H.E. NO. 84-21

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

JERSEY CITY BOARD OF EDUCATION,

Respondent,

-and-	Docket No. CO-83-300-15

JERSEY CITY EDUCATION ASSOCIATION,

Charging Party.

Appearances:

For the Respondent

Mr. John P. Miraglia, Consultant

Richard C. Vaughan, Esq.

For the Charging Party

Philip Feintuch, Esq.

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the "Commission") on May 5, 1983 by the Jersey City Education Association (hereinafter the "Charging Party" or the "Association") alleging that the Jersey City Board of Education (hereinafter the "Respondent" or the "Board") has 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 the Respondent has failed, neglected and refused to abide by the terms of a memorandum of understanding, executed on March 21, 1983, with respect to the Educational Secretaries Association's salary guides, all of which is alleged to be a violation of N.J.S.A. 34:13A-5.4(a)(6) and (7) of the Act.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 15, 1983. Pursuant to the Complaint and Notice of Hearing, hearings were held on September 22 and September 26, 1983 in Newark, New Jersey, at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. Both parties argued orally on September 26, 1983 and waived the filing of post-hearing briefs.

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 oral argument 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 Jersey City Board of Education is a public employer within the meaning of the Act, as amended, and is subject to its provisions.

2.	The Jersey City Education Association is a public employee representative within the meaning of the Act, as amended, and is subject to its provisions.

3.	The Association represents employees in three collective negotiations units, namely, Teachers, Teachers' Aides and Secretaries. The Teachers and Teachers' Aides are employed for 10 months while the Secretaries are employed for 12 months. Each unit is covered by a separate agreement. The instant dispute concerns the Secretarial unit.

4.	The Association has negotiated for Secretaries since 1970. There have been six or seven collective negotiations agreements covering Secretaries since that date. As evidenced by Exhibit CP-1, which is the July 1, 1980 to June 30, 1982 collective negotiations agreement for Secretaries, and the testimony, the effective date for collective negotiations agreements covering the Secretaries has always been July 1st.

5.	The Secretaries last received an increment on July 1, 1982, which was based on the salary guides in CP-1, supra.

6.	The negotiations for the three successor agreements to those which expired June 30, 1982 commenced in November 1981.

7.	At a meeting in the Mayor's office on February 15, 1983 the parties reached agreement covering the terms and conditions of employment for the three collective negotiations units. This agreement was reduced to a written memorandum of understanding by counsel for the Charging Party and was executed by the President of the Board, Aaron I. Schulman, and the President of the Association, Louis T. Scialli (CP-6).

8.	The memorandum of understanding provided for a percentage salary increase for the years 1982-83 and 1983-84. It also provided for changes in the language in the Teachers agreement and a retroactive date of September 1, 1982 except for the Secretaries whose "adjustments take effect July 1, 1982..." The memorandum was subject to ratification by the parties.

9.	The Board refused to ratify the memorandum of understanding (CP-6) at a meeting on February 16, 1983 (R-3). There was no evidence adduced as to whether the Association ever ratified the said memorandum.

10.	By the time of the February 15, 1983 meeting of the parties, supra, the mediation and fact finding phases of negotiations had been concluded. Following the meeting in the Mayor's office on February 15th the parties met several times prior to March 21, 1983. On March 4, 1983 counsel for the Board gave to counsel for the Association a copy of a proposed memorandum of understanding (R-2), as to which there was some discussion among counsel. Scialli was present at this meeting. Paragraph four of the proposed memorandum of understanding (R-2) provided that the secretaries and clerks would receive no more than 7%, including increment, effective September 1, 1982. On March 8, 1983 counsel for the Board wrote to counsel for the Association confirming that a copy of the proposed memorandum of understanding had been given to counsel for the Association on March 4th, and counsel for the Board enclosed additional copies (R-2). Counsel for the Association never responded to Exhibit R-
2.

11.	On March 21, 1983 the final meeting of the parties to consummate the collective negotiations agreements for the three units took place at the Holiday Inn in Jersey City. At that point the only apparent obstacle to reaching total agreement was the construction of the salary guides for each of the three units. A special post-facting mediator from the Commission had agreed to attend the meeting for the purpose of lending assistance in the construction of the salary guides. At the time of the mediator's involvement in this task the parties had agreed on percentage increases for 1982-83 and 1983-84 as follows: 7.2% for 1982-83 and 9.5% for 1983-84, said increases being across-
the-board for all three units.

