H.E. NO. 80-5

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

HAZLET TEACHERS ASSOCIATION,

Respondent,

-and-	Docket No. CE-79-19-87

HAZLET TOWNSHIP BOARD OF EDUCATION,

Charging Party.

Appearances:

For the Hazlet Teachers Association

Greenberg & Mellk, Esqs.

(Arnold M. Mellk, Esq.)

For the Hazlet Township Board of Education

Crowell & Otten, Esqa.

(Robert H. Otten, Esq.)

HEARING EXAMINER'S REPORT

AND RECOMMENDED DECISION

An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the "Commission") on January 22, 1979 by the Hazlet Township Board of Education (hereinafter the "Charging Party" or the "Board") alleging that the Hazlet Teachers Association (hereinafter the "Respondent" or the "Association") 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 Association did on or about December 7, 1978 deliberately and by previous plan refuse to "bargain" with the representatives of the Board, and also raised certain issues which were not germane nor proper matters for negotiation, all of which was alleged to be a violation of N.J.S.A. 34:13A-5.4(b)(1), (3) and (5) of the Act.1/

It appearing that the allegations of the above charge, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on April 30, 1979. Pursuant to the Complaint and Notice of Hearing, a hearing was held on June 11, 1979 in Newark, New Jersey, at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. Post-hearing briefs were filed by the parties by July 26, 1979.

An Unfair Practice Charge having been filed with the Commission, a question concerning alleged 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 Hazlet Township Board of Education is a public employer within the meaning of the Act, as amended, and is subject to its provisions.

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

3. The Respondent Association has been the collective negotiations representative for separate units of teachers and secretary-clerical employees for several years. The most recent collective negotiations agreement for teachers, effective July 1, 1977 through June 30, 1979, was received in evidence as J-1.2/

4. Hayden L. Messner, Field Representative of the New Jersey Education Association, has participated in negotiations on behalf of the Respondent Association for several years. He entered the negotiations for successor agreements to the current agreements between the Board and Association covering teachers and secretary-clerical employees in or about October 1978.3/ Mr. Messner attended at least one negotiations session on behalf of the Association prior to December 7.

5. The Board, at a public meeting held at the West Keansburg Elementary School, on December 5 announced that it was studying the closing of the said Elementary School and the opening of a new middle school for the seventh and eighth grades. A "RIF" (reduction-in-force) was also discussed along with the possibility of the busing of students. The Board appointed a citizens' advisory committee to make recommendations to it regarding the aforesaid proposal.

6. A negotiations meeting between the parties with respect to the successor collective negotiations agreements was scheduled for December 7 at 8:00 p.m. at the Administrative Offices of the Board. The West Keansburg Elementary School matte, supra, was not on the agenda for this meeting between the parties.

7. During the afternoon of December 7 Garrett Schlenker, the President of the Association, called and spoke to Mr. Messner. Mr. Schlenker said that he had been asked by the leader of a group of parents from the West Keansburg Elementary School not to cross a picket line of parents scheduled for that evening at the Administrative Offices of the Board. Mr. Messner indicated to Mr. Schlenker that the Association negotiators would not cross the picket line.

8. Mr. Messner arrived at the Administrative Offices of the Board at about 7:50 p.m. where he observed the presence of police and a mass of people outside of the building. Mr. Messner met Mr. Schlenker on the steps of the building where they encountered a person, whose name Mr. Messner does not recall, who presented himself as the leader of protesting parents from the West Keansburg Elementary School. A request was made by this person that the Association negotiators honor the "picket line". Mr. Messner and Mr. Schlenker thereupon entered the building, and upon meeting three other members of the Association negotiating team, all proceeded to a meeting room where the Board negotiators were present.

