H.E. NO. 80-41

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

RED BANK BOROUGH BOARD OF EDUCATION,1/

Respondent,

-and-	Docket No. CO-80-146-452/

RED BANK TEACHERS' ASSOCIATION,

Charging Party.

Appearances:

For the Red Bank Borough Board of Education

Metzler Association

(Stanley C. Gerrard, Labor Consultant)

For the Red Bank Teachers' Association

Chamlin, Schottland, Rosen, Cavanagh & Kelly, Esqs.

(Michael D. Schottland, Esq.)

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

The above docketed Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the "Commission") on December 3, 1979 by the Red Bank Teachers' Association (hereinafter the "Charging Party" or the "Association") alleging that the Red Bank Borough 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, inter alia, on October 26, 1979 unilaterally adopted and then implemented its own salary guides, purportedly based upon a Memorandum of Agreement executed by the parties on June 21, 1979, notwithstanding that the said Memorandum of Agreement provided that a salary guide was to be "mutually agreed upon," and further, that the Respondent has since the execution of the Memorandum of Agreement, supra, refused to negotiate "procedures for teacher evaluation," and finally, that the Respondent unilaterally, and without negotiations with the Association, changed the work year for the non-degreed Nurse from 12 months to 10 months with a pro-rata reduction in pay, all of which is alleged to be a violation of N.J.S.A. 34:13a-5.4(a)(1), (2), (5) and (6) of the Act.3/

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 December 17, 1979. Pursuant to the Complaint and Notice of Hearing, hearings were held on January 21 and January 24, 1980 in Newark, New Jersey, at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. Both parties filed post-hearing briefs by March 3, 1980.

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

2.	The Red Bank Teachers' Association is a public employee representative within the meaning of the Act, as amended, and is subject to its provisions.

3.	Negotiations for a successor agreement to the collective negotiations agreement, which expired June 30, 1978, commenced in October 1977.

4.	The basis for commencement of negotiations for the salary provisions of a successor agreement was a "scattergram," which was prepared by the Board and executed by the representatives of the parties on November 30, 1977 (CP-1). An examination of the "scattergram" discloses that there were 76 teachers distributed vertically between Steps 1 and 16, and 24, and further, horizontally between "BA" and "MA + 30." Of six teachers at Step 16 is was anticipated that two of these would advance to Step 24 in the 1977-78 school year. Further, the non-
degreed Nurse was also included on the "scattergram."

5.	Following many negotiations sessions in 1977, 1978 and 1979, which included mediation and fact-finding, a Memorandum of Agreement was entered into on June 21, 1979 with the assistance of James Mastriani of the Commission's staff.4/ It is undisputed that the Memorandum of Agreement provided that all items not specifically incorporated within it were deemed withdrawn, and further, that the parties agreed to recommend the terms of the Agreement "for ratification to their respective constituencies."

6.	The first indication of activity by the parties following the execution of the Memorandum of Agreement on June 21, 19795/ was a letter from Allan O. Dyer, the President of the Association, to Stephen M. Popper, the President of the Board, under date of August 5 wherein Mr. Dyer stated that the only outstanding issue was "agreement on salary schedules" and requested a meeting (CP-6).6/ This request for a meeting was declined under date of August 16 in a Board communication to Mr. Dyer, which stated that it would be more expeditious for the Association to present first proposed salary schedules to its negotiator (CP-3).

7.	Shortly prior to September 26, Mr. Dyer submitted to the office of the Superintendent of the Board proposed salary guides for the three school years in question: 1978-79 (R-6); 1979-80 (R-7) and 1980-81 (R-8). Under date of September 26, the Superintendent responded by letter to Mr. dyer, pointing out discrepancies in the total expense to the Board for the three school years in question, i.e., Mr. Dyer's figures exceeded the agreed upon amount by $4,446 (CP-4). In testimony at the hearing Mr. Dyer essentially conceded an error in his proposed salary guides for the first two school years and further agreed that the basic problem was in the 1980-81 school year where the discrepancy between the figures on his proposed salary guide (R-
8) differed with those of the Board by approximately $3,400 (see also, CP-8).

