H.E. NO. 79-13

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

NORTH ARLINGTON BOARD OF EDUCATION,

Respondent,

-and-	Docket No. CO-77-123-16

NORTH ARLINGTON TEACHERS ASSOCIATION,

Charging Party.

Appearances:

For the North Arlington Board of Education

(Glenn T. Leonard, Esq.)

For the North Arlington Teachers Association

Goldberg and Simon, Esqs.

(Theodore M. Simon, Esq.; Sheldon H. Pincus, on the Briefs)

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the "Commission") on November 12, 1976 by the North Arlington Teachers Association (hereinafter the "Charging Party" or the "Association") alleging that the North Arlington Board of Education (hereinafter the "Respondent" or the "Board") has 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 Board unilaterally and without negotiations on May 17, 1976 adopted a salary level advancement policy which requires that advancement based on graduate credits can be "credited" only if there is approval by the superintendent prior to enrollment and, with regard to Master's credits beyond the Master's degree, such credits would be considered for advancement only if earned after the issuance of the Master's degree, which is alleged to be a violation of N.J.S.A. 34:13A-5.4(a)(1) and (5).1/

It appearing that the allegations of the Unfair Practice Charge may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on August 17, 1977. Pursuant to the Complaint and Notice of Hearing, hearings were held on December 13, 1977 and February 1 and March 27, 1978 in Newark, New Jersey,2/ at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally.

A post-hearing brief was filed by the Association under date of June 1, 1978 and by the Respondent on June 23. A reply brief by the Association was filed on July 13, 1978.3/

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 briefs by 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 North Arlington Board of Education is a public employer within the meaning of the Act, as amended, and is subject to its provisions.

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

3.	The Board and the Association have had a collective relationship memorialized in collective negotiations agreements since September 1969 (CP-3, CP-6, CP-8, CP-9, CP-10, J-1 and J-
2).

4.	The collective negotiations agreements have never contained a provision with respect to the matter at issue between the parties, namely, a provision for prior approval, or lack thereof, by the Superintendent of courses to be taken for credit on the salary guide beyond "BA" and "MA". However, beginning with the 1975-77 collective negotiations agreement (J-1), the parties did provide that changes in salary status because of earned additional degree credits in order to become effective in September and February required that the teacher inform the Superintendent prior to specified dates of the anticipated additional earned credits (JE-1 and JE-2: Article VI, Salary, Paragraph F).

5.	From 1963 through 1973, inclusive, the Board had a policy that all courses taken for salary credit beyond the Master's Degree must be approved by the Superintendent and that official transcripts of records for additional credits for salary recognition must be submitted to the Superintendent's office in order to give any teacher proper placement on the salary guide (R-2A through R-2K).

6.	The minutes of a special meeting of the Board on November 18, 1974 indicate that:

2.	The following policy was reestablished: 'Any degree credit for salary advancement beyond the master's degree scale, can be granted only if courses have been approved by the Superintendent of Schools prior to enrollment and earned after the issuance of the master's degree, on motion by Mr. Prelee, Mr. Holmes. On Roll Call, all members present voted in the affirmative, and none in the negative, it was so ordered.' (R-1).

Thereafter, the documentation from the Superintendent's office conformed with the foregoing Board policy of November 18, 1974 (see R-2L through R-2N).

7.	The Commissioner of Education decision in the case of John McAllen, Jr., confirmed that as of the date of that decision, February 24, 1975, the Board had not adopted a policy providing that "M.A. plus 30" on the salary guide required that the additional credits be taken after the master's degree in order to be placed at "M.A. plus 30" on the guide (CP-11).

8.	The Association received a copy of the minutes of the special Board meeting of November 18, 1974 (R-1) shortly after the minutes were issued. No charge of unfair practices was ever filed by the Association with respect to that action by the Board, notwithstanding that Chapter 123 became effective January 20, 1975 and a charge of unfair practices could have been timely filed with the Commission under the Act on and after its effective date (See PBA Local 53 v. Town of Montclair, 70 N.J. 130 (1976) and City of Newark, P.E.R.C. No. 87, 1 NJPER 21 (1975)).

9.	At a regular meeting of the Board on May 17, 1976, the Board adopted a salary policy for both BA and MA degrees, which was set forth in detail in a memorandum from the Office of the Superintendent under date of May 21, 1976 (CP-12B). The policy provides, in pertinent part, that in order to advance on the salary guide above the BA or MA degree, approval of the Superintendent of Schools for the courses to be taken must be obtained prior to enrollment and, in the case of the MA, the prior approved courses must be earned after the issuance of the Master's degree.

10.	A charge of unfair practices, protesting the unilateral action of the Board in the matter of salary policy adopted May 17, 1976, was filed by the Association on November 12, 1976.

