D.R. NO. 80-6

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

WAYNE BOARD OF EDUCATION,

Public Employer,

-and-	Docket No. CU-187

WAYNE EDUCATION ASSOCIATION,

Petitioner

Appearances:

For the Public Employer

Greenwood, Weiss & Shain, Esqs.

(Stephen G. Weiss, Of Counsel)

For the Petitioner

Goldberg and Simon, Esqs.

(Theodore M. Simon, Of Counsel)

DECISION AND ORDER

Pursuant to a Notice of Hearing to resolve a question concerning the composition of a negotiating unit of public employees, a hearing was held on April 28, 1976, June 17, 1976, September 13, 1976, January 18, 1977, January 27, 1977 and February 15, 1977 before Hearing Officer Joel G. Scharff, at which all parties were afforded an opportunity to present evidence, to examine and cross-examine witnesses and to argue orally. A post-hearing brief was filed by the Petitioner on November 28, 1977.

Thereafter, on February 15, 1979, the Hearing Officer issued his Report and Recommendations (H.O. No. 79-5) a copy of which is attached hereto and made a part hereof. On February 27, 1979, the Commission received a request from the Public Employer for an extension of time to file exceptions to the Hearing Officer's Report and Recommendations. On March 1, 1979, the Director of Representation extended the time to file exceptions in this matter to March 14, 1979 and subsequently granted a further extension to March 19, 1979. The exceptions subsequently filed by the Public Employer were received by the Director of Representation on March 19, 1979. On March 28, 1979, the Director of Representation received an addendum to the exceptions previously filed by the Public Employer and on April 5, 1979 the Director of Representation received a response to the addendum from the Petitioner.

The undersigned has carefully considered the entire record in this proceeding including the Hearing Officer's Report and Recommendations, the briefs and the exceptions, and on the facts in this case finds and determines as follows:

1.	The Wayne Board of Education (the "Board") is a public employer within the meaning of the New Jersey Employer-Employee Relations Act (the "Act") and is the employer of the employees in question.

2.	The Wayne Education Association (the "WEA") is an employee representative within the meaning of the Act and is subject to its provisions.

3.	A Petition for Clarification of Unit was filed with the Commission on April 22, 1975 seeking a determination in favor of the inclusion of six groups of employees in the existing collective negotiations unit of all contractual certificated personnel. The Petitioner desires the inclusion of the following groups:

Regular summer school teachers

All driver education Teachers

All substitutes

All bedside teachers

All high school equivalency diploma teachers

All supplemental teachers

The Board takes the position that none of the above six groups of employees are presently included in the WEA collective negotiations unit and should not be included in the negotiating unit by means of this petition. Therefore, there is a question concerning the composition of a negotiations unit of public employees and the matter is properly before the undersigned for determination.

4.	The Hearing Officer recommended that he WEA unit be clarified as including summer school teachers, driver training instructors, bedside teachers and certain substitute teachers in its existing collective negotiations unit and that said clarification be immediately effective. The Hearing Officer recommended that the WEA does not represent high school equivalency instructors and supplementary teachers.

5.	The Hearing Officer based his recommendations for inclusion of the above-listed four classifications on the following findings:

1)	The Board and WEA agreed to include summer school teachers, driver education instructors, bedside teachers and substitute teachers in the WEA unit in their first agreement and did not subsequently agree to exclude these classifications from the unit.

2)	The Board granted an additional recognition to the WEA on behalf of driver education instructors.

3)	Bedside instruction and driver education instruction are extracurricular assignments performed by regular Wayne teachers and the personnel performing these assignments are unit members.

4)	There is a community of interest between each of the four groups recommended for inclusion and current WEA unit personnel.

6.	The Hearing Officer based his recommendations for exclusion of the high school equivalency instructors and supplementary teachers on the following findings:

1)	The Board and WEA did not intend the inclusions of supplementary and high school equivalency instructors in the WEA unit.

2)	There is no community of interest between the high school equivalency instructors and WEA unit personnel.

7.	The Exceptions filed by the Board argued that:

1)	The Hearing Officer's findings and conclusions as to summer school, driver education, bedside and substitute teachers were contrary to the clear weight of the evidence which, the Board claims, established that the WEA knowingly waived and abandoned any right it may have had to represent these categories.

