H.O NO. 80-20

STATE OF NEW JERSEY

BEFORE A HEARING OFFICER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

EAST ORANGE BOARD OF EDUCATION,

Public Employer,

-and-	Docket No. RO-80-63

EAST ORANGE EDUCATION ASSOCIATION,

Petitioner.

Appearances:

For the Public Employer,

Love & Randall, Esqs.

(Melvin Randall of Counsel)

For the Petitioner,

Rothbard, Harris & Oxfeld, Esq.

(Nancy I. Oxfeld of Counsel)

HEARING OFFICER'S REPORT

AND RECOMMENDATIONS

A Petition for Certification of Public Employee Representative was filed with the Public Employment Relations Commission (the "Commission") on October 4, 1979 and amended on November 7, 1979, by the East Orange Education Association (the "Association") seeking to add the titles of supplemental teachers and night school teachers in positions for which teaching certification is required to the existing Association unit of employees employed by the East Orange Board of Education (the "Board"). By letter dated February 27, 1980, the Director of Representation limited the issue in this matter to a determination of whether or not night school teachers as petitioned-for, are appropriate for inclusion in the existing unit.1/

Pursuant to a Notice of Hearing dated February 27, 1980, hearing were held by the undersigned Hearing Officer on May 1 and 5, 1980, in Newark, New Jersey, at which all parties were given an opportunity to examine and cross-examine witnesses, to present evidence and to argue orally.2/ Prior to the close of the hearing both parties indicated that they would not exercise their option to file written briefs in this matter. The transcript of the proceedings was received by the undersigned on June 3, 1980. Upon the entire record in this proceeding the Hearing Officer finds:

1. The East Orange Board of Education is a public employer within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. (the "Act"), is the employer of the employees who are the subject of this Petition, and is subject to the provisions of the Act.

2. The East Orange Education Association is a public employee representative within the meaning of the Act and is subject to its provisions.

3. The Association is seeking to add to its existing unit all night school teachers in positions for which teacher certification is required. The Association maintains that employees holding this position have a community of interest with and are appropriate for inclusion in the existing unit.

4. The Board maintains that the petition be dismissed because night school teachers have no community of interest with the employees in the existing Association unit. Consequently, a question concerning representation exists concerning night school teachers and the matter is appropriately before the undersigned for report and recommendations.

5. The parties agreed to stipulate into the record, as joint exhibits, copies of all the collective negotiations agreements between the parties, beginning with a document dated November 19, 1968. The parties also stipulated into the record a copy of the program of the East Orange Adult Community School for the Spring Semester 1980.3/

Background

The record shows that the East Orange Adult Community School (the "night" school) was designed to provide courses of interest to the local community as well as courses leading to a high school equivalency diploma. The night school is limited to adult students as opposed to regular day students who attend the regular day program. The testimony showed that the State Board of Education does not permit day students to attend a night program such as that currently provided by the Board. The curriculum of the night program is divided into different areas, the first of which is labeled as general education. This includes a basic education course for adults, a course entitled English as a Second Language and a high school completion course. These courses are generally those needed for an individual to obtain or finish a program leading to a high school diploma. The State Board of Education requires that the basic education course, also known as "ABE," be taught by certificated teachers. The other above referenced courses, however, do not require teacher certification. The remaining curriculum offered in the night adult program, which represents the bulk of the courses offered in the program, are of varying types, most of which are specifically designed to appeal to community interest. None of these latter courses required certificated teachers nor do they necessarily require a teacher in the traditional sense.

The Board maintains that its night program is completely separate from its regular day program and that the vast majority of the instructors in the night program are not otherwise employed as teachers in the East Orange or any other school system. The Association nevertheless maintains that any instructor of any of the courses who happens to be certificated teacher in the East Orange system or for some other board of education, should be entitled to representation in the regular East Orange unit.

Analysis

The evidence produced at the hearing shows that approximately 35 teachers are employed in the night school program. Vernell Patrick, the Director of the Adult Community Education Program (night school), testified that only those three teachers who teach may be a total of six night school teachers who have certification.4/

In order to determine the appropriateness of the petition, two items must be examined.

