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 June 29, 1979. Pursuant to the Complaint and Notice of Hearing, hearings were held on September 28 and October 22, 1979 ^2/ in Newark, New Jersey, at which time the parties were given an opportunity to examiner witnesses, present relevant evidence and argue orally. Both parties filed post-hearing briefs by November 29, 1979.

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:

within the meaning of the Act, as amended, as is subject to its provisions

2. The Clifton Custodial Employees Association is a public

employee representative within the meaning of the Act, as amended, and is subject to its provisions.

3. The Association has been the collective negotiations

representative for custodial employees of the Board for five years.

4. The current collective negotiations agreement,

effective during the term July 1, 1978 to June 30, 1980, was ratified by the Association on February 27, 1979, approved by the Board on March 21, 1979 and executed on March 22, 1979 (J-9). The current agreement does not contain a provision on the schedule of hours of work.^3/

5. Negotiations for the current agreement commenced in the

Summer of 1977. Association negotiator Charles T. Tucker, an N.J.E.A. Consultant, entered the negotiations in September 1978.

6. Under date of January 18, 1979, Ronald Piliere, the

Secretary-Business Administrator of the Board, issued a Bulletin to all Principals and Head Custodians, advising that the hours of the custodians in the Board = s 14 Elementary Schools were to be changed as of February 1, 1979, as follows: the 1st custodian was to be scheduled from 7:00 a.m. to 4:00 p.m., instead of from 7:00 a.m. to 4:00 p.m. or 7:30 a.m. to 4:30 p.m.; the 2nd custodian was to be scheduled from 9:00 a.m. to 6:00 p.m., instead of from 2:00 p.m. to 11:00 p.m. or 3:00 p.m. to 12 midnight; and the 3rd custodian was to be scheduled from 2:00 p.m. to 11:00 p.m., instead of 11:00 p.m. to 7:00 a.m. or 12 midnight to 8:00 a.m. (See J-7). ^4/

7. At a negotiations meeting between the parties on

January 22, 1979 Mr. Tucker raised the proposed hours change with Edward Neumann, the Chairman of the Board = s negotiating team, and according to Mr. Tucker, Mr. Neumann said that the Board would not negotiate the proposed hours change.^5/

8. The Board did not approve the Memorandum of Agreement

at a special meeting of the Board on February 28, 1979, notwithstanding that Mr. Neumann had recommended ratification. The reason for the Board = s inaction was an open issue on the wages for a certain janitress. As noted previously, the Association had ratified the Memorandum of Agreement on February 27, 1979.

9. On March 6, 1979 Mr. Neumann returned a telephone call

to Mr. Tucker, in which the matter of the wages for the janitress was discussed and Mr. Tucker said that it was A resolved. @ According to Mr. Neumann, whom the Hearing Examiner credits, Mr. Tucker then said that he wanted to get the contract signed first and then discuss the questions of hours. Mr. Neumann declined, stating that the Board did not want a A grievance @ after the signing of the contract.^{6 /}

10. William J. Flynn, an N.J.E.A. Field Representative and

Mr. Tucker = s superior in negotiations, wrote to Mr. Tucker on March 7, 1979, in which he advised that he had spoken with Mr. English, the Board = s attorney, that day and Mr. English assured him that the Board was willing to A discuss @ ^7/ the proposed change in hours for custodians (J-2). Notwithstanding this communication on March 7, the Association = s President, Arthur DeLotto, executed a Memorandum of Agreement with the President of the Board, Richard Stockinger, on March 22, 1979 (J-9) without the matter of the hours for custodians having been negotiated.

11. Under date of March 29, 1979 Mr. Tucker wrote to Mr.

Neumann requesting that negotiations commence on the recent changes in the hours of custodians and requested that, A ...the changes in work hours...be rolled back until negotiations are concluded. @ (J-3). This was followed up by Mr. Tucker on April 25, 1979 when he wrote to Mr. Stockinger, the President of the Board, reciting the fact that he had written to Mr. Neumann on March 29 but had received no response (see J-4). Mr. English, the attorney for the Board, responded to Mr. Tucker on June 1, 1979 (J-5), essentially stating that Mr. Tucker = s offer to negotiate came too late, the Memorandum of Agreement having been approved by the Board on March 21, 1979 and executed by the parties on March 22, 1979.