8.	Thereafter, on October 1 Mr. Dyer requested a "closed session" with the Board October 2 to resolve "outstanding items" (CP-8 and CP-9), which request was declined on October 3 (CP-
10).7/

9.	Under date of October 10, the Superintendent sent to Mr. Dyer two copies of the Board's proposed salary guides, which had been discussed at a public meeting the previous evening, and requested that Mr. Dyer review the salary guides and indicate in a letter either his acceptance or any proposed changes by 12:00 noon on October 12 (CP-12).8/ Mr. Dyer responded by letter to the Superintendent on October 11, in which he requested a meeting with the Board's Negotiating Committee (CP-13).9/

10.	Notwithstanding that Mr. Dyer sent a "mailgram" to the Board on October 15, requesting that the Board refrain from adopting salary guides unilaterally (CP-14), the Board at a special meeting on October 16 ratified the Memorandum of Agreement10/ and adopted its proposed salary guides for the school years 1978-79, 1979-80 and 1980-81 (CP-15).

11.	Under date of October 26, Mr. Popper, the President of the Board, sent a memo to all "Teaching Staff" advising them of the Board's action on October 16 and enclosing a check representing the monies due under the salary guides adopted by the Board (CP-16).11/

12.	Louise C. Ricci, the non-degreed Nurse, was called in by the Superintendent on June 14 and told that instead of working 12 months per year, as she had since 1967, she would henceforth be working 10 months and would be off during two months in the Summer. This action was taken by the Superintendent on behalf of the Board, notwithstanding that the Association had not been given prior notice nor did the Board request negotiations with the Association in this regard. The Board's decision was promptly implemented in September 1979 and Ricci's annual salary was reduced from $13,600 to $12,200.12/

THE ISSUES13/

1.	Did the Respondent Board violate Subsections (a)(1) and (5) of the Act when, without prior notice or negotiations with the Association, it unilaterally reduced the work year of the non-degreed Nurse from 12 months to 10 months for the 1979-80 school year with a pro-rata reduction in annual salary? If so, what shall the remedy be?

2.	Did the Respondent Board violate Subsections (a)(1) and (5) of the Act when it unilaterally adopted its proposed salary guides for the school years 1978-79, 1979-80 and 1980-81 on October 16, 1979, notwithstanding that said salary guides had not been "mutually agreed upon"?

3.	Did the Respondent Board independently violate Subsection (a)(1) of the Act when its President sent a memo to all "Teaching Staff" on October 26, 1979 advising them of the Board's action of October 16, 1979, supra?

DISCUSSION AND ANALYSIS

The Respondent Board Violated

Subsection (a)(5) of the Act, And

Derivatively Subsection (a)(1),14/

When Without Prior Notice Or

Negotiations With The Association,

It Unilaterally Reduced The Work

Year And Compensation Of The Non-

Degreed Nurse For The 1979-80 School

Year

The Hearing Examiner finds and concludes that the Respondent violated Subsections (a)(1) and (5) of the Act when it unilaterally, without prior notice to or negotiations with the Association, reduced the work year of the non-degreed Nurse from 12 months to 10 months accompanied by a pro-rata reduction in salary: Piscataway Township Board of Education and Piscataway Township Principals Association, P.E.R.C. No. 77-65, 3 NJPER 169 (1977), aff'd. and enf'd., 164 N.J. Super. 98 (App. Div. 1978).

As indicated in Finding of Fact No. 12, supra, Ricci was told by the Superintendent on June 14 that instead of working 12 months per year, as she had been since 1967, she would be off two months during the Summer of 1979 and would thereafter work a 10-
month year. Effective September 1979 Ricci's annual salary was reduced by $1400. As pointed out in the Charging Party's Brief (pp. 3-5), the Superintendent acknowledge that Ricci was in the collective negotiations unit and was included within the ongoing negotiations and, further acknowledged that no notice was given to the Association of the contemplated changes in Ricci's work year or salary when the Memorandum of Agreement was executed on June 21. Ricci testified without contradiction that there was no discussion of a reduction in her salary in connection with the contemplated change and that she did not hear of it until she received her first paycheck in September, at which time she brought it formally to the attention of the Association.

The Respondent's contention that the Superintendent and the Board were justified in their action because there was no Summer School for pupils during July and August, and that Ricci voluntarily accepted a two-month vacation from work, is rejected.15/ Piscataway, supra, makes clear that the length of the work year, and its concomitant compensation, are terms and conditions of employment within the meaning of the Act. Consequently, both must be the subject of mandatory negotiations with the Association as majority representative before being implemented (164 N.J. Super. at 100, 101). Individual "negotiations" clearly undermine the majority representative and the purposes of the Act and cannot be tolerated.