2)	The Hearing Officer was in error when he determined that the challenged categories were intended to be recognized by the parties under the language of the recognition clause of the several contracts.

3)	The Hearing Officer's conclusion that WEA waived the right to negotiate on behalf of supplemental teachers should apply to summer school, driver training, bedside and substitute instructors because these latter groups also existed prior to the 1968-69 agreement and the waiver and abandonment by WEA to negotiate regarding these groups compels the conclusion that these groups are excluded from the collective negotiations unit.

The undersigned, having carefully considered the Hearing Officer's recommendations and the exceptions filed by the Board, now turns to a determination concerning each of the classifications at issue herein.

In evaluating clarification petitions brought pursuant to this Act and its attendant rules, the Commission is guided by the long experience and the adjudications under the National Labor Relations Act (the "NLRA").1/

The NLRB has established a precedent which precludes the utilization of a clarification of unit petition in order to include a classification of employees which were in existence at the time the negotiations unit was formed2/ or where a union had, for a considerable period of time, "slept on its rights" concerning the unrepresented titles.3/ In both cases the NLRB found that under these circumstances a question concerning representation exists and the unit clarification petition should be dismissed.

Since, in the matter herein, all of the disputed classifications of employees were in existence at the time the negotiations unit was formed, the initial determination to be made with regard to each classification is whether there was a mutual intent on the part of the parties to include the classification within the recognition clause of their agreement. In the absence of a finding of a mutual intent to include the classification, it follows that the petition raises a question concerning representation.

Where it is found that the parties intended the inclusion of the title, an examination will be made to determine whether the subsequent conduct of the parties either demonstrates a mutual agreement to exclude the classification or the later conduct of the majority representative constitutes an abandonment or waiver of the claim that such employees are represented by the majority representative in the collective negotiations unit. In those cases where it is found that there has been an agreement to exclude or evidence of a waiver on the part of the majority representative it will result in the conclusion that this Petition raises a question concerning representation. If it is found with regard to any classification that a question concerning representation exists, that portion of the Clarification Petition relating to such classification will be dismissed. Where it is determined that the instant Petition is a proper attempt to clarify employees as being included in an existing negotiations unit, the question of community of interest will then be considered by the undersigned.

Supplemental Teachers

The record indicates that supplementary teachers existed prior to the formation of the WEA unit and that the WEA knew of their existence. There is no reference in the initial agreement to supplementary teachers nor has any evidence been advanced to demonstrate an agreement by the parties to include supplementary teachers in the WEA unit. The record contains no evidence of a request by WEA for recognition on behalf of supplementary teachers. In its negotiations for an initial agreement, the WEA did not present demands on behalf of supplementary teachers. In the instant matter the undersigned finds that supplementary teachers were in existence at the time the negotiations unit was formed, and there is no evidence of a mutual intent by the parties to include this classification in the recognition clause of their agreement.

No exceptions have been filed to the Hearing Officer's recommendations concerning the supplementary teachers. Accordingly, based upon these facts, the undersigned finds in accordance with the Hearing Officer and for the reasons cited above, that a question concerning representation exists concerning the supplementary teachers and that portion of the Clarification Petition relating to this classification will be dismissed.

High School Equivalency Instructors

The record indicates that high school equivalency instructors ("G.E.D.") existed prior to the formation of the WEA unit and that the WEA knew of their existence. In the initial 1968-69 negotiations agreement between the parties Article XIA indicates that "The subject of negotiation may include...evening school programs." The WEA maintains that this established the intent of the parties to include this classification within the recognition clause of their first agreement, However, in Article XIB of the initial 1968-69 negotiations agreement the parties recognized the complexity of the subject matter of the first written agreement between them and stated that "they understand that the application of the terms and provisions of the agreement and their operation is experimental..." The record reveals that the WEA did not present a proposal on behalf of this classification in 1968 and the first economic agreement between the parties did not contain any provisions spelling out the salary or any other terms and conditions of employment of high school equivalency instructors. In light of the stipulated experimental nature of the application of Article XIA of the 1968-69 Agreement, the concession by WEA President Ziccardi that the pre-agreement negotiations did not involve "real discussions" as to the actual makeup of the negotiations unit, and the evidence that this classification was totally ignored in the parties' initial negotiations, the undersigned cannot find sufficient evidence establishing a mutual intent to include all high school equivalency instructors in the unit. Moreover, even if the mutual intent to include this classification had been established, the record reveals that the WEA did not subsequently present any proposals on behalf of this classification at any time prior to the filing of this petition, thus waiving its representational rights concerning this title.