12. Mr. Tucker testified that at the final negotiations

meeting, February 23, 1979, he said at one point A ...we = ll have to appeal to P.E.R.C. to see if it is negotiable @ (1 Tr. 45) after the Board = s negotiators allegedly stated that the hours change was non-negotiable. The Hearing Examiner does not credit Mr. Tucker = s testimony that the Board = s negotiators refused to negotiate on the subject of the hours change for custodians at this meeting in view of his prior finding that at least one negotiating meeting in February 1979 the Board = s negotiators, Mr. Neumann and Mrs. Szott, indicated their willingness to negotiate. ^8/ The Hearing Examiner does credit Mr. Tucker = s testimony to the extent that at least one negotiations meeting he stated that if the Board refused to negotiate on the subject then A we = ll have to appeal to P.E.R.C. @ ^9/

13. Although the Charging Party = s evidence made at least

one reference to a shift differential being denied certain custodians (1 Tr. 10) there was insufficient evidence adduced for the Hearing Examiner to fashion a monetary remedy in the event that the unfair practice charge is sustained.

Act, and derivatively Subsection (a)(1), when it unilaterally implemented a change in the hours of certain custodians on February 1, 1979 without prior negotiations with the Charging Party?

2. Did the Charging Party waive its right to negotiations

on the hours change when it executed the current collective negotiations agreement on March 22, 1979 without first obtaining an agreement by the Respondent that the matter of negotiations on the hours change was still open and unresolved?

At this point in time it is clear beyond doubt that working hours (shifts, starting times, etc.) are a term and condition of employment.

The Supreme court of New Jersey in Board of Education of Englewood v. Englewood Teachers Ass = n., 64 N.J. 1 (1973) said: A Surely working hours and compensation are terms and conditions of employment within the contemplation of the Employer-Employee Relations Act. Those matters...would appear to be the items most evidently in the legislative mind... @ (64 N.J . at 6, 7) (Emphasis supplied).

Thereafter the Commission in Hillside Board of Education , P.E.R.C. No. 76-11, 1 NJPER 55 (1975) considered a dispute concerning a change in work hours, without an increase in total working time, and said:

A The Commission finds that this issue...is controlled by Englewood ...and is within the scope of collective negotiations...(I)t cannot be disputed that, as the new schedule alters the hours of their employment...it is a term and condition of employment. @ (1 NJPER at 57).

The Commission next considered the matter of a change of hours in Galloway Township Board of Education v. Galloway Township Association of Educational Secretaries , P.E.R.C. No. 76- 31, 2 NJPER 182 (1976) where it found that a unilateral alteration of shift hours related to terms and conditions of employment and that the Board there violated Subsections (a)(1) and (5) of the Act when it failed to negotiate the changes in hours. On appeal, the Appellate Division affirmed the Commission = s remedial order, which had restored the status quo with respect to shift hours, stating:

A Unquestionably, the alteration of two secretaries = working hours and the reduction in four other secretaries = total working day effected changes in the terms and conditions of their employment . We affirm the determination that both the announcement at the time made and the implementation of the changes had a chilling effect on the right of collective negotiations and amounted to a refusal to negotiate in good faith. @ (149 N.J. Super. 346, 351) ^10/ (Emphasis supplied).

Based on the foregoing authorities the Hearing Examiner finds and concludes that the Respondent violated Subsection (a) (5) of the Act, and derivatively Subsection (a)(1), ^11/ when it unilaterally, and without prior negotiations, notified its custodians of a change in their shift hours and then implemented the unilateral decision on February 1, 1979. ^12/

The Charging Party Has Not Waived Its Right To Negotiations With Respect To The Respondent = s Unilateral Decision To Change The Hours Of Certain Custodians Effective February 1, 1979.

The Hearing Examiner finds and concludes that the Charging Party cannot be deprived of its right to negotiate the shift hours change under the doctrine of waiver. Admittedly, the Association complicated the matter by having ratified and executed the current collective negotiations agreement without specific provision for or reservation of its right to negotiate the matter subsequent to March 22, 1979, the date of execution of the agreement.

In so concluding, the Hearing Examiner notes that Mr. Tucker on at least one occasion in negotiations indicated to the Board = s negotiators that an A appeal to P.E.R.C. @ would be necessary if the Board refused to negotiate on the shift hours change. Further, Mr. Tucker made reference to A P.E.R.C. @ in his letter to the Board President on April 25, 1979 (J-4). Also, the filing of the instant Charge on May 29, 1979 preceded the letter from the Board = s attorney, dated June 1, 1979 (J-5), in which he stated that the Board A ...was under no obligation to reopen negotiations @ after the ratification of the current agreement by the Board.

The Hearing Examiner takes especial note of the fact that the Commission has been most sparing in applying the doctrine of waiver by a party of its right to negotiate unilateral changes in terms and conditions of employment. ^13/ In the absence herein of clear, convincing, unmistakable and unequivocable evidence of a waiver by the instant Charging Party of its statutory right to negotiate, the Hearing Examiner is unwilling to apply the doctrine of waiver based on the instant record.

* * * *

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

A. That the Respondent Board cease and desist from:

1. Interfering with, restraining or coercing its

custodians in the exercise of the rights guaranteed to them by the Act, particularly, by refusing to negotiate in good faith with the Association with respect to changes in shift hours of custodians.

