert M. Nogueira, to specify the "specific work" involved, he (Sullivan) responded on October 6, 1982, that teachers are on "professional time" between 2:21 p.m. and 2:55 p.m. daily and, thus, the assignment of Sandra Portera by the supervisor of the Basic Skills Improvement Program to tutor a student during that time period is grievable as is the assignment of teachers in the Business Department to cover the typing lab during the same time period (Exhibit C-4). This grievance was ultimately denied on November 19, 1982 by the Board (Exhibit C-4).

5. During the negotiations between the Board and the Association which led to the collective negotiations agreement covering the period from July 1982-June 1984, the parties discussed a Board proposal to extend the teacher day. Eventually, they agreed to extend the teacher day to 2:55 p.m. (a l0 minute addition). Classes still ended at 2:21 p.m. and there was no agreement as to how the post 2:21 p.m. time period was to be used. There was no change in the contractual language in that regard (Tr 96-98).

Teachers who did not have either a morning homeroom or morning duty assignment were given a specific afternoon supervision

3/	At the conclusion of the hearing, counsel for the Association added that it also sought compensation for all affected teachers using Schedule "B" of Exhibit C-2, pp 50-52 (Tr 174, 175). To calculate the compensation amount.

assignment from 2:21 p.m.-2:55 p.m., the end of the teacher day (Tr 100). The duty assignments, issued in writing at the start of the school year, included such tasks as patrolling hallways, the commons area, outside building areas and bus duty. Richard Robinson, the President of the Association at the time of the hearing and the successor to Sullivan as president, testified without contradiction that between 2:21 p.m. and 2:55 p.m., there were no other specific teacher assignments made (Tr 101). Rather, this time period was considered "professional time" for those staff members who had either a morning homeroom or morning duty assignment (Tr 97-101), and was used for such things as class preparation, grading papers, meetings with other teachers and guidance counsellors, parent conferences, library research and other scholarly pursuits (Tr 113). It was time which the individual teachers used as they each deemed best within the context of the "professional time" purpose. It was occasionally used for meetings with students to provide extra help, assistance with projects, etc.

6. Principal Nogueira testified similarly that in past years, between 2:21 p.m. and the end of the teachers' work day, teachers had engaged in such activities as duplicating instructional materials, research, meeting with students for remedial enrichment, meeting with parents, guidance counsellors, and the child study team, and meeting with other teachers, etc. (Tr 134).

7. In or around September 1982, reading teacher Portera was assigned by the supervisor of the Basic Skills Improvement

Program to tutor a student who had not passed the National Basic Skills Test (Tr 135). This assignment to tutor was on a one day per week basis for the 34 minute period from 2:21-2:55 p.m. Nogueira, the principal of the high school since 1980, testified that the type of tutoring done by Portera had been done in the past on a voluntary basis by teachers who decided which of their students needed additional instruction. However, such instruction during this time frame had never before been accomplished through the direct assignment by a supervisor as was done in September 1982 (Tr 135, 152). Rather, it appears that when tutoring was done in previous years, it usually came about as the result of an independent, professional judgment made by a teacher that a certain student needed additional instruction of a certain type and a certain duration. Portera performed the one day per week tutoring assignment from the beginning of the school year in September 1982 until some time in March 1983 when this activity ceased (Tr 103). Portera did not receive additional compensation for this tutoring task (Tr 103).

8. Robinson testified that at the commencement of the 1982-83 school year, the Board assigned teachers in the Business Department, on a daily rotational basis, to supervise a typing lab at least one day per week, during the 2:21-2:55 p.m. time period. Students attended the post 2:21 p.m. typing lab to make up missed typing-class time, type homework assignments or for disciplinary detention. This assignment lasted for the entire 1982-83 school

year and ceased thereafter. No extra compensation was paid to these teachers for the performance of this assignment (Tr 102-4, 154).

9.	Nogueira testified that the post 2:21 p.m. typing lab assignment was a "self initiated" schedule of coverage by the Business Department teachers to enable students to make up missed typing-class time. He elaborated that in discussions between business department teachers and their supervisors regarding how the post 2:21 p.m. time period would be used, the teachers noted that a part of their post 2:21 p.m. time was spent enabling students to make up missed typing-class time. Thereupon, the Business Department supervisor generated a rotating, typing lab coverage schedule for the 2:21-2:55 p.m. time period (Tr 135-138).

10.	Nogueira further testified that typing teachers and teachers in other hands-on courses (mechanical drawing, photography, etc.) had cooperated with each other in previous years to provide classroom coverage for students to make up missed classroom time during the post 2:21 p.m. time period -- albeit on an informal and wholly voluntary basis (Tr 138-140).

