H.E. NO. 84-30

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

CAMDEN BOARD OF EDUCATION,

Respondent,

-and-	Docket No. CO-82-288-42

CAMDEN ADMINISTRATORS' COUNCIL

Charging Party.

Appearances:

For the Respondent,

Murray & Granello, Esqs.

(Karen A. Bulsiewicz, of Counsel)

For the Charging Party,

Freeman, Zeller and Bryant, Esqs.

(Allen S. Zeller, of Counsel)

HEARING EXAMINER'S REPORT

AND RECOMMENDED DECISION

An Unfair Practice Charge was filed with the Public Employment Relations Commission ("Commission") on April 28, 1982, by the Camden Administrators' Council ("Council" or "Charging Party") alleging that the Camden Board of Education ("Board") had engaged in unfair practices within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. ("Act"). The Council alleged that the Board unilaterally abolished the position of Chief Psychologist and unilaterally demoted the former Chief Psychologist, Claus Schwarzkopf, to a psychologist, and reduced his salary, all of which was alleged to be in violation of subsections 34:13A-5.4 (a)(1), (3), (5) and (7) of the Act.1/

The Council asserted that effective September 1, 1981, Schwarzkopf's salary was reduced to that of a psychologist even though he, allegedly, continued to perform the duties of the Chief Psychologist, and it argued that such action interfered with and discriminated against him in violation of the rights guaranteed to him by the Act.2/ The Board argued that the Chief Psychologist position was abolished because of business and financial reasons, that Schwarzkopf did not continue to act as Chief after September 1, 1981, and, that no violation of the Act was committed.

It appearing that the allegations of the Unfair Practice Charge may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on November 18, 1982, and hearings were held in this matter by agreement of the parties on February 17 and 28, April 19 and 20, and June 20 and 21, 1983, in Trenton, New Jersey, at which time the parties had the opportunity to examine and cross-examine witnesses, present relevant evidence and argue orally.3/ Both parties filed post-
hearing briefs and reply briefs, the last of which was received on September 19, 1983.

An Unfair Practice Charge having been filed with the Commission, a question concerning alleged violations of the Act exists, and after hearing, and after consideration of the post-
hearing briefs, 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 Camden Board of Education is a public employer within the meaning of the Act and is subject to its provisions.

2. The Camden Administrators Council is a public employee representative within the meaning of the Act and is subject to its provisions.

3. On December 28, 1981, Schwarzkopf, acting as an individual, filed an unfair practice charge against the Board, Docket No. CI-82-29, explaining that the Chief Psychologist position had been abolished , that he was transferred to a psychologist position at a reduced salary, and that he continued to perform the same duties he had performed as Chief.4/ Schwarzkopf did not allege in that Charge that the Board's actions were taken in violation of the Act or because of his exercise of protected activity. He neither alleged he was engaged in protected activity nor that the Board's actions interfered with or discriminated against him.

Thereafter on December 30, 1981, the Director of Unfair Practices ("Director") requested the parties to submit statements of position regarding that Charge, and the Board, through its attorneys, submitted a lengthy response dated January 19, 1982. Schwarzkopf, through his attorney, submitted a response dated January 26, 1982. Neither party was required to serve a copy of their position statements on opposing counsel at that time.

In its position statement to that Charge the Board asserted that the Charge did not allege a violation of the Act, and, that the abolishment of the Chief's position was a reduction in force ("RIF") and that a RIF is a managerial prerogative and within the jurisdiction of the Commissioner of Education ("Commissioner") and not the Commission. Moreover, the Board argued that Schwarzkopf had already filed a Petition concerning the RIF with the Commissioner on December 30, 1981 (State Department of Education Docket No. 3-1/82A), and that in any case Schwarzkopf had not engaged in protected activity since he never filed grievances or participated in negotiations.

Schwarzkopf's position statement in CI-82-29 merely reiterated the wording of the Charge an did not allege that the Board's actions were taken in violation of the Act.

Thereafter, by letter dated April 19, 1982, the Director advised the parties that the charge in CI-82-29 did not allege a violation of the Act and that it would be dismissed unless the charging party could meet the complaint issuance standard within seven days. In response thereto, Schwarzkopf's attorney filed what was alleged to be an amendment to CI-82-29. However, that filing designated the Camden Administrators Council as the Charging Party, and the Commission, therefore, docketed that Charge as a charge by a labor organization and it became Docket No. CO-82-288, the instant matter.