9. In the meeting room, Mr. Messner, speaking on behalf of the Association negotiators, stated to Robert H. Otten, Esq., the Board's attorney, that as long as "conditions" existed outside, referring to the "picket line", the Association was not going to meet with the Board in negotiations. Mr. Messner testified that Mr. Otten's response was that he would have to see Judge Yaccarino to obtain an order to negotiate. Mr. Messner also testified specifically that he did not speak with Mrs. Janet Kay, the Chairman of the Board's Personnel Committee, who was involved in the negotiations.4/

10. Mr. Messner, after ascertaining that the other members of the Association's negotiating team concurred with his position, left the meeting room with the Association negotiators and they departed from the building.5/

11. Once outside the building, Mr. Messner and the other Association negotiators spoke to newspaper reporters, stating that they were going to respect the picket line, and thereafter Mr. Messner and others joined the protesters for 10-20 minutes. Mr. Messner then left.

12. At the request of the Respondent Association, negotiations resumed between the parties, according to Mrs. Kay, about six weeks after the incident of December 7. Since then a successor agreement for the secretary-clerical unit has been consummated as of April 1979 and negotiations have continued, and are continuing, for a successor agreement covering the teachers. The Association has not raised the West Keansburg Elementary School matter in negotiations nor in any way refused to negotiate since December 7.6/

ISSUE

Did the Respondent Association violate the Act when it unilaterally refused to negotiate with the Board on December 7, 1978 and, if so, what should the remedy be?

DISCUSSION AND ANALYSIS

Introduction

Preliminarily it is noted that the Hearing Examiner requested of the parties that they address the issue of whether or not the Respondent Association's conduct on December 7 was "de minimis" in terms of a violation of the Act and, it was further requested that the parties consider the "totality of conduct" of the Association under State of New Jersey and Council of New Jersey State College Locals, etc., E.D. No. 79, 1 NJPER 39 (1975), aff'd. 141 N.J. Super. 470 (App. Div. 1976) and Township of Hillside, P.E.R.C. No. 77-47, 3 NJPER 98 (1977).

The parties have in their briefs followed the Hearing Examiner's request and these cases will be considered in the light of the facts as found herein.

The Respondent Association Did Not Violate

The Act By Its Conduct On December 7, 1978

The Hearing Examiner finds and concludes that, contrary to the position of the Charging Party, the Respondent Association's conduct at a single scheduled negotiating session was "de minimis" and additionally, within the framework of the totality of negotiations between the parties, was not a violation of the Act.

The Hearing Examiner has found that the West Keansburg Elementary School matter was not on the agenda for the December 7 meeting between the parties and has credited Mr. Messner's testimony that he spoke only to Mr.Otten, stating that as long as "conditions" existed outside, referring to the "picket line", the Respondent Association was not going to meet with the Board in negotiations. (Finding of fact No. 6, 9, supra). The meeting between the parties lasted only about two minutes and the Association negotiators left within 30 seconds of Mr. Messner's statement to Mr. Otten (footnote 5, supra).7/

Further, it is undisputed: that it was at the instance of the Respondent Association that negotiations resumed about six weeks after the December incident; that as of April 1979 a successor agreement for the secretary-clerical unit had been consummated; that negotiations have continued, and are continuing, for a successor agreement covering the teachers; and that the Association has not raised the West Keansburg matter in negotiations nor in any way refused to negotiate since December 7 (Finding of Fact No. 12, supra).

The Charging Party, after quoting from the Black's Law Dictionary definition of "de minimis non curat lex",8/ goes on to cite the Commission's decision in Galloway Township Board of Education, P.E.R.C. No. 77-3, 2 NJPER 254 (1976) where the Commission held that a 15-minute addition to the workday of all teachers at a particular school was not "de minimis" and that there was a violation of the Act. (2 NJPER AT 255). The Charging Party next cites Borough of Montvale, P.E.R.C. No. 78-
33, 4 NJPER 28 (1977), which affirmed the Hearing Examiner's rejection of the Boro's contention that the impact of a managerial decision that police officers wear uniforms when testifying in court on off-duty hours was "de minimis".9/ Finally, the Charging Party refers to Union County Regional High School Board of Education, P.E.R.C. No. 79-90, 5 NJPER 229 (1979) where the Director of Unfair Practices was affirmed in refusing to issue a Complaint where the charging party there had sought an award of interest on the increments paid to teachers. The Director had concluded that, given the Board of Education's prompt compliance with the New Jersey Supreme Court's decision in Galloway,10/ "...there was minimal likelihood for reoccurrence of this conduct (the failure to pay increments), and that any harm to public rights underlying the policy of the ...Act was de minimis..." and that the interest sought by the charging party was small in amount.

