H.E. NO. 78-28

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

BLACK HORSE PIKE REGIONAL SCHOOL

DISTRICT BOARD OF EDUCATION,

Respondent,

-and-	Docket No. CO-77-232-109

BLACK HORSE PIKE REGIONAL EDUCATION

ASSOCIATION,

Charging Party.

Appearances:

For the Black Horse Pike Regional School District Board of Education, Hyland, Davis & Reberkenny

(William C. Davis, of Counsel)

For the Black Horse Pike Regional Education Association

Goldberger, Simon & Selikoff

(Joel S. Selikoff, of Counsel)

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

The Black Horse Pike Education Association ("Association") brought this action by filing an Unfair Practice Charge with the Public Employment Relations Commission ("Commission") on February 23, 1977. It claimed that the Black Horse Pike Regional School District Board of Education ("Board") committed an unfair practice within the meaning of the New Jersey Employer-Employee Relations Act ("Act"), specifically N.J.S.A. 34:13A-5.4(a)(1) and (5),1/ by unilaterally imposing a proposed contract on its teachers even though the Association membership had voted to reject said proposed contract.

It appearing that the allegations of the charge, if true, might constitute an unfair practice within the meaning of the Act, a Complaint and Notice of Hearing was issued on April 18, 1977, and a hearing was held before the undersigned in Trenton, New Jersey, on October 11, 12 and 13, 1977.2/

The parties entered into negotiations in October of 1975. The negotiations continued for over a year and, in October 1975, a memorandum of understanding was signed and entered into between the parties. This memorandum contains no conditions precedent which would limit the power of either the Association or the Board's negotiators to enter into a binding contract. However, both sides' negotiators submitted this document to their principals (i.e., the entire memberships of the Board and the Association, respectively) for ratification. Although the Association membership voted first and rejected the memorandum, the Board ratified it and proceeded to implement its terms.

At the hearing the Association alleged, and introduced evidence to prove, that there was a mutual understanding between the negotiations teams; that any agreement entered into was subject to ratification.

The Board witnesses denied the existence of such an understanding and claimed the entire matter was governed by a specific provision in the then existing contract. The language of this provision was not modified by the memorandum of understanding. Specifically, Article II-C of the contract, entitled "Negotiations," provides,

"The parties in the course of negotiations shall select their own representatives. The parties mutually pledge their representatives shall be clothed with the appropriate power and authority to make proposals, consider proposals and do all that is necessary and proper for bona fide negotiations; provided, however, that it is understood that no action binding the Board can be taken other than at a public meeting pursuant to a formal vote."

The Association attempted to prove the understanding on the basis of four arguments: (1) The Association's own constitution mandates that all agreements be ratified by the general membership and members of the Board were aware of this constitutional provision; (2) the conduct of the Board after the contract was rejected by the Association demonstrates the Board was aware that the Association signed the agreement subject to ratification; (3) there was an expressed oral agreement at the first negotiations session granting both sides the right of ratification. This agreement was brought up throughout the negotiations including the time when the memorandum of understanding was signed by the parties; (4) on the basis of past history of negotiations between the parties the Board knew that any agreement entered into was always subject to ratification by the Association.

It is noted that In the Matter of Bergenfield Board of Education, P.E.R.C. No. 90, 1 NJPER 44 (1975), the commission held (under the facts of that particular case) in the absence of expressed qualifying conditions the memorandum of agreement between the parties bound the employer to execute the agreement. In East Brunswick Board of Education, P.E.R.C. No. 77-6, 2 NJPER 279 (1976), the Commission looked beyond the memorandum of agreement to the totality of conduct of the parties in order to determine their apparent authority. Accordingly, the undersigned will do so here.

The Association witnesses testified that Board members were aware of the Association's constitution which prohibits Association negotiators from binding the Association and provides for ratification by the general membership of all proposed settlements. In particular, Alfred Ganung, asserted in his testimony that Rex Donnelly, the Assistant Superintendent of School, at one time served on an Association committee, received a copy of the constitution and, accordingly, was aware of its provisions. Donnelly testified for the Board and denied both being on the committee in question and having any specific knowledge of the constitution. The Association did not produce any other evidence demonstrating that Donnelly was a member of this committee and I find Donnelly was credible as to his lack of knowledge of the provisions of the constitution. Accordingly, I find that the Board was not aware of the provisions of the Association's constitution which provided for ratification of all agreements.3/

After the Board voted to ratify the contract in dispute they proceeded to implement its terms. The Association requested that the parties meet to try to resolve the difficulties between them. The Board acceded to this request. At those meetings the language of various provisions of the memorandum of agreement was discussed and in at least two instances revisions were made. However, no substantive changes were made in the contract language that would reveal a state of mind on the part of the Board members that there was in fact no contract. Similarly, the Board negotiators would not discuss money issues. The Association also introduced letters written by Board officials after the Board's ratification which referred to the ratification process of the Association. The undersigned is satisfied that in both the meetings discussed above and in the letters in question the Board's action could very well have been simply an attempt to avoid controversy. They do not necessarily admit by inference the right of ratification by the Association.

