H.E. No. 84-20

Synopsis:

A Hearing Examiner recommends that the Public Employment Relations Commission find that the Respondent Board did not violate Subsections 5.4(a)(1), (5) and (6) of the New Jersey Employer-Employee Relations Act when it refused to execute proposed collective negotiations agreements submitted by the Charging Party under the circumstances of their being no meeting of the minds on the structure of the salary guides; the Charging Party insisted that increments should be included. The Hearing Examiner also recommended that the Commission find that the Respondent Board did not violate Subsections 5.4(a)(1) and (3) by the conduct of its Superintendent in meeting with individual bus drivers, at their request, where a Shop Steward for the Charging Party was present at all times.

A Hearing Examiner's Recommended Report and Decision is not a final administrative determination of the Public Employment Relations Commission. The case is transferred to the Commission which reviews the Recommended Report and Decision, any exceptions thereto filed by the parties, and the record, and issues a decision which may adopt, reject or modify the Hearing Examiner's findings of fact and/or conclusion of law.

PERC Citation:

H.E. No. 84-20, 9 NJPER 626 (¶14268 1983)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

72.572 72.17

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- HE 84-020.pdf
Appellate Division:
Supreme Court:

H.E. NO. 84-20 1. H.E. NO. 84-20 STATE OF NEW JERSEY BEFORE A HEARING EXAMINER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of Mt. Olive Board of Education, Respondent, -and- Docket No. CO-83-162-87 Local 11, International Brotherhood of Teamsters, Charging Party. Appearances: For the Mt. Olive Board of Education Green & Dzwilewski, Esqs. (Paul H. Green, Esq.) For the Charging Party Schneider, Cohen & Solomon, Esqs. (Bruce D. Leder, Esq.) HEARING EXAMINER = S RECOMMENDED REPORT AND DECISION An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the A Commission @ ) on January 3, 1983 by Local 11, International Brotherhood of Teamsters (hereinafter the A Charging Party @ or A Local 11 @ ) alleging that the Mt. Olive Board of Education (hereinafter the A Respondent @ or the A 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 A Act @ ), in that since September 1982 the Respondent = s Superintendent has threatened employees in the collective negotiations unit and made promises of benefit to employees who aid in the process of decertifying Local 11 and, additionally, the Superintendent has dealt directly with employees regarding the handling of grievances and the assigning of work schedules and further, the Board has threatened to subcontract unit work in an attempt to coerce employees into refraining from the support of Local 11 and, finally, the Board has refused to reduce to writing the negotiated collective agreement, all of which is alleged to be a violation of N.J.S.A. 34:13A-5.4(a)(1), (3) 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 May 5, 1983. Pursuant to the Complaint and Notice of Hearing, a hearing was held on July 25, 1983 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 September 20, 1983. 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 Mt. Olive Board of Education is a public employer within the meaning of the Act, as amended, and is subject to its provisions. 2. Local 11, International Brotherhood of Teamsters is a public employee representative within the meaning of the Act, as amended, and is subject to its provisions. 3. Local 11 was certified in 1981 as the majority representative for a collective negotiations unit of all full- time and part-time bus drivers employed by the Respondent. 4. On March 25, 1982 Local 11 submitted its contract proposals to the Board and on April 29, 1982 the Board submitted its contract proposals to Local 11. At a collective negotiations meeting on May 27, 1982 the parties discussed only Local 11 = s proposals. 5. Following a meeting of the attorneys for the parties on June 15, 1982, the parties met on June 17, 1982 and at the conclusion of the meeting executed a Memo of Understanding (J-1). This Memo provided for percentage wage increases over a three- year term and stated that all employees were to receive A appropriate steps each year. @ 2/ 6. On June 23, 1982 the employees represented by Local 11 ratified the Memo of Understanding. On a date unspecified the Board also ratified the Memo of Understanding. 7. On June 25, 1982 John D. Guagliardo, a representative of Local 11, sent a letter to the Superintendent, Chester Stephens, advising of the ratification by Local 11 and stating that a contract was being prepared and would be forwarded to him upon completion (CP-3). 8. On July 2, 1982 Robert J. Feeney, the President of Local 11, sent a copy of the proposed negotiated agreement to the Superintendent for review (CP-4). When the Superintendent had not responded by July 15, Feeney sent another letter requesting that Superintendent call the Local 11 office in order to set a date for execution of the agreement (CP-5). When the Superintendent continued in his refusal to respond, the attorney for Local 11 wrote to the Superintendent on July 21, 1982 (CP-6). 