H.E. NO. 79-10

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

HAMILTON TOWNSHIP EDUCATION ASSOCIATION,

Respondent,

-and-	Docket No. CO-78-105-63

HAMILTON TOWNSHIP SCHOOL SOCIAL WORKERS

ASSOCIATION,

Charging Party.

Appearances:

For the Hamilton Township Education Association

(Joel S. Selikoff, Esq.)

For the Hamilton Township School Social Workers

Association

Dietrich, Allen & St. John, Esqs.

(Charles P. Allen, Jr., Esq.)

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the "Commission") on November 18, 1977, which was amended on January 4, 1978, by the Hamilton Township School Social Workers Association (hereinafter the "Social Workers" or the "Charging Party") alleging that the Hamilton Township Education Association (hereinafter the "Respondent" or the "Association") 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, which is the collective negotiations representative, inter alia, of the Social Workers, did in the last contract negotiations fail to represent fairly the interests of the Social Workers, which is alleged to be a violation of N.J.S.A. 34:13A-5.4(b)(1) and (3).1/

It appearing that the allegations of the Unfair Practice Charge, as amended, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on February 28, 1978. Pursuant to the Complaint and Notice of Hearing, hearings were held on May 4 and May 5, 1978 in Trenton, New Jersey, at which time the parties were given an opportunity to examine witnesses, and present relevant evidence.2/ Post-hearing briefs were filed by the parties on August 11, 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 after 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 Hamilton Township Education Association is a public employee representative within the meaning of the Act, as amended, and is subject to its provisions.

2.	The Hamilton Township School Social Workers Association is a public employee representative within the meaning of the Act, as amended, and is subject to its provisions.

3.	The Association is recognized as the exclusive collective negotiations representative for all certificated full-
time classroom teachers, including, inter alia, Department Heads, Guidance Counselors and Social Workers (R-1; Article I). There are approximately 810 employees in the unit, of which seven (7) are Social Workers.

4.	The collective negotiations for the current agreement (R-1), effective during the term July 1, 1977 through June 30, 1980, commenced in July 1976.

5.	In preparation for negotiations, the Association met with individual groups, which it represented, and invited the groups to bring forth contract proposals. Representatives of the Association met with the Social Workers first in December 1975.

6.	The proposals submitted by the Social Workers included: (1) salary parity with the school psychologists (CP-4)3/; (2) job descriptions for social workers to be incorporated into the collective negotiations agreement (CP-3); (3) the elimination of the word "teacher" from the collective negotiations agreement as referring to all employees covered by the agreement; and (4) car storage, as a travel expense, at the rate of $25 per month.

7.	In a brochure issued in September 1976 (CP-2), entitled "H.T.E.A. Proposal Highlights", the Association unilaterally modified the parity proposal of the Social Workers, stating that Social Workers should be on the "M.A. plus 30 salary guide,4/ and should receive extra compensation for any hours worked in excess of the contract provisions." The brochure also provided that job descriptions for Social Workers must be approved by the Association. There was no reference to the other proposals of the Social Workers.

8.	Under date of September 16, 1976, the Social Workers sent a response to the modification of their proposal by the Association to the then President of the Association, Dr. James Federici, protesting the changes made by the Association as set forth in the Association's brochure "H.T.E.A. Proposal Highlights" (CP-2), supra. This protest was signed by five Social Workers, including John Griffiths, who will be referred hereinafter (CP-10). Dr. Federici responded to Mr. Griffiths under date of September 21, 1976, assuring him that the Association was doing everything possible to represent the Social Workers fairly (CP-9).

9.	On September 30, 1976, Mr. Griffiths, representing the Social Workers, sent a memo to Dr. Federici, further reiterating the objection of the Social Workers to the Association having proposed "M.A. plus 30" for the Social Workers instead of the proposal of parity with the school psychologists (CP-11). A meeting was requested by Mr. Griffiths with representatives of the Association.

10.	A meeting was convened by the Association, which was held on November 1, 1976 with the following persons in attendance: For the Association -- Dr. Federici, President; Linda Balitz and Thomas Cavanaugh, members of the Association's negotiating committee; and Harry Donnelly, the NJEA representative. For the Social Workers -- Mr. Griffiths and five social workers. The Association's representatives stated that the parity proposal of the Social Workers involved too much money. However, the meeting concluded with the understanding that if the Association proposed a multi-year contract, then parity between the Social Workers and the school psychologists would be proposed in the second year. This understanding was subsequently confirmed in a letter from Dr. Federici to Mr. Griffiths dated December 4, 1976 (CP-12). That letter also stated that the Association welcomed the presence of a social worker as a resource person at any negotiations session that concerned the specific terms and conditions of employment of Social Workers.

