H.E. NO. 93-21

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

EAST HANOVER TOWNSHIP

BOARD OF EDUCATION,

Respondent,

-and-
Docket No. CO-H-92-240

EAST HANOVER EDUCATION ASSOCIATION

Charging Party.

Appearances:

For the Respondent, Litvak & Accardi, attorneys

(Joseph S. Accardi, of counsel)

For the Charging Party, Bucceri & Pincus, attorneys

(Sheldon H. Pincus, of counsel)

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

An Unfair Practice Charge was filed with the Public Employment Relations Commission ("Commission") on January 29, 1992, by the East Hanover Education Association ("Charging Party" or "Association") alleging that East Hanover Township Board of Education ("Respondent" or "Board") has engaged in unfair practices within the meaning of the New Jersey Employer-Employee Relations Act, as amended, N.J.S.A. 34:l3A-1 et seq. ("Act"), in that the Secretaries within the collective negotiations unit were, prior to November 1991, permitted to attend the annual NJEA convention without loss of pay upon presentation of a certificate of attendance pursuant to N.J.S.A. 18A:31-2; however, beginning with the November

1991 NJEA Convention, those secretaries wishing to attend were required to submit a request for a "professional day," subject to approval and to prepare a "Professional Day Report Form," detailing the topics of workshops attended, etc. and to present a certificate of attendance; all of which was alleged to be in violation of N.J.S.A. 34:l3A-5.4(a)(1) and (5) of the Act.1/

A Complaint and Notice of Hearing was issued on April 15, 1992. Following one adjournment by agreement, a hearing was held on September 23, 1992, in Newark, New Jersey, at which time the parties were given an opportunity to present relevant evidence, examine and cross-examine witnesses and argue orally. Oral argument was waived (Tr 79 , 80) and the parties filed post-hearing briefs by November 19, 1992.

* * * *

Upon the entire record, I make the following:

FINDINGS OF FACT

1.	The East Hanover Township Board of Education is a public employer within the meaning of the Act, as amended, and, additionally, the East Hanover Education Association is a public employee within the meaning of the same Act.

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. (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 relevant collective negotiations agreement was effective July 1, 1990. Although it expired by its terms on June 30, 1992, it has continued in full force and effect until such time as a successor agreement is negotiated (J-1, p. 2). The agreement provides in "Recognition" that the Board recognizes the Association as the representative for several categories of employees, including its Teachers, etc. and its Secretaries2/ (J-1, pp. 1, 3).

3.	The following Article and Sections pertain specifically to the Secretaries: Article VII, Section "H," "Personal Days" and Section "I," "Other Absences."3/ A fair reading of the entire collective negotiations agreement (J-1) discloses that none of its provisions are relevant to the resolution of the instant dispute, i.e., there is nothing to indicate that a "Professional Day" was agreed to by the parties with respect to the Secretaries. Nor could any provision of the parties' agreement override the provisions of N.J.S.A. 18A:31-2, infra.

4.	N.J.S.A. - 18A:31-2 -- "Attendance at Convention of New Jersey Education Association," provides in full, as follows:

Whenever any full-time teaching staff member of any board of education of any local school district or

2/	There are seven 12-month Secretaries in the negotiations unit (Tr 72).

3/	Section H, "Personal Days," provides that members of the unit, which include Secretaries, may have two personal leave days per year without reason, which are not cumulative. Section I, "Other Absences," provides that all requests for leave should be made to the Superintendent whose decision shall not be subject to the grievance procedure. [J-1, p. 21].

regional school district or of a county vocational school or any secretary, or office clerk applies to the board of education by which he is employed for permission to attend the annual convention of the New Jersey Education Association, such permission shall be granted for a period of not more than two days in any one year and he shall receive his whole salary for the days of actual attendance upon the sessions of such convention upon filing with the secretary of the board a certificate of such attendance signed by the executive secretary of the association. [Emphasis supplied].

5.	The parties agreed to the following excerpt from paragraph 8 of the Unfair Practice Charge, as follows:

"For the November 1991 NJEA Convention, secretaries wishing to attend were required to submit a request for a professional day, subject to approval, to prepare a "Professional Day Report Form," and to present a certificate of attendance. (Tr 17).

6.	Norah Kemper, a 12-month Secretary, who has worked for the Board for eleven years, testified without contradiction that in the seven years prior to 1991 she attended most of the NJEA Conventions. All that was required was the giving of prior written notice to the Superintendent (CP-2) and later providing a certificate of attendance as required by the statute (Tr 21-28). Other Secretaries in the District attended the NJEA Convention prior to 1991 and followed the same procedure as testified to by Kemper (Tr 24).

