H.E. NO. 79-41

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

NEW JERSEY INSTITUTE OF TECHNOLOGY,

Respondent,

-and-	Docket No. CO-79-19-43

NEWARK COLLEGE OF ENGINEERING

PROFESSIONAL STAFF ASSOCIATION, INC.,,

Charging Party.

Appearances:

For the New Jersey Institute of Technology

Norris, McLaughlin & Marcus, Esqs.

For the Newark College of Engineering Professional

Staff Association, Inc., Sterns, Herbert & Weinroth, Esqs. (Michael J. Herbert, Esq.)

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the "Commission") on July 28, 1978 by the Newark College of Engineering Professional Staff Association, Inc. (hereinafter the "Charging party", "Association" or "PSA") alleging that the New Jersey Institute of Technology (hereinafter the "Institute" or the "Respondent") 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 the Institute in May 1978 circulated the "Institute Calendar" for the 1978-79 academic year, which advised all faculty that classes would begin on August 30, 1978, contrary to the prior practice of beginning September 1 of any academic year; this change in reporting date had been made unilaterally by the Institute and thereafter, upon demand, the Institute refused to negotiate additional compensation for the change in date, 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 December 20, 1978. Pursuant to the Complaint and Notice of Hearing, a hearing was held on March 19, 19792/ in Newark, New Jersey, at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. The parties filed post-hearing briefs by June 6, 1979.3/

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 New Jersey Institute of Technology is a public employer within the meaning of the Act, as amended, and is subject to its provisions.

2.	The Newark College of Engineering Professional Staff Association, Inc. is a public employer representative within the meaning of the Act, as amended, and is subject to tits provisions.

3.	The current collective negotiations agreement between the parties is effective during the term July 1, 1977 through June 30, 1979 and contains no provision with respect to "calendar" for the academic year (J-1).4/

4.	The current Staff Handbook (J-2) contains in Section 217 a definition of "Academic Year", the first sentence of which states in part that "...every member of the staff shall be available for conferences and meetings not later than seven calendar days before the opening of the Fall semester..." (p. 35). This provision has been in the Staff Handbook since 1971 or 1972.

5.	Sometime between the close of classes and Commencement day, May 26, 1978, the Institute circulated to all faculty the calendar for the 1978-79 academic year (J-3). The calendar indicated that the Fall Semester would begin "Wednesday, August 30".

6.	The calendars for the three academic years between 1975 and 1978 indicate that classes stated on September 1, in 1976-77 (R-2) and 1977-78 (R-3), and in 1976-76 the starting date for classes was September 2 (R-1).

7.	Pursuant to resolution of the State Board of Higher Education, dated September 15, 1972 and still in effect, "...the regular academic year for State institutions shall fall within a ten month period and shall include 32 weeks of regularly scheduled student-teacher instructional activity..." ®-4).

8.	The Institute has followed the aforesaid resolution of the State Board of Higher Education except for the three academic years between 1975 and 1978 when the academic year was 32 weeks less one day.

9.	The current collective negotiations agreement contains in Appendix "A" the salary schedules for faculty who are on "10-month appointments" and those on "12-month appointments" (J-1). The overwhelming number of faculty are on 10-month contracts or appointments, and the Hearing Examiner finds that the 32 weeks of instruction under 10-month contracts has in academic years prior to 1978-79 occurred between September 1 and June 30. There is no dispute, and the Hearing Examiner finds, that faculty on 10-month contracts have not in the past performed work in June.

10.	There are several references in the Staff Handbook (J-2) to dates on or before September 1 regarding operative events in the academic year (see pp. 12-14, 19 and the Faculty Council By-Laws appended thereto at pp. 63 and 65).

THE ISSUES

1.	Did the Respondent violate the Act when it unilaterally promulgated the calendar for the 1978-79 academic year, which provided that the Fall semester would commence on August 30, 1978 rather on or after September 1 as had been the consistent practice in prior years?

2.	Did the Respondent violate the Act by refusing to negotiate the "impact" of the calendar change for the 1978-79 academic year?

DISCUSSION AND ANALYSIS

Position of the Parties

The Charging Party in its brief contends that the Respondent violated Subsections (a)(1) and (5) of the Act by refusing to negotiate "the impact of the work year extension" (emphasis supplied) and urges that the Commission should award two days' pay for all affected faculty members. (See also J-4). Although appearing to recognize the right f the Respondent to establish the academic calendar in the first instance, without prior negotiations with the Charging Party cites and discusses at length New Jersey court decisions which ave rejected actions by public employers that have unilaterally extended or reduced the hours or days of work of public employees without negotiating the initial decision with the public employee representative.5/ The Charging Party quotes extensively from the Appellate Division's decision in Woodstown-Pilesgrove, which was a case involving a unilateral change by the employer with respect to the day before Thanksgiving, converting it to a full day from what had in the past been a half-day. The Appellate Division there rejected the employer's argument that its action constituted a non-negotiable change in school calendar, as had been recognized by the new Jersey Supreme Court to be a managerial prerogative in Burlington County College Faculty Association v. Board of Trustees, 64 N.J. 10 (1973). (See Charging party's brief, pp. 9-11). Finally, the Charging party cites several Commission decisions involving unilateral changes in the work day or year, which were found to be violations of the Act.6/

The Respondent contends that the adoption of a school calendar, which may be different from prior calendars, is not negotiable, citing Ridgefield Park Education Association v. Ridgefield Park Board of Education, 78 N.J. 144 (1978); Belvidere Board of Education, P.E.R.C. No. 78-62, 4 NJPER 165 (1978); Edison Township Board of Education, P.E.R.C. No. 78-53, 4 NJPER 151 (1978); and Rutgers, The State University, P.E.R.C. No. 76-
13, 2 NJPER 13 (1976). With respect to the impact of the Respondent's calendar decision upon unit members represented by the Charging Party, the Respondent, citing Maywood Board of Education v. Maywood Education Association, N.J. Super. , 5 NJPER 171 (App. Div. 1979), pet. for certif. pending, Docket No. ,7/, contends that even "impact" is not negotiable. In the alternative, the Respondent argues that on October 27, 1978 and again on November 8, 1978 it offered to negotiate "impact" under the criteria of the Commission's decision in Edison Township Board of Education, supra (J-7), but under date of November 13, 1978 the Charging Party rejected this offer (J-8).

