D.U.P. NO. 86-18

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF UNFAIR PRACTICES

In the Matter of

PERTH AMBOY BOARD OF EDUCATION,

Respondent,

-and-	DOCKET NO. CO-86-219

PERTH AMBOY FEDERATION OF TEACHERS,

LOCAL 857, NJSFT, AFL-CIO,

Charging Party.

Appearances:

For the Respondent

Aron, Salsberg & Rosen, Esqs.

(Lester Aron, of counsel)

For the Charging Party

Dwyer, Canellis & Bell, Esqs.

(Michael E. Buckley, of counsel)

REFUSAL TO ISSUE COMPLAINT

On February 10, 1986, the Perth Amboy Federation of Teachers, Local 857, NJSFT, AFL-CIO ("Federation") filed an Unfair Practice Charge with the Public Employment Relations Commission ("Commission") alleging that the Perth Amboy Board of Education ("Board") violated the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. ("Act"), specifically subsection 5.4(a)(1), when it unilaterally altered the negotiated salary guides. While not plead, from a reading of the Statement of Charge,

it is apparent that the Federation also alleges a violation of subsection 5.4(a)(5).1/

N.J.S.A. 34:13A-5.4(c) states in pertinent part that the Commission shall have the power to prevent anyone from engaging in any unfair practice, and that it has the authority to issue a complaint stating the unfair practice charge.2/ The Commission has delegated its authority to issue complaints to me and has established a standard upon which an unfair practice complaint may be issued. The standard provides that a complaint shall issue if it appears that the allegations of the charging party, if true, may constitute an unfair practice within the meaning of the Act and that formal proceedings regarding the complaint should commence to afford the parties an opportunity to litigate relevant legal and factual

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/	N.J.S.A. 34:13A-5.4(c) states: "The Commission shall have exclusive power as hereinafter provided to prevent anyone from engaging in any unfair practice ... Whenever it is charged that anyone has engaged or is engaging in any such unfair practice, the commission, or any designated agent thereof, shall have authority to issue and cause to be served upon such party a complaint stating the specific unfair practice charged and including a notice of hearing containing the date and place of hearing before the Commission or any designated agent thereof...."

issues.3/ The Commission's rules also provide that I may decline to issue a complaint.4/

The Federation in the above unfair practice charge alleges that the Board's compliance with the Teacher Quality Employment Act, N.J.S.A. 18A:29-5 et seq. ("TQEA") is a "unilateral alteration" of the parties' negotiated salary guide in violation of the Act. The Federation claims that the Board improperly eliminated the salary differentials paid to teachers who achieved additional academic credits and/or degrees. The Board denies that it violated the Act.

Today I issued In re Clark Board of Education and Clark Education Association, D.U.P. No. 86-16. The Federation here alleges essentially the same facts as the Association in Clark, where I stated, in pertinent part:

On September 9, 1985, the Legislature enacted N.J.S.A. 18A:29-5 to "establish a minimum salary for teaching staff members and provide funding for salaries...." The TQEA states that, "the minimum salary of a full-time teaching staff member in any school district...shall be $18,500..." N.J.S.A. 18A:29-5, as amended by L. 1985 c. 321 §3. The legislation also states that, "Nothing in the act shall be construed to require the reopening of any signed contract in effect for the 1985-86 school year," N.J.S.A. 18A:29-5. Similarly, the TQEA further prohibits recomputing salary guides which are indexed to a ratio between the minimum salary and all other ranges.

In State v. State Supervisory Employees Association, 78 N.J. 54 (1978), the Court delineated certain statutory requirements concerning negotiable terms and conditions of employment. The Court stated:

3/	N.J.A.C. 19:14-2.1.

4/	N.J.A.C. 19:14-2.3.

...the adoption of any specific statute or regulation setting or controlling a particular term or condition of employment will preempt any inconsistent provision of a negotiated agreement governing that previously unregulated matter. In short, the parties must negotiate upon and are free to agree to proposals governing any terms and conditions of public employment which have not been set, and thus preempted, by specific statutes or regulations. 78 N.J. at 81.

The Court also declared non-negotiable all proposals which affect rights established by "mandatory" or "imperative" statutes (i.e., "those enactments which set up a particular scheme which 'shall' be handled as directed.") Id at 81-82.

From both a literal and contextual reading (in light of State Supervisory Employees Association) of the TQEA, I determine that the Legislature's setting of a minimum salary for teachers and its specific admonition that nothing shall require the reopening of signed contracts in effect for 1985-86, preempt the employer's duty to negotiate concerning those affected terms and conditions of employment. Specifically, employers are not required to negotiate changes in salary guides of executed agreements where the changes resulted exclusively from the upgrading of teacher salaries to comply with the statute (TQEA). In this case, the Board did not unlawfully change any negotiated term and condition of employment of any teacher earning $18,500 or more when it upgraded teacher salaries for 1985-86; it merely complied with the TQEA.

Thus, for the reasons set forth in Clark, supra, I decline to issue a complaint concerning the Federation's (a)(1) and (a)(5) allegations.

BY ORDER OF THE DIRECTOR

OF UNFAIR PRACTICES

Edmund G. Gerber, Director

DATED: June 5, 1986

Trenton, New Jersey