11. Robinson testified without contradiction that in 1979 he filed a grievance regarding assignment to be performed after the end of the instructional day (post 2:21 p.m.), namely, writing a study curriculum for a particular course. As a result of the grievance, the Board rescinded the assignment prior to its implementation; no compensation was paid to Robinson for that assignment (Tr 104-108, 123).

12. The 1982-84 collective negotiations agreement (Exhibit C-2) between the parties provides, in part, as follows:

Article II, §F contains a zipper clause (Exhibit C-2 pp. 2-3):

This agreement incorporates the entire understanding of the parties on matters which were or could have been the subject of negotiation. During the term of this Agreement, neither party shall be required to negotiate with respect to any such matter whether or not covered by this Agreement and whether or not within the knowledge or contemplation of either or both of the parties at the time they negotiated or executed this Agreement.

Article II, §G contains a maintenance of benefits clause (Exhibit C-2, p. 3):

Except as this Agreement shall hereinafter otherwise provide, all terms and conditions of employment applicable on the effective date of this Agreement shall remain in full force and effect except that proposed new rules or modifications of existing rules governing working conditions shall be negotiated with the majority representative before they are established. The result of such negotiations shall be reduced to writing as a memorandum and made a part of this Agreement.

Article IV, §B contains a management rights clause (Exhibit C-2,, pp. 9-10):

The Board of Education, subject only to the language of this Agreement, reserves to itself full jurisdiction and authority over matters of policy and retains the right, in accordance with applicable law and regulations (a) to direct employees of the school district; (b) to hire, promote, transfer, assign, and retain employees in positions within the school district and to suspend, demote, discharge, or take other disciplinary action against employees; (b) to relieve employees from duties because of lack of

work, or for other legitimate reasons; (d) to maintain the efficiency of the school district operations entrusted to them; (e) to determine the methods, means, and personnel by which such operations are to be conducted; and (f) to take whatever actions might be necessary to carry out the mission of the school district in situations of emergency. Where policies have been or shall be adopted by the Board of Education in any or all of these areas, questions and issues arising thereunder shall be subject to the grievance procedure.

Article VI, "Teaching Hours and Teaching Load," states, in part, as follows:

A2. The total school day for the 1982-84 school years shall be 7 hours, 10 minutes. The normal work day of ratio personnel, i.e., coordinators and the media specialist shall not exceed 8 hours including lunch. The normal work day of guidance counselors shall be 7-1/2 hours. Guidance counselors shall work either from 7:30 a.m. to 3:00 p.m. or from 8:00 a.m. to 3:30 p.m. The administration shall determine the individual counselor's work assignment. This clause does not preclude evening assignments required of the position or of an emergency nature. Occasionally, teachers may, of necessity, be required to overlap scheduling throughout all periods of the day.

A3. Teachers shall be required to report for duty fifteen minutes before their first teacher assignment and shall remain 34 minutes after the close of their final teacher assignment.

B1. The daily teaching load shall not exceed six assigned periods with no more than four consecutive periods or eight mods without an intervening preparation or lunch period....

C1. Teachers shall have a daily duty-free lunch period of one full period....

E. Classroom teachers shall continue to have one preparation period as presently provided....

DISCUSSION AND ANALYSIS

Grievance 83-2 implicates changes in the terms and conditions of employment of reading teacher Portera and Business Department teachers. Thus, the request for restraint of arbitration must be denied.

It will be recalled that Robinson and Nogueira each testified as to what teachers have done in past years during the post 2:21 p.m. time period at the end of the school day (See Findings of Fact Nos. 5 & 6, supra). A fair reading of their respective illustrations of activities of teachers shows little divergence in the nature of the activities, notwithstanding that all of the examples given do not coincide one with the other. What is clear is that is no regular, assigned instructional or supervisory component was mentioned by either Robinson or Nogueira in their respective descriptions of what teachers did (prior to September 1982) during these 24-34 minutes at the end of each day. Robinson points to faculty meetings, meetings with administration, library research and class preparation for the next day while Nogueira referred to research, meeting with students for enrichment purposes, meetings with parents and guidance counsellors and the like. Both witnesses also referred to some limited instruction of students that occurred during the post 2:21 p.m. time period. However, such student contact was sporadic not regular; was of short duration not 6-9 months in length; and was usually teacher-initiated or resultant from discussions among teachers and guidance counsellors, parents, and/or administrators. However, nowhere in this record was a

specific instance recalled where, prior to September 1982, a teacher was assigned by a superior to instruct or supervise a student on a regular and on-going basis during the 2:21-2:55 p.m. time period.

