STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

SUSSEX-WANTAGE REGIONAL BOARD

OF EDUCATION,

Respondent,

-and-	Docket No. CO-85-112-86

SUSSEX-WANTAGE EDUCATION ASSOCIATION,

Charging Party.

Appearances

For the Respondent, Clark & Leonard, Esqs.

(R. Webb Leonard, Esq.)

For the Charging Party, Zazzali, Zazzali & Kroll, Esqs.

(Paul L. Kleinbaum, Esq.)

HEARING EXAMINER'S

RECOMMENDED REPORT AND DECISION

An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the "Commission") on October 25, 1984 by the Sussex-Wantage Education Association (hereinafter the "Charging Party" or the "Association") alleging that the Sussex-Wantage Regional Board of Education (hereinafter the "Respondent" or the "Board") has 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, contrary to a past practice of at least 15 years wherein teachers were required to be in their classrooms at 8:25 a.m., the time that

students were required to report, the Respondent in September 1984 unilaterally required teachers to report at 8:20 a.m. thereby increasing pupil contact time without collective negotiations and, further, the principal of the Lawrence School threatened teachers in a faculty meeting on September 4, 1984, by stating that if the teachers attempted to contest the foregoing change the Board would punish them by making them remain in school later than had been the practice, i.e., teachers had been permitted to leave their school when their responsibilities were concluded; all of which is alleged to be a violation of N.J.S.A. 34:13A-5.4(a)(1), (3), (4) and (5) of the Act.1/

1/	These Subsections prohibit 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.

(3) Discriminating in regard to hire or tenure of employ-

ment or any term or condition of employment to encourage or

discourage employees in the exercise of the rights guaranteed

to them by this act.

(4) Discharging or otherwise discriminating against any

employee because he has signed or filed an affidavit, petition

or complaint or given any information or testimony under 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."

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 29, 1985. Pursuant to the Complaint and Notice of Hearing, a hearing was held on April 9, 1985 in Newark, New Jersey, at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. Oral argument was waived and the parties filed post-hearing briefs by May 28, 1985.

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 post-hearing briefs of 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:

FINDINGS OF FACT

1.	The Sussex-Wantage Regional Board of Education is a public employer within the meaning of the Act, as amended, and is

subject to its provisions.

2.	The Sussex-Wantage Education Association is a public employee representative within the meaning of the Act, as amended, and is subject to its provisions.

3.	The district consists of three schools as follows: Clifton E. Lawrence, housing grades K-2; Wantage, housing

grades 3-5; and Sussex, housing grades 6-8. The principal of the Lawrence School is Charles E. Lorber.

4.	The 1980-81 collective negotiations agreement between the parties provided in Article VII, Teaching Hours and Teaching Loads, para. A(1) and (2) that the arrival and departure times for all teachers "shall be designated by the Administration"; that the total in-school workday "shall" consist of seven hours and 20 minutes; and that each teacher shall be required to report for duty in the classroom at 8:25 a.m. and be permitted to leave when responsibilities are finished (R-1, p. 7). In the 1981-82 and 1982-85 collective negotiations agreements the provisions in Article VII, para. A(1) and (2) continued except that the requirement that each teacher be required to report for duty in the classroom at 8:25 a.m. was deleted (J-1, p. 7 and J-2, p. 7). Thus, the parties negotiated the deletion of the 8:25 a.m. reporting requirement.

5.	Article II(E) of J-2, supra, provides:

Except as this Agreement shall hereinafter otherwise provide, all terms and conditions of employment applicable on the effective date of this Agreement to employees covered by this Agreement as established by the rules, regulations and/or policies of the Board in force on said date, shall continue to be so applicable during the term of this Agreement.

6.	Prior to September 1984 the practice in each of the three schools was for teachers to sign in at 8:20 a.m. and report to the classroom at 8:25 a.m. Except for the Lawrence School, which has only been in existence for a little over three years, the sign in and reporting practice dated back at least 16 years. During the five minutes between 8:20 a.m. and 8:25 a.m. no students were in the

classroom and teachers were free to perform such tasks as organizing the room for the day. At 8:25 a.m. the students appeared and the normal teaching functions commenced. No instructional function occurred during the foregoing five minutes.

7.	Commencing in September 1984 the Administration required teachers in the three schools to report to the classroom at 8:20 a.m., the same time that they sign in, with the students also reporting at 8:20 a.m. instead of 8:25 a.m. The five minutes of preparation that teachers previously had was eliminated and took place, if at all, prior to 8:20 a.m.

8.	The Superintendent, Robert Clark, explained the Board's reason for requiring the students to report to the classroom five minutes earlier, commencing in September 1984. He stressed the need for flexibility in solving problems in the delivery of students in the Lake Nepaulen and "Hills" areas, all of which dictated the necessity of delivering students five minutes earlier. The President of the Association, Trudy Bergensten, acknowledged on cross-examination that there had previously been a problem with buses and students. She also stated her belief that the Board has the right to require teachers to report at 8:20 a.m. under the

agreement. Finally, Bergensten acknowledged on cross-examination that teachers were not required to report any earlier since September 1984 than prior thereto.

