H.E. NO. 91-30 1.
H.E. NO. 91-30
STATE OF NEW JERSEY
BEFORE A HEARING EXAMINER OF THE
PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the Matter of
SCOTCH PLAINS-FANWOOD BOARD
OF EDUCATION,
Respondent,
-and- Docket No. CO-H-90-123
SCOTCH PLAINS-FANWOOD ASSOCIATION
OF EDUCATIONAL SECRETARIES,
Charging Party.
Appearances:
For the Respondent, Casper P. Boehm, Jr., Attorney
For the Charging Party, Balk, Oxfeld, Mandell & Cohen, Attorneys (Sanford R. Oxfeld, of counsel)
HEARING EXAMINER'S REPORT
AND RECOMMENDED DECISION
On October 30, 1989, the Scotch Plains-Fanwood Association of Educational Secretaries ("Association") filed an unfair practice charge alleging that the Scotch Plains-Fanwood Board of Education ("Board") violated subsections 5.4(a)(1), (3) and (5) 1/ of the New
1/ These subsections prohibit public employers, their representatives or agents from: "(1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act. (3) Discriminating in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage employees in the exercise of the rights guaranteed to them by this act. (5) Refusing to negotiate in good faith with a majority representative of employees in an appropriate unit concerning terms and conditions of employment of employees in that unit, or refusing to process grievances presented by the majority representative."
Jersey Employer-Employee Relations Act 34:13A-1 et seq . ("Act"), by failing to pay salary increments contained in a collective negotiations agreement that expired on July 1, 1989.
On February 7, 1990, the Director of Unfair Practices issued a Complaint and Notice of Hearing. On February 23, 1990, the Board filed an answer admitting that the collective agreement had expired, but denying that it was obligated to pay the increments.
On March 29, 1990, I conducted a hearing at which the parties were given the opportunity to examine witnesses, introduce documents and argue. The parties waived closing argument and filed letter briefs by May 29, 1990. On June 6, 1990, the Board sought to supplement the record with a letter indicating that the parties had resolved their collective negotiations impasse and agreed to salary guides in fact-finding.
Based on the entire record, I make the following:
FINDINGS OF FACT
1. The Board is a public employer within the meaning of the Act and subject to its provisions.
2. The Association is an employee organization within the meaning of the Act and subject to its provisions. It represents a collective negotiations unit consisting of ten, eleven and twelve-month secretaries employed by the Board.
3. The Board and the Association are parties to a collective negotiations agreement that expired on June 30, 1989. That agreement contained salary guides which provided automatic annual step increases. (T8; CP-1).
4. The parties began negotiating for a successor to CP-1 in January 1989. Mildred McClosky was the negotiations chairperson for the Association and has been a member of Association negotiations teams since the early 1970's.
5. The parties had not negotiated a successor agreement by the time CP-1 expired. The Board did not pay the salary increments contained in CP-1 after it expired. McClosky recalled only one previous occasion that the Board did pay salary increments when a contract expired without a successor in place. That occurred in the early 1970's, around 1973 or '74. When a successor to that contract was finally negotiated, at least two secretaries actually received a smaller salary increase than was provided by the increment in the expiring contract. Those secretaries repaid the difference to the Board by salary deduction. (T9-T14, T17-T18).
6. McClosky indicated that the 1989-90 negotiations was not the first time that the Board did not pay an increment when a contract expired without a successor in place. For example, negotiations for CP-1 were not concluded until September 1986 and the guides were not finished until October 1986. The Board had not paid the increments contained in the contract preceding CP-1. The
Association had not asked that those increments be paid.2/ (T21-T22).
7. The cost of the increment in the expiring CP-1 was $47,877. The Board did not obtain an agreement from the Association not to pay the increment. (T49-T50; CP-2).
8. A comparison of the 1985-86 salary guide (R-2) with the 1986-87 guide in CP-1 shows several instances where movement from a step on the 1985-86 guide to the next step on the 1986-87 guide resulted in a lower increase than movement between the same steps on the 1985-86 guide. There was no evidence about how many secretaries actually occupied steps where this occurred. (T35-T42).
ANALYSIS
An employer's refusal to pay automatic salary increments contained in a recently expired contract (before exhausting the Commission's impasse resolution procedures) is a unilateral change of the status quo and an unfair practice. In Galloway Tp. Bd. of Ed. v. Galloway Tp. Ed. Assn., 78 N.J . 25 (1978), the Court held that the employer violated subsection 5.4(a)(1) and (5) of the Act when, prior to fact-finding, it refused to pay teachers the salary step increment they would have received normally at the start of a new school year to reflect an additional year of teaching
2/ McClosky admitted that her recollection of the timing of the conclusion of negotiations for CP-1 was not very accurate. I base my findings of when the negotiations concluded on the testimony of Gary Whalen who was the Board's chief negotiator for that contract and whose recollection was clear and testimony credible. (T34-T35, T42).
experience. The Court also concluded that the parties' eventual agreement to a successor contract requiring the retroactive payment of increments based on a new salary guide did not warrant the dismissal of the Association's unfair practice charge as moot. Finally, the Court held that the Commission acted within its statutory authority by adjudicating the unfair practice charge after the parties negotiated a successor agreement, and seeking to enforce a cease and desist order requiring the Board to notify employees that it would abide by the Act and comply with the Commission's decision in the future.
