H.E. NO. 85-4

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

LIBERTY TOWNSHIP BOARD OF EDUCATION,

Respondent,

-and-	Docket No. CO-84-132-64

LIBERTY TOWNSHIP EDUCATION ASSOCIATION,

Charging Party.

Appearances:

For the Respondent

Harbourt & Duh, P.C.

Boyd Harbourt, Of Counsel

For the Charging Party

Bernard Lelling, NJEA UniServ Rep.

HEARING EXAMINER'S REPORT

AND RECOMMENDED DECISION

On November 9, 1983, the Liberty Township Education Association ("Association") filed an Unfair Practice Charge against the Liberty Township Board of Education ("Board") with the Public Employment Relations Commission ("Commission") (C-1) alleging that the Board violated subsections 5.4(a)(1) and (5)1/ of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. ("Act"). The charge was that the Board changed a ten year practice of scheduling a half-day of work on the day before the winter recess, thereby changing the teachers' working hours and workload for the school year 1983-84. Specifically the Board scheduled a full day of work for all employees on December 23, 1983.

On December 29, 1983, the Administrator of Unfair Practices issued a Complaint and Notice of Hearing pursuant to N.J.A.C. 19:14-2.1 (C-1).2/

On November 28, 1983, the Board filed an Answer and Counter-
Claim to the unfair practice charges. It then submitted this answer as its response to the Complaint and Notice of Hearing. The Board denied violation of the Act and set forth the following defenses: (1) the appropriate forum for resolution of the dispute is the contract grievance procedure, not an unfair practice procedure; (2) the subject of school calendar is a non-
negotiable managerial decision and therefore changes therein are not unilateral changes in terms and conditions of employment; (3) the charge is untimely; and (4) the Commission is without jurisdiction to grant the relief requested by the charging party.

The Board's Counter-Claim alleges that the Association committed an unfair practice in violation of subsection 5.4(b)(5). It did so by filing an unfair practice charge as an attempt to coerce the Board into granting a benefit not contained in the parties' negotiated agreement. No Complaint or Notice of Hearing was issued on the Board's Counter-Claim. Therefore, it shall be considered as a separate defense to the Association's charges. A hearing was held on Wednesday, March 28, 1984 at which time the parties examined witnesses, presented evidence and waived oral argument. Both parties submitted post-hearing briefs and the record was closed.

POSITION OF THE PARTIES

The Association maintains that the issue involved in this dispute predominantly involved a mandatorily negotiable subject of work hours and compensation for increased workload. It argues that the holding of the New Jersey Supreme Court in Board of Education of Woodstown-Pilesgrove Regional School District v. Woodstown-Pilesgrove Education Association, 81 N.J. 582 (1980) ("Woodstown-Pilesgrove") is dispositive of this matter. It requests negotiations for compensation for the additional hours worked on December 23, 1983 which was scheduled as a full work day for employees instead of a half work day. The Association contends that the change in the length of the work day on December 23, 1983 represents a change in the ten-year practice by the Board. The Association acknowledges the Board's unfettered right to set the school calendar but claims that compensation for increased workload is a mandatorily negotiable matter. As a remedy, the Association requests that employees be paid an additional one-half day's pay to be determined by dividing the individuals' salary by 184.

The Board argues that any practice, if it existed, was broken by the Board's increase from a half-day session to a full day session on the day before winter recess in December 1980. The Association counters that, it did not question that 1980 change because the changes were with the assent of the Association.

The Board makes several arguments in its answer to the charge. Initially it claims there is no past practice which constitutes a term and condition of employment setting the day before winter recess as a half-day of work. It claims a non-
negotiable management prerogative to establish the number of days in the school calendar. It admits that for a number of years employees did work a half-day the day before winter recess, and that it made no special agreement in 1980 when it scheduled a full day of work on the day before winter recess. Further, it argues that if there was an increase in the workload it was de minimis. Further it contends that an "established practice" would require at least ten years of such a condition of employment, with the knowledge and consent of both parties. In re Denville, P.E.R.C. No. 81-147, 7 NJPER 359 (¶12162 1981) ("Denville"). The Board also argues that the Unfair Practice charge is untimely because the calendar for 1983-84 was first published in the spring of 1983 but the Association did not file its initial grievance until October 1983. Following the Board's denial of the Association's grievance, the Association filed its Unfair Practice charge in November 1983, more than six months after it had received notice of the schedule change in the school calendar. The Board adopted the new calendar in early May, 1983.

ISSUE

The question presented by this dispute is:

Did the Board violate subsection 5.4(a)(1) and (5) of the Act when it unilaterally increased teacher workload by an additional one-half day on the day before winter recess-
specifically December 23, 1983?