Testimony as to the existence of an expressed oral acknowledgment of the Association's need for ratification is squarely at odds. Gene Sharp, a negotiator for the Association, testified forthrightly that at the October 26 meeting he made it clear to the Board negotiators that any agreement was subject to ratification. Further, during the course of the negotiations and again on the night the memorandum of agreement was signed, Sharp stated that he had to "sell the contract." The other Association witnesses were completely in accord with Sharp. The Board witnesses testified in no uncertain terms there was no such understanding. They admitted at various times Sharp did state he had to "sell the contract," but the witnesses did not believe this meant the agreement was subject to ratification. (It is noted that this expression can simply mean that Sharp wanted to convince the members of the Association that they had a good deal.) The undersigned cannot in good conscience discredit the testimony of either side as to this issue.

To prevail, the Association has to show by a preponderance of the evidence that the Board knew of the Association negotiators' limitation of authority on the basis of past practice. It was undisputed that there were times in the past when the Association negotiators had problems getting the Association members to ratify proposed contracts. On one occasion, apparently for the 1970 contract, a Board member actually spoke to the Association membership concerning the meaning of a memorandum of agreement in order to convince the Association membership to ratify said agreement. The Board witnesses did not deny that in the past the Association did have such ratification problems. Donnelly testified, however, that he did not know what the Association meant by ratification; that is, who votes for ratification or what the internal consequences of such ratification were. Nelson Downer, chairman of the Board's negotiating team, testified that in prior years the Association had all agreements ratified but since Article II-C was incorporated into the contract, he didn't understand what the Association meant when it talked about ratification. The hearer found the Board witnesses were evasive; they attempted to avoid rather than answer questions about Association ratification. To say that the Board members did not know what the Association meant by ratification is, at best, less than honest. Also, the language of II-C is not controlling here. This language does not speak directly to whether or not the Association representatives could take binding action. Granted, in limiting only the Board representatives' power, an inference might be drawn that the Association representatives' power was not limited, but this is not clear. The language is ambiguous.4/

It is noted that II-C first went into the contract in 1970. It is not clear from the record whether the issue of ratification ever rose under the language of II-C before, but as Downer admitted the Association continued to use the term "ratification" even after II-C was incorporated into the contract. The Association witnesses testified that they saw no need to express their own right of ratification in the contract for they felt that this was always understood between the parties. This understanding was testified to in such a forthright and open manner that the undersigned finds that this was in fact the Association's understanding. In general, the Association witnesses' testimony on this issue was much more forthright and open and, on balance, the testimony on this issue was much more forthright and open and, on balance, the undersigned must discredit the testimony of the Board witnesses and find that the Board members knew that the Association reserved for its members the right of ratification, and once the contract was rejected the Board had a duty to return to the negotiations table. Accordingly, the undersigned will recommend to the Commission that they find that there is no binding contract between the parties and order that the Black Horse Pike Board of Education negotiate on demand with the Black Horse Pike Regional Education Association for the 1976-77 school year.

RECOMMENDED ORDER

Upon the basis of the foregoing it is recommended that the Black Horse Pike Regional School District Board of Education shall:

1.	Cease and desist from:

a.	Interfering with, restraining or coercing its employees in the rights guaranteed to them by this Act by unilaterally imposing terms and conditions of employment upon its employees.

b.	Refusing to negotiate in good faith with a majority representative of its employees concerning terms and conditions of employment for 1975-1976.

2.	Take the following affirmative action:

a.	Upon demand by the Association negotiate with their representatives concerning the terms and conditions of employment for the 1976-1977 academic year.

b.	Post in all school buildings, in a conspicuous place, copies of the attached notice marked as Appendix "A." Copies of such notice, on forms to be provided by the Commission, shall be posted by the Board immediately upon receipt thereof, after being signed by the Board's representative, and shall be maintained by it for a period of at least sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to its employees are customarily posted.

_____________________________

Edmund G. Gerber

Hearing Examiner

DATED:	Trenton, New Jersey

March 7, 1978