12.	At some point during the March 21st meeting the mediator completed the task of constructing the salary guides for all three units to the satisfaction of the parties. When this had been done, counsel for the Association personally wrote out a memorandum of understanding between the Board and the Association (CP-2 & CP-2A), which consisted of three parts: Item 1 -- language modification in the Teachers agreement, effective September 1, 1982; Item 2 -- deletions from the Teachers agreement, which the Commission had decided were non-negotiable; and Item 3 -- the salaries for the personnel of all three negotiations units, as reflected in the salary guides constructed by the mediator on that date. The last page of the memorandum of understanding, under Item 2, supra, provided, as follows: "The Contract duration shall be September 1, 1982 through August 31, 1984." (Emphasis supplied). The first page of the memorandum provided that the Association would ratify on March 24th and that the Board would ratify on March 23rd. The memorandum of understanding was executed on March 21st by Scialli and Schulman on behalf of the Association and the Board, respectively, and by the mediator.

13.	The Teachers ratified the memorandum at their meeting on March 24th. After a memo was sent to all Secretaries on March 25, 1983 (CP-7), the Secretaries ratified their salary guides for 1982 through 1984. The President of the Secretaries Association, in preparing the said memo (CP-7), explicitly stated that the effective dates for the Secretarial increases were July 1, 1982 and July 1, 1983 although the salary guides themselves are not conclusive (CP-3).2/

14.	The Board ratified the memorandum of understanding at its meeting on March 23, 1983, which included all three collective negotiations units (R-1 and R-4).

15.	When the Secretaries learned that the Board's ratification of their salary guides was effective September 1, 1982, and not July 1, 1982, they registered an objection and, as a result, the salary guides for the Secretaries have never been implemented. The Secretaries are being compensated at the rate of their last increment of July 1, 1982. The salary guides for the units of Teachers and Teachers' Aides have been implemented in toto.

THE ISSUE

Did the Respondent Board violate Subsections (a)(6) and (7) of the Act3/ by refusing to make the effective date for the Secretaries' agreement July 1, 1982 vis-a-vis the effective date of September 1, 1982 for the Teachers' agreement and the Teachers Aides' agreement?

DISCUSSION AND ANALYSIS

The Respondent Board Did Not Violate

Subsection (a)(6) Of The Act When It

Refused To Make The Effective Date

For The Secretaries' Agreement July

1, 1982 Since There Was No Meeting

Of The Minds On This Date

It is as plain as a pikestaff to the Hearing Examiner that the negotiators for the parties, and their attorneys, totally failed to resolve the issue of the effective date of the Secretaries' agreement. It is true that at the meeting in the Mayor's office on February 15, 1983 the memorandum of understanding, which resulted, provided that the Secretaries' "adjustments take effect July 1, 1982..." However, the Board refused to ratify the February 15th memorandum of understanding at a meeting on February 16, 1983 (R-3). Thus, the February 15th memorandum of understanding is of no force or effect. Further, counsel for the Board, on March 4, 1983, gave to counsel for the Association a copy of a proposed memorandum of understanding (R-
2). Paragraph 4 of this memorandum clearly provided that the secretaries and clerks' increase was to be effective September 1, 1982. Counsel for the Association never responded to this memorandum. Finally, the final memorandum of understanding (CP-
2), which was executed on March 21, 1983, makes no reference whatsoever to Secretaries and provides that the effective date of the agreement "...shall be September 1, 1982 through August 31, 1984..." It is of no moment that the Secretaries thought that they were ratifying an agreement, which was effective July 1, 1982. Given such a divergence in the negotiating positions of the parties over the effective date for the Secretaries' agreement, plainly there was no meeting of the minds at any time after February 15, 1983 on the matter of the effective date for the Secretaries' agreement.

The Commission and its Hearing Examiners have had several occasions to consider and decide cases as to whether or not there was a meeting of the minds on the substantive issues in negotiations. See, for example, Mt. Olive Board of Education, P.E.R.C. No. 78-25, 3 NJPER 382 (1977); Passaic Valley Water Commission, P.E.R.C. No. 80-134, 6 NJPER 220 (1980); South Amboy Board of Education, P.E.R.C. No. 82-10, 7 NJPER 448, 451 (1981) and two Hearing Examiner decisions, which were settled before the issuance of a formal Commission decision: Union County Hospital, H.E. No. 82-18, 8 NJPER 2 (1981) and Carlstadt Board of Education, H.E. No. 83-1, 8 NJPER 465 (1982).

The findings of Fact, supra, coupled with above Commission precedent, make it abundantly clear that there was no meeting of the minds, and thus no agreement on the effective date for the salary guides for the Secretaries. There being no meeting of the minds, there is no basis for a recommended order by the Hearing Examiner directing the Respondent Board to execute an agreement making the Secretaries agreement effective July 1, 1982.

For the foregoing reasons, the Hearing Examiner will recommend dismissal of the Subsection (a)(6) allegation in the Complaint.

* * *

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)(6) and (7) when it refused to make the effective date for the Secretaries' agreement July 1, 1982 since there was no meeting of the minds on this date.

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:	October 5, 1983

Trenton, New Jersey