FINDINGS OF FACT

Based on the entire record of these proceedings the Hearing Examiner makes the following findings of fact:

1.	The Liberty Township Board of Education is a public employer within the meaning of the Act (T.7).3/

2.	The Liberty Township Education Association is a public employee representative within the meaning of the Act (T.7).

3.	The Association and the Board are parties to a collective agreement covering the period July 1, 1982 through June 30, 1984 (J.1, T.5).

4.	The parties stipulated that the contract between the parties was silent with respect to the subject of school work year (T.18).4/

5.	The parties stipulated that during the school year 1980-1981 the school day before winter recess was a full day both on the calendar and in actuality (T.8).

6.	Article II - Grievance Procedure - of the parties' contract defines a grievance as follows: "The word 'grievance' when used herein shall mean any alleged injury, injustice or wrong which arises from the established policy or procedure or the lack of such policy or procedures."

7.	The parties agree that from 1973, when the district elementary school first opened, until 1983 (except for the year 1980) all employees worked a half-day on the day before the Christmas recess (CP-11; T.32, 33, 86, 122).

8.	In September 1983, after receiving information that December 23, 1983, the day before the winter recess, would be a full work day, the Association President, James McGovern, requested information concerning the change in the past practice (T.27, 31).

9.	First, McGovern spoke with the Chief School Administrator, Thomas Reilly (T.31). McGovern requested copies of the school calendars beginning with school year 1973 (T.31, 57); secondly, he requested any other information available concerning the length of the work day immediately preceding the winter recess for each of the school years between 1973 and 1983 inclusive (T.31, 60); thirdly, he requested copies of the individual monthly calendars on which special dates are usually circled (T.60). Reilly agreed to give all the information he had to McGovern (T.31, 121); however, the specific items requested were not available (T.32, 57, 67, 121). Mr. Reilly was able to provide copies of the school's weekly bulletins (CP.1-11; T.32, 67, 121).

10.	The parties stipulated that each Thursday a bulletin announcing the school events for the coming week was sent to the students' parents (T.25). Reilly arranged to have the originals made available to the Association; the Association made reproductions of those bulletins for the weeks prior to the winter recess for each of the years 1973 through 1983 (T.20, 22, 23). Theresa Braun, an Association Officer, made the copies from the originals (T.21, 23).

11.	In December 1980, the day before the winter recess was a full work day (T.33). The Association participated in the scheduling of that day (T.33). When the School Administrator (T.35, 36) left in 1979, a month or so before the winter recess, McGovern was appointed "Acting Administrator" serving from January through May 1980 (T.33, 35-36, 39, 47-55). The school calendar for the coming year (1980-81) has not been completed. McGovern was required to participate in this planning. His participation included scheduling the winter recess and planning the work days. Because the Liberty School District bussed its seniors to the Hackettstown High School in 1980, Liberty coordinated its winter recess with that of Hackettstown. This necessitated closing for a full two weeks, which was longer than usual. Therefore McGovern submitted a school calendar which provided for a full work day before the winter recess (T.33, 36, 39, 41, 119, 120, 163). This schedule also contributed to the School District's goal of heat conservation, since the building would not need to be opened for one day, Friday, January 2nd. That day was scheduled for the Friday before the winter recess, December 19, 1980 (T.119, 147, 148, 163). The Board's stated reason for the scheduled change was "energy conservation" (T.147).

This calendar, however, was not adopted in the beginning of 1980. McGovern presented this proposed school calendar to three consecutive Board meetings between January and May 1980 (T.41 and 42); it was adopted in May 1980.

12.	Although Reilly had not yet been hired by the Board, he did in fact attend several Board meetings during the same period that McGovern was Acting Administrator (T.42-45). Therefore, he was privy to information concerning the 1980-1981 school calendar. Reilly was appointed Chief School Administrator in May 1980 (T.33 and 39, 118).

13.	All the weekly bulletins submitted as evidence by the Association for weeks in December 1973 through 1983, including announcements of early dismissal for students on the day before the winter recess, except for the bulletins in December 1980. The record evidence establishes that decisions regarding half-
days were usually announced in that manner. (The copies of individual monthly calendars were not available as they were routinely discarded (T.6)).

14.	In September 1983, when teachers received an information packet for the coming school year a calendar was enclosed (T.45). This calendar did not indicate which school days would be half-days or full-days, it merely showed when school would be open and when it would be closed (R-1 pg. 2 & 3).

15.	On October 10, 1983, McGovern filed a Level Two group grievance protesting the change in a past practice (T.61). On October 27, 1983 the Board denied the grievance (T.37). In answer, the Board wrote: "the Board has the right to set the school calendar. Therefore, your grievance has been denied." (T.62, 76).