Noting that no exceptions have been filed to the Hearing Officer's recommendations concerning G.E.D.'s, and based upon the facts and the above discussion, the undersigned finds, in accordance with the Hearing Officer, that a question concerning representation exists regarding G.E.D.'s and that the portion of this Petition relating to that title will therefore be dismissed.

Substitute Teachers

The record indicates that substitute teachers were in existence at the time the unit was formed. In Article XIA of the initial agreement the parties indicated that "the subject of negotiation may include" substitute teacher. Furthermore the evidence shows that the WEA submitted a proposal to increase the salary for all per diem substitutes as part of its proposals for the initial 1968-69 agreement. However the initial agreement contained no salary schedule for substitute teachers. The record indicates that the Wayne Board of Education unilaterally increased substitute pay at a later date. In light of the stipulated experimental nature of the application of Article XIA of the 1968-69 Agreement and the evidence cited above, the undersigned cannot find sufficient evidence establishing a definitive mutual intent to include all substitute teachers in the unit. However, the evidence is sufficient to raise a reasonable inference that the parties, contending with each other in the early stages of their collective negotiations relationship and operating during a period shortly before and after the enactment of the N.J. Employer-Employee Relations Act, may have intended the inclusion of this classification in the negotiations unit. Accordingly, the undersigned will examine the subsequent conduct of the parties. An examination of the record does not reveal at any time a mutual agreement to exclude the classification. However, in examining the conduct of the majority representative subsequent to the first agreement, an analysis of the total record reveals that the 1968 proposal on behalf of the substitute teachers by the WEA was the first and last proposal concerning this classification directly. Although the WEA raised concerns relating to substitute coverage by regular Wayne teachers in negotiations covering the 1970-72, 1972-73 and 1973-75 agreements, no proposals were made concerning the terms and conditions of substitute teachers. Significantly, in the negotiations toward the 1970-72 agreement the WEA, in expressing its concern over the extensive use of regular teachers to provide substitute coverage caused by the scarcity of substitute personnel, noted the low pay of substitute teachers. However, in these same negotiations the WEA made no demand for increased pay for substitute teachers. The WEA's conduct in the 1970-72 negotiations is further confirmed in the subsequent negotiations where it appears that the thrust of the WEA's position on substitutes was related to its concern over the use of regular Wayne teachers as substitutes.4/ The record therefore established that, but for its initial proposal in 1968, the WEA made no further efforts to represent the classification of substitute teachers.

As the undersigned has previously stated above, when a majority representative has been aware of a classification of employees which was in existence at the time of the formation of a unit and has, for a considerable period of time subsequent to the initial agreement, waived or abandoned its rights to represent those titles, then a question concerning representation exists, and those titles cannot be included in the unit through a clarification of unit petition. In the instant matter, the WEA was aware of the existence of per diem substitutes in 1968, presented a proposal in 1968 concerning all per diem employees, and thereafter waived or abandoned its interest in all per diem substitutes and apparently concentrated its negotiations efforts toward seeking contractual language pertaining only to regular Wayne teachers acting as substitutes.

Accordingly, based upon the facts and for the reasons cited above, the undersigned finds that the WEA has waived its representation rights concerning this title, and therefore a question concerning representation exists with regard to substitute teachers, and that portion of the instant petition relating to that classification will be dismissed.5/