Given the foregoing, it is plain that when the Board assigned a tutoring responsibility to Portera between September 1982 and March 1983 and rotating assignments in the typing lab to Business Department teachers on a once per week basis, these assignments constituted an increase in teacher-pupil contact time (and therefore, an increase in workload) for the affected teachers. The fact that Nogueira testified that teachers had undertaken such activity on a voluntary basis prior to 1982 does not alter the fact that in the 1982-83 school year, the reading tutorial and typing lab supervision activities were assigned to teachers by members of the administration. Thus, during the 1982-83 school year, the assignments were no longer voluntary, the Board having elected to intervene through its supervisory staff. Portera's assignment was given to her by the supervisor of Basic Skills Improvement Program and the teachers in the typing lab functioned under the direction of the supervisor of Business Education, Allen Morrison.

Before treating the applicable Court and Commission precedent relevant to a resolution of the issue at hand, the Hearing Examiner here makes reference to the pertinent provisions in the collective negotiations agreement, starting with the management rights clause which, it is noted, is "subject to the language of the agreement", and, thus, other express contract provisions must be

examined. The Association points to the "maintenance of benefits" clause in Article II, §G, which incorporates the basic language of section 5.3 of the Act regarding the necessity of negotiating (or arbitrating) proposed new rules or modifications of existing rules governing working conditions prior to their implementation. Clearly, this bears on the issue at hand since there has arguably been a change in the workload of Portera and the typing teachers, i.e., an increase in teacher-pupil contact time. It is true that there has been no increase in the length of the 7-hour and 10-minute school day but, according to Robinson, the 34 minutes after the "final teacher assignment" have been used by teachers in the past for "professional" or "discretionary" time. It is clear that other than those teachers who have been assigned to afternoon supervisory duty (whose status is not in dispute in this case and who enjoy "professional time" during the morning, pre-class period), no teacher has been assigned to either teach or supervise students during the 34 minute afternoon period. It is also true that there has been no change in the daily duty-free lunch period or the preparation period by the conduct of the Board herein. This does not, however, obviate the Association's contention that teacher-pupil contact time was increased for the affected teachers by the Board's assignments for the 34 minutes after the "final teacher assignment" (post 2:21 p.m. time frame). Finally, the agreement provides for binding arbitration of issues submitted to the arbitrator by the parties.

The Board asserts several defenses to the arbitration of Grievance 83-2 such as (1) the assignments were voluntary; (2) the job description for a teacher is more than sufficient to cover the assignments; (3) the Board has bargained for and obtained the additional time at issue; (4) there have been no real changes in the work requirements of teachers and even if there were, they are covered by the Agreement; (5) any changes made were de minimis; (6) the Board has properly exercised its managerial prerogatives and the requirements imposed on the affected teachers are clearly educational in nature. The first four of the Board's defenses are more properly raised in the arbitration forum; they are not normally applicable in a scope of negotiations context. In Ridgefield Park Ed Assn. v. Ridgefield Park Bd/Ed, 78 N.J. 144 (1978) the Supreme Court, quoting directly from a Commission scope of negotiations decision in Hillside Board of Education, P.E.R.C. No. 76-11, 1 NJPER 55 (1975) said:

The Commission is addressing the abstract issue: is the subject matter in dispute within the scope of collective negotiations. Whether that subject is within the arbitration clause of the agreement, whether the facts are as alleged by the grievant, whether the contract provides a defense for the employer's alleged action, or even whether there is a valid arbitration clause in the agreement, or any other question which might be raised is not to be determined by the Commission in a scope proceeding. Those are questions appropriate for determination by an arbitrator and/or the courts (78 N.J. at 154)(emphasis supplied).4/

It cannot be gainsaid that working hours, compensation, workload, etc. are terms and conditions of employment which intimately and directly affect the work and welfare of public employees and are, thus, mandatorily negotiable: Englewood Board of Education v. Englewood Teachers Association, 64 N.J. 1, 6 (1973) and Neptune City Board of Education v. Neptune City Education Association, 153 N.J. Super. 406, 410 (App. Div. 1977). Specifically, the issue of workload has been held many times to be mandatorily negotiable and arbitrable. Changing a teacher's assignment from "professional time" -- as it has been described by these parties -- to pupil contact time is an increase in workload and, for 34 minutes, it is one which is not de minimis. As the Commission stated in In re Lincoln Park Board of Education, P.E.R.C. No. 85-54, 10 NJPER 647 (¶15312 1984):

...the Board has substituted a pupil supervision period for a preparation period and has not compensated teachers for this additional pupil contact time. Under the cases we have cited and myriad others, there can be no doubt that this uncompensated increase in pupil contact time presents a mandatorily negotiable issue.

