STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

NORTH BRUNSWICK TOWNSHIP BOARD OF

EDUCATION,

Respondent,

-and-	Docket No. CO-85-11-84

NORTH BRUNSWICK TOWNSHIP EDUCATION

ASSOCIATION,

Charging Party.

Appearances:

For the Respondent

Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl, Esqs.

(Anthony B. Vignuolo, Esq.)

For the Charging Party

Klausner & Hunter, Esqs.

(Stephen B. Hunter, Esq.)

HEARING EXAMINER'S

RECOMMENDED REPORT AND DECISION

ON CROSS MOTIONS FOR SUMMARY JUDGMENT

An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the "Commission") on July 9, 1984 by the North Brunswick Township Education Association (hereinafter the "Charging Party" or the "Association") alleging that the North Brunswick Township Board of Education (hereinafter the "Respondent" or the "Board") had 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 on or about February l4, 1984, the Respondent entered into

individual unilateral negotiations with a member of the unit, as a result of which the individual was reassigned from a 10-month clerk/

typist position at step 4 of the secretaries' salary guide to a 12-

month accounts payable clerk at step 7 of the salary guide, which violated the Association's right to be the exclusive negotiator for all members of the unit; all of which is alleged to be a violation of N.J.S.A 34:13A-5.4(a)(1) and (5) of the Act.1/
It appearing that the allegations of the Unfair Practice Charge, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on January 24, 1985. Pursuant to the Complaint and Notice of Hearing, the parties entered into a written stipulation of facts and waived an evidential hearing, which stipulation was executed on April 4, 1985. Thereafter, the Association filed a Motion for Summary Judgment on May 7, 1985 with a supporting brief and on May 17, 1985, the Respondent filed a Cross-Motion for Summary Judgment with a supporting brief. The Association filed a reply on May 28, 1985.

An Unfair Practice Charge having been filed with the Commission, a question concerning alleged violations of the Act, as

1/	These Subsections prohibits public employers, their representatives or agents from:

"(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."

amended, exists and, after consideration of the stipulation of facts, supra, and the briefs of the parties in support of their respective Motions for Summary Judgment, the matter is appropriately before the Commission by its designated Hearing Examiner for determination.

Upon the entire stipulated record, the Hearing Examiner makes the following:

FINDINGS OF FACT

1.	The North Brunswick Township Board of Education is a public employer within the meaning of the Act, as amended, and is subject to its provisions.

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

3.	The current collective negotiations agreement between the parties is effective during the term July 1, 1983 through June 30, 1986 (Exhibit "A"). Article I, Recognition, recognizes the Association as the exclusive and sole representative for, among others, secretaries and clerks (Exhibit "A," pp. 1, 2). Appendix IV thereto contains the salary guides for secretarial and clerical employees for 1983 through 1986.

4.	At a regular meeting of the Board on February 14, 1984, it approved a change in the classification of Carolyn Tavalare for the 1983-84 school year, which change was as follows: Tavalare, who was a 10-month clerk/typist at step 4 ($9,590.00), was appointed

a 12-month accounts payable clerk, step 7, at an annual salary of $14,373.00, pro rated from February 16, 1984 (Exhibit "B," p. 10).

5.	Article XIV(A), Reclassification, of the current agreement provides as follows:
Whenever a clerical employee shall be reclassified due to an opening in the system, the salary shall be adjusted accordingly, but in no event shall the employee be penalized salary-wise through rclassification, but subsequent salary negotiations will be based on the newly assigned category. (Exhibit "A," p. 24)(emphasis supplied).

6.	The Respondent at no time prior to the above personnel action involving Tavalare negotiated the issue of a change in compensation with the Association as the majority representative (Stipulation of Facts No. 6).

7.	The Respondent maintains and has maintained that the initial starting salary for anyone filling the then vacant position of a 12-month accounts payable clerk is wholly an area of managerial prerogative and not subject to negotiations with the Association (Stipulation of Facts No. 7).

8.	It is undisputed that the Respondent advertised and posted the position of 12-month accounts payable clerk in accordance with the collective negotiations agreement, supra.

9.	The Respondent has an existing unwritten practice of considering relevant private sector secretarial and clerical experience in salary guide placement determinations for its employees but there are no fixed criteria applied by the Responent in said matters of placement (Stipulation of Facts No. 10). The

employment history of Tavalare between September 29, 1980 and June 30, 1985 is annexed to the Stipulation of Facts as Exhibit "D," disclosing only her employment with the Board.

10.	The Association by the instant unfair practice charge is not seeking to rescind the Board's personnel action concerning the compensation for Tavalare (Stipulation of Facts No. 11).

DISCUSSION AND ANALYSIS

The Respondent Board Did Not Violate Subsections (a)(1) And (5) Of The Act When On February 14, 1984 It Unilaterally And Without Negotiations With the Association Changed The Classification Of Carolyn Tavalare From The Position Of 10-Month Clerk/Typist (Step 4) To 12-Month Accounts Payable Clerk (Step 7).