11.	On February 22, 1977, the Social Workers filed an Unfair Practice Charge against the Association (Docket No. CO-77-
225), which was withdrawn on May 3, 1977, following a meeting at the Commission offices between the parties on April 27, where it was agreed that the Social Workers would have a resource person present at all negotiations involving the Social Workers. Mr. Griffiths was the resource person designated by the Social Workers.

12.	As noted previously, negotiations for the current agreement (R-1) started in July 1976. There were negotiations meetings of the Association and the Hamilton Township Board of Education (hereinafter the "Board") in August and September, with a hiatus occurring until December 1976, as a result of a Commission-conducted representation election involving the American Federation of Teachers. There were negotiations meetings in January, which were suspended until March 1977, as a result of a charge of unfair practices filed by the Board. Stanley Aiges was then appointed mediator and the first mediation session was March 23, 1977.

13.	At the first mediation session on March 23, and at the second session on April 21, 1977, Mr. Griffiths was not present, nor was any other Social Worker. This change as a result of the agreement of the withdrawal of the Unfair Practice Charge, May 3, 1977, supra, and as a result, Mr. Griffiths was present at all sessions thereafter.

14.	The job description and car storage proposals of the Social Workers were discussed with the mediator, Mr. Aiges, at three mediation sessions: March 23, April 21 and May 13, 1977. The May 13 session was the first one where Mr. Griffiths was present for the Social Workers. At the mediation session on May 13 the Association negotiating committee withdrew both the job description and car storage proposals of the Social Workers, this being done at the suggestion of the mediator in his efforts to get the parties to settle on their language differences. Mr. Griffiths objected to the withdrawal of the job description proposal but not the car storage proposal.

15.	Following several brief mediation meetings in June, the next significant mediation session occurred on September 7, 1977 where the appointed Fact Finder, Lawrence Hammer, was present and the Social Workers' parity proposal was first discussed. The Association negotiating committee took the position that if there was a one-year contract, their proposal would be that the Social Workers receive "M.A. plus 30" on the salary guide. If, however, there was multi-year contract, then the proposal would be that the Social Workers receive parity with the school psychologists in the second year. Mr. Hammer reported that the Board was unwilling to accept either Association proposal for the Social Workers, but was offering instead across-the-board raises on a three-year contract of 7%, 7% and 6 1/2% for all employees in the negotiations unit. The Association negotiating committee declined to consider the Board's offer and the meeting concluded with the understanding that the parties would go to fact finding, which was scheduled for September 27, 1977.

16.	At the September 27 meeting, Mr. Hammer tried to avoid the commencement of fact finding, preferring to mediate further. Mr. Griffiths had between meetings prepared a salary guide for Social Workers, dated September 22, 1977 (R-2), which indicated the cost of parity for Social Workers with school psychologists would be $55,800.00, based on the current number of Social Workers. Mr. Hammer returned, at one point, from a caucus with the Board, and suggested a salary settlement for the Social Workers without parity, stating that the Board would agree to "M.A. plus 30" for Social Workers in the first year of a three-
year contract with across-the-board increases of 7%, 7% and 6 1/2%. Mr. Hammer indicated that if he served as Fact Finder for the parties he would reject the Social Workers' parity proposal.

17.	There was also at issue between the Association and the Board a prescription plan for the entire negotiations unit, which it was estimated would cost $60,000, or about as much as the Social Workers' parity proposal (R-2). Over the objection of Mr. Griffiths, the Association negotiating committee on September 27 finally voted to accept the Board's proposal, a three-year contract with "M.A. plus 30" for Social Workers the first year, the prescription plan for all unit members in the first year and the across-the-board raises of 7%, 7% and 6 1/2%. There was also included Blue Cross and Blue Shield in the second year for all unit members.

18.	Mr. Griffiths confirmed on redirect examination that the Social Workers' demand for parity with the school psychologists was unreasonable (2Tr. 80).

19.	Other individual groups, for whom the Association negotiates, submitted proposals for negotiations, including the Guidance Counselors and the Department Heads. Only the Social Workers had a resource person in the collective negotiations which resulted in the current agreement (R-1), except that the Department Heads did have someone present at the last meeting on September 27, 1977. Mr. Griffiths acknowledged that he was treated no differently than any other resource person.