Bedside Teachers

The record indicates that bedside teachers were in existence at the time the unit was formed and that the WEA knew of their existence. There is no reference in the initial agreement to bedside teachers. No evidence has been advanced to demonstrate an agreement by the parties to include bedside teachers in the WEA unit. In its negotiations for an initial agreement the evidence shows that the WEA submitted a proposal to increase the hourly rate of pay of bedside teachers from $5.00 to $8.00. However the initial agreement contained no salary schedule for bedside teachers. The record indicates that the Wayne Board of Education unilaterally increased the hourly rate of pay for bedside teachers at a subsequent time. Based on the facts cited above the undersigned cannot find sufficient evidence establishing a mutual intent to include all bedside teachers in the unit. Moreover, even if the mutual intent to include this classification had been established, the record reveals that the WEA did not present any proposals on behalf of this classification for the school year 1969-70 and all subsequent years until the time of the hearing. None of the parties' negotiations agreements contain any reference to bedside teachers. The record evidences a failure of the WEA to present proposals on behalf of this classification over a span of six years during which time it consistently requested improvements in salaries and other terms on behalf of all other classifications which it undisputedly represented. The record further evidences the failure of the WEA to even insist on the inclusion in the various agreements of the classification of bedside teachers at the rate of pay which had previously been fixed unilaterally by the Board so as to insure that this rate of pay would not unilaterally be lowered during the term of each agreement. Therefore the undersigned concludes that, even if the mutual intent to include this classification has been established, the record reveals that, but for its initial proposal in 1968, the WEA made no further efforts to represent the classification of bedside teachers, thus waiving its representational rights concerning this title.

Accordingly, based upon the facts and for the reasons cited above, the undersigned finds that a question concerning representation exists with regard to bedside teachers, and that portion of the instant petition relating to that classification will be dismissed.

Driver Training Instructors

The record indicates that driver training instructors were in existence at the time the unit was formed. During the negotiations for the initial agreement, behind-the-wheel driver instruction was provided by regular Wayne teachers during the regular school day. Regular Wayne teachers were assigned to instruct driver training classes instead of other class assignments. During this period driver instruction was a part of a teacher's duty and driver instructors received the same compensation as other Wayne teachers similarly situated on the salary guide. There is agreement among the parties that during this period driver training instructors were represented by WEA and therefore there is sufficient evidence to establish a mutual intent to include the driver training instructors in the unit at the time the unit was formed. Accordingly, the undersigned will examine the subsequent conduct of the parties.

In the Fall of 1968, shortly after the parties entered into their initial contractual relationship on July 29, 1968, the behind-the-wheel program was extended to after school hours and weekends. The Board unilaterally established the rate of pay for this after-school instruction at $5.00 per hour. There is no evidence that WEA made any proposals at this time in regard to the hourly rate of compensation or any other terms or conditions of employment relating to this new form of behind-the-wheel instruction. In 1969 the behind-the-wheel program was placed entirely outside of school hours and was conducted by regular Wayne teachers only. There is no evidence that WEA made any proposals regarding the driver training instructors at the time that the entire behind-the-wheel program was moved after school hours. Likewise the record reveals that in the negotiations leading to the next two collective negotiations agreements, WEA did not raise any proposals seeking to improve the terms and conditions of driver training instructors nor did it, in the alternative, seek to include in the contract the hourly rate previously fixed unilaterally by the Board to protect against its diminution during the term of the agreement. A review of the contracts covering school years 1968 through 1972 reveals that there is no specific reference in any way to behind-the-wheel instruction. In the negotiations for the 1973-1975 contract, at a time when the behind-the-wheel program was now staffed by both regular Wayne teachers and non-Wayne teachers, the WEA made its first specific proposals concerning driver training instructors' compensation and they related to compensation during the summer sessions. The contract which resulted from these negotiations likewise did not contain a driver training compensation provision.