10 NJPER at 648.

4/	Even the jurisdiction of the Courts is limited to the issue of whether there is a contractual obligation to arbitrate the dispute at issue; Clifton Board of Education v. Clifton Teachers Association, 154 N.J. Super. 500, 503 (App. Div. 1977).

See also Burlington Co. College Faculty Ass'n v. Bd. of Trustees, 64 N.J. 10 (1973); Red Bank Bd. of Ed. v. Warrington, 138 N.J. Super. 564 (App. Div. 1976); In re Byram Twp. Bd. of Ed., 152 N.J. Super. 12 (App. Div. 1977); In re Maywood Ed. Assn., 168 N.J. Super. 45 (App. Div. 1979), pet. for certif. den. 81 N.J. 292 (1979); In re Kingwood Twp. Bd. of Ed., v. Kingwood Twp. Ed. Assn., App. Div. Dkt. No. A-1414-84T7 (1985); In re City of Bayonne Bd. of Ed., P.E.R.C. No. 80-58, 5 NJPER 499 (¶10255 1979), aff'd App. Div. A-95-79 (1980), pet. for certif. den. 87 N.J. 310 (1981); In re Newark Bd. of Ed., P.E.R.C. No. 79-38, 5 NJPER 41 (¶10026 1979), aff'd App. Div. Dkt. No. A-2060-78 (1980); In re Dover Bd. of Ed., P.E.R.C. No. 81-110, 7 NJPER 161 (¶12071 1981) aff'd App.Div. Dkt. No. A-3380-80T2 (1982); In re Wanaque Borough Dist. Bd. of Ed., P.E.R.C. No. 80-13, 5 NJPER 414 (¶10216 1979); In re Wanaque Borough Dist. Bd. of Ed., P.E.R.C. No. 82-54, 8 NJPER 26 (¶13011 1981); In re Wharton Bd. of Ed., P.E.R.C. No. 83-85, 8 NJPER 570 (¶13262 1982); In re East Newark Bd. of Ed., P.E.R.C. No. 83-123, 8 NJPER 373 (¶13171 1982); In re Bridgewater-Raritan Reg. Bd. of Ed., P.E.R.C. No. 83-102, 9 NJPER 104 (¶13057 1982); South River Board of Education, PERC 83-135, 9 NJPER 274 (1983), aff'd Docket No. A-4669-82T2 (App. Div. 1984); In re Buena Regional School District, P.E.R.C. No. 86-3, 11 NJPER 444 (¶16154 1985); In re Kingwood Township Bd. of Ed., P.E.R.C. No. 86-85, 12 NJPER 102 (¶17039 1985); In re Montville Twp. Bd.Ed., P.E.R.C. No. 86-51, 11 NJPER 702 (¶16241 1985).

Significantly, in Board of Education of Woodstown-Pilesgrove School District v. Woodstown-Pilesgrove Education Association, 81 N.J. 582 (1980) the Supreme Court found that a 2-hour increase in the school day before Thanksgiving implicated workload and not educational policy and was, therefore, mandatorily negotiable and arbitrable (See 81 N.J. at 594-596). Similarly, in this case I reject the Board's contention that its actions fall within its managerial prerogatives and therefore are not negotiable. Rather, I conclude that the activities taken here clearly implicate workload, not educational policy, and accordingly, are negotiable and arbitrable.

* * * * *

Upon the entire record in this proceeding, the Hearing Examiner recommends as follows.

RECOMMENDED ORDER

The request of the Petitioner, Red Bank Regional High School Board of Education, for a restraint of arbitration of Grievance 83-2 is hereby denied.5/

Charles A. Tadduni

Hearing Examiner

DATED: May 20, 1986

Trenton, New Jersey

5/	In accordance with the parties' stipulations and agreement (see footnote 2, supra), the Hearing Examiner has decided grievance 83-2 and submitted that arbitration decision to the parties.

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

- - - - - - - - - - - - - - - - - - - - - - - :

In the Matter of the Grievance Arbitration :

-between-	: DECISION AND AWARD

RED BANK REGIONAL HIGH SCHOOL	: Grievance 83-2

BOARD OF EDUCATION

: (1982-1983 Afternoon

-and	Teacher Assignments;

RED BANK REGIONAL EDUCATION	: Reference PERC

ASSOCIATION	Docket No. SN-83-57)

- - - - - - - - - - - - - - - - - - - - - - - :

Before: Charles A. Tadduni, Arbitrator

Appearances:

For the Board:

Crowell & Otten

By: Robert H. Otten, Esq.