Thereafter, by letter dated June 11, 1982, the Board filed a response to CO-82-288, a copy of which was sent to the Charging Party's attorney, and argued that Schwarzkopf had not engaged in protected activity and that the RIF was not subject to negotiations and was within the jurisdiction of the Commissioner and therefore the Commission should dismiss the Charge.

After the conduct of an exploratory conference on October 1, 1982, Docket No. CI-82-29 was withdrawn by letter dated November 12, 1982, and Docket No. CO-82-288 proceeded to Complaint.5/

4. After the Commission was advised of the filing of a Petition with the Commissioner (during the processing of CI-82-
29), the staff agent requested the Charging Party to provide copies of all relevant submissions in that matter. On July 12, 1982 the Commission received the requested material which included a copy of the Petition filed by Schwarzkopf, the Answer to the Petition and a Motion to Dismiss, and the briefs in opposition to the Motion. The Petition was originally filed by Schwarzkopf on December 28, 1981 (received January 4, 1982) appealing the Board's decision to reduce his salary. The Petitioner asserted that the Board's decision to eliminate the Chief Psychologist position and reduce his salary violated the Education Law.

On January 26, 1982 the Board filed an Answer to the Petition and a Motion to Dismiss. The Answer raised several affirmative defenses including timeliness. That case was transferred to the Office of Administrative Law ("OAL") in March 1982 and was assigned to Judge Thomas (OAL Docket No. EDU00772-
82). Briefs in opposition to the Motion were filed by April 6, 1982. Conferences were held before Judge Thomas on April 12 and May 26, 1982.

On August 19, 1982, the Commission received a copy of Judge Thomas' decision in that matter which issued on July 8, 1982. Judge Thomas concluded that the Petition should be dismissed because it had been filed untimely. The Commissioner of Education affirmed the dismissal on August 23, 1982. On June 9, 1983, the Petitioner appealed the Commissioner's decision to the State Board of Education, and the Legal Committee of the State Board recommended that the Petition be found to have been timely filed. As of September 14, 1983 (the date of the Board's posthearing brief herein), however, the State Board of Education had not decided the matter, and the Petition has never been considered on its merits.

5. The official Board action abolishing the Chief Psychologist title occurred at the Board meeting of April 27, 1981 as evidenced by the Board minutes of that meeting, Exhibit CP-6. However, the facts show that both Schwarzkopf, and the Council through its President at that time, William Peacock, were informed of the Board's intention to abolish the Chief's position prior to the official Board action.

Peacock admitted that at a negotiations session on March 25, 1981, the Superintendent informed him that the Chief's title would be RIF'ed, and he knew that said title would not be in the Council's unit after June 30, 1981. (T3 pp. 16-18, 29, 58, 63). He further admitted that although the negotiations for a new agreement with the Council lasted until October or November 1981 (T3 pp. 55-56), the Council did not attempt to negotiate the RIF, and it did not subsequently attempt to negotiate for the Chief's title because it was no longer in their unit, because Schwarzkopf never asked him to, and because he believed it had been abolished. (T3 pp. 29, 36, 58, 62).

Schwarzkopf knew about the Board's intent to abolish his Chief's title as early as April 14, 1981, on which date he sent a letter to the Superintendent, Exhibit CP-2, asking that said title not be eliminated. But after the Board action of April 27, 1981, the Superintendent, by letter dated April 28, 1981, Exhibit CP-1, advised Schwarzkopf that his Chief's title was abolished because of budget limitation, and he informed him that he would be transferred to another position.

Thereafter, at a Board meeting on July 27, 1981 Schwarzkopf was officially transferred from the Chief Psychologist position to a psychologist position to be effective September 1, 1981 (Exhibit CP-4). Schwarzkopf was personally and officially notified of the transfer and of the effective date of the same by letter from the Superintendent dated July 29, 1981 (attachment to Charge Exhibit C-1). Schwarzkopf admitted that he interpreted CP-1 and the July 29 letter as official notice that he was no longer Chief Psychologist and was instead a psychologist. (T1 p. 127).

Subsequently, on September 15, 1981, Schwarzkopf received a paycheck covering the two-week period beginning September 1, 1981, and that check represented a reduction in his salary from what it had been as Chief Psychologist, to the salary level of a psychologist. (Schwarzkopf's salary had not been reduced between June 30 and September 1, 1981.) Finally, on January 6, 1982, Schwarzkopf received a memorandum (attachment to Charge Exhibit C-1) from his immediate supervisor, Dr. James, directing him not to perform any administrative or quasi-administrative functions, and reminding him only to perform the duties of a school psychologist. The record reflects that Dr. Arnold Webster, the Assistant Superintendent who is Dr. James' supervisor, directed Dr. James to issue the January 6, memorandum.