20.	Mr. Griffiths stated that his conception of the role of the Association's negotiating committee is to negotiate with the Board the proposals of the Social Workers, and that the negotiating committee should not "sift out" Social Workers' proposals (2Tr. 58, 59). Mr. Griffiths stated that a shortcoming of the Association's negotiating committee was its failure to "counsel" the Social Workers (2Tr. 50). He acknowledged that the members of the Association's negotiating committee did not mislead the Social Workers (2Tr. 50).

THE ISSUE

Did the Respondent Association violate Subsection (b)(1) of the Act by failing to represent fairly the interests of the Social Workers in the collective negotiations, which preceded the current collective negotiations agreement (R-1)?

DISCUSSION AND ANALYSIS

Positions of the Parties

As reference to the briefs of both parties indicates, there is substantial agreement on the pertinent cases involved. The parties differ on the applicability of the cases cited by them and what conclusions should follow therefrom.

Thus, the Social Workers cite Vaca v. Sipes, 386 U.S. 171 (1967), Humphrey v. Moore, 375 U.S. 335 (1963), Ford Motor Company v. Huffman, 345 U.S. 330 (1953) and Belen V. Woodbridge Township Board of Education, 142 N.J. Super. 486 (App. Div. 1976).

The Respondent Association cites all of the foregoing cases plus Motor Coach Employees v. Lockridge, 403 U.S. 274 (1971), a decision of the Seventh and of the Eighth Circuit Courts of Appeals and two Commission decisions: Jefferson Township Board of Education, P.E.R.C. No. 61 (1971) and Union County Board of Chosen Freeholders, E.D. 49 (1974).

The cases will not be discussed at this point but will be discussed hereinafter as they apply to the matter sub judice.

The Respondent Association Did Not

Violate Its Duty of Fair Representation

as to the Social Workers

The most frequently cited cases on the statutory duty of fair representation is Vaca v. Sipes, supra. There a union member sued his union and his employer, contending that he had been discharged in violation of a collective bargaining agreement, and that the union had arbitrarily and capriciously refused to process his grievance to arbitration. At one point in its decision, the Supreme Court noted that the duty of fair representation includes a "...statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct." (386 U.S. at 177). In its holding, the Supreme Court said "...A breach of the statutory duty of fair representation occurs only when a union's conduct toward a member of the unit is arbitrary, discriminatory or in bad faith." (386 U.S. at 190). (Emphasis supplied).

In Humphrey v. Moore, supra, certain employees represented by a union challenged that union's actions in advocating, before a joint employer-employee committee, the dovetailing of the seniority lists of two employers, both of whose employees the union represented at a time when one of the employers was relinquishing its business territory to the other. In upholding the union's right to have made the decision to dovetail, the effect of which resulted in the loss of jobs to several of its unit members, the Supreme Court stated that where there is a dispute between two sets of employees represented by the same union, the union has the right to take a position favoring one over the other, but must do so "...honestly, in good faith and without hostility or arbitration discrimination." (375 U.S. at 350). The Supreme Court observed that the president of the union, in advocating the dovetailing of the seniority lists, followed a course which afforded the most equitable solution for all concerned.

In the case of Ford Motor Company v. Huffman, supra, the Supreme Court had before it a matter wherein discretion was exercised by a union involved in substantive collective bargaining which resulted in an adverse effect upon one group of unit members relative to others. The plaintiffs in that case contended that as a result of an agreement reached in bargaining between their union and the employer, concerning pre-employment military service credit, their seniority positions were affected adversely relative to that of other unit members. In upholding the union's right to have entered into that agreement, the Supreme Court, as it later did in Vaca v. Sipes, supra, emphasized that a union must be given the right to exercise discretion in determining whether to accept or reject certain proposals put forth in the collective bargaining process. In this connection, the Supreme court noted that "...A wide range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents subject always to complete good faith and honesty of purpose in the exercise of its discretion." (345 U.S. at 338).

See also, Motor Coach Employees v. Lockridge, supra, and the decisions of the Courts of Appeals in Corcoran v. Allied Supermarket, Inc., 498 F.2d 527 (8th Cir. 1974) and Dwyer v. Climatrol Industries, Inc., 544 F.2d 307 (7th Cir. 1976) in connection with the foregoing.