2. Refusing to negotiate in good faith with the

Association concerning terms and conditions of employment, including unilateral implementation of changes in the shift hours of custodians in the negotiations unit represented by the Association.

B. That the Respondent Board take the following

affirmative action:

1. Within sixty (60) days hereof, restore the

status quo ante as of February 1, 1979 with respect to the shift hours of those custodians whose hours were changed and thereafter, upon demand, negotiate in good faith any proposed changes in the shift hours of custodians with the Association prior to implementation.

2. Post at all places where notices to employees

are customarily posted copies of the attached notice marked Appendix A A @ . Copies of such notice, on forms to be provided by the Commission, shall be posted immediately by the Respondent upon receipt thereof, after being signed by the Respondent = s representative, and shall be maintained by it for a period of at least sixty (60 consecutive days thereafter. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced or covered by other material.

3. Notify the Director of Unfair Practices

within twenty (20) days of receipt what steps the Respondent has taken to comply herewith.

Alan R. Howe

Hearing Examiner

Dated: December 4, 1979

1/ These Subsections prohibit employers, their representatives or agents from: A (1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this Act. A (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. @
2/ The delay in hearings was due, in the first instance, to the unavailability of witnesses for the Charging Party due to vacations and, thereafter, to accommodating the schedules of counsel for the parties and the Hearing Examiner.
3/ The said agreement does contain a provision on overtime and minimum overtime as well as a night shift differential (see J-9, p. 2).
4/ A clarifying Bulletin was issued by Mr. Piliere under date of January 25, 1979, the content of which does not substantially modify what has been stated heretofore (J-8). This hours change was implemented on February 1st.
5/ There is no dispute but that the Board = s negotiating team took the position that the proposed hours change was not negotiable January 22, 1979. However, the Hearing Examiner credits Respondent = s witnesses, Mr. Neumann and Kay Szott, the second member of the Board = s negotiating team, that after the Board = s attorney, Mr. English, advised the Board to negotiate, the Board = s negotiating team thereafter offered to negotiate the question of a proposed change in hours for custodians at least during one negotiating meeting in February 1979, which occurred prior to the Association = s ratification of the Memorandum of Agreement on February 27, 1979.
6/ Mr. Tucker acknowledged that he received a telephone call from Mr. Neumann sometime after February 28, 1979. Mr. Tucker acknowledged that the wages of the janitress were discussed but he denied that the question of a change of hours for custodians was discussed. As noted previously, the Hearing Examiner credits Mr. Neumann = s and Mrs. Szott = s testimony that the matter of hours was discussed along the lines of their testimony (footnote 5, supra).
7/ The Hearing Examiner construes this to mean A negotiate @ in view of the Board = s stated willingness to A negotiate @ the matter of custodian = s hours at least one meeting in February 1979 (see footnote 5, supra).
8/ See footnote 5, supra.
9/ It is noted that Mr. Tucker made further reference to A P.E.R.C. @ in his letter to Mr. Stockinger, the Board President, under date of April 25, 1979 (J-4).
10/ Although there was no appeal to the Supreme court from this aspect of the decision of the Appellate Division, the Supreme Court nevertheless noted its agreement with the resolution of this issue below: 78 N.J. 1, 8. See also, the Commission = s decisions in Board of Education of the Township of Willingboro, P.E.R.C. No. 78-20, 3 NJPER 369 (1977), appeal dismissed by stipulation, App. Div., Docket No. A- 1035-77 (1978) and North Brunswick Township Board of Education, P.E.R.C. 79-14, 4 NJPER 451 (1978), aff= d. App. Div., Docket No. A-698-78 (1979).
11/ See Galloway Township Board of Education, P.E.R.C. No. 77-3, 2 NJPER 254, 255 (1976).
12/ The Hearing Examiner distinguishes the recent Appellate Division decision in Irvington P.B.A. v. Town of Irvington , Docket No. A -5223-77 on the basis of the Court = s statement with respect to Galloway , supra, that: A ...the importance of managing a police department cannot be equated with the need of a board of education to unilaterally fix the working hours of its secretaries. @ Also, the Board herein is not insulated from the finding of a violation by the fact that its negotiators offered to negotiate the hours change at least once in February 1979. This offer to negotiate came after the fait accompli of implementation on February 1, 1979. An appropriate remedy will be recommended to offset the unfair advantage inuring to the Board by its unilateral implementation of the change in hours before the offer to negotiate.
13/ See, for example, North Brunswick Township Board of Education, supra, and New Jersey Institute of Technology, P.E.R.C. No. 80-54, 5 NJPER (1979). Compare Township of West Windsor , P.E.R.C. No. 79-79, 5 NJPER 193 (1979).