On the matter of remedy, the Respondent will be ordered to make payment to Ricci of monies due her for the 1979-80 school year based upon an annual salary of $13,600.16/ Further, the Respondent will be ordered to cease and desist from making any future changes in Ricci's work year or salary until the matter has been fully negotiated with the Association.

The Respondent Board Did Not Violate

Subsections (a)(1) and (5) Of The

Act When It Unilaterally Implemented

Its Salary Guides On October 16, 1979,

Notwithstanding That The Memorandum Of

Agreement Provided That They Be

"Mutually Agreed Upon"

The Hearing Examiner finds and concludes that the Respondent Board did not violate Subsections (a)(1) an (5) of the Act when on October 16, 1979 it unilaterally ratified the Memorandum of Agreement and adopted its proposed salary guides for the school years 1978-79, 1979-80 and 1980-81, notwithstanding that the Memorandum of Agreement provided in para.14 that salary guides were to be "mutually agreed upon" (see, e.g., CP-2, p. 4).17/

In so finding and concluding, the Hearing Examiner first notes that collective negotiations for a successor agreement to that which expired June 30, 1978 commenced in October 1977 and that on November 30, 1977 the parties executed a "scattergram," (CP-1), which formed the basis for negotiations (see Findings of Fact Nos. 3, 4, supra). Extensive negotiations between the parties continued from later 1977 through 1978 and the first six months of 1979. After an impasse was declared in 1978, mediation, fact-finding and conciliation followed, which finally resulted in a Memorandum of Agreement on June 21, 1979. (See Finding of Fact No. 5, supra, and C-2, pp. 2, 3). The said Memorandum of Agreement provided for "ratification" by the parties and set forth the average raises for each of the three years in question, including the percentages of increase for each year, which was consistent with the 1977 "scattergram".18/

Following an acknowledgment by Mr. Dyer on August 5 that the only outstanding issue was "an agreement on salary schedules" and his request for a meeting, the Board stated that it would be more expeditious for the Association to present its proposed salary guides to its negotiator (Finding of Fact No. 6, supra). Thereafter, time elapsed until shortly prior to September 26 when Mr. Dyer submitted to the Superintendent proposed salary guides for the three school years 1978-81, to which the Superintendent responded that Mr. Dyer's figures exceeded the agreed upon amount by $4,446 (Finding of Fact No. 7, supra).19/ The Board rejected Mr. Dyer's proposed salary guides at a "work session" on October 2 and on October 3 declined Mr. Dyer's request for a "closed session" (see Finding of Fact No. 8, supra). On October 10 the Superintendent sent Mr. Dyer the Board's proposed salary guides, which had been discussed at a public meeting the previous evening, and requested that he review them and indicate his acceptance or any proposed changes by 12:00 noon on October 12 (see Finding of Fact No. 9, supra). Mr. Dyer's response was a letter to the Superintendent on October 11 requesting a meeting with the Board's negotiating Committee and, following a further request by Mr. Dyer that the Board refrain from adopting salary schedules unilaterally, the Board on October 16 rarified the Memorandum of Agreement19/ and adopted its proposed salary guides (see Findings of Fact Nos. 9, 10, supra).

Both parties have addressed themselves to the Commission's decision in City of Jersey City and Local 246, P.E.R.C. No. 77-
58, 3 NJPER 122 (1977). Although recognizing certain factual distinctions between the instant case and that of Jersey City, infra, the Hearing Examiner draws upon the essence of that case in holding that the Respondent Board did not violate the Act by its actions of October 16 when it ratified the Memorandum of Agreement and unilaterally adopted its proposed salary guides for the three school years in question.

Additionally, the Hearing Examiner cites the most recent Commission decision construing Jersey City, namely, Rutgers, The State University, P.E.R.C. No. 80-114, 6 NJPER ___ (1980) where no violation of the Act was found when the employer unilaterally implemented its own grievance procedure following two post fact-
finding negotiations sessions. The Commission, in noting that the determination of "Whether an impasse has been reached is a difficult judgment to make...", stated:

"...We will not utilize a mechanical counting of the number of bargaining sessions but will look to the totality of the negotiations history in all post fact-finding unilateral implementation matters..." (Slip p. 4) (Emphasis supplied).