Both parties, as noted previously, cite Belen v. Woodbridge Township Board of Education, supra, 1976 Appellate Division decision, the facts of which closely parallel those in the instant case. In that case six psychologists, members of a negotiating unit represented by the Federation of Teachers, brought suit claiming a violation of N.J.S.A. 34:13A-5.4, claiming that the Federation of Teachers had "...failed to fulfill its duty of representing plaintiffs fairly and without discrimination..." (142 N.J. Super. at 488). The failure in the duty of representation allegedly occurred when the Federation of Teachers failed to keep the psychologists informed of the status of negotiations and intentionally misled them with respect thereto. Further, it was alleged that the Federation of Teachers had reached an agreement with the Board of Education, which had actually reduced the plaintiffs' salaries and increased their working hours. The Appellate Division, citing Vaca v. Sipes, Ford Motor Company v. Huffman, and Humphrey v. Moore, supra, found that despite the fact that plaintiffs were the only unit members to suffer a reduction in pay, and that the defendant Federation of Teachers had refused plaintiffs' request to be informed of the status of negotiations, and that the defendant Federation of Teachers had rejected plaintiffs' request to present their own case to the negotiators for the Board of Education, the foregoing actions of the Federation fell far short of being deceptive, discriminatory, arbitrary or misleading, and that there was no requirement under the law that plaintiffs be allowed to present their own proposals to the employer. (See 144 N.J. Super. at 492). The judgment of the trial court for the defendants was thus affirmed.

As noted previously, the Respondent Association cites the decision of the Executive Director in Union County Board of Chosen Freeholders, supra, where the case of McGrail v. Detroit Federation of Teachers, 82 LRRM 2623 (Mich. Cir. Ct. 1973) was quoted. The court in McGrail said at one point, in the course of holding that the union in that case did not violate its duty of fair representation:

"...The law basically says that the union should have broad discretion in negotiating contracts, weighing advantages and disadvantages of different proposals, and that to allow every dissatisfied person to challenge the validity of certain contracts without showing a strong indication of a breach of the duty to fairly represent, would create havoc in the field of labor law..." (82 LRRM at 2624).

Based upon the principles contained in the cases above-cited and discussed, the Hearing Examiner finds and concludes that the Respondent Association did not violate its statutory duty of fair representation with respect to the interests of the Social Workers in the contract negotiations, which resulted in the current collective negotiations agreement (R-1). In reaching this conclusion, the Hearing Examiner has fully considered the record made in this case. The record is replete with facts indicating clearly that the Respondent Association fulfilled, and indeed exceeded, the legal requirements embodied in the duty of fair representation.

The negotiations for the current agreement commenced in July 1976. The Association, in preparation for negotiations met with the Social Workers in December 1975, more than six months prior to the commencement of contract negotiations. The Social Workers submitted a wage proposal on March 16, 1976 which urged salary parity for the Social Workers with the school psychologists (CP-
4). Subsequently the Social Workers also submitted a salary addendum prior to the commencement of negotiations, item 6 of which proposed "M.A. plus 30" for Social Workers on the salary guide (CP-5).

In the proper exercise of its discretion, the Respondent Association elected to present to the Board on behalf of the Social Workers a wage proposal based upon item 6 of the Social Workers' addendum, and this fact was communicated in a brochure issued by the Association in September 1976 entitled "H.T.E.A. Proposal Highlights" (CP-2). The Association had concluded prior thereto that salary parity of the Social Workers with the school psychologists was too costly an item to present to the Board in negotiations. This was a proper exercise of discretion by the Association under the above-cited cases, in particular, Ford Motor Company v. Huffman, wherein the Supreme Court stated "...Any authority to negotiate derives its principal strength from a delegation to the negotiators of a discretion to make such concessions and accept such advantages as, in the light of all relevant considerations, they believe will best serve the interests of the parties represented." (345 U.S. at 337-38).

However, the Social Workers protested to the Association the fact that the parity proposal with school psychologists had not been presented to the Board as the Association's negotiating proposal for Social Workers. In response thereto, the Association advised the Social Workers that it would modify its salary proposal for Social Workers to include parity with school psychologists in the second year of a multi-year contract. In other words, if there was to be a one-year contract then the Association's position would be "M.A. plus 30" for Social Workers but, if there was a multi-year contract, then parity would be proposed for Social Workers in the second year.

