H.E. NO. 79-12

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

TINTON FALLS BOARD OF EDUCATION,

Respondent,

-and-	Docket No. CO-78-200-70

TINTON FALLS EDUCATION ASSOCIATION,

Charging Party.

Appearances:

For the Tinton Falls Board of Education

Gerald L. Dorf, P.A.

(Steven S. Glickman, Esq.)

For the Tinton Falls Education Association

Greenberg & Mellk, Esqs.

(Arnold M. Mellk, Esq.)

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the "Commission") on March 6, 1978 by the Tinton Falls Education Association (hereinafter the "Charging Party" or the "Association") alleging that the Tinton Falls 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 the Respondent, notwithstanding a Memorandum of Agreement dated October 24, 1977, had failed to abide by the terms of said Memorandum of Agreement, in particular, paragraph 2a-c, which pertained to the amount of the salary increase for 1977-78 and 1978-79, and that the Respondent on March 1, 1978 advised the Association that it would not honor the Memorandum of Agreement, all of which is alleged to be a violation of N.J.S.A. 34:13A-5.4(a)(5) and (6).1/

It appearing that the allegations of the Unfair Practice Charge, as amended at the first hearing, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on May 9, 1978. Pursuant to the Complaint and Notice of Hearing, hearings were held on June 12 and June 29, 1978 in Newark, New Jersey, at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. Post-hearing briefs were received from the parties under date of August 21, 1978.

An Unfair Practice Charge, as amended, having been filed with the Commission, a question concerning alleged violations of the Act, as amended, exists and, after hearing, and consideration of 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 OF FACT

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

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

3.	The Board and the Association have had a longstanding collective negotiations relationship and, in particular, negotiations for a successor agreement for the school year 1977-
78 commenced in August 1976.

4.	Under date of October 24, 1977, duly authorized representatives of the Board and the Association executed a Memorandum of Agreement for a two-year contract for 1977-78 and 1978-79. This Memorandum of Agreement provided in paragraph 2, Salaries, as follows:

a.	Salary Guide for 1977-78 to be constructed by adding $84,795 (7%) to 1976-77 salary of $1,211,370.

b.	Salary Guide for 1978-79 by adding $77,769 (6%) to 1977-78 salary: $1,296,165.

c.	Salary Guides to be mutually agreed upon.

(CP-1) (Emphasis supplied).

5.	The Association ratified the aforesaid Memorandum of Agreement on December 9, 1977 and the Board ratified it on December 14, 1977.

6.	At a December 8, 1977 meeting of representatives of the Association and the Board, the Association representatives presented a proposed Salary Guide for 1977-78 and 1978-79 (R-1). A "scattergram", containing the names of teachers employed by the Board, together with their salary, was agreed upon and Dr. John Fanning, the Superintendent, stated the Board's conditions and disagreements with respect to the proposed Salary Guide of the Association. It was the Board's position: (1) that a starting salary of $10,000 per year be set forth; (2) that there be an evening out of the steps in the Salary Guide; and (3) that an equitable distribution of the dollar increase for the first year ($84,795) be made. There was no further discussion beyond the foregoing. Specifically, there was no discussion of the proposed Salary Guide (R-1) on the merits.

7.	It was the Board's position at the hearing in this matter that its offer of salary increase per teacher on October 24, 1977 was limited to a maximum of $1,000, that being the closest dollar approximation to 7%. This was not set forth in the Memorandum of Agreement of October 24, 1977 and the Association never concurred with the contention of the Board that this had been incorporated in the offer of settlement.

8.	The Charging Party in January 1978 submitted to the Board a revised proposed Salary Guide for 1977-78 (CP-4) and subsequently submitted to the Board a revised proposed Salary Guide for 1978-79 (CP-5). Notwithstanding a conference telephone call thereafter between the parties, and a meeting on February 8, 1978, mutual agreement was never reached by the parties with respect to the proposed Salary Guides (R-1, CP-4 and CP-5).

9.	No evidence was adduced at the hearing by the Association that the Board, by its Superintendent, on March 1, 1978 refused to honor the Memorandum of Agreement.

10.	The sole dispute between the parties, based on the record developed at the hearings in this matter, pertains to the question of whether or not there was mutual agreement on the Salary Guides as provided for in paragraph 2c of the Memorandum of Agreement dated October 24, 1977.

THE ISSUE

Did the Respondent Board violate Subsections (a)(1) and (5) of the Act when it failed to reach mutual agreement with the Association on the Salary Guides for 1977-78 and 1978-79, as set forth in the Memorandum of Agreement of October 24, 1977?

DISCUSSION AND ANALYSIS

Positions of the Parties

At the conclusion of the hearing on June 29, 1978, the Hearing Examiner requested that both parties brief their interpretation of the meaning of paragraph 2c of the Memorandum of Agreement with respect to the requirement that there be mutual agreement with respect to salary guides.

The Association cites in its brief numerous cases, and Corbin on Contracts, in support of its contention that the Respondent Board violated the Act by failing and refusing to implement agreed upon Salary Guides and the increases which were negotiated for 1977-78 and 1978-79. The Association notes that there is no provision in the Memorandum of Agreement limiting the raise per teacher to 7% or to $1,000, nor that the Salary Guide be based upon the 1976-77 payroll. The Association position is that paragraph 2c merely provides the mechanism by which paragraphs 2a and 2b are to be implemented, omitting the hard question as to what mutual agreement means in paragraph c. The Charging Party submits that the Commission's decision in Mount Olive Township Board of Education, P.E.R.C. No. 78-25, 3 NJPER 382 (1977) supports its position in this case that a violation has occurred herein.