6. In addition to admitting that the Council did not attempt to negotiate for the Chief's position after March 25, 1981, Peacock was uncertain whether the Council was really a party in the instant matter. (T3 p. 47).

7. The facts show that Schwarzkopf has never participated in negotiations on behalf of the Council, and that he has never processed grievances (T2 pp. 1-12). In fact, other than just being in the Council's unit when he held the Chief's title, and other than filing CI-82-29, there is no showing that Schwarzkopf participated in any other form of union or protected activity.

8. The history of the Chief Psychologist title shows that it was part of a chiefs team in the early 1970's which also included the Chief Social Worker, Chief Learning Disability Teacher Consultant ("LDTC"), and Chief Speech Therapist. However, by the mid to late 1970's the Chief Social Worker, LDTC, and Speech Therapist positions became vacant and were essentially abolished.6/ (T4 pp. 39-41, 82).

Although the Chief Psychologist title was not abolished at that time, the evidence shows that had Schwarzkopf resigned his Chief's title, the same would not have been filled. (T3 p. 165).

After abolishing the Chief Psychologist title, the only remaining chief titles employed by the Board were the Chief Attendance Officer and Chief Medical Inspector, neither of whom were part of the Chief's team, and neither of whom were supervisors. (T4 p. 36, T6 p. 49)

9. The actual recommendation to eliminate the Chief Psychologist title in early 1981 was made to the Board by the Superintendent. (T5 p. 12) However, the initial recommendation to eliminate all of the Chiefs on the Chiefs' team, including the Chief Psychologist, was made by Dr. Webster in the mid-1970's. (T5 p. 85). In fact, Dr. James testified that although he personally was not in favor of eliminating the four Chief positions, Dr. Webster had discussed eliminating those titles in 1975-1976. (T4 pp. 57-58).

10. The Board's explanation for abolishing the Chief Psychologist title was given by Preston Gunning, the Board Secretary and Deputy Superintendent, and by Dr. Webster. Gunning testified that in October 1980 the Superintendent discussed with the Board the abolishment of the Chief's title because of budgetary reasons. (T5 p. 20). Once the Board actually abolished the title the Board's attorney recommended that Schwarzkopf be placed on the top step of the psychologist guide (T5 p. 31).

Webster testified in greater detail that he recommended eliminating all of the Chief positions because none of them held supervisory certificates, they had no real duties or functions to perform as Chiefs, and because there was no need for them. (T5 p. 60, T6 pp. 20, 29, 44) He further testified that it was necessary to abolish the Chief Psychologist title in particular because of a conflict that arose between Schwarzkopf and Dr. James. (T6 pp. 29-31). Webster indicated that most of those conflicts arose over Schwarzkopf attempting to assume responsibilities which he did not have over new psychologists.

11. The duties of the Chief Psychologist prior to July 1981 included, at least to a certain extent, the supervision of psychologists and interns, the administration of contracts with outside neurologists and psychiatrists, screening of neurologists and psychiatrists, interviewing and making joint recommendations for the hiring of psychologists, evaluation of psychiatrists, out of district placement of students, and interaction with the Domestic and Juvenile Courts in Camden County. Schwarzkopf contended that he performed the same duties after July 1, 1981 as he did before his Chiefs title was abolished. However, Dr. James testified that Schwarzkopf's duties as Chief decreased over a period of time, and that after July 1, 1981 his role as a psychologist was no different than other psychologists.7/

James testified, for example, that after June 30, 1981 Schwarzkopf did not supervise, interview, evaluate or made recommendations concerning psychologists, (T3 pp. 143, 148), and he ceased attending Dr. Webster's meetings for supervisors. (T4 pp. 30-31). He further testified that the out of district placement of students was a team assignment given to the team Schwarzkopf belonged to, and it was not just a responsibility reserved for Schwarzkopf. (T3 p. 168, T4 pp. 25-26, 68). Finally, James testified that other psychologists have become involved with the Courts (T3 p. 163), and that other psychologists may become involved in the recruitment, interviewing, selection and recommendation of new psychologists. (T3 pp. 161-163).8/

12. There are no facts to suggest that the Board retaliated against Schwarzkopf because of the filing of CI-82-29, or because he in some unknown way prevented the Board from abolishing his title in the late 1970's.