9. On August 30, 1982 the attorney for the Board sent to the attorney for Local 11 a letter, which, in nine numbered paragraphs, contained certain suggested changes in the language of the proposed agreement (CP-8). On September 3, 1982 Guagliardo wrote to the Board = s attorney stating that Local 11 was agreeable to the proposed changes contained in paragraphs 1 through 7, but objected to paragraph 8, the proposed salary guides, which included the increment, and paragraph 9, the Safety Committee (CP-9). The attorney for the Board stated that it had not agreed to the establishment of a Safety Committee, and Local 11 ultimately withdrew this proposal (see CP-16 and CP-17). 10. On October 27, 1982 Dianne Meehan, a member of the collective negotiations unit represented by Local 11, filed a petition for decertification, Docket No. RD-83-6 (C-3), which has been held in abeyance pending the outcome of the instant unfair practice proceeding. 11. Following an exchange of letters between the attorneys for the parties on November 1, 1982 (CP-12 and CP-13), Feeney, on November 16, 1982, sent to the attorney for the Board three copies of the most recent proposed collective negotiations agreement for execution (see CP-14 enclosing three copies of CP- 18). 12. When the proposed agreement had not been executed by November 24th the attorney for Local 11 wrote to the attorney for the Board threatening appropriate action if the agreement was not executed within ten days (CP-15). When nothing further transpired Local 11 filed the instant Unfair Practice Charge on January 3, 1983, one of the allegations being that the Board had failed to execute a negotiated agreement (C-1). 13. As of February 9, 1983 the parties were still in disagreement over the structure and composition of the salary guides (CP-17). As of that date, the Hearing Examiner finds that all other issues had been resolved, as reflected in the Memo of Understanding (J-1) together with the subsequent correspondence and draft agreements, in particular, CP-8 and CP-18, supra. 14. The Superintendent, who has been involved in collective negotiations on behalf of the Board since 1964, testified without contradiction that negotiated salary guides always included the increment. 15. By way of implementation of paragraph 5 of the Memo of Understanding, supra, which provides that all work assignments will be made by seniority and that a pilot program is to be established in 1982-83, Local 11 designated Dolores Ogg and Cathy Dow as its representatives to meet with Susan Morin, the Transportation Coordinator of the Board, to establish the system for assignment of the 1982-83 bus runs (CP-7). 16. Under date of August 4, 1982 the attorney for Local 11 wrote to the Superintendent, reminding him of the designation of Ogg and Dow as the Local 11 representatives, supra, and complaining to the Superintendent about his having conducted a meeting with certain members of the collective negotiations unit on August 3, 1982 without having first contacted Local 11 (CP-7). 17. It is clear from the testimony of the witnesses for the parties that there was a meeting in August 1982 between the Superintendent and 12 to 14 bus drivers regarding a reduction in hours from six to five per day for drivers with the least seniority. This reduction meant a loss in pay for one hour per day. Present at the meeting was one of the three Shop Stewards designated by Local 11, Edna Mae Fulton. The Superintendent explained the reason for the reduction in hours, namely, the closing of one school and budget restraints. After hearing the bus drivers = complaints, the Superintendent said that he would look into the situation. Local 11, on September 8, 1982, complained about the Superintendent = s handling of the situation (CP-10) and the Superintendent responded on September 22, 1982 (CP-11). After a further meeting the late Fall of 1982 where Shop Steward Joyce Auckamp was present, the Board resolved the matter by the increase of one-half hour per day to five and one- half hours, which was implemented in January 1983, retroactive to December 1, 1982. Other than the presence of Shop Stewards Fulton and Auckamp, no representative of Local 11 was involved in the resolution of this problem. 