7.	On November 12, 1990, in response to Kemper's written advice that she was going to the Convention, the Superintendent, Joan Lukowiak, advised Kemper that the Convention was not a recognized paid holiday but that she could use one of two days off to attend the Convention. However, in the future any attendance

request should be submitted on the approved "Request for Approval to Attend Professional Meeting" form (CP-1; Tr 23).

8.	Kemper clearly stated her reasons for objecting to completing the "Professional Day" form: (1) the Convention is not a "professional day"; and (2) as an Association negotiator, she did not feel that anyone had the "...privilege to what's going on at my Convention...That's what I resent..." (Tr.32).4/

9.	Roberta Wolfe, a teacher employed in the District for 19 years, is the President of the Association (Tr 46). In attending NJEA Conventions she was never required, as a teacher, to fill out a form such as that now required of the Secretaries (J-7; Tr 47). Also, she was never required to fill out a "Professional Day Report Form" (J-4) with respect to her Convention attendance in 1991 nor in any year prior thereto (Tr 47). She testified that the Convention days are days off [Tr 48]. Teacher conventions are not "conferences or work shops" as that term is used in R-1 (Tr 56, 57).

10.	Frances L. White, an attendee at the 1991 Convention, is a Secretary who has been employed for 14 years. Until the past two years, she was never required to file a form for a Professional Day to attend the Convention (Tr 59). She has taken professional days in the past and was never told of any limit. About two years

4/	With respect to attendance at the 1991 NJEA Convention, it was stipulated that Secretaries Anna Marie Pellecchi, Frances L. White and Norah Kemper applied for permission to attend the Convention but only Pellecchi and White did so. They completed the "Professional Day Report Form." [J-5 through J-7; Tr 19].

ago, she was required to fill out a form for a professional day. [Tr 60]. White was in the District prior to 1984. She recalls that the schools were "shut" during the Convention (Tr 61). She believes that the offices were open prior to 1984 and that normal duties were performed. In 1984 the procedure was changed to closure of the schools on the Thursday and Friday of the Convention.

11.	Joan Lukowiak has been the Board's Superintendent for two and one-half years past (Tr 67). She searched various records of the Board to determine whether, prior to 1990, any Secretary had ever applied for permission to attend the Convention. She claimed that for five years prior to 1990, there was no indication in the records that Convention time had ever been taken. [Tr 68]. For the past seven or eight years, with respect to the closing or opening of school during the Convention, the Superintendent discovered that the period was a school recess and that Secretaries took 50% of that time off (Tr 68).5/

12.	Prior to the filing of the instant Unfair Practice Charge on January 29, 1992, the Association filed a grievance in November 1991, which was received by the Superintendent on November 18th. The Association had sought the removal of "Professional Day" status and a "report" requirement from Convention attendance, which was denied by the Board in or around December 18, 1991, following

5/	The Superintendent's testimony as to what the Secretaries did or did not do vis-a-vis attending NJEA conventions is essentially irrelevant to resolving the issue at hand (Tr 68-73).

which the Association was informed by the Superintendent. [J-2; Tr 8, 9].

ANALYSIS

The Respondent Board Violated Sections 5.4(a)(1)

And (5) Of The Act By Unilaterally Imposing

Terms And Conditions Upon Its Secretaries

Regarding Their Attending NJEA Conventions,

Beginning In November 1991.

Although I have made a number of Findings of Fact, based upon the testimony and exhibits submitted at the hearing, the essential facts are few in number, namely: (1) the parties have not sought in collective negotiations to limit or condition attendance by the Secretaries at the Conventions of the NJEA, i.e., nothing in the agreement (J-1) is relevant hereto; (2) a request to attend the Convention of the type submitted by the Secretaries prior to 1991, was received in evidence and comports with the statute [N.J.S.A. 18A:31-2] (CP-2); (3) however, in November 1991, there was added to the request to attend, the "Professional Day Report Form" (J-4), as a result of which the Superintendent unilaterally imposed a condition beyond that contained within the statute; (4) Kemper did not attend the 1991 Convention, notwithstanding that she had initially requested to do so (J-7), for the reason that she, as an Association negotiator, objected to filling out the "Professional Day" form (J-4) because Convention attendance was not a "professional day," and because negotiations matters might be gleaned from the Form (J-4), adding that no one had the

"...privilege to what's going on at my Convention.... That's what I resent..." (Tr 32).