ANALYSIS

Having reviewed all of the testimony and the post-hearing submissions of the parties the undersigned recommends that the Complaint be dismissed in its entirety. First, the undersigned finds that the Charge, at least with respect to the abolishment of the Chief Psychologist title, was untimely filed because both CI-82-29 and CO-82-288 were filed more than six months after both the Council and Schwarzkopf learned about the Board's intent to abolish the title. Second, even if the Charge was timely filed as to all issues, in consideration of the merits of the case the undersigned is convinced beyond any doubt that Schwarzkopf was not engaged in any protected activity, that the Chief Psychologist title was abolished only because of legitimate business considerations, and that Schwarzkopf's duties did change after June 30, 1981.

The Statute of Limitations

N.J.S.A. 34:13A-5.4(c) provides in pertinent part that "no complaint shall issue based upon any unfair practice occurring more than six months prior to the filing of the charge...."

That portion of the statute has been interpreted to permit the late filing of a charge before this Commission when the matter was originally timely filed, but filed in the wrong forum.

See Kaczmarek v. N.J Turnpike Authority and N.J. Turnpike Authority Employee Union Local 194 IFPTE, 77 N.J. 329, 4 NJPER 368 (¶4168 1978); and In re N.J. Turnpike Authority, P.E.R.C. No. 8-106, 6 NJPER 106 (¶11055 1980). In Kaczmarek, supra, the charging party filed what was really a timely unfair practice charge with the Superior Court. When it became clear that the Superior Court lacked jurisdiction to hear the matter the charging party filed a charge with the Commission, but is was then several months past the six-month statute of limitations. The Supreme Court held that equitable considerations should be applied in analyzing the statute of limitations, and that since the charging party therein was essentially "prevented from filing a timely charge with the Commission, and since the charging party did not initially "sleep on his rights," the charge should be considered timely filed.9/

The Charge in this case, CO-82-288, was filed on April 28, 1982 which was more than six months past the date of September 15, 1981, the date Schwarzkopf learned of his salary reduction, and one year past the date that both the Council and Schwarzkopf learned that the Chief Psychologist position would be abolished. Although the Charge also alleged January 6, 1982 as the day Schwarzkopf received the memorandum from Dr. James informing him not to perform any administrative duties, the undersigned does not believe that January 6 is the operative date herein. The January 6 memorandum merely reinforced what Schwarzkopf had learned in April 1981 and was officially informed of by Exhibit CP-1, that he was no longer Chief Psychologist and was to perform the duties of a psychologist. The January 6 memorandum, therefore, was not the vehicle by which Schwarzkopf's position was abolished or by which his salary was reduced.

The real issue raised by the Charging Party herein was the reduction of Schwarzkopf's salary, not the abolishment of his title, and the operative date for the salary reduction was September 15, 1981.10/ Consequently, the undersigned believes that on the face of the Charge, CO-82-288 was actually filed out of time.

But the undersigned also considered whether a Kaczmarek type result should be applied herein because of the filing of CI-82-29 on December 28, 1981, which was well within the six-month statute of limitations of September 15, 1981. The Court in Kaczmarek held that the purpose of a statute of limitations was to compel the exercise of a right of action within a reasonable time and to prevent the litigation of stale claims. It also emphasized the application of equitable consideration to the filing of a charge.

In this case the undersigned believes that equitable considerations exist to permit the filing of CO-82-288 as timely filed with respect to the salary reduction issue. There is an unmistakable connection between the filing of CI-82-29 and CO-82-
288 regarding the salary reduction issue. Both cases concern the same facts and the Charging Party was not abandoning its claims in CI-82-29 by withdrawing the same to process CO-82-288. Since CI-82-29 was timely filed regarding the salary reduction issue which arose on September 15, 1981, since CO-82-288 was not a stale claim or filed at an unreasonable time, and since CO-82-288 was essentially a carryover of CI-82-29, then the instant Charge was timely filed regarding that issue.

However, the Charge was untimely regarding the abolishment of the Chief Psychologist position. The facts clearly show that both the Council and Schwarzkopf were officially aware of the abolishment of the title in April 1981, yet both CI-82-29 and CO-
82-288 were filed well beyond the six-month statute of limitations regarding that issue. It appears that they were not contesting the Board's right or reason for abolishing the Chief's title.11/

The Merits

It is well settled law in this State that a public employer has a managerial prerogative to abolish positions and transfer or reassign employees to other positions if based upon legitimate reasons. Ridgefield Park Bd/Ed v. Ridgefield Park Ed/Assn, 78 N.J. 144, 156 (1978); Ramapo-Indian Hills Ed/Assn v. Ramapo-
Indian Hills Reg. H.S. Dist. Bd/Ed, 176 N.J. Super. 35 (App. Div. 1980); In re Maywood Bd/Ed, 168 N.J. Super. 45, certif. den. 81 N.J. 292 (1979); In re Trenton Bd/Ed, P.E.R.C. No. 83-87, 8 NJPER 574 (¶13265 1982).