18. Another meeting between the Superintendent and individual bus drivers had to do with four bus drivers who filed grievances in early January 1983, which complained that senior bus drivers were receiving more work (CP-19 and CP-20). Shop Steward Ogg represented the four bus drivers at a first step meeting with Morin and at a second step meeting with the Superintendent at the end of January 1983. The Superintendent = s response was that he would A get back @ but never did so. 19. Consistent with the foregoing, the Superintendent testified without contradiction that he never met individually with any employee where a Shop Steward for Local 11 was not present. He also testified credibly that he knew Local 11 = s Shop Stewards to be Ogg, Fulton and Auckamp. He testified further that he never made any promises of benefit or threats fo employees, and the Charging Party adduced no evidence to the contrary. The Hearing Examiner finds that no promises of benefit nor threats to employees in the collective negotiations unit were ever made by the Superintendent. Further, the Hearing Examiner finds that the Superintendent never met with bus drivers individually without a Shop Steward being present. 20. The Charging Party offered no evidence in support of its allegation that the Board threatened to subcontract all A bargaining unit work @ in an attempt to coerce employees into refraining from support of Local 11. THE ISSUES 1. Did the Respondent Board violate Subsections (a)(1), (5) and (6) of the Act by its refusal to execute the several proposed collective negotiations agreements, which were submitted by the Charging Party on and after July 2, 1982? 2. Did the Respondent Board violate Subsections (a)(1) and (3) of the Act by the conduct of its Superintendent in meeting with individual bus drivers where a shop steward for the Charging Party was present at all times? DISCUSSION AND ANALYSIS The Respondent Board Did Not Violate Subsections (a)(1), (5) And (6) Of The Act By Refusing To Execute Agreements Proposed By The Charging Party Since There Was No Meeting Of The Minds On The Salary Guides It is plain as a pikestaff to the Hearing Examiner that the negotiators for the parties, and their attorneys, totally failed to resolve the impasse over the structure of the salary guides. The basis for salary guides had been agreed to in skeleton form in the Memo of Understanding (J-1). As noted above, in Finding of Fact No. 5, the Memo provided for percentage wage increases over a three-year term and stated that all employees were to receive A appropriate steps each year. @ Local 11 insisted that the percentage increases in the hourly rate did not include the increment while the Board insisted that the increases in the hourly rate included the increment. Given such a divergence in the negotiating positions of the parties over the structure of the salary guides, it is no wonder that an agreement was never reached, i.e., plainly there was no meeting of the minds at any time on the matter of the structure of the salary guides. The Charging Party argues that the Board showed bad faith in the back-and-forth of negotiations in an effort to reduce an agreement to writing, citing State of New Jersey, E.D. 79, 1 NJPER 39 (1975), aff = d. 141 N.J. Super. 470 (App. Div. 1976). The Hearing Examiner finds this case inapposite, in view of the fact that the totality of conduct is here not under consideration, except to the limited extent as to whether or not there was a meeting of the minds on the salary guides. To the extent that the State decision is applicable, the Hearing Examiner finds and concludes that the Respondent herein did not engage in bad faith bargaining and, therefore, did not violate Subsection (a)(5) of the Act. The Commission and its Hearing Examiners have had several occasions to consider and decide cases involving the question as to whether or not there was a meeting of the minds on the substantive issues in negotiations. See, for example, Mt. Olive Board of Education, P.E.R.C. No. 78-25, 3 NJPER 382 (1977); Passaic Valley Water Commission, P.E.R.C. No. 80-134, 6 NJPER 220 (1980); South Amboy Board of Education, P.E.R.C. No. 82-10, 7 NJPER 448, 451 (1981) and two Hearing Examiner decisions, which were settled before the issuance of a formal Commission decision: Union County Hospital, H.E. No. 82-18, 8 NJPER 2 (1981) and Carlstadt Board of Education, H.E. No. 83-1, 8 NJPER 465 (1982). Findings of Fact Nos. 8 through 13, supra, make it abundantly clear that there was no meeting of the minds, and thus no agreement, on salary guides on and after July 2, 1982. There being no meeting of the minds, there is no basis for a recommended order by the Hearing Examiner directing the Respondent to execute the last agreement submitted to it by the Charging Party (CP-18). In reaching this conclusion, the Hearing Examiner notes the testimony of the Superintendent, which was not contradicted, that negotiated salary guides have always included the increment. While this is not binding upon Local 11 as a past practice, there being no collective negotiations history between the instant parties, it is an indication to the Hearing Examiner that if the Board was departing from this practice, in dealing with the Local 11 collective negotiations unit, it certainly would have been made clear by express language. For all of the foregoing reasons, the Hearing Examiner will recommend dismissal of the Subsection (a)(1), (5) and (6) allegations in the Complaint.3/ The Respondent Board Did Not Violate Subsections (a)(1) And (3) Of The Act