In the case at bar, the Respondent Board did not literally implement its "last best offer," but did unilaterally institute its proposed salary guides after the lapse of almost four months from the execution of the Memorandum of Agreement on June 21. This was done against the backdrop of good faith efforts on the part of the Board to obtain from Mr. Dyer proposed salary guides consistent with the total dollars negotiated and agreed upon on June 21.20/

Based upon Jersey City and Rutgers, supra, the Hearing Examiner agrees with the Respondent that, under the circumstances of the Commission's "impasse" procedures having been thoroughly exhausted, further efforts on the part of the Board to negotiate with Mr. Dyer on behalf of the Association "...would not have been productive."21/

For all of the foregoing reasons the Hearing Examiner will recommend dismissal of this aspect of the Charge.

The Respondent Board Did Not

Independently Violate Subsection

(a)(1) Of The Act By The

President's October 26, 1979 Memo

To All "Teaching Staff"

The Hearing Examiner finds and concludes that the Respondent Board did not independently violate Subsection (a)(1) of the Act when its President sent a memo addressed to the "Members of the Teaching Staff" under date of October 26, 1979. This memo (CP-
16) contained nothing more than the President's statement that:

"In spite of the Board of Education's best efforts, the Teacher Negotiating Committee has not presented the Board with salary guides that reflect the understanding of the June 21st Agreement. The Board has been very mindful of the fact that teachers have not been receiving monies due them from the June 21st agreement. It was in an effort to give you monies to which you are entitled that the Board voted to adopt salary guides which they believe are reasonable and equitable."

The memo concluded with a statement that a check was being enclosed representing the monies due the teaching staff based upon the salary guides adopted by the Board on October 16.

Nothing contained in the foregoing memo from the Board's President could conceivably have interfered with, restrained or coerced the teaching staff in the exercise of the rights guaranteed to them by the Act. The Board at that point clearly had a "legitimate and substantial business justification"22/ in communicating with its staff regarding the payment of monies calculated by it to be due.

Therefore, the Hearing Examiner will recommend dismissal as to the alleged independent Subsection (a)(1) violation of the Act.

* * * *

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

CONCLUSIONS OF LAW

1.	The Respondent Board violated N.J.S.A. 34:13A-
5.4(a)(5), and derivatively 5.4(a)(1), when, without prior notice or negotiations with the Association, it unilaterally reduced the work year of the non-degreed Nurse, Louise C. Ricci, from 12 months to 10 months for the 1979-80 school year with a pro-rata reduction in annual salary.

2.	The Respondent did not violate N.J.S.A. 34:13A-
5.4(a)(5) when it unilaterally adopted its proposed salary guides for the school years 1978-79, 1979-80 and 1980-81 on October 16, 1979.

3.	The Respondent Board did not independently violate N.J.S.A. 34:13A-5.4(a)(1) when its President sent a memo to all Teaching Staff on October 26, 1979.

4.	The Respondent Board did not violate N.J.S.A. 34:13A-
5.4(a)(2) and (6) since the Association failed to adduce any supporting evidence.

RECOMMENDED ORDER

The Hearing Examiner recommends that the Commission ORDER:

A.	That the Respondent Board cease and desist from:

1.	Interfering with, restraining or coercing its employees in the exercise of the rights guaranteed to them by the Act, particularly, by unilaterally reducing the work year and compensation of such employees as Louise C. Ricci without prior notice to or negotiations with the Red Bank Teachers' Association.

B.	That the Respondent Board take the following affirmative action:

1.	Forthwith restore the status quo ante with respect to Louise C. Ricci by restoring her to a 12-month work year as of July 1, 1980 and thereafter maintain the status quo unless and until a change in the work year and/or compensation for Louise C. Ricci has been negotiated in good faith with the Red Bank Teachers' Association.

2.	Forthwith make payment to Louise C. Ricci of all monies due her for the 1979-80 school year based upon an annual salary of $13,600.

3.	Post in all places where notices to employers are customarily posted, copies of the attached notice marked Appendix "A." Copies of such notice, on forms to be provided by the Commission, shall be posted by the Respondent immediately upon receipt thereof, after being signed by the Respondent's authorized representative, and shall be maintained by it for a period of at least sixty (60) consecutive days thereafter. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced or covered by other material.

4.	Notify the Chairman of the Commission within twenty (20) days of receipt what steps the Respondent has taken to comply herewith.

C.	That the Subsection (a)(2) and (6) allegations be dismissed in their entirety.

____________________________

Alan R. Howe

Hearing Examiner

Dated:	April 17, 1980

Trenton, New Jersey