H.E. NO. 77-4

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

FREEHOLD BOROUGH TEACHERS ASSOCIATION,

Respondent,

-and-	Docket No. CE-76-9-45

FREEHOLD BOROUGH BOARD OF EDUCATION,

Charging Party.

Appearances:

For the Respondent,

Morgan & Falvo, Esqs.

By: Peter S. Falvo, Esq.

For the Charging Party,

DeMaio & Yacker, Esqs.

By: Vincent C. DeMaio, Esq.

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

On September 11, 1975 an Unfair Practice Charge was filed by the Freehold Borough Board of Education ("Board") against the Freehold Borough Teachers Association ("Association") claiming that the Association violated N.J.S.A. 34:13A-5.4(b)(3), (4)1/ and engaged in an unfair practice by violating an agreement concerning the conduct of contract negotiations. Specifically, it is alleged that the Association introduced a new demand into negotiations, [binding arbitration], after the parties had entered into an agreement that no new demands would be introduced.

It appearing to the Executive Director, Jeffrey B. Tener, that the allegations of the charge, if true, might constitute an unfair practice, a Complaint and Notice of Hearing was issued on November 21, 1975. A hearing was held on this matter pursuant to said complaint on January 8, 1976, at 1100 Raymond Boulevard, Newark, New Jersey and was reconvened on February 25, 1976 and again on April 26, 1976 at 280 Park Avenue, Freehold, New Jersey. The matter was heard before Edmund G. Gerber, Hearing Examiner for the Public Employment Relations Commission.

Both parties appeared at the hearing represented by counsel and were afforded a full opportunity to be heard, to examine, and cross-examine witnesses and to introduce relevant evidence. Both parties waived the filing of briefs. Upon the entire record in the proceedings, the Hearing Examiner finds:

1) The Freehold Borough Teachers Association is a public employee representative within the meaning of the New Jeresy Employer-Employee Relations Act, as amended, and is subject to its provisions.

2) The Freehold Borough Board of Education is a public employer within the meaning of the New Jersey Employer-Employee Relations Act, as amended, and is subject to its provisions.

3) As noted, an Unfair Practice Charge having been filed with the Commission alleging that the Freehold Borough Teachers Association has engaged in unfair practices within the meaning of the New Jersey Employer-Employee Relations Act, as amended, a question concerning an alleged violation of the Act exists and this matter is appropriately before the Commission for determination.

**

The Association is the recognized exclusive majority representative for all teachers employed by the Freehold Borough Board of Education. The Association and the Board were parties to a collective negotiations agreement that was to expire in June, 1975. On November 19, 1974, the parties commenced negotiations for a successor agreement and at this time the Association and the Board exchanged demands. Ground rules for the negotiations were established and each side represented tot he other that they had no further demands. The parties met again on December 3 and December 10. After the third meeting that negotiations stalled. The parties did not meet again until March 11, 1975, when the Association put the issue of binding arbitration on the table for the first time. The Board refused to negotiate this issue claiming a violation of the agreement of November 19 but the Association insisted that the issue of binding arbitration be included in the negotiations. Since that time the Board has refused to negotiate the issue of binding arbitration, while Association has refused to withdraw its demands to negotiate that same issue.

The Board recognizes that binding arbitration is a mandatory subject of negotiations. They argue, however, that in light of the agreement of the November 19, 1975 the Association has acted in bad faith by changing the ground rules for negotiation. Therefore, they bought this action against the Association claiming that this violation of the ground rules constitutes a Section (b)-3 violation.2/3/

The Association does not dispute that at the November 19 meeting they stated to the Board that they had no further negotiation demands. They maintain, however, at the December 10 meeting the negotiations broke down and the Board negotiators attributed this breakdown to the inexperience of the Association representatives. The Board told the Association negotiators that either the Association seek expert assistance in negotiations of the Board would have no alternative but to declare an impasse of the negotiations. An Association member asked if this meant that all agreement reached up to that point were off. The response from the Board was that "all bets were off, everything is off the table." It is the Association position that if there was an agreement on November 19, the conversation on December 10, ended any such agreement.4/

Mr. Joseph Copeland, a member of the negotiating committee for the Board, was the only witness to testify on behalf of the Board. He stated that at the December 10 meeting there was talk that the Association should seek professional help in negotiations and, further, that the parties were deadlocked over salary after just two negotiations sessions. Mr. Copeland maintained, however, that it was the Association that left the negotiation session. Further, Mr. Copeland does not recall any comments to the effect that "all bets were off."

The Association had two witnesses who were at the December 10 meeting testify. Both maintained the Board took the position that negotiations were to "start from scratch." Both witnesses demonstrated a lack of understanding of the negotiation process, and further their testimony conflicted to a degree. However, in spite of this, I found the testimony of one of them, Diane Ellison, credible. Therefore, I cannot disregard her testimony that the agreement to limit the items for negotiations came to an end at the meeting of December 10. Ms. Ellison stated that the Board took the position that "there were no agreements and if the (Association) went to the New Jersey Education Association then they would start negotiating, if we didn't then it was impasse."5/ As stated above Mr. Copeland testified only that he had no recollection of the conversation; he did not state that it never took place.

The existence of the agreement as of March 11 is an indispensable element of the charging party's case, and it must be proven by a preponderance of the evidence. I find that the Board had failed to meet its burden of proof, therefore I recommend that the Complaint be dismissed.6/

ORDER

For the reason cited above the Complaint is dismissed in its entirety.

_________________________________

Edmund G. Gerber

Hearing Examiner

DATED: August 10,1976

Trenton, New Jersey