The Board herein did just that, it lawfully abolished the Chief Psychologist position and reassigned Schwarzkopf to a psychologist position at a lower rate of pay. There was no requirement for the Board to negotiate with the Council over the abolishment of the Chief's position or Schwarzkopf's reassignment to a psychologist or his subsequent salary reduction.

The facts show that other than Schwarzkopf's mere membership in the Council, he did not participate in any other form of protected activity until after the Board had abolished his position and reduced his salary. The Charging Party's contention that the Board's actions were in retaliation for Schwarzkopf's filing CI-82-29 is without merit. The abolishment of the Chief Psychologist title and Schwarzkopf's reduction in salary occurred prior to the filing of CI-82-29.

There is ample evidence on the record to support the Board's contention that the Chief's position was abolished only for business reasons, i.e., because it was no longer needed and because of conflicts between Schwarzkopf and Dr. James. Once that position was abolished the Board had the right to assign Schwarkopf to a psychologist position and to reduce his salary to fall within the salary scale established for psychologists.

In re Trenton Bd/Ed, supra, is directly on point with the instant matter. In that case the Board abolished a secretarial position and reassigned the affected employee to a secretarial position in a different unit at a lower salary. The Commission held that the Board's actions were managerial, and it also held that even a contractual clause requiring the Board to keep the employee in the original unit and pay her original salary would be illegal.12/

Finally, the Charging Party's assertion that Schwarzkopf's duties did not change after June 30, 1981 was not supported by a preponderance of the evidence. The undersigned credits Dr. James' testimony that Schwarzkopf's duties had changed after June 1981 particularly in the elimination of his supervisory duties over the other psychologists.

Pursuant to the above analysis it is recommended that the Charge may be dismissed on its merits.

The Jurisdictional Issue

The Board asserts that pursuant to the Supreme Court's decision in City of Hackensack v. Winner, 82 N.J. 1 (1980), that the Commission lacks jurisdiction to decided this matter because of the Petition filed with the Commissioner of Education raising issues similar to those raised herein. The undersigned disagrees.

The facts in Hackensack, supra, show that full hearings were held before Civil Service and PERC on a similar issue and resulted in different decisions from the two agencies. The matter before Civil Service began first, and concluded before PERC reached a final decision. Civil Service found in its decision that the petitioner was not discriminated against because of union activity. PERC, however, reached the opposite conclusion. The Supreme Court held that Civil Service had jurisdiction in that matter and PERC should not have proceeded. Moreover, the Court recognized that Civil Service fully litigated the issue of union activity.

The facts in this case are distinguishable from Hackensack. Although CO-82-288 was filed after the Petition to the Commissioner, and although the Board raised a jurisdictional issue during the pre-complaint processing of both CI-82-29 and CO-82-288, the facts show that the Complaint in CO-82-288 did not issue until November 18, 1982, approximately three months after the Commissioner of Education had already adopted the Administrative Law Judge's decision of July 8, 1982 to dismiss the Petition as untimely. Consequently, there was no "contested case" within the meaning of N.J.A.C. 1:1-1.4 and 1:1-1.5 before this Commission prior to November 18, 1982. Moreover, no hearing or decision on the merits of the Petition had been held at the time the Complaint issued herein, and it appeared as if the matter before the Commissioner was completed. In fact, according to the Board, no appeal of the Commissioner's decision was taken until June 9, 1983, which was after the completion of four of the six days of hearing in the instant matter.

Unlike the facts in Hackensack where Civil Service did hold a hearing on the merits and fully litigated the unfair practice issues, no hearing on the merits has been conducted on the instant Petition, and certainly the unfair practice issues were not fully and fairly litigated in that forum. Moreover, to have abandoned the instant matter after most of the hearing had been completed merely because of the filing of an appeal of the Commissioner's decision makes little sense.

In addition, the undersigned is unaware of any attempt by the Board to consolidate the instant Charge with the Petition pursuant to N.J.A.C. 1:1-14.1.13/

Accordingly, based upon the entire record in this case, and based upon the above analysis, 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),(3),(5) AND (7) by abolishing the Chief Psychologist position held by Claus Schwarzkopf, or by reassigning Schwarzkopf to a psychologist position with a lower salary.

RECOMMENDED ORDER

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

_________________________

Arnold H. Zudick

Hearing Examiner

DATED:	December 5, 1983

Trenton, New Jersey