9.	On September 4, 1984 Lorber, the Principal of the Lawrence School, conducted a faculty meeting where he reminded the

faculty that the agreement called for a total school workday of seven hours and 20 minutes and that the agreement does not specify when the arrival or departure times for teachers shall be. In a memorandum of this meeting to Superintendent Clark dated October 31, 1984, Lorber stated that if the teachers felt they could not begin to supervise students until 8:25 a.m. then he felt that the entire school day would need to be extended in order to incorporate the seven hours and 20 minutes from a beginning time of 8:25 a.m. (CP-1). The Association has alleged that Lorber's statements at the September 4th meeting constituted a threat. However, the Hearing Examiner, based on the testimony of Lorber, accepts his denial that he told the teachers at the Lawrence School faculty meeting on September 4th that they would all have to work seven hours and 20 minutes. Note is taken of the fact that Lorber also testified that he told teachers that they would have to stay until their duties were completed and that this might entail staying until 3:40 p.m., which would be seven hours and 20 minutes from the starting time of 8:20 a.m.

10.	Bergensten on behalf of the Association met with Superintendent Clark on September 18, 1984 and protested the unilateral decision to change the starting time from 8:25 a.m. to 8:20 a.m.

11.	Although the Unfair Practice Charge does not complain of any changes regarding dismissal times there was credible testimony that the dismissal times have not changed and remain the same as prior to September 1984. The seven hours and 20 minutes

workday has apparently never been enforced with the practice as follows: at all three schools the teachers leave after the students leave by bus; at Lawrence the teachers leave between 3:05 p.m. and 3:25 p.m.; at Sussex the teachers leave shortly after 3:00 p.m. unless they are detained to 3:20 p.m. to 3:25 p.m.; and at Wantage the teachers leave between 3:02 p.m. and 3:25 p.m. Since the full contractual workday would entail departure at either 3:40 p.m. or 3:45 p.m. it is a fact that the full workday has never been enforced.

DISCUSSION AND ANALYSIS

The Respondent Board Did Not Violate Subsections (a)(1) And (5) Of The Act When In September 1984 It Unilaterally Increased Teacher-Pupil Contact Time By Five Minutes Per Day.2/

In finding that the Respondent Board has not violated Subsections (a)(1) and (5) of the Act the Hearing Examiner is fully aware of the extensive Commission and court precedent that an increase in teacher-pupil contact time is mandatorily negotiable: Middlesex County College, P.E.R.C. No. 78-13, 4 NJPER 47, 50 (1977); Dover Board of Education, P.E.R.C. No. 81-110, 7 NJPER 161 (1981); Maywood Board of Education, P.E.R.C. No. 85-36, 10 NJPER 571 (1984); Byram Township Board of Education, 152 N.J.Super. 12, 25, 26 (App.

2/	The Charging Party failed to adduce any evidence that the Board Violated Subsection (a)(4) of the Act by its conduct herein and, thus, the Hearing Examiner will recommend dismissal of this allegation. Cf. Randolph Twp. Board of

Education, P.E.R.C. No. 82-119, 8 NJPER 365, 367 (1982).

Div. 1977); and Maywood Board of Education, 168 N.J. Super. 45, 59 (App. Div. 1979).

However, the mere fact that there exists the above legal proposition that an increase in pupil-contact time is mandatorily negotiable does not dispose of the case at hand. Thus, the Charging Party points to a longstanding practice of many years wherein teachers signed in at 8:20 a.m. but did not report to the classroom and make contact with students until 8:25 a.m. It was this practice that was unilaterally changed by the Board in September 1984 when teachers were required in the three schools to report to the classroom at 8:20 a.m., the same time that they signed in, with students also reporting at 8:20 a.m. Thus, five minutes of preparation that the teachers previously had was eliminated and took place, if at all, prior to 8:20 a.m. See Findings of Fact Nos. 6 & 7, supra.

The Charging Party also points to Article II(E) of the current agreement which provides that "Except as this Agreement shall hereinafter otherwise provide..." all terms and conditions of employment "as established by the rules, regulations and/or policies of the Board..." shall continue during the term of the Agreement (see Finding of Fact No. 5, supra). This provision of J-2 is urged as the "past practice" clause, which allegedly prevents the Board from unilaterally increasing pupil-contact time during the term of the agreement. However, the Association overlooks a well-settled principle in weighing a past practice, past practice clauses and express provisions of a contract. The Commission early decided in

New Brunswick Board of Education, P.E.R.C. No. 78-47, 4 NJPER 84 (1977) that where there is a clear and unambiguous contract

provision granting a benefit to employees, but through past practice the employer has granted a more generous benefit, the contract provision takes precedence over the past practice. "...The employer can only be held to the obligation he contracted for and, therefore, he may unilaterally return to the lesser benefits..." (4 NJPER at 85).