On the basis of these facts the undersigned concludes that in the initial agreement there was an intent by the parties to include driver training instructors as part of the WEA unit. However, shortly after the formation of the unit, the performance of such services during the regular school day was discontinued and the program became an after-school-hours program. The WEA did not, over the considerable period of time, negotiate or seek to establish terms and conditions of employment for the driver training instructors functioning in the after-school-hours program. This conduct constituted a waiver of its representational rights to this title and had the effect of creating a question concerning the representation of these employees prior to the summer of 1974. The events of the summer of 1974 serve to confirm the conclusions reached above. In the summer of 1974, the behind-the-wheel instructors expressed dissatisfaction with their rate of pay which, as noted above, had not been negotiated and remained the same for approximately six years. The behind-the-wheel instructors initially acted on their own by directly communicating with the Board and expressing a desire for increased remuneration. This would appear to support the conclusion reached above that these instructors were unrepresented and therefore attempted to deal directly with the Board concerning their wage rate. When rebuffed by the Board, these instructors solicited the assistance of WEA. WEA requested an immediate meeting with the Board on behalf of Driver Education teachers and stated that "The Association has authorization to represent these teachers." It seems clear to the undersigned that an organization which had consistently represented the interests of these instructors in the past would not find it necessary to reassert its representational status. It seems more reasonable to conclude that WEA was asserting that it now had authorization to represent these teachers and was requesting a meeting on their behalf. In a letter dated July 22, 1974 the Board president acknowledged receipt of the WEA letter and stated that "a proposal for any adjustment in this area (driver teachers) would be a proper item for submission for the 1975-76 contract negotiations". However, a Board spokesman, approximately two months later, in the presence of a majority of the Board members, stated that a proposal regarding the rate of pay for behind-the-wheel instructors "was not appropriate for negotiations."

In light of the entirety of the conduct of the parties with regard to this title and taking into account the unrebutted testimony of the Board president that she was not authorized by the Board to write the letter of July 22 and noting the repudiation of the content of the letter by the majority of the Board shortly thereafter, the undersigned cannot attribute compelling evidentiary weight to this one letter as representing an intent on the part of the Board to join with WEA in establishing a mutual intent to include this classification within the recognition clause of their agreement.

The Hearing Officer recommended that the majority representative of teaching personnel represent personnel in their performance of any after hour work which is tantamount to extra-
curricular activity supervision and, citing In re Long Branch Board of Education, D.R. No. 78-24 (1977), recommended that the failure to negotiate a rate of compensation for such employment not be considered an abandonment of the representative status of the majority representative for employees engaged in such activities. The undersigned cannot adopt this recommendation inasmuch as the holding in Long Branch is limited to those school district situations where the after-hour extra-curricular activity supervision may be imposed involuntarily on employees by the public employer and where the complement of personnel performing the extra-curricular activity consists exclusively of regular ten-month teachers. The facts herein do not establish that this activity is or could be imposed involuntarily on the employees and the record reveals that the complement of behind-
the-wheel instructors consists of both regular Wayne teachers and non-Wayne teachers.6/

Accordingly, based upon the facts and for the reasons cited above, the undersigned finds that the WEA has waived its representation rights concerning this title and therefore a question concerning representation exists with regard to driver training instructors and that portion of the instant petition relating to that classification is dismissed.

Summer School Teachers

The record indicates that summer school teachers were in existence at the time the unit was formed. In Article XIA of the initial agreement the parties noted that "the school of negotiation may include" summer school programs. In addition the WEA submitted a proposal to increase the remuneration of certain summer school teachers as part of its proposals for the initial 1968-69 agreement. However, the initial agreement does not contain a salary schedule pertaining to Summer School Teachers. After evaluating the evidence cited above and considering the stipulated experimental nature of the application of Article XIA of the 1968-69 Agreement and the concession by WEA President Ziccardi that the pre-agreement negotiations did not involve "real discussions" as to the actual make-up of the negotiations unit, the undersigned reaches the conclusion that there is insufficient evidence to establish a definitive mutual intent to include all summer school teachers in the unit at its formation. However, as in the case of substitute teachers, the evidence is sufficient to raise a reasonable inference that the parties, contending with each other in the early stages of their collective negotiations relationship and operating during a period shortly before and after the enactment of the New Jersey Employer-Employee Relations Act, may have intended the inclusion of this classification in the negotiations unit. Accordingly, the undersigned will examine the subsequent conduct of the parties and other relevant criteria.