The Hearing Examiner has considered the Charging Party's citations, supra, and the supporting arguments in its brief (pp.8-12), and concludes that the doctrine of "de minimis" is applicable to the facts found in the instant case, relying essentially upon the rationale of Union County, supra. Plainly, the Respondent Association's conduct on December 7 has not reoccurred, negotiations resumed at the instance of the Association, the secretary-clerical contract has been concluded, and the West Keansburg matter has not been raised. Under these circumstances, the Hearing Examiner would be dealing with "trifling matters" if he were to find a violation of the Act, in particular Subsection (b)(3), which the Hearing Examiner perceives as the heart of the charge.11/

Next, turning to the matter of the "totality" of the Respondent Association's conduct in negotiations in the instant case, the Hearing Examiner is persuaded that the Association has not violated the Act, in particular Subsection (b)(3). Reference to the pertinent Findings of Fact, supra, will not be repeated. The Charging Party has failed to prove that, viewed in the total context of negotiations, the Respondent Association did not bring to the negotiating table "...an open mind and a sincere desire to reach an agreement, as opposed to a pre-determined intention to go through the motions, seeking to avoid, rather than reach an agreement."12/

In Township of Hillside, supra, the Hearing Examiner, who was affirmed by the Commission, relied on State of New Jersey, supra, in concluding that the respondent union (PBA) did not refuse to negotiate in good faith in violation of Subsection (b)(3) of the Act by unilaterally terminating one negotiation session, given the totality of the PBA's conduct in negotiations. In so concluding, the Hearing Examiner said:

"...the PBA's isolated conduct on this occasion

was insufficient to manifest evidence of an un-

willingness to reach agreement on the terms of a

successor contract.47/ Its participation at length

at two succeeding negotiating sessions held with

the assistance of a mediator..negates the Township's

further claim that the PBA unlawfully refused to

resume negotiations. I conclude that the Township

has failed to prove by a preponderance of the

evidence that the PBA unilaterally terminated the

February 21, 1976 session without explanation..."13/

The Hearing Examiner herein finds and concludes that, based on State of New Jersey and Township of Hillside, supra, the "totality" of the Respondent Association's conduct in the ongoing negotiations for two successor agreements clearly does not constitute a violation of Subsection (b)(3) of the Act. The Hearing Examiner will, therefore, recommend dismissal as to this Subsection. As noted previously, the Charging Party does contend that there was an independent Subsection (b)(1) violation and therefore a dismissal as to this Subsection must be recommended.

There remains only the question of Subsection (b)(5), as to which the Charging Party contends, in the alternative, that the failure of the Respondent Association to follow the negotiations and impasse procedures of N.J.A.C. 19:12-1.1 et seq. constitutes an independent violation of this Subsection.14/ The Hearing Examiner finds and concludes that the Charging Party has failed to prove by a preponderance of the evidence that the Respondent Association's conduct on December 7 in any way created an impasse, or that the Charging Party treated the Association's conduct on that date as creating an impasse, as a result of which the Charging Party initiated mediation or fact-finding under N.J.A.C. 19:12.3.1, 4.1. Therefore, the Hearing Examiner will likewise recommend dismissal as to any alleged independent violation of Subsection (b)(5).

*	*	*	*

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

CONCLUSIONS OF LAW

The Respondent Association did not violate N.J.S.A. 34:13A-5.4(b)(1), (3) and (5) by its conduct on December 7, 1978.

RECOMMENDED ORDER

The Respondent Association not having violated the Act, supra, it is HEREBY ORDERED that the Complaint be dismissed in its entirety.

Alan R. Howe

Hearing Examiner

Dated:	August 28, 1979

Trenton, New Jersey