For the Association:

Oxfeld, Cohen & Blunda

By: Mark J. Blunda, Esq.

D E C I S I O N

The Red Bank Regional High School Board of Education (the "Board") and the Red Bank Regional Education Association (the "Association") are parties to a collective negotiations agreement. Consistent with the terms of that contract, and pursuant to the specific agreement of the parties to have the undersigned hear and decide this grievance, the undersigned conducted an evidentiary hearing in the above matter. At the hearing, both parties were afforded the opportunity to present documentary evidence, examine

and cross-examine witnesses and argue orally. Both parties filed post hearing briefs and reply briefs.1/

I have reviewed the entire record in this matter and find and determine as follows.

The issues for determination in this matter are as follows:

Did the Red Bank Regional High School Board of Education violate the agreement between the Board and the Red Bank Regional Education Association, (a) when it unilaterally assigned S. Portera to tutor a student between 2:21 p.m. and 2:55 p.m., one day per week, during the 1982-83 school year; (b) when it unilaterally assigned Business Department teachers to provide typing lab coverage between 2:21 p.m. and 2:55 p.m., on a rotating basis, one day per week, for the entire 1982-83 school year; and (c) if so, what shall the remedy be?

Findings of Fact

1. The operative collective negotiations agreement between the parties was effective during the term July 1, 1982 through June 30, 1984 (Exhibit C-2).

2. On September 23, 1982, Woodrow Sullivan, the then-President of the Association, filed the instant grievance (Exhibit C-4) regarding the Board's having assigned certain teachers to do specific work from 2:21 p.m. to 2:55 p.m. daily with a

1/	This matter was heard in conjunction with a scope of negotiations matter (PERC Docket No. SN-83-57) filed by the Board. The parties specifically agreed on that record that, in the event that the Hearing Examiner found the subject matter of the grievance to be negotiable and arbitrable, the Hearing Examiner would serve as arbitrator to decide the grievance.

proposed remedy being that all affected teachers receive written notice that these assignments are "null and void" (Exhibit C-4).2/ When Sullivan was requested by the principal of the Red Bank Regional High School, Robert M. Nogueira, to specify the "specific work" involved, he (Sullivan) responded on October 6, 1982, that teachers are on "professional time" between 2:21 p.m. and 2:55 p.m. daily and, thus, the assignment of Sandra Portera by the supervisor of the Basic Skills Improvement Program to tutor a student is grievable as is the assignment of teachers in the Business Department to cover the typing lab during the same time period (Exhibit C-4). This grievance was ultimately denied on November 19, 1982 by the Board (Exhibit C-4).

3. During the negotiations between the Board and the Association which led to the collective negotiations agreement covering the period from July 1982-June 1984, the parties discussed a Board proposal to extend the teacher day. Eventually, they agreed to extend the teacher day to 2:55 p.m. (a l0 minute addition). Classes still ended at 2:21 p.m. and there was no agreement as to how the post 2:21 p.m. time period was to be used. There was no change in the contractual language in that regard (Tr 96-98).

2/	At the conclusion of the hearing, counsel for the Association added that it also sought compensation for all affected teachers using Schedule "B" of Exhibit C-2, pp 50-52 (Tr 174, 175) to calculate the compensation amount.

There was a practice whereby virtually all teachers had either a morning duty assignment, a morning homeroom assignment or an afternoon duty assignment. Teachers who did not have either a homeroom or morning duty assignment were given a specific afternoon supervision assignment from 2:21 p.m.-2:55 p.m., the end of the teacher day (Tr 100). The duty assignments, issued in writing at the start of the school year, included such tasks as patrolling hallways, the commons area, outside building areas and bus duty. Richard Robinson, the President of the Association at the time of the hearing and the successor to Sullivan as president, testified without contradiction that between 2:21 p.m. and 2:55 p.m., there were no other specific teacher assignments made (Tr 101). Rather, for those staff members who had either a morning homeroom or morning duty assignment (Tr 97-101), this time period was considered "professional time" and was used for such things as class preparation, grading papers, meetings with other teachers and guidance counsellors, parent conferences, library research and other scholarly pursuits (Tr 113). It was time which the individual teachers used as they each deemed best within the context of the "professional time" purpose. It was occasionally used for meetings with students to provide extra help, assistance with projects, etc.

4. Principal Nogueira testified similarly that in past years, between 2:21 p.m. and the end of the day, teachers had engaged in such activities as duplicating instructional materials, research, meeting with students for remedial enrichment, meeting

with parents, guidance counsellors, and the child study team, and meeting with other teachers, etc. (Tr 134).