First, whether there any certificated night school teachers who are eligible for representation as petitioned for:

Second, whether eligible certificated night school teachers have a community of interest with the existing Association unit.

Regarding the first question, the evidence shows that there is a very high turnover of certificated and non-certificated night school teachers. Mr. Patrick testified that of the three certificated teachers who taught the ABE program in the Spring Semester 1979, only one of those teachers returned for the 1979 Fall Semester.5/ Mr. Patrick was not certain whether any other certificated teachers had taught in the previous semester, but he did testify that only four or five of the total 35 night school teachers have previously taught in the night school program.

Having reviewed the evidence, it appears that there is a lack of continuity and regularity of employment among most night school teachers. In order to classify any night school teacher at East Orange as a public employee within the meaning of the Act, continuity and regularity of employment must be established. The test for regularly and continuity of employment which seems most applicable to the instant matter was enunciated in In re Rutgers, the State University, P.E.R.C. No. 76-49, 2 NJPER 229 (1976). In that matter the Commission found that some but not all coadjutant faculty members were eligible to vote in a secret ballot election. The Commission established the following test:

"All coadjutant faculty members who commence employment for at least their second semester during a given academic year, and who express a willingness to be rehired to teach at least one semester during the nest succeeding year." Rutgers, supra, P.E.R.C. No. 76-49 at p. 4, 2 NJPER 229.

Therefore, the undersigned believes that in order for certificated East Orange night school teachers to become part of any negotiations unit, it must be established that the individual teacher has satisfied the test set forth in Rutgers, supra. That is, certificated night school teachers who commence employment for at least their second semester during a given year and who express a willingness to teach in the following school year would be eligible for representation in a negotiations unit.

Regarding the second question, even assuming that there were certificated night school teachers who were eligible for representation pursuant to Rutgers, supra, a determination must be made whether these teachers have a community of interest with, and are appropriate for inclusion in, the comprehensive Association unit. There are numerous elements used to determine community of interest. Among these are work hours and work place, commonality of benefits, supervision, the educational mission in question, the students, and several others.

Based upon a thorough review of the entire record and having utilized the elements discussed herein, the undersigned finds that certificated night school teachers in the East Orange program lack a community of interest with the existing Association unit.6/ The facts developed at hearing shown that the elements of community of interest as discussed herein differ sharply between night school and regular day school teachers. The night school teachers teach adults rather than regular elementary and secondary students, they teach for the most in the evening hours rather than during traditional daytime hours of instruction, and night school teachers - even if certificated - are not entitled to tenure for their night school employment.7/

There are several other differences between the day and evening programs. Night school teachers - even if certificated - are not evaluated8/ whereas regular day teachers are required to be evaluated; night school teachers are paid on an hourly basis and receive numerous benefits. Perhaps most important, however, is that there is a different educational mission and philosophy between the two programs. The night school program is specifically designed to provide additional instruction on various subjects to adults living in the community. Although some of the nigh school courses are designed to lead to a high school equivalency diploma, none of the regular day students are permitted to attend night classes, and none of the nigh school subjects are taught in the regular day program.9/

Finally, there are two other elements that demonstrate a lack of community of interest between the day and evening East Orange programs. The first is that Mr. Patrick testified that the night program, unlike the day program, is almost totally funded from sources outside the Board.10/ In addition, Exhibit J-
8 shows that in a majority of the night courses students are required to pay a fee. These combined elements demonstrate a substantial difference in control, operation, and philosophy between the instant day and night programs.

The final element was expressed by Mr. Patrick and Mr. King, the Deputy Superintendent of Schools, when they indicated that although the Board is the employer of both day and night teachers, their supervision is completely different. Mr. Patrick as Director of the night program, does not supervise regular day teachers, and the principals who supervise the day teachers do not supervise the night school teachers.

Recommendation

Based upon the entire record herein, and for the above stated reasons, the undersigned Hearing Officer recommends that a unit of certificated night school teachers with regular day school teachers at East Orange is inappropriate.11/

It is therefore recommended that the petition be dismissed with respect to certificated night school teachers.12/

Respectfully submitted,

Arnold H. Zudick

Hearing Officer

DATED: June 27, 1980

Trenton, New Jersey