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:

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 A BA @ and A 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 A 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 A 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 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 A 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 A 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.

___________________________
Alan R. Howe

Hearing Examiner

DATED: September 1, 1978
Trenton, New Jersey
1/ These Subsections prohibit employers, their representatives or agents from: A (1) Interfering with, restraining or coercing 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. @
2/ The pre-hearing was held on September 9, 1977. A hearing was originally scheduled to begin October 12, but was cancelled at the request of counsel for the Charging Party due to the Jewish Holiday, as a result of which the case was adjourned to November 22, the first mutually available date. This date was cancelled at the request of counsel for the Charging Party due to a conflict with another case before the Commission. The first mutually agreeable date thereafter was December 13, at which time the first hearing was held. The hearing was adjourned, pending settlement discussions, until February 1, 1978 when the second hearing was held. The delay between the second and third hearings was due to the unavailability of counsel for the Charging Party.
3/ Delay in the availability of the third hearing transcript resulted in a delay of the receipt of briefs. Briefs were initially due May 15, 1978 with 10 days for reply briefs.