The Association did in fact press such a position in its negotiations with the Board although it ultimately on September 27, 1977 withdrew the parity proposal for Social Workers and reached an agreement with the Board for "M.A. plus 30" for Social Workers in the first year of a three-year agreement. This was plainly a proper action of the Association and was done in the context of the discretion exercised by a negotiating committee in the give and take of collection negotiations. The Social Workers, as did all unit members, received the across-the-board increases of 7%, 7% and 6 1/2%, in addition to "M.A. plus 30" on the salary guide.

The Hearing Examiner takes especial note of the fact that at the final negotiations session on September 27, 1977 the Association negotiating committee had before it a proposed salary guide for Social Workers (R-2), dated September 22 and prepared Mr. Griffiths, which indicated that the cost of parity for Social Workers with school psychologists would be $55,800, a clearly outlandish figure, considering the fact that there were only seven social workers involved. The Association properly traded off the cost of the parity demand of the Social Workers for a prescription plan for the entire negotiations unit of 810 members, which was estimated would cost $60,000, or just a little more than the Social Workers' parity proposal.

Even Mr. Griffiths conceded that the parity proposal was "unreasonable". The Association also had been told by the Fact Finder, Mr. Hammer, that if the dispute went to fact finding he would not accept the parity proposal on behalf of the Social Workers. Plainly, all of the foregoing considered together, give full support of the conclusion that the Association fully and fairly represented the interests of the Social Workers in the matter of advancing the Social Workers' salary proposals, ranging from salary parity with school psychologists to "M.A. plus 30" on the salary guide. It is noted that the Social Workers under the prior agreement were at "M.A." on the salary guide so that they made a substantial advancement on the salary guide in the current agreement, in addition to receiving the across-the-board wage increases received by all members of the negotiations unit.

Although the principal concern of the Social Workers in negotiations was the wage proposal for parity with school psychologists, there were also three other demands which were presented by the Association to the Board in contract negotiations. These included the proposed change in the contract of the generic term "teacher" as representing all employees plus the job description proposal and the request for car storage at the rate of $25 per month. These proposals were ultimately withdrawn by the Association as part of the negotiations over language changes, which preceded the September 1977 negotiations meetings on economics. It is noted that Mr. Griffiths, on behalf of the Social Workers, did not really make an issue with the Association negotiation committee over the withdrawal of these proposals after they had been proposed to the Board.

Note is also taken of the fact that the Social Workers were offered in December 1976 the opportunity to have a resource person present at any negotiations session that concerned the terms and conditions of employment of Social Workers. No other individual group was offered like consideration although the Department Heads had a representative at the last meeting on September 27, 1977. Notwithstanding that the Social Workers were offered this opportunity to have a resource person present in December 1976, they did not elect to accept the Association's offer and, for reasons not entirely clear, they awaited the resolution of an unfair practice charge against the Association in May 1977 before availing themselves of the opportunity to have a resource person present. Mr. Griffiths was thereafter designated as that person.

By the presence of Mr. Griffiths the Social Workers had an articulate and effective representative in the negotiations sessions involving Social Workers and the Hearing Examiner is persuaded that the Association effectively responded to the input which Mr. Griffiths provided on behalf of the Social Workers. In using the term "negotiations" the Hearing Examiner is, of course, referring to the sessions from March to September 1977 during which a mediator and fact finder participated as intermediaries between the parties.

It appears to the Hearing Examiner that the Charging Party in this case has clearly misconceived the role of a negotiating committee in contract negotiations. This is evidenced by the testimony of Mr. Griffiths that he saw the negotiating committee as a conduit to the Board proposals offered by the Social Workers, and that the negotiating committee should not "sift out" the Social Workers' proposals. He also stated that a shortcoming of the Association's negotiating committee was its failure to "counsel" with the Social Workers, clearly an irrelevancy to contract negotiations. He admitted that the Social Workers were not misled by the Association's negotiating committee and that no deception was practiced on the Social Workers.

In conclusion, the Hearing Examiner is of the view that the record establishes no violation by the Respondent Association of its duty of fair representation to the Social Workers, based upon the guidelines set forth in the previously cited authorities of the Federal courts and of the Appellate Division of the State of New Jersey in Belen, supra. Accordingly, the Hearing Examiner must recommend dismissal of the Complaint in its entirety.

* * * *

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

CONCLUSIONS OF LAW

The Respondent Association did not violate N.J.S.A. 34:13A-
5.4(b)(1) in representing the interests of the Social Workers in contract negotiations which resulted in the current collective negotiations between the Association and the Board.

RECOMMENDED ORDER

The Respondent Association 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 21, 1978

Trenton, New Jersey