H.E. NO. 77-4 1.
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 ( A Board @ ) against the Freehold Borough Teachers Association ( A 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 A 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 A 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 A 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 A 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
1/ ' (3) and (4) provide in pertinent part that, A Employees organizations, their representatives or agents are prohibited from: (3) Refusing to negotiate in good faith with a public employer, if they are the majority representative of employees in an appropriate unit concerning terms and conditions of employment of employees in that unit. (4) Refusing to reduce a negotiated agreement to writing and to sign such agreement. @
2/ The Association here did not file a counter charge; the parties stated on the record, however, that they have an agreement that the Association would drop its demand for binding arbitration if the Commission found that they committed an unfair practice and, conversely, the Board would negotiate over the issue of binding arbitration if the Association did not commit an unfair practices.
3/ It is noted that in the narrative of the Board = s charge, which incorporated in the complaint, it is stated that the Association threatened to strike over the issue of binding arbitration. The Board never made the argument that the strike threat constituted a separate per se refusal to negotiate. As stated by the attorney for the petitioner in his opening statement at the hearing A We are here for your determination on the issue of whether or not the issue of binding arbitration is negotiable under the circumstances @ . It can only be assumed by the Hearing Examiner that the petitioner did not seek a determination of this issue, therefore no determination will be made.
Similarly there was testimony at the hearing concerning a so-called job action. This issue was not raised in the pleading nor was there any legal argument made by the parties concerning said action, therefore no determination will be made as to whether it was a per se violation.
4/ The Association also argues that binding arbitration is merely a counter proposal to the existing grievance procedure clause in the contract. For reasons expressed below it is not necessary to consider this argument here.
5/ It should be noted that the Association did go to the NJEA for assistance and one of their representatives was present at the subsequent negotiation session of March 11.
6/ Having found that the charging party has not proved the factual allegations of the complaint and in the absence of any legal arguments by either party, I find it unnecessary to consider the underlying legal arguments of the charging party.
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