The Commission has applied Galloway in several cases. It is settled that, where an expiring contract provides for the automatic payment of increments based on years of experience, the refusal to do so, due to its chilling effect on negotiations, is an unfair practice. Hudson Cty., P.E.R.C. No. 78-48, 4 NJPER 87 ( & 14041 1978); aff'd App. Div. Dkt. No. A-2444-77 (4/10/79); Belleville Bd. of Ed., I.R. No. 87-5, 12 NJPER 692 ( & 17262 1986); Carteret Bd. of Ed ., I.R. No. 85-2, 10 NJPER 492 ( & 15223 1984); Alexandria Tp. Bd. of Ed ., I.R. No. 84-5, 10 NJPER 1 ( & 15000 1983); Jersey City Bd. of Ed ., I.R. No. 83-6, 8 NJPER 593 ( & 13277 1982); State of New Jersey , I.R. No. 82-2, 7 NJPER 532 ( & 12235 1981); and City of Vineland , I.R. No. 81-1, 7 NJPER 324 ( & 12142 1981).
The Commission has also occasionally refused to consider whether an employer's failure to pay salary increments was unlawful. In Belleville Bd. of Ed., P.E.R.C. No. 88-66, 14 NJPER 128 ( & 19049 1988), aff'd App. Div. Dkt. No. A-3021-87T7, the
Commission dismissed as moot a complaint seeking interest on increments withheld during negotiations. Noting that the Board had complied with an interim relief order to repay withheld increments and that the parties had signed a memorandum for a successor agreement the day the unfair practice charge was filed and before a Complaint issued, the Commission concluded:
It would not serve the Act's purposes to decide the only issue that remains in dispute: the payment of interest. The underlying dispute is resolved. The contract is settled and all increments have been paid. Whether the Board violated the Act by refusing to pay increments is academic at this point. Id. at 129.
[See also State of New Jersey , P.E.R.C. No. 88-2, 13 NJPER 634 ( & 18236 1987).
The Commission reached a similar result in Bayonne Bd. of Ed ., P.E.R.C. No. 89-118 (15 NJPER 287 ( & 20127 1989), aff'd per curiam App. Div. Dkt. No. A-4871-88T1 (3/5/90). The Bayonne Board had failed to pay salary increments when a contract expired during successor negotiations. The Bayonne Teachers Association filed an application for interim relief and the Board informed the Commission that it would immediately repay the increments it had withheld for two pay periods. Dismissing related unfair practice charges, the Commission concluded:
Galloway requires that increment systems be continued during successor contract negotiations. If a school board flouts that obligation, immediate interim relief can be obtained. As in Belleville , however, it would not serve the Act's purposes here to decide this past dispute where the only issue outstanding is the payment of minute amounts of interest. The underlying dispute is moot.
Belleville, Bayonne and State of New Jersey demonstrate the Commission's reluctance to consider increment disputes where the parties have already resolved the underlying problem by negotiating successor contracts. 3/ In each case formal unfair practice proceedings had not begun before the increments were repaid and the dispute involved minute amounts of interest. (See e.g. Bayonne, 15 NJPER at 288).
Here, however, the underlying dispute was not resolved until the record had closed in the unfair practice proceeding. In addition, the cost of the increment was $47,877 and it was withheld from July 1, 1989 until late May or June 1990. While the interest on $47,877 for 10 or 11 months may not be enormous in the context of a school budget, I do not consider it "minute."
I recommend, therefore, that the Commission find that the Board violated subsections 5.4(a)(5) and (1) when it withheld payment of the increments and that the matter is not mooted by the consummation of an agreement in fact-finding months after the record closed in the unfair practice proceeding. I recommend posting of the attached notice and the payment of interest.
Richard C. Gwin
Hearing Examiner
Dated: March 15, 1991
Trenton, New Jersey
3/ The Commission also emphasized the readily available remedy of interim relief.
Notice
WE WILL NOT, now or in the future, interfere with, restrain or coerce our employees in the exercise of the rights guaranteed to them by the Act, by withholding salary increments while negotiating with the Scotch Plains-Fanwood Association of Educational Secretaries for a successor agreement.
WE WILL NOT, now or in the future, unilaterally change terms and conditions of employment and alter the status quo by refusing to pay salary increments while negotiating with the Association for a successor agreement.
WE WILL pay employees represented by the Bayonne Education Association interest at the rate set forth at R . 4:42-11 on increments withheld from July 1, 1989 until they were paid in 1990. ***** End of HE 91-30 ***** |