5. In September 1982, reading teacher Portera was assigned by the supervisor of the Basic Skills Improvement Program to tutor a student who had not passed the National Basic Skills Test (Tr 135). This assignment to tutor was on a one day per week basis for the 34 minute period at the end of the school day. Nogueira, the principal of the high school since 1980, testified that the type of tutoring done by Portera had been done in the past on a voluntary basis by teachers who themselves decided which of their students needed tutoring. However, such student instruction during this time frame had never before been accomplished through the direct assignment by a supervisor as was done in September 1982 (Tr 135, 152).3/ Rather, it appears that when tutoring was done in previous years, it usually came about as the result of an independent, professional judgment made by a teacher that a certain student needed additional instruction of a certain type and a certain duration. Portera performed the one day per week tutoring assignment from the beginning of the school year in September 1982 until some time in March 1983 when this activity ceased (Tr 103). Portera did not receive additional compensation for this tutoring task (Tr 103).

3/	While there were no extensive proofs made on this issue, there are references in the record to the Board's attempt to negotiate for such specific post 2:21 p.m. assignments. No agreement was reached on the issue (Tr 96-98).

6. Robinson testified that at the commencement of the 1982-83 school year, the Board assigned teachers in the Business Department, on a daily rotational basis, to supervise a typing lab at least one day per week, during the 2:21-2:55 p.m. time period. Students attended the post 2:21 p.m. typing lab to make up missed typing-class time, type homework assignments or for disciplinary detention. This assignment lasted for the entire 1982-83 school year and ceased thereafter. No extra compensation was paid to these teachers for the performance of this assignment (Tr 102-4, 154).

7. Nogueira testified that the post 2:21 p.m. typing lab assignment was a "self initiated" schedule of coverage by the Business Department teachers to enable students to make up missed typing-class time. He elaborated that in discussions between business department teachers and their supervisor regarding how the post 2:21 p.m. time period would be used, the teachers noted that a part of their post 2:21 p.m. time was spent enabling students to make up missed typing-class time. Thereupon, the Business Department supervisor generated a rotating, typing lab coverage schedule for the 2:21-2:55 p.m. time period (Tr 135-138).

8. Nogueira further testified that typing teachers and teachers in other hands-on courses (mechanical drawing, photography, etc.) had cooperated with each other in previous years to provide classroom coverage for students to make up missed classroom time during the post 2:21 p.m. time period -- albeit on an informal and wholly voluntary basis (Tr 138-140).

9. Robinson testified without contradiction that in 1979 he filed a grievance regarding an assignment to be performed after the end of the school day (post 2:21 p.m.), namely, writing a study curriculum for a particular course. As a result of the grievance, the Board rescinded the assignment prior to its implementation; no compensation was paid to Robinson (Tr 104-108, 123).

10. The 1982-84 collective negotiations agreement (Exhibit C-2) between the parties provides, in part, as follows:

Article II, §F contains a zipper clause (Exhibit C-2 pp. 2-3):

This agreement incorporates the entire understanding of the parties on matters which were or could have been the subject of negotiation. During the term of this Agreement, neither party shall be required to negotiate with respect to any such matter whether or not covered by this Agreement and whether or not within the knowledge or contemplation of either or both of the parties at the time they negotiated or executed this Agreement.

Article II, §G contains a maintenance of benefits clause (Exhibit C-2, p. 3):

Except as this Agreement shall hereinafter otherwise provide, all terms and conditions of employment applicable on the effective date of this Agreement shall remain in full force and effect except that proposed new rules or modifications of existing rules governing working conditions shall be negotiated with the majority representative before they are established. The result of such negotiations shall be reduced to writing as a memorandum and made a part of this Agreement.

Article IV, §B contains a management rights clause (Exhibit C-2, pp. 9-10):

The Board of Education, subject only to the language of this Agreement, reserves to itself full jurisdiction and authority over matters of policy and retains the right, in accordance with applicable law and regulations (a) to direct employees of the school district; (b) to hire, promote, transfer, assign, and retain employees in positions within the school district and to suspend, demote, discharge, or take other disciplinary action against employees; (b) to relieve employees from duties because of lack of work, or for other legitimate reasons; (d) to maintain the efficiency of the school district operations entrusted to them; (e) to determine the methods, means, and personnel by which such operations are to be conducted; and (f) to take whatever actions might be necessary to carry out the mission of the school district in situations of emergency. Where policies have been or shall be adopted by the Board of Education in any or all of these areas, questions and issues arising thereunder shall be subject to the grievance procedure.