When Its Superintendent Met Several Times With Individual Bus Drivers Where A Shop Steward For The Charging Party Was Present At All Times First, it is clear that the Superintendent knew who the three Shop Stewards were by name. Secondly, the Hearing Examiner has no difficulty in finding that Local 11 can be represented at a meeting by its designated and authorized Shop Steward as well as by other officials of Local 11. In this latter connection, it is noted that officials of Local 11 made no serious effort to be present at any meetings between the Superintendent and bus drivers where at least one Local 11 Shop Steward was present. Finally, it is also noted that the Superintendent did not initiate meetings with bus drivers but merely responded when bus drivers approached him or the Transportation Coordinator. The first meeting took place in August 1982 between the Superintendent and 12 to 14 bus drivers regarding a reduction in hours from six to five per day for drivers with the least seniority. Present at this meeting was Shop Steward Edna Mae Fulton. Local 11 complained to the Superintendent about his handling of the matter on September 8, 1982 but made no effort to intervene. The matter was ultimately resolved after a further meeting in the Fall of 1982 where Shop Steward Joyce Auckamp was present. A retroactive adjustment to the affected bus drivers was made as of December 1, 1982. Another meeting between the Superintendent and individual bus drivers occurred in January 1983 where Shop Steward Delores Ogg was present. This matter was never resolved, with the Superintendent stating that he would A get back. @ The Hearing Examiner has found as a fact (Finding of Fact No. 19, supra) that the Superintendent never met individually with any employee where a Shop Steward for Local 11 was not present. The Superintendent testified credibly that he had never made any promises of benefit or threats to employees, and the Charging Party adduced no evidence to the contrary. Based upon all of the foregoing, there is no conclusion which can be reached other than that the Respondent Board did not violate Subsections (a)(1) and (3) of the Act. The Hearing Examiner attaches no weight to the filing of the decertification petition on October 17, 1982 vis-a-vis the Superintendent = s several meetings with individual bus drivers where Local 11 Shop Stewards were always present.4/ Accordingly, the Hearing Examiner will recommend dismissal of the Subsection (a)(1) and (3) allegations in the Complaint. * * * 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), (5) and (6) when it refused to execute the several proposed collective negotiations agreements, which were submitted by the Charging Party on and after July 2, 1982, since there was no meeting of the minds on the structure of the salary guides. 2. The Respondent Board did not violate N.J.S.A. 34:13A- 5.4(a)(1) and (3) when its Superintendent met several times with individual bus drivers where a Shop Steward for the Charging Party was present at all times. RECOMMENDED ORDER The Hearing Examiner recommends that the Commission ORDER that the Complaint be dismissed in its entirety. /s/Alan R. Howe Hearing Examiner DATED: September 28, 1983 Trenton, New Jersey 1/ These Subsections prohibit public 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. (3) Discriminating in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage 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. @ Although the Charging Party failed specifically to allege a violation of Section 5.4(a)(6) of the Act in its unfair Practice Charge there does appear in the body an allegation that the Board has refused to reduce a negotiated agreement to writing and, further, the issue involving an alleged 5.4(a)(6) violation was fully litigated at the hearing, infra: Commercial Township Board of Education, P.E.R.C. No. 83-25, 8 NJPER 550 (1982), appeal pending App. Div. Docket No. A-1642-82T. 2/ This provision for A steps each year @ was to become a problem in the ultimate inability of the parties to agree on salary guides for the three years of the proposed agreement. Local 11 insisted that the percentage increases in the hourly rates did not include the increment while the Board insisted that the increases in the hourly rates included the increment. (See Finding of Fact No. 13, infra). 3/ The Hearing Examiner agrees with the contention of the Respondent that it would have violated that Act if it executed a collective negotiations agreement with Local 11 after the filing of the decertification petition on October 27, 1982. Middlesex County (Roosevelt Hospital), P.E.R.C. No. 81-129, 7 NJPER 266 (1981) and Bergen County, P.E.R.C. No. 84-2, 9 NJPER 451 (1983). 4/ Local 11, having offered no evidence in support of its allegation that the Respondent threatened to subcontract bargaining unit work in an attempt to coerce employees into refraining from the support of Local 11, dismissal of this allegation will be recommended. ***** End of HE 84-20 *****