11.	Evidence was adduced that specific teachers have taken and received credits, and advanced on the salary guide, all of which was consistent with Board policy in effect at the time the courses were taken. In other words, prior to May 17, 1976, courses beyond BA required no approval while courses beyond MA required prior approval at least back to 1963.

THE ISSUE

Did the Respondent Board violate the Act when it unilaterally, and without prior negotiations with the Association, adopted a salary policy on May 17, 1976 which required prior approval of the Superintendent for courses taken above BA and MA in order to advance on the salary guide?

DISCUSSION AND ANALYSIS

Positions of the Parties

The Association cites Board of Education of the City of Englewood v. Englewood Teachers Association, 64 N.J. 1 (1973) and East Orange Board of Education, P.E.R.C. No. 77-60, 3 NJPER 126 (1977) for the proposition that working hours and compensation of teachers are terms and conditions of employment within the meaning of the Act and that proposed changes in such terms and conditions are mandatorily negotiable. The Association also cites cases in support of its contention that the Commission, and not the Commissioner of Education, has jurisdiction to hear and decide the instant dispute.

The Respondent Board contends that it has negotiated with the Association the "quantitative" aspects of the salary policy, a conceded term and condition of employment within the meaning of Englewood, supra. However, Respondent Board contends that it has not, should not and cannot negotiate the "qualitative" aspects of the salary policy, i.e., the mechanism by which credits will be approved for movement on the salary guide. It contends that the approval process is purely a management prerogative, which is beyond the reach of negotiations and is in no way a term and condition of employment. The Respondent Board also argues that jurisdiction is vested in the Commissioner of Education over a dispute such as presented in the instant case and cites the case of Clifton Teachers Association v. Board of Education of Clifton, 136 N.J. Super. 336 (App. Div. 1975).

The Respondent Board Did Not Violate

The Act When It Unilaterally and

Without Negotiations on May 17, 1976

Adopted a Change in the Prior Salary

Policy With Respect to the Mechanism

for Advancement on the Salary Guide

The Hearing Examiner finds and concludes that the Respondent Board properly refused to negotiate with the Association with respect to the unilaterally adopted change in the salary policy of the Board. Plainly, the Respondent Board was exercising a management prerogative when it decided on May 17, 1976 that prior approval of the Superintendent would be required for courses taken for advancement on the salary guide both at the BA and MA levels.

In so deciding, the Hearing Examiner relies upon the rationale of the New Jersey Supreme Court in the Dunellen Trilogy, three cases decided in 1973 (64 N.J. 1 et seq.), the continuing force and effect of which was recently confirmed by the Supreme Court in the cases of State of New Jersey v. State Supervisory Employees Association et al. and Ridgefield Park Education Association v. Ridgefield Park Board of Education, both of which were decided on August 2, 1978.

The collective negotiations agreements are silent on prior approval, it being noted that the two most recent agreements make reference only to notification to the Superintendent with respect when advancement can be expected on the salary guide. There is no reference to approval or lack of approval by the Superintendent for courses to be taken for advancement on the salary guide. Hence, there is no prior past practice of negotiations by the parties in the area of the instant dispute.

The Hearing Examiner rejects the argument of the Respondent Board that the Commissioner of Education is vested with exclusive jurisdiction of the instant dispute. Clearly, if the Association was found to be correct in its contention that the Respondent Board unilaterally altered terms and conditions of employment then exclusive jurisdiction to remedy this change as an unfair practice would be vested in the Commission under Section 5.4(c) of the Act. Whether or not there is a violation of the Act as alleged is a matter for determination by the Hearing Examiner and ultimately the Commission. However, the Hearing Examiner, as indicated above, has determined that the dispute does not involve a change in terms and conditions of employment and therefore will recommend dismissal of the Complaint for that reason.

The Hearing Examiner notes that as to prior approval of courses beyond the MA the Association would be time-barred from urging this as an unfair practice since the requirement of prior approval at least dated back to November 1974, if not 1963. The Association received timely notice of the Board's action of November 18, 1974 and would have had six months within which to file a charge of unfair practices, the forum for which was provided as of January 20, 1975, the effective date of Chapter 123 which vested unfair practice jurisdiction in the Commission. The MA policy was merely reaffirmed on May 17, 1976. As to the change in the BA salary policy on May 17, 1976, a charge was timely filed by the Association on November 12, 1976, that being a date within the six-month limitation period.

* * * *

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

CONCLUSIONS OF LAW

The Respondent Board did not violate N.J.S.A. 34:13A-
5.4(a)(1) and (5) when it unilaterally on May 17, 1976 adopted a salary policy which required prior approval of the Superintendent before courses could be taken for advancement on the salary guide above BA and MA.

RECOMMENDED ORDER

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

___________________________

Alan R. Howe

Hearing Examiner

DATED:	September 1, 1978

Trenton, New Jersey