The concept of "exclusivity" was adopted in the public sector in New Jersey by the Supreme Court in Lullo v.International Assn. of Firefighters, 55 N.J. 409 (1970) and has not been departed from since. Thus, where a majority representative has been voluntarily recognized or certified by the Commission a public employer acts at its peril when it negotiates with an individual employee in derogation of the majority represenative's right to exclusive representation of the said individual employee. Tavalare is such an employee in this case.

See also: Galloway Twp. Board of Education v. Galloway Twp. Assn. of Educational Secretaries, 78 N.J. 1 (1978) and NLRB v. Everbrite Electric Signs, Inc., 562 F.2d 405, 96 LRRM 2129 (7th Cir. 1977).

The Charging Party in its main brief quotes Article XIV(A), Reclassification, in support of its position that the employer violated the Act as alleged when it unilaterally reclassified Tavalare on February 14, 1984 from clerk/typist (step 4) to accounts payable clerk (step 7) without negotiations with the Association. The Respondent in its main brief, in reply to the Association's main brief, failed to discuss Article XIV(A) and instead relied upon N.J.S.A. 18A:29-9, which deals with members of the teaching staff and the manner of their initial place on the salary schedule as being subject to agreement by the teaching staff member and the board of education. Several Commissioner of Education decisions are cited as supporting what the Board did in the instant case regarding Tavalare.

The Hearing Examiner finds that the Board's reference to Title 18A is inapposite and of no assistance to the Hearing Examiner in deciding the instant dispute. Similarly, the Hearing Examiner fails to see the relevance of the Commission's decision in Oakland Board of Education, P.E.R.C. No 82-125, 8 NJPER 378 (1982), aff'd App. Div. A-4975-81T3 (1983), which is cited by the Association.

Having analyzed fully the arguments of the parties in their respective briefs, the Hearing Examiner is persuaded that the case can be disposed of on the basis of Article XIV(A) in the current agreement, supra. While, as a general rule, the Board would be precluded from "negotiations" with an individual employee under Lullo, supra, the Hearing Examiner finds and concludes that any

contention by the Association that the doctrine of exclusivity has been violated by the Board herein must fall inasmuch as there has been a clear and unmistakable waiver by the Association in Article XIV(A) of the current agreement.

The doctrine of contractual waiver in the public sector is the law of this State: Red Bank Regional Education Assn. v. Red Bank Regional H.S. Board of Education, 78 N.J. 122, 140 (1978) and Dover Board of Education, H.E. No. 81-23, 7 NJPER 65, 68, 69 (1981), aff'd P.E.R.C. No. 81-110, 7 NJPER 161 (1981). The requisite to be met in finding such a waiver is that it be "...clearly and unmistakably established, and the contractual language alleged to constitute a waiver will not be read expansively..." (Red Bank, 78 N.J. at 140).

Turning now to an analysis of Article XIV(A), and why, in the opinion of the Hearing Examiner, it constitutes a waiver by the Association of any right to object to the reclassification of Talavare from clerk/typist (step 4) to accounts payable clerk (step 7), it is first noted that the parties have recognized the right of the Board (1) to reclassify a clerical employee due to an opening in the system; and (2) to adjust the salary of the reclassified clerical employee "accordingly." This is exactly what was done by the Board in the case of Tavalare, namely, she was reclassified from clerk/typist to accounts payable clerk due to an obvious opening, and thereafter Tavalare's salary was adjusted accordingly, in that she was placed at step 7 on the clerical salary

guide. The only limitation imposed on the Board by Article XIV(A) is that any reclassified clerical employee not be penalized salary-

wise (and Tavalare was not) and that "subsequent salary negotiations" must be based upon the "newly assigned category." Thus, if the Board were thereafter unilaterally to adjust Tavalare's salary upward from step 7, this would be a violation of Article XIV(A) and might well be a violation of Subsection (a)(5) of the Act, assuming that a Complaint was not foreclosed under State of N.J. (Dept. of Human Services), P.E.R.C. No. 84-148, 10 NJPER 419, 421 (1984).

The Hearing Examiner having concluded that the Association has clearly and unmistakably waived any right to complain about the Board's unilateral reclassification of Tavalare in view of Article XIV(A), supra, and this provision clearly governing the dispute herein, the Complaint must be dismissed.

* * * *

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

CONCLUSION OF LAW

The Respondent Board did not violate N.J.S.A. 34:13A-5.4

(a)(1) and (5) when on February 14, 1984 it unilaterally reclassified Carolyn Tavalare from her position as a 10-month clerk/typist (step 4) to a 12-month accounts payable clerk (step 7).

RECOMMENDED ORDER

The Hearing Examiner recommends that the Commission ORDER that the Complaint be dismissed in its entirety.

Alan R. Howe

Hearing Examiner

Dated: June l9, l985

Trenton, New Jersey