* * * *

The above Findings of Fact allow of no conclusion other than that the Board, through its Superintendent, has since 1990, unilaterally created and imposed restrictions and conditions, beyond the statutory right of the Board's Secretaries to attend the Convention. This may or may not have been innocently done since the Superintendent's tenure was a mere two and one-half years as of the date of the instant hearing in September 1992. Nevertheless, the decision in this case is being rendered on what the Board did through its agent without regard to any experience factor.

One has only to look at the annotations to N.J.S.A. 18A:31-2 to realize that there has not been a single judicial or administrative decision construing this provision. I have previously quoted in full the provisions of the statute, which was enacted in January 1968 (Finding of Fact No. 4). In summary, the Legislature has provided that: (1) whenever any Secretary (in this case) applies to his or her Board of Education for permission to attend the annual Convention of the NJEA such permission shall be granted for a period of not more than two (2) days in any one year; and (2) the attendee shall receive his or her whole salary for the days of actual attendance upon the filing of proof thereof.

Given the unconditional imperative phrasing of the statutory provision on attendance at NJEA Conventions, neither the

Board nor the Association are invested with any power to alter the provisions of N.J.S.A. 18A:31-2 except, of course, to enlarge or improve upon the rights granted to Secretaries. What the Superintendent did, beginning in 1991, was to unilaterally impose restrictions upon the clear and unequivocal statutory right of the Board's Secretaries to attend NJEA Conventions. Plainly, the Legislature preempted the Board's right to do so in 1968.6/

I agree with the analogy advanced by the Association that there are two comparable statutory provisions to N.J.S.A. 18A:31-2, one pertaining to police and fire union representatives (N.J.A.C. 11A:6-10) and the other dealing with authorized representatives of the civil service association (N.J.S.A. 38:23-2).

The police and fire union representatives statute, like, N.J.S.A. 18A:31-2, is written in the imperative.7/ Thus, in Boro. of Glassboro v. Patrolmen's Benev. Ass'n. Local 178, 149 N.J. Super. 254 (App. Div. 1977), the Appellate Division held that the municipality could not unilaterally limit the number of authorized representatives to one when the union had selected two representatives to attend the conference.

6/	State v. State Supervisory Employees Ass'n, 78 N.J. 54 (1978).

7/	"A leave of absence with pay shall be given to every employee who is a duly authorized representative of the New Jersey Patrolmen's Benevolent Association, Inc. etc,...to attend any State or national convention of the organization.... A certificate of attendance...shall, upon request, be submitted by the representative so attending." [N.J.S.A. 11A:6-10.]

The Commission, in Hillside Township, P.E.R.C. No. 84-5, 9 NJPER 485, 486 (¶14201 1983), ruled that a contract clause requiring the duly authorized representatives of the union to obtain the permission of the Chief of Police to attend the PBA convention was illegal since it contravened the above statute which "...does not condition leaves of absence with pay on the permission of the municipality..."

Finally, in State of New Jersey, P.E.R.C. No. 78-66, 4 NJPER 184 (¶4091 1978), the Commission held that the State was required by N.J.S.A. 38:23-28/ to grant leaves of absence to "...a duly authorized representative...to attend any...convention." Id. at 185. It was then stated that: "We conclude that under the terms of N.J.S.A. 38:23-2, and in accordance with Commission decisions that have held, in part, that specific statutes governing terms and conditions of employment cannot be contravened by collective negotiations or by unilateral action that the State does not have the authority to deny requests for the aforementioned leaves of absence to attend the NJSEA conventions." Id. at 185.

The above three decisions would appear to foreclose any rational contention that the Superintendent had any discretion

8/	"The head of every public department..., shall give a leave of absence with pay to every person in the service of the State, county of municipality who is a duly authorized representative of...New Jersey Civil Service Association to attend any State or national convention of such organization. A certificate of attendance...shall...be submitted by the representative so attending..."

whatsoever to tamper with the unconditional right of the Secretaries to attend the NJEA Convention subject only to the very limited conditions imposed by N.J.S.A. 18A:31-2.

Moreover, even if the Superintendent's 1991 request for the Professional Day Report was not proscribed by N.J.S.A. 18A:31-2, the Board's unilateral imposition of such a requirement would be a violation of N.J.S.A. 34:13A-5.4(a)(1) and (5). The Association presented uncontested testimony that prior to the Fall of 1991, Secretaries who wanted to attend the NJEA convention were not required to write a report regarding their attendance at the Convention. However, in the Fall of 1991, without prior notice to the Association or negotiations, the District required its Secretaries to submit a "Professional Day Report Form" in order to receive their "whole salary" for their days of attendance.