Article VI, "Teaching Hours and Teaching Load," states in part, as follows:

A2. The total school day for the 1982-84 school years shall be 7 hours, 10 minutes. The normal work day of ratio personnel, i.e., coordinators and the media specialist shall not exceed 8 hours including lunch. The normal work day of guidance counselors shall be 7-1/2 hours. Guidance counselors shall work either from 7:30 a.m. to 3:00 p.m. or from 8:00 a.m. to 3:30 p.m. The administration shall determine the individual counselor's work assignment. This clause does not preclude evening assignments required of the position or of an emergency nature. Occasionally, teachers may, of necessity, be required to overlap scheduling throughout all periods of the day.

A3. Teachers shall be required to report for duty fifteen minutes before their first teacher assignment and shall remain 34 minutes after the close of their final teacher assignment.

B1. The daily teaching load shall not exceed six assigned periods with no more than four consecutive periods or eight mods without an intervening preparation or lunch period....

C1. Teachers shall have a daily duty-free lunch period of one full period....

E. Classroom teachers shall continue to have one preparation period as presently provided....

Article XXII, "Miscellaneous Provisions" provides, in part, as follows:

The parties agree that teachers shall continue to serve under the direction of the Superintendent of Schools and in accordance with Board and Administrative Policies, Rules and Regulations provided that the provisions of this Agreement shall supersded [sic] and prevail over any conflicting provisions.

Article III, "Grievance Procedure" provides, in part, as follows:

...A "grievance" shall mean a complaint by a teacher that there has been to him/her a personal loss, injury or inconvenience because of a violation, misinterpretation or inequitable application of Board policy, this Agreement or an administrative decision effecting teachers.

...If, as a result of the discussion, the matter is not resolved to the satisfaction of the teacher within five (5) school days, he/she shall set forth his grievance in writing to the principal specifying:

(a) the nature of the grievance

(b) the nature and extent of the injury, loss of inconvenience

(c) the results of previous discussions

(d) his/her dissatisfaction with decisions previously rendered

...If the decision of the Board does not resolve the grievance to the satisfaction of the Association and the Association wishes review by

a third party, they shall so notify the Board through the superintendent within ten (10) school days of receipt of the Board's decision...

...The decision of the arbitrator shall be final and binding upon both parties.

Positions of the Parties

The Association argues that the Board violated the parties' contract when it (a) unilaterally assigned Ms. Portera to tutor a student during the post 2:21 p.m. time period and failed to pay her additional compensation for the performance of that assignment; and (b) unilaterally assigned Business Department teachers, on a daily rotating basis, to supervise a typing lab, each at least one day per week during the 2:21 -2:55 p.m. time period. The Association contends that for these teachers, this time period historically was used as "professional time" and was not used to perform specific teacher-pupil contact assignments made by the Board. The Association requests that the affected teaching staff members be compensated for the time worked, using Schedule B of Exhibit C-2 to calculate the amount of compensation due.

The Board contends that Grievance 83-2 is covered by specific contractual language (Article VI of Exhibit C-2). The Board states that there were no "real" changes made and that Exhibit J-1 and Article XXII of the contract enabled the Board to make such post 2:21 p.m. assignments as are being contested here. The Board argues that it negotiated for and obtained contract changes enabling it to make the post 2:21 p.m. assignments. The Board denies that

there was a "past practice" concerning the use of the post 2:21 p.m. time period (Board's brief #1 at p. 3); the Board contends that teachers had always been assigned to teach students during this time slot. Further, the Board argues that even if there had been such a past practice, it would be superceded by the contract language. The Board asserts that any changes which may have been made had a de minimis effect on teachers. Finally, the Board notes that in the original grievance, all that was requested was a cessation of the assignments; the Board argues that the Association cannot now be permitted to amend its request for relief to include compensation.

Analysis and Conclusions

Prior to September 1982, there was clearly a "past practice" regarding how the post 2:21 p.m. time was used by teachers. For teaching staff members, who had a morning homeroom or morning duty assignment (and who, therefore, would not have a specific afternoon duty assignment), this time period was considered "professional time" and was used for such things as class preparation, grading papers, meetings with other teachers and guidance counsellors, parent conferences, library research and occasionally, instruction to students. However, based upon this record, such instruction was sporadic, of brief duration and was never assigned to a teacher by a supervisor; rather, it was usually teacher-initiated and always voluntarily undertaken by the teacher. The Portera and Business Department assignments were clearly of a

different nature than was any post 2:21 p.m. activity which occurred prior to September 1982. The only reference in the record to any specific assignment made to a teacher during the post 2:21 p.m. time period was to an assignment given to Robinson in 1979 to write a study curriculum. That assignment was grieved and was rescinded by the Board.