The Respondent Did Not Violate The Act

When It Unilaterally Promulgated The

Calendar for The 1978-79 Academic Year,

The Fall Semester of Which Commenced

August 30, 1978, Notwithstanding The

Prior Practice of Commencing on or

After September 1

The Hearing Examiner finds and concludes that the Respondent Institute did not violate Subsections (a)(1) and (5) of the Act in May 1978 when it unilaterally, and without negotiations with the Association, promulgated the calendar for the 1978-79 academic year. This was plainly the exercise by the Institute of a managerial prerogative, i.e., major educational policy decision, of the type clearly recognized by the New Jersey Supreme Court in Burlington County College Faculty Association, supra. It is of no moment that the commencement of the Fall semester for 1978-79 was August 30, notwithstanding that in all prior years, based upon the instant record, the academic year had not commenced prior to September 1. There was plainly no obligation on the part of the Respondent to negotiate the relevant dates on the 1978-79 academic calendar with the Charging Party.

The cases cited by the Charging party8/ do not compel a contrary result. Galloway, Piscataway, Woodstown-Pilesgrove and Byram, as well as the Commission decision cited by the Charging party,9/ stand collectively for the proposition that changes, whether an increase or decrease, in the hours, days or months of work in a given year are mandatorily negotiable in the first instance.

In the instant case, the record establishes that the Institute's conduct in May 1978 pertained solely to the 1978-79 academic calendar and in no way involved the number of hours, days or months that the faculty members were expected to work in the academic year 1978-79. Notwithstanding that the Fall semester was to commence on August 30 rather than September 1, the 10-month faculty members were required to provide only 32 weeks of instruction, as in the past, pursuant to the 1972 resolution of the State Board of Higher Education (R-4).

Thus, with respect to the calendar decision, supra, the Respondent did not violate Subsections (A)(1) and (5) of the Act.

The Respondent was Obligated Under

The Act To Negotiate The "Impact"

Of Its Calendar Decision and This

Obligation Was Fulfilled On October 27

and November 8, 1978 When It Offered

To Negotiate With the Charging Party,

Based Upon The Commission's Decision

In Edison Township, Which The Charging

Party Rejected Under Date Of November 13, 1978.

The Respondent urges that it was under no obligation to negotiate the "impact" of its calendar decision by reason of the Appellate Division decision in Maywood, supra. The Appellate Division in Maywood was confronted with the "RIF" (reduction-in-
force) of tenured teachers and held that there was no obligation on the Board to negotiate the "impact" of the "RIF" upon the remaining teachers. Subsequently, another panel of the Appellate Division in Cinnaminson, supra, followed the holding in Maywood in a case involving the "RIF" of non-tenured teachers.

The Hearing Examiner herein elects to distinguish Maywood and Cinnaminson, based upon the fact that the instant record does not involve a "RIF", but rather involves faculty members who have remained employed but who, nevertheless, may have suffered adversely from the Respondent's calendar decision for the 1978-79 academic year. Accordingly, the Hearing Examiner finds and concludes that there was an obligation on the part of the Respondent to negotiate the "impact" of its decision upon faculty members for the 1978-79 academic year.10/

On October 27, 1978, as confirmed in a letter dated November 8 (J-7), the Respondent Institute offered to commence "impact negotiations" under the criteria of the Commission's decision in Edison Township Board of Education, supra, and a subsequent decision involving the same party, P.E.R.C. No. 79-1, 4 NJPER 302 (1978).11/

The Charging Party confirmed by letter dated November 13, 1978 (J-8) its rejection of the Respondent's offer to negotiate "impact" under the criteria of Edison Township, supra. Instead, the Charging Party contended that court decisions cited by it supported its position that the Respondent was obligated to compensate all 10-month faculty members two days' pay for reporting early, August 30, 1978. The Hearing Examiner finds and concludes that by its letter of November 13 the Charging Party has waived its right to compel negotiations with the Respondent with respect to "impact". While waivers are not lightly found by the Commission,12/ a waiver may be found where a party's conduct is clearly and unequivocally manifested.13/

In conclusion, the Respondent is absolved from having to negotiate the matter of "impact" of its calendar decision and has not, therefore, violated Subsections (a)(1) and (5) of the Act.

*	* * *

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

CONCLUSIONS OF LAW

The respondent Institute did not violate N.J.S.A. 34:13A-5.4(a)(1) and (5) by its unilateral decision to promulgate the academic calendar for 1978-79 nor by its conduct with respect to "impact" negotiations thereafter.

RECOMMENDED ORDER

The Respondent Institute not having violated the Act, supra, it is HEREBY ORDERED that the Complaint be dismissed in its entirety.

Alan R. Howe

Hearing Examiner

DATED: June 18, 1979

Trenton, New Jersey