In Wharton Bd. of Ed., P.E.R.C. No. 83-24, 8 NJPER 549 (¶13252 1982), it was held that the Board's unilateral revision of a personal day request form was not an unfair labor practice because the new form merely allowed the Board to verify that personal leaves were being used for contractually permissible purposes. However, in the instant case, the Board's requirement goes far beyond its right to verify attendance at the Convention and trenches upon matters that were never before required by the Respondent, e.g., an inquiry regarding the workshops attended by each Secretary. An instance of the chilling effect involved was evident when Kemper testified that she objected to filling out the Form (J-4) because of her

involvement in negotiations: "I don't feel that anybody has privilege to what's going on at my Convention..That's what I resent."

Furthermore, unlike the Wharton case where the Board was simply expanding a form that was in use for years, there has never been any requirement by the Board regarding a report about the NJEA Convention until the Fall of 1991. Thus, the unilateral imposition of such a requirement by the Respondent is a violation of N.J.S.A. 34:13A-5.4(a)(1) and (5).

Finally the Board's unilateral decision to begin charging its Secretaries a professional day for attendance at the NJEA Convention is also an unfair practice. Recall that N.J.S.A. 18A:31-2 gives all full-time employees of any board of education the right to attend the NJEA Convention for two days with pay. By going to the Convention, the Secretaries are not receiving an extra holiday. They are merely exercising a statutorily granted right. Requiring them to apply for and then to grant them a discretionary professional day, is not within the Board's scope of authority. It must comply with the terms of N.J.S.A. 18A:31-2 by ceasing and desisting from the above practices.

* * * *

Upon the entire record, and the briefs of the parties, I make the following Conclusion of Laws:

CONCLUSIONS OF LAW

1. The Board violated N.J.S.A. 34:13A-5.4(a)(1) and (5) by unilaterally imposing the requirement of a Professional Day Report

upon the Secretaries with respect to their attendance at the NJEA Convention contrary to N.J.S.A. 18A:31-2.

2. The Board also violated N.J.S.A. 34:13A-5.4(a) and (5) by requiring that Secretaries wishing to attend the NJEA Convention fill out a Request for Approval to Attend Professional Meeting Form and then charging them a professional day for attending.

RECOMMENDED ORDER

I recommend that the Commission ORDER:

A. That the Respondent Board cease and desist from:

1. Interfering with, restraining or coercing its employees in the exercise of the rights guaranteed to them by the Act, particularly, by unilaterally imposing the requirement of a Professional Day Report upon the Secretaries regarding their attendance at the NJEA Convention contrary to the provisions of N.J.S.A. 18A:31-2 and by requiring that Secretaries who desire to attend the NJEA Convention fill out a Request for Approval to Attend Professional Meeting Form and then charging them a "professional" day for attending.

B.	That the Respondent Board take the following affirmative action:

1. Accept a Certificate of Attendance at the NJEA Convention as the only documentation required for full payment of a Secretary's salary for days of attendance at the Convention.

2. Discontinue the use of the Request for Approval to Attend Professional Meeting Form for attendance at NJEA Conventions.

3. Discontinue the practice of charging Secretaries a "professional day" for attendance at the NJEA Convention.

4. Post in all places where notices to employees are customarily posted, copies of the attached notice marked as Appendix "A." Copies of such notice shall, after being signed by the Respondent's authorized representative, be posted immediately and maintained by it for at least sixty (60) consecutive days. Reasonable steps shall be taken to ensure that such notices are not altered, defaced or covered by other materials.

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

Alan R. Howe

Hearing Examiner

Dated: April 15, 1993

Trenton, New Jersey

WE WILL NOT interfere with, restrain or coerce our employees in the exercise of the rights guaranteed to them by the Act, particularly, by unilaterally imposing the requirement of a Professional Day Report upon the Secretaries regarding their attendance at the NJEA Convention contrary to the provisions of N.J.S.A. 18A:31-2 and by requiring that Secretaries who desire to attend the NJEA Convention fill out a Request for Approval to Attend Professional Meeting Form and then charging them a "professional" day for attending.

WE WILL accept a Certificate of Attendance at the NJEA Convention, as the only documentation required for full payment of a Secretary's salary for days of attendance at the Convention.

WE WILL discontinue the use of the Request for Approval to Attend Professional Meeting Form for attendance at NJEA Conventions and, also, the practice of charging Secretaries a "professional day" for attendance.