H.E. NO. 78-8

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

LOWER TOWNSHIP BOARD OF EDUCATION,

Respondent,

-and-	Docket No. CO-77-193-132

CE-77-27-133

LOWER TOWNSHIP ELEMENTARY TEACHERS'

ASSOCIATION,

Charging Party.

Appearances:

For the Lower Township Board of Education

Perskie and Callinan, P.A.

(John F. Callinan, Esq.)

For the Lower Township Elementary Teachers' Association

Goldberg, Simon & Selikoff

(Joel S. Selikoff, Esq.)

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the "Commission") on February 18, 1977 by the Lower Township Elementary Teachers' Association (hereinafter the "Charging Party" or the "Association"), which was amended July 19, 1977, alleging that the Lower Township Board of Education (hereinafter the "Respondent" or the "Board") 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 Board, notwithstanding alleged agreement to do so, has refused to reduce to writing a salary guide, including the formulae used to compute and to distribute its salaries, which is alleged to be a violation of N.J.S.A. 34:13A-5.4(a)(1), (5) and (6) of the Act.1/

The Board by way of answer and response to the charge of the Association, filed an Unfair Practice Charge on February 3, 1977 alleging that the Association has refused to negotiate in good faith with the Board concerning the salary guide for the year 1976-77 and that the Association has wrongfully refused to reduce a negotiated agreement to writing and sign such agreement, and that the Association has filed a charge with the Commission as an alternative to bargaining in good faith, all of which is alleged to violate N.J.S.A. 34:13A-5.4(b)(3), (4) and (5) of the Act.2/

It appearing that the allegations of the above charges, if true, may constitute unfair practices within the meaning of the Act, Complaints and Notices of Hearing were issued onJune 13, 1977.

Pursuant to the Complaints and Notices of Hearing, a hearing was held on July 21, 1977 in Trenton, New Jersey, at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. Post-hearing briefs were submitted by the Charging Party and the Respondent on September 12, 1977.

Unfair Practice Charges, as amended in the case of the Association, having been filed with the Commission, a question concerning alleged violations of the Act, as amended, exists and, after hearing and after the filing and consideration of briefs by 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 Lower Township Board of Education is a public employer within the meaning of the Act, as amended, and is subject to its provisions.

2.	The Lower Township Elementary Teachers' Association is a public employee representative within the meaning of the Act, as amended, and is subject to its provisions.

3.	The 1975-77 collective negotiations agreement between the parties contained "salary reopener only for 1976-77" [emphasis by the parties].

4.	The 1975-77 collective negotiations agreement set forth in Appendix A the salary guides for the classifications of employees within the negotiations unit, which salary guides included as a heading, the percentage increase or formula by which each salary guide thereunder was computed.

5.	The 1974-75 collective negotiations agreement set forth in Appendix A, the salary guide for the classifications covered thereunder which did not include as a heading the formula for computation of the salary guide.

6.	In June 1976, the Board prepared and presented to a Public Employment Relations Commission Fact-Finder its position on salary increases, Appendix A of which included at the top of the proposed salary guide the formula by which the salary guide was computed.

7.	Negotiations on the 1976-77 salary reopener spanned the period October 2, 1975 to October 22, 1976. At the final meeting on October 22, 1976, the parties by their negotiators entered into a tentative Memorandum of Understanding with regard to salaries for 1976-77, said Memorandum of Understanding being subject to ratification by the principals.

8.	The Memorandum of Understanding of October 22, 1976, provided for an 8% increase over the salary expenses for the prior year. Further, the Memorandum provided, in pertinent part, as follows in ¶I(h): "The structure of the 1976-77 salary guides for all categories of employees shall remain as in the 1975-76 salary guides" [Emphasis supplied].

9.	Thereafter, the Association prepared a salary guide for each of the classifications covered in the negotiating unit, based upon the increases in salary expense as set forth in the October 22, 1976 Memorandum of Understanding. Each of the said salary guides contained at the top thereof the formula in percentages by which the salary guide was computed.

10.	The Board refused to agree to the inclusion of the computation formulae on the salary guides and as a result thereof the Association refused to negotiate further notwithstanding Board requests so to do.

11.	Notwithstanding that the Board refused to agree to the inclusion of the formula heading at the top of each salary guide, the Board did in or about March 1977 commence payment of salaries based upon the salary guides as prepared by the Association. It was stipulated by the parties that the Board is paying per the Association salary guides and that the formulae prepared by the Association are correct.

12.	The Board refuses and the Association insists that the formulae utilized by the Association in preparing the salary guides by included at the top of each of the respective salary guides for the classifications covered by the negotiations unit.

13.	The Board has made a motion to dismiss the Association's charges, inter alia, on the ground of mootness inasmuch as (a) the Board is paying the 1976-77 salary increases per the Association's salary guides and (b) the 1975-77 contract expired on June 30, 1977.

THE ISSUES

1.	Did the Board violate the Act when it refused to reduce to writing the 1976-77 salary guides, including the computation formulae, as prepared by the Association?

2.	Should the Association's charges be dismissed as moot by virtue of the implementation of the 1976-77 salary guide by the Board and the expiration of the 1975-77 agreement on June 30, 1977?

3.	Did the Association violate the Act when it refused to meet further with the Board after the Board refused to execute salary guides with the formulae for computing the guides incorporated therein?

DISCUSSION AND ANALYSIS

The Position of the Parties

The Charging Party contends that the Respondent Board has violated the Act, as alleged, by refusing to execute the salary guides prepared by the Association, which salary guides contain the computation or formulae by which the salary guides was calculated. The Charging Party observes that ¶I(h) clearly states that the structure of the 1976-77 salary guides shall remain as in the 1975-76 salary guide and that this was made known to the Respondent Board prior to the execution of the Memorandum of Understanding of October 22, 1976