H.E. No. 86-9

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

SOUTH RIVER BOARD OF EDUCATION,

Respondent,

- and -	Docket No. C0-84-110-61

SOUTH RIVER EDUCATION ASSOCIATION,

Charging Party.

Appearances:

For the Respondent

Wilentz, Goldman & Spitzer, Esqs.

(Steven J. Tripp, Esq.)

For the Charging Party

Oxfeld, Cohen & Blunda, Esqs.

(Arnold S. Cohen, Esq.)

HEARING EXAMINER'S

RECOMMENDED REPORT AND DECISIONS

The South River Education Association filed an Unfair Practice Charge with the Public Employment Relations Commission on October 17, 1983, alleging that the South River Board of Education 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., stating that on or about September 1, 1983, the South River Board of Education unilaterally and arbitrarily reduced the salary of Caroline Lineback, a teaching staff member employed by the Board,

without prior negotiations with the Association. The Association

asserts that this conduct violated 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, might constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on December 21, 1985. Thereafter, a repetition of the pre-complaint settlement negotiations ensued, followed by a series of attempts, on the part of the parties, to stipulate to all pertinent facts attendant to this matter. Ultimately, both endeavors proved fruitless, and pursuant to the Complaint and Notice of Hearing, a hearing was held on March 28, 1985. The parties were given an opportunity to examine and cross-examine witnesses, present relevant evidence and argue orally. The Board filed a post hearing brief on June 10, 1985, and the Association filed its post hearing brief on June 17, 1985. The parties waived reply briefs.

Upon the entire record the Hearing Examiner makes the following findings of fact:

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; (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.

1. The South River Board of Education is a public employer within the meaning of the Act (T-8-T-9), and is the employer of the employee who is the subject of this unfair practice proceeding .

2. The South River Education Association is a public employee representative within the meaning of the Act (T-9), and is the majority representative of the subject employee.

3. The Board has had an established past practice of creating part-time positions, where necessary, and compensating these teaching staff members on a pro rata basis according to the applicable step on the salary guide (T-65; T-69; J-5).
4. Caroline Lineback has been a Spanish teacher at South River High School since 1970 (J-5).2/ From 1970 until 1980, Lineback served as a full-time teacher of Spanish, having five Spanish teaching classes, two assigned duties and one preparation period (J-5). Her salary for that period was the full salary guide rate (J-5). Beginning in 1980, and continuing until 1983, Lineback's position was reduced from a full position to a 5/8 position composed of three Spanish classes, one assigned duty and one preparation period (J-5).3/ Her salary for that period was

2/	Exhibit designations are as follows: "C" refers to Commission exhibits; "J" refers to Joint exhibits; "CP" refers to Charging Party's exhibits; "R" refers to Respondent's exhibits.

3/	The record indicates that in April of 1980, Lineback's full time position was abolished and a 4/8 position established in its place; and in September of 1980, the 4/8 position was abolished and a 5/8 position established in its place.

calculated at 5/8 of the full-time salary for the applicable step on the guide (T-61-T-63; J-5).
5. In April of 1983, the Board was experiencing budgetary problems as a result of the voter's defeat, of the Board's proposed budget (T-63-64).4/ Pursuant to its past practice of assigning salaries of part-time people in direct proportion to the fractional amount of time spent on the job (T-65), and as a result of the "budget crunch," the Board abolished the 5/8 position held by Lineback, and established a 4/8 position in its place, setting the salary at 4/8 of the regular salary for the applicable step on the guide (T-63-65). The new position consisted of three Spanish classes and one preparation period (T 63-65). The new position was identical to the old one in every respect, except that Lineback's non-instructional assigned duty period (monitoring a study hall) was eliminated (T-23). Representatives of the Board declined to indicate why Lineback's position was reduced rather than that of another staff member (T-47); however, the Board, through its Superintendent, acknowledged that this was the first time the Board had ever reduced a teacher's salary by eliminating only an assigned duty period (T-70). Moreover, despite the Board's established practice of abolishing positions, establishing fractional parts thereof and setting compensation at a rate equivalent to the fractional portion established, until the filing of its grievance in

4/	"T" refers to the trial transcript of March 28, 1985.

this matter, the Association never sought to grieve or challenge any of the Board's previous actions in this regard (T-65; T-69).

6. The record indicates that three other part-time teachers employed by the Board also had teaching loads consisting of instructional assignments and preparation periods,5/ without any assigned duty periods; however, their schedules had not resulted from the loss of an assigned duty period, only (T-54-T-55; T-66-T-68; T-68-T-69; J-5). The Association never grieved or challenged the Board's decision to implement these three schedules (T-68; T-69).

LEGAL ANALYSIS

Past Practice

The Board asserts a long standing past practice whereby periods have been added or subtracted from a particular teacher's schedule and the teacher's resulting compensation was automatically determined on a fractional basis under the existing salary guide for the teacher's particular placement on the guide. A past practice is not dependent on any written contract provision, is determined by the previous conduct of the parties and is equivalent to any other term and condition of employment. See, In re New Brunswick Bd. of Ed., P.E.R.C. No. 78-47, 4 NJPER 84 (¶ 4040 1978), motion for reconsideration denied P.E.R.C. No. 78-56, 4 NJPER 156 (¶4073

5/	It's been the Board's past practice to provide part-time teachers with preparation periods (T-24).