The Commission has in In re Rutgers, The State University, P.E.R.C. No. 76-13, 2 NJPER 13 (1976) considered the matter of summer school teachers. In that case the employee representative sought to negotiate the salaries and fringe benefits of unit members employed during the summer to teach in the University's summer session. The employee representative represented 10 month faculty and 12 month faculty. The 12 month faculty at Rutgers do not teach in the summer session. The employer argued that it was obliged to negotiate only regarding the faculty's employment as 10 or 12 month faculty. The employer pointed out that the summer session is staffed by both 10 month faculty members and by faculty members from other colleges. Under these circumstances the Commission found that there was not a mandatory obligation on the part of the employer to negotiate the terms and conditions of unit members functioning as teachers in the summer school. The Commission pointed out that the employee representative could clarify the situation by either seeking recognition from the employer or certification from the Commission as the representative of summer school teachers or, if it already claims to represent these employees, by filing a unit clarification petition with the Commission. This alternative would require a claim by the employee representative that it represents summer session employees. The Commission concluded by saying that until the representational status of summer school employees was established, the employer was not required but could permissively negotiate the pay and benefits of unit members who teach in the summer session and the parties could permissively negotiate the expansion of the negotiations unit to include summer session work.7/

The undersigned is guided by the above-cited decision in making the determination in this matter. In the clarification of unit petition filed herein, the WEA must claim and show that it already represents all summer school teachers. In support of its claim the WEA argues that Article XI of the first agreement between the parties evidences an intent by the parties to include summer school within the contract and its continuous presentation of negotiations demands in this area shows a consistent interest and claim in the representation of these employees. On the other hand, the Board disputes the propriety of utilizing Article XI to establish the initial intent of the parties and claims that, notwithstanding the WEA's repeated demands, it has consistently refused to negotiate concerning summer school employees.

The undersigned, after careful studying the record herein, finds that the record fails to establish that the WEA has in fact been the representative of all summer school employees.

Though it is clear that the WEA continued in its attempts to present proposals related to summer school employment, it is equally clear that the Board consistently held the position as articulated by its Superintendent that "summer school was independent of the WEA and that they would not recognize them as negotiating for summer school teachers." The record establishes that over a considerable period of time the parties maintained their respective positions. This situation is confirmed by the reports of two different fact-finders who found that the WEA was making demands regarding summer school employment and the Board had refused to negotiate in this area. The above facts are sufficient to establish an ongoing dispute as to the claimed representational status of the WEA vis a vis summer school.

The undersigned has carefully examined the proposals made by the WEA relating to summer school and finds, as in Rutgers, that the WEA's interest was in negotiating the salaries of unit members employed during the summer. In its proposals for the 1968-69 Agreement, WEA included a proposal that "the Board of Education increase the current summer school salary from 10% of a teacher's annual salary, up to a maximum of $650, to a flat 10% of a teacher's annual salary." WEA presented the same summer school proposal for the 1969-70 Agreement. In its proposals for the 1970-72 Agreement, WEA included the following summer school proposal: "Teachers employed in summer school shall be paid 10% of their annual contractual salary." The 1970-72 negotiations culminated in fact-finding. The Fact-Finder stated in part: "An overwhelming number of the teachers in the Wayne summer school are teachers within the system. The Board does pay these persons in accord with a percentage based upon their annual salary not to exceed $650." Based on the common usage of this language in the labor relations context as confirmed by the fact-finder's identical terminology, the undersigned finds that the WEA was consistently attempting to negotiate a flat 10% of the unit member's 10 month salary as the compensation for that person's employment in the summer school program. Therefore it follows that these proposals were no intended to encompass all summer school teachers, some of whom might by non-Wayne teachers, first time teachers, part-time teachers, substitutes etc. who do not have a cognizable annual contractual salary.

Accordingly, if negotiations concerning summer school actually took place, they were the "permissive" negotiations envisioned by Rutgers concerning the pay and benefits of unit members who teach in the summer session. However, since the WEA proposals did not encompass all summer school teachers, the resulting negotiations, if any, are not proof of continuous representation by WEA of all summer school teachers. Instead it must lead to the conclusion that WEA has at no time represented all summer school teachers and thereby has waived its representational interest in this title.8/

Accordingly, based upon the facts and for the reasons cited above, the undersigned finds that the WEA has waived its representation rights concerning this title, and therefore a question concerning representation exists with regard to summer school teachers and that portion of the instant petition relating to that classification will be dismissed.

Accordingly, the undersigned, having found for the reasons stated above, that each portion of the instant petition must be dismissed, hereby dismisses the petition in its entirety.9/

BY ORDER OF THE DIRECTOR

OF REPRESENTATION

Carl Kurtzman, Director

DATED:	August 30, 1979

Trenton, New Jersey