The Respondent Board states the issue as to whether or not it violated Subsections (a)(1) and (5) because it was unable, through collective negotiations with the Charging Party, to reach mutual agreement on a Salary Guide for the 1977-78 school year. The statement of the issue by the Respondent Board comports with that stated by the Hearing Examiner under his statement of the issue above. The Respondent urges that it has not violated the Act, pointing out that the totality of its conduct in negotiations has been one of good faith and an honest effort to reach an agreement over salary guides. It, too, cites Mount Olive Township Board of Education, supra, as supporting its position that there has been no "meeting of the minds" with respect to mutual agreement upon salary guide, as provided for in paragraph 2c of the Memorandum, dated October 24, 1977.

The Respondent Board Did Not Violate

Subsections (a)(1) and (5) of the Act

Inasmuch as There Has Been No Mutual

Agreement on Salary Guides for Either

the 1977-78 or 1978-79 School Years

A disposition of the instant charge of unfair practices necessarily turns on the interpretation to be given to paragraph 2c of the Memorandum of Agreement of October 24, 1977. There is no dispute whatsoever that the Board and the Association agreed on the numbers of dollars by which teachers salaries were to be increased for the years 1977-78 and 1978-79. The dollar amounts are respectively set forth in paragraphs 2a and 2b of the Memorandum of Agreement; further, the percentages of increase which these dollars reflected is specifically set forth, namely a 7% increase for the first year and a 6% increase for the second year.

The Hearing Examiner dos not accept the contention by the Respondent Board that there was a $1,000 limitation for any one teacher in each of the respective years. There is nothing to this effect to be found in the Memorandum of Agreement and the Hearing Examiner is unwilling to credit the testimony of Mr. Dorf that this was part of the Board's proposal on salaries for the respective school years. Mr. Dorf drafted the Memorandum of Agreement and, if the agreement was for a $1,000 limitation, then Mr. Dorf could have incorporated this limitation into the Memorandum of Agreement. However, this conclusion by the Hearing Examiner is of little assistance to the Association in prevailing in the instant case on the charges filed and the record developed at the hearing.

The Charging Party's problem in the instant case is its "boot strap" argument that because there were specific dollar amounts agreed to for the respective school years of 1977-78 and 1978-79 that this somehow surmounts the problem of proof that salary guides based on these amounts were in fact mutually agreed upon. It is the conclusion of the Hearing Examiner that the Charging Party has failed in burden of proof to establish by a preponderance of the evidence that salary guides were mutually agreed upon. Such a burden is required of the Charging Party under N.J.A.C. 19:14-6.8.

The record does not establish that the Respondent Board failed to meet and negotiate in good faith with the Association with respect to the dispute over salary guides for the respective years involved. There was a meeting on December 8, 1977, a conference call early in 1978 and a meeting on February 8, 1978, all of which were devoted to and concerned the efforts of the parties to resolve their outstanding difference over the salary guides for the years 1977-78 and 1978-79. The Association adduced no evidence of bad faith on the part of the Respondent Board in the course of conduct of the parties since the Memorandum of Agreement of October 24, 1977. The Hearing Examiner notes that both parties ratified the Memorandum of Agreement in December 1977. Even before ratification by the Board on December 14, 1977, its representatives met with representatives of the Association on the salary guide problem on December 8, 1977. Thereafter there was a conference call, as noted previously, and a meeting of the parties on February 8, 1978. There were no further meetings after that date and the charge of unfair practices was filed on March 6, 1978. As noted previously, the Hearing Examiner finds that the Association adduced no evidence that the Superintendent of the Board informed the Association on March 1, 1978 that the Board would not honor the Memorandum of Agreement.

With respect to the fact that both parties cite Mount Olive Township Board of Education, supra, the Hearing Examiner notes that that case turned on the absence of a "meeting of the minds" on what had been agreed to between the parties in a memo of agreement. In the instant case, it is not a matter of the absence of a meeting of the minds with respect to the Memorandum of Agreement of October 24, 1977. Rather, it is the fact that there has been no compliance by the parties with the mandate of paragraph 2c of the Memorandum of Agreement that there be mutual agreement with respect to salary guides. The Hearing Examiner finds that in the instant case there has been a complete meeting of the minds with respect to the meaning and intent of paragraph 2a-c of the Memorandum of Agreement, but the problem remains that paragraph 2c requires mutual agreement and there has been no such mutual agreement.

In conclusion, the Hearing Examiner can only observe that the parties, under the October 24, 1977 Memorandum of Agreement, are obligated to negotiate and mutually agree upon salary guides for the 1977-78 and 1978-79 school years. No charge of unfair practices can be founded upon the failure to reach mutual agreement on salary guides unless one or the other of the parties can establish that the opposite party is proceeding in bad faith. The parties may well require the assistance of a mediator in attempting to reach agreement. There are adequate procedures available under the Rules and Regulations of the Commission for enlisting the services of a mediator.

* * * *

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

CONCLUSIONS OF LAW

The Respondent Board did not violate N.J.S.A. 34:13A-
5.4(a)(1) and (5) by reason of its failure to reach mutual agreement with the Charging Party on the salary guides for 1977-
78 and 1978-79, as provided for in the Memorandum of Agreement dated October 24, 1977.

RECOMMENDED ORDER

The Respondent Board not having violated the Act, supra, it is HEREBY ORDERED that the Complaint be dismissed in its entirety.

_________________________

Alan R. Howe

Hearing Examiner

DATED:	August 31, 1978

Trenton, New Jersey