Next, the Board argues that the language of the contract enables it to make the contested assignments and that, in fact, it had negotiated for and secured such contract changes as would enable the Board to make such assignments.

I disagree. While the Board did negotiate for and secure an increase of 10 minutes in the length of the teachers' work day (during the negotiations for the 1982-84 contract), and raised the issue during negotiations of how the post 2:21 p.m. time could be used, the Board never secured any agreement on the time use issue and it was dropped.

With regard to the specific relevant language of the agreement, Article II, F and G (zipper and maintenance of benefits clauses) provide that terms and conditions of employment in effect on the date of the agreement shall remain in effect and may only be changed through negotiations and agreement between the parties; further, they provide that this agreement constitutes the parties' entire agreement on all matters. Article VI (teaching hours and load) states, inter alia, the hours to be worked by teachers, that teachers shall remain for 34 minutes after the close of their final

teacher assignment, that teaching load shall be less than or equal to 6 periods and that teachers shall have a duty free lunch and a preparation period. Surely, the Board would not argue that the management rights clause (which specifically states that it is subject to the language of the parties' agreement) confers the right on the Board to unilaterally increase workload. It simply does not do that. Nor does Article XXII(F) (even if read in conjunction with the teachers' job description, Exhibit J-1) confer such a right. First, the fact that a function may be included within a job description does not give an employer the right to unilaterally assign the function to an employee, thereby increasing the employees' workload, and not compensate the employee for the additional work performed. Next, Exhibit J-1, is phrased in general terms and contains no reference to how the 34 minute, post 2:21 p.m time frame may be used. Finally, Article XXII(F) specifically states that the provisions of the parties' agreement supercede any conflicting provisions of the Board's rules and regulations.

I reject the de minimis argument -- adding a 34 minute student instruction or supervision period to a teacher's workload each week is clearly not de minimis.

Finally, with regard to the changed remedy sought by the Association -- I find no compelling reason why the remedy presently sought should not be considered. The parties' contractual grievance procedure specifies what a grievance must contain (Exhibit C-2 at p. 5) and the specific remedy sought is not a required element. The

grievance was filed on September 24, 1982. At that time, a point still quite early in the school year when these assignments were first made, Association President Sullivan sought to have the grieved assignments rescinded. The grievance was subsequently denied and when the Association sought to arbitrate the grievance, the Board filed a scope of negotiations petition with the Commission (on December 29, 1984). The parties' disputes persisted beyond the 1982-83 school year. However, the contested afternoon assignments terminated either late in or at the end of the 1982-83 school year. Thus, the recision remedy originally sought became moot and the Association sought compensation for the teachers who had performed the additional work for most or all of the 1982-83 school year.

The Association seeks to have the compensation for the affected teachers determined by reference to Schedule B of the parties 1982-83 contract (Exhibit C-1 at pp. 50-52). The Board argues that Article X(C) should be applied if it is determined that compensation is due to the affected teachers.

Article X(C) provides:

Teachers who during their professional period, are asked to assume responsibilities normally assigned to substitutes, shall be reimbursed at the rate of $9.00 per period.

Clearly, the disputed assignments were not "responsibilities normally assigned to substitutes." Rather, I am persuaded that Article X(D) is applicable to determine the compensation due to the affected teachers. Article X(D) states:

Teachers who are assigned extra work/extra pay responsibilities shall be paid as set forth in Schedule B which is attached hereto and made a part hereof....

Accordingly, Schedule B shall be used to calculate the compensation due to each of the affected teachers by applying the compensation called for in that schedule to the number of days worked by each Business Department teacher and by reading teacher Portera.4/

A W A R D

Accordingly, the grievance is sustained. The Board violated the collective bargaining agreement when (a) it unilaterally assigned reading teacher Portera to tutor a student during the post 2:21 p.m. time period and failed to compensate her for the work performed; and (b) it unilaterally assigned Business Department teachers, on a rotating basis once per week, to cover a typing lab during the post 2:21 p.m. time period and failed to compensate these teachers for the work performed.

4/	Both parties indicated on the record that adequate records had been kept of the number of days worked by each of these teachers and that the parties could procure that information without difficulty.

As a remedy, each teacher is to be paid for the additional time that they worked as a result of these assignments based upon an appropriate application of Schedule B of the parties' contract (Exhibit C-1).

DATED: May 20, 1986

Trenton, New Jersey

Respectfully submitted,

Charles A. Tadduni

Arbitrator

State of New Jersey)ss:

County of Mercer )

On this 20th day of May, 1986, before me personally came and appeared Charles A. Tadduni to me known and known to me to be the individual described in and who executed the foregoing instrument and he acknowledged to me that he executed the same.