1978), aff'd App. Div. No. A-2450-77 (4/2/79). However, here, the record establishes that the Board's past practice was limited to the increase or reduction of teaching periods only, and the resulting

increase or reduction of salary on a pro-rata basis. In this case, and for the first time, the Board reduced a teacher's hours by taking away an assigned duty period, only. No teaching period was involved in this reduction. Accordingly, the issue here is whether this difference is significant. In Caldwell-West Caldwell Education Association v. Caldwell-West Caldwell Board of Education, 180 N.J. Super. 440 (App. Div. 1981), the court stated:

The Board must have some flexibility in making managerial decisions. The concept of pre-existing practices should not be so rigidly adhered to as to require negotiation of every minute deviation. Unless there is room in the joints for modification and adaption necessary to make the system work, educational machinery would become stalled in endless dispute, grievance procedures, arbitration, unfair labor practice charges, hearings, reviews, and appeals. Here the issue is whether a block of seven mods set aside for math and science and a like block of time set aside for English and social studies could each be extended one mod or 15 minutes a day in exchange for equivalent mods of cafeteria supervision duty. Being inspired primarily by an educational objective, a board of education should have sufficient discretion to make this change without prior negotiations so long as the change is not unduly burdensome.

* * *

Thus, we are impelled to rule that a change from preexisting practice which is directly related to an educational purpose

should not be measured by caliper and micrometer. Boards of education must be given some room to manage between contracts without being forced to bargain over every move they make. There must be some rounding of the edges of contention.

[Emphasis added; Id at 447-449]

Thus, although the Caldwell-West Caldwell Court reasons in favor of a liberal construction of the concept of past practice, it is careful to place its conclusion in the context of the Board's mandate to carry out its educational objectives. Here, the record indicates that the Board's unilateral reduction of a study hall was not related to any educational purpose. Instead, the Board's motivation was purely financial. Additionally, this was the first time the Board attempted to reduce a teacher's hours and resulting compensation soley by the reduction of an assigned duty period. Thus, I conclude that the reduction of Lineback's teaching schedule from a 5/8 to a 4/8 schedule did not fall within the parameters, of the established practice whereby the affected individuals' compensation would be determined by their pro-rata placement on the salary guide.

Reduction of Hours and Salary

Under In re IFPTE Local 195 v. State, 88 N.J. 393 (1982), a subject is mandatorily negotiable if:

...(1) the item intimately and directly affects the work and welfare of public employees; (2) the subject has not been fully or partially pre-empted by statute or regulations; and (3) a negotiated agreement would not significantly interfere with the determination of governmental policy. To

decide whether a negotiated agreement would significantly interfere with the determination of governmental policy, it is necessary to balance the interests of the public employees and the public employer. When the dominant concern is the government's managerial prerogative to

determine policy, the subject may not be included in collective negotiations even though it may intimately affect employees' working conditions. [Id. at 404-405]

Here, there can be no doubt that the unilateral reduction of hours and salary affects the work and welfare of public employees. Moreover, the subject has not been fully or partially pre-empted by statue or regulation. Finally, a negotiated agreement in this area would not significantly interfere with the determination of governmental policy. Accordingly, we are dealing with a mandatorily negotiable subject.

Boards of education are entrusted with certain rights and obligations inherent to administrative and certain other bodies which enable them to carry out society's educational mandates. Here, it seems clear that the Board had a right to eliminate an unnecessary study hall if this decision was made as a valid exercise of its managerial responsibility to administer its schools. Cf., In re Cherry Hill Bd. of Ed., P.E.R.C. No. 85-68, 11 NJPER 44 (¶ 16024 1984). However, merely going through the exercise of abolishing positions and creating new ones does not alter the fact the Board has effectively reduced the hours and, as a result, the salary of one of its teaching staff members without first seeking to negotiate the change. In re East Brunswick Bd. of Ed., P.E.R.C. No. 82-111, 8 NJPER 320 (¶ 13145 1982); In re Hackettstown Bd. of Ed., P.E.R.C.

No. 80-139, 6 NJPER 263 (¶ 11124 1980), aff'd App. Div. Docket No. 385-80T3 (1/8/82), pet. for certif. den., 89 N.J. 429 (3/16/82). In Cherry Hill, supra, cited by the Board in its post hearing brief, this Commission stated, that "[p]ermitting a unilateral reduction in

working hours would destroy the parties' explicit agreement concerning work hours and the integrity of the negotiated relationship between working hours and salaries" 11 NJPER at 46. Nevertheless, absent the finding of a past practice, this is exactly what the South River Board has done. As in Cherry Hill, supra, this Board failed to distinguish between its right to unilaterally eliminate a study hall where such an elimination is a valid exercise of its responsibility to administer its schools, and its obligation to negotiate work hours and compensation. Accordingly, it is my recommended decision that the Board's unilateral reduction in Lineback's schedule from a 5/8 to a 4/8 schedule, was a valid exercise of its managerial prerogative; however, the Board violated its obligation to negotiate compensation as a result of this reduction.

ORDER

The South River Board of Education is ordered to:

(1) Cease and desist from unilaterally reducing work hours and resulting compensation of its teaching staff members;

(2) Negotiate in good faith before altering work hours and resulting compensation of teaching staff members;

(3) Immediately negotiate hours and resulting compensation of Caroline Lineback;

(4) Pay to Lineback, the monetary difference, together with interest at 12% per annum, between the amount she would have earned had she worked a 5/8 schedule and the amount she did earn in her 4/8 schedule;

(5) Post in all places where notices to employees are customarily posted, copies of the notice marked Appendix A, stating the finding of an Unfair Practice. Copies of such notice, on forms to be provided by the Commission, shall be posted immediately upon receipt thereof, and after being signed by the Respondent's authorized representative, shall be maintained for a period of at least sixty (60) consecutive days. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced or covered by other material.

(6) Notify the Chairman of the Commission, within twenty (20) days of receipt, what steps the Respondent has taken to comply with this Order.

Marc F. Stuart

Hearing Examiner

Dated: August 26, 1985

Trenton, New Jersey