16.	Subsequent to the Board's denial of the Association's grievance and the Association's service of an unfair practice charge on November 4, Reilly and Susan Kenny, the School Board President, met with McGovern to discuss the unfair practice charge (T.37, 64, 139, 149, 150). Since the Board has received the unfair practice copy served by the Association, no instructions for filing an answer were attached (C1 docketed 11/9/83; T.100, 101, 102, 138).

The discussion among McGovern, Reilly and Kenny (who joined the two men shortly after the meeting commenced) initially concerned the processing of the unfair practice charge (T.64, 101, 102, 138). However, as the meeting progressed, Reilly and Kenny expressed their dissatisfaction with the Association's grievance. McGovern understood the Board to explain that the schedule change of work hours on 12/23/83 was an "oversight" (T.37) and that the Association did not have to file "formal papers" with P.E.R.C. (T.50-52). McGovern further understood Kenny to acknowledge that it was not the intent of the Board to schedule a full day on 12/23 (T.53). Further, McGovern believed that at this meeting, the Board offered to reinstate the half-day because it felt there was no real question about it (T.53-55). However, this offer was not made in the context of "past practice." Despite McGovern's understanding of this discussion, the employees did not receive the half-day schedule (T.54).5/

17.	In April 1983, Reilly prepared a proposed calendar to submit to the Board at its meeting on the first Wednesday of May (T.123, 125). On the Monday of the prior week, Reilly discussed this proposed calendar (R-1) with the staff (T.124, 156) and asked for input. There was discussion among the staff concerning a week off in February and thus no day off for Columbus Day (T.124); however, there was no discussion, according to McGovern, concerning a half-day schedule for 12/23/83. Reilly believed that the staff members at the meeting each received a copy of the proposed calendar marked April 1983. This proposal did not show a scheduled half work day on the day before Christmas recess (T.126). Reilly understood that the Commissioner of Education would disprove school calendars which included too many scheduled half-days. He got this understanding from discussions with other School Administrators at their monthly meetings ("County Round Tables") (T.90, 92, 93, 127, 163, N.J.A.C. 6:20-1.3B and 6:20-
1.3E). Ordinarily the students have a party on the day before Christmas recess. Reilly did not think "a party" would qualify as "instructional time" to meet the four-hour requirements of the Education Code (T.129, 131, 149).

18.	In May 1983, the Board adopted its final school calendar for 1983-84 (R-1; T.156, 158). There was not further discussion about the children's Christmas parties (T.110-114) at the Board Meeting. The first page of R-1 lists only that winter recess should last from December 26 through December 30; it specifies, in a separate paragraph, several half-day sessions - November 23rd, April 19th, and four unspecified partial days for professional in-service. Neither the second or third page indicates which days are half-day sessions (T.44, 123).

19.	McGovern did not recall seeing page one of R-1 at the April 19, 1983 meeting (T.36, 170); he does recall receiving a copy of the school calendar during September 1983. Although teachers attended the May Board Meeting, there was not sufficient agenda material available for them (as was usual at Board Meetings) (T.70-71).

20.	On 12/22/83 the school in fact was closed due to a snow storm, it remained closed on 12/23/83 as well (T.82, 84, 90, 91). As of the time of the Hearing, the Board had not decided how to handle the makeup day (T.84) although, the Board anticipated that it would be a full day session.

21.	In the past the parties have been able to negotiate agreements over changes in the work day, for example, an extension of forty-five minutes for teachers' meetings without additional compensation (T.48, 49).

ANALYSIS

In the instant dispute, the Association does not contest the Board's right to set the school calendar. However, the Association does claim the right to negotiate over teachers' increased workload on 12/23/83, when the Board unilaterally scheduled that day as a full day session thus changing a long established practice to schedule half-day sessions on the day before winter recess.

In Woodstown-Pilesgrove, a case concerning the number of hours of employment on a particular school day, the New Jersey Supreme Court said:

...Rather the narrow issue here concerns payment for the hours worked due to the extension of the work period on a day before a holiday from that which previously existed. No statute or regulations dealing with teachers' working hours or compensation would have been violated if the additional two hours had not been scheduled or if the teachers had been compensated for having worked those extra hours. There being no demonstration of a particularly significant educational purpose, and the budgetary consideration being the dominant element, it cannot be said that negotiation and binding arbitration of that matter significantly or substantially trenched upon the managerial prerogative of the board of education. Id. at 594.

Having determined that the subject matter of compensation for the additional hours worked is negotiable, I now direct my attention to the question of whether an established practice existed which the Board unilaterally changed.