The Hearing Examiner is persuaded that the instant case is governed by two decisions of the Commission involving Randolph Township Board of Education, P.E.R.C. No. 81-73, 7 NJPER 23 (1980) [Randolph I] and P.E.R.C. No. 83-41, 8 NJPER 600 (1982) [Randolph II]. In both Randolph I and Randolph II the agreement provided in part that the total workday would not exceed seven hours and 30 minutes. In Randolph I a speech correction specialist had been required to be present in school until 3:15 p.m. as had all other teachers by custom for approximately nine years. The Board unilaterally changed the schedule of the speech correction specialist by extending her work time from 3:15 p.m. to 3:30 p.m. twice a week. The Hearing Examiner found that the subject of the change was a mandatorily negotiable term and condition of employment but concluded that there was no violation of the Act since the change in schedule was within the contractual limitations, which took precedence over any past practice. The Commission cited the Appellate Division decision in Maywood Board of Education, supra, in affirming the Hearing Examiner's decision that the Board did not

violate the Act, affirming that past practice should not control where the mutual intent of the parties concerning work hours "...can be

discerned with no further guide than a simple reading of the pertinent language..." (7 NJPER at 24).

In Randolph II the agreement provided that teachers would receive one preparation period per day but did not specify the total amount of preparation time to which they were entitled. When the Board unilaterally reduced the preparation time from 200 minutes to 150 minutes a week, the Association asserted a violation of past practice, relying upon a contract clause to that effect. The Association did not complain that the teaching load was increased nor that the workday was lengthened. The Hearing Examiner cited New Brunswick, supra, and Randolph I, supra, in concluding that the 50-

minute decrease in preparation time and a corresponding 50-minute increase in teaching load was permissible under the terms of the agreement. He stated that the legal theory advanced by the Association would permit an express term of the contract to be negated through the assertion of a past practice, contrary to the decisions of the Commission and the courts (8 NJPER at 503). The Commission affirmed the Hearing Examiner essentially for the reasons cited by him and dismissed the Complaint (8 NJPER 600, 601).

The Hearing Examiner also notes two additional decisions of the Commission which dismissed Complaints on the ground that an increase in classroom time was permitted by the terms of the collective negotiations agreement, in that in neither case was the contractual workday exceeded: Pascack Valley Reg. H.S. Board of

Education, P.E.R.C. No. 81-61, 6 NJPER 554 (1980) and Bound Brook Board of Education, P.E.R.C. No. 83-11, 8 NJPER 439 (1982).

In conclusion several additional points are noted, namely, Article II(E) of J-2, supra, specifically excludes from past practice considerations express provisions of the agreement such as the length of the teacher workday in Article VII, which provides that it shall be of seven hours and 20 minutes duration. There has been no increase in the length of the workday beyond that limit and, in fact, the Board has continued to permit teachers to leave when their responsibilities are finished which, again, has not resulted in a workday in excess of seven hours and 20 minutes. It is also noted that Article VII has always provided that arrival and departure times for teachers "...shall be designated by the Administration...," a provision which clearly entitled the Board to adjust arrival and departure times within the context of the seven hours and 20 minutes workday. Finally, the Hearing Examiner has in no way based his determination that the Board did not violate the Act upon a finding that the change herein was de minimis.

The Respondent Board Did Not Violate Subsections (a)(1) And (3) Of The Act By The Conduct Of Its Principal At The Lawrence School On September 4, 1984.

Suffice it to say that if the Hearing Examiner had been persuaded that the Board violated Subsections (a)(1) and (5) of the Act when it unilaterally increased pupil contact time, supra, the Board may well have been found to have also violated Subsections

(a)(1) and (3) by the conduct of Lorber on September 4, 1984. However, Lorber in his statement to his teachers on September 4, 1984 was doing nothing more than reminding them that the contractual

workday was seven hours and 20 minutes and that if need be the workday could be extended to that limitation if the teachers felt they could not adjust to the five-minute change in pupil contact time. To enforce the contract by its literal terms does not appear to the Hearing Examiner to afford a basis for finding a violation of the Act.

Accordingly, the Hearing Examiner will recommend dismissal of the allegations that the Board violated Subsections (a)(1) and (3) of the Act by the conduct of Lorber on September 4, 1984.

* * * *

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

CONCLUSIONS OF LAW

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

5.4(a)(1) and (5) when it unilaterally increased pupil-contact time by five minutes in September 1984.

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

5.4(a)(1) and (3) when the principal of the Lawrence School threatened to enforce the full workday of seven hours and 20 minutes at a meeting of the faculty on September 4, 1984.

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

5.4(a)(4) by its conduct herein.

RECOMMENDED ORDER

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

Alan R. Howe

Hearing Examiner

Dated:

Trenton, New Jersey