In Denville, the case cited by the Board, the Commission did not determine that a ten-year history was necessary to find an established practice concerning a term and condition of employment. The Commission merely said:

...Respondent, apparently without any ordinance on the books, routinely paid ill, injured or disabled officers full salary, without deducting sick leave, where such officers endorsed compensation payments over to the Respondent for a period of at least ten years. Slip Op. Page 4

Implied terms and conditions of employment arise from longstanding practices of the parties. Galloway Township Board of Education, P.E.R.C. No. 77-3, 2 NJPER 254, Motion for Reconsideration granted, P.E.R.C. No. 77-8, 2 NJPER 285, Decision on Reconsideration, P.E.R.C. No. 77-18, 2 NJPER 295 (1976), affirmed 157 N.J. Super. 74 (1977); South River Board of Education, P.E.R.C. No. 81-108, 7 NJPER 156 (¶12069 1981); In re County of Morris Park Commissioners, Docket No. A-795-82TT, Appellate Division affirming P.E.R.C. No. 83-31, 8 NJPER 561 (¶13259 1982), petition for cert. pending; In re Wharton Board of Education, P.E.R.C. No. 83-35, 8 NJPER 570 (¶13263 1982); In re Spotswood Board of Education, H.E. No. 84-60.

In the instant case, the employees traditionally worked a half-day session on the day before winter recess; this practice existed since 1973, the year Liberty School District commenced operation. In one year - 1980-81 - employees worked a full day session on the day before winter recess. That year, because the Board desires to "conserve energy" its winter recess corresponded with that of Hackettstown - especially since Liberty seniors were bussed there. Since the recess lasted a full two weeks, longer than any in Liberty's history, it was necessary to schedule a full work day on the day before the recess to insure 180 instructional days for students. Additionally, January 2nd occurred on the Friday of the second weeks of the recess. Therefore the better plan was to close that Friday rather than to open the schools for one day. Therefore, the necessary full day session was appropriately scheduled on 12/19/80, the day before the recess. This schedule was developed with the cooperation of the Association in the person of its President who was at that time also serving as Liberty's Acting Administrator.

I am not persuaded by the Board's argument that the 1980 exception to the practice of half-day schedules serves to void an otherwise established practice of long duration. Therefore, I find that an established practice exists for scheduling half-day work session the day before the winter recess.

When an employer, during the term of an elected agreement, desires to alter an established practice governing an implied term and condition of employment, that employer must first negotiate those proposed changes with the employees' representative. Section 5.3 of the Act. In re New Brunswick Board of Education, P.E.R.C. No. 78-47, 4 NJPER 84, 85 (¶3030 1978). Further, it is the employer's burden to initiate negotiations prior to the implementation of the proposed changes. Id. at page 85.

In the case at hand, the Board adopted a school calendar which it increased the length of the work day on December 23, 1983, the day before the winter recess. In so doing, it unilaterally changed the terms and conditions of employment over which it was bound to negotiate. Woodstown-Pilesgrove.

The Hearing Examiner's decision must take into account three crucial elements:

1.	The contract between the two parties is silent on this subject, as acknowledged by each party. In other words, the parties did not negotiate a provision to cover this particular situation.

2.	The record evidence supports the finding that the Board refused to negotiate with the Association compensation for the additional hours worked. It also refused to grant a return to the half-day schedule.

3.	The fact that the schools were closed on the day in dispute - due to inclement weather - is irrelevant. The Board clearly stated its intention to schedule a full make-up day in June. Thus the issue of compensation for the extra half-day of work for teachers still remains.

CONCLUSION OF LAW

Based upon the entire record in this matter, the Hearing Examiner concludes that the Board violated N.J.S.A. 34:13A-
5.4(a)(5) and derivatively (a)(1) by unilaterally increasing the hours of work from a half-day session to a full day session on 12/23/83.

RECOMMENDED ORDER

The Hearing Examiner recommends that the Commission ORDER:

A.	That the Board cease from interfering with, restraining or coercing its employees in the exercise of the rights guaranteed to them by the Act, and refusing to negotiate in good faith with the Association concerning terms and conditions of employment of Association unit members, particularly increased workload.

B.	That the Board take the following affirmative action:

1.	Engage in good faith negotiations with the Association regarding compensation for the increased workload.

2.	Compensate all employees who worked the additional half-day on any day scheduled during the school year 1983-84, as a make-up day for 12/23/83.

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

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

/s/Judith E. Mollinger

Hearing Examiner

DATED:	July 13, 1984

Trenton, New Jersey

WE WILL NOT interfere with, restrain or coerce our employees in the exercise of the rights guaranteed to them by the Act.

WE WILL NOT refuse or fail to negotiate in good faith with the Association concerning terms and conditions of employment of Association unit members, particularly, by failing to negotiate over compensation for the additional half-day worked during the school year 1983-84.

WE WILL compensate all employees who worked the additional half-
day on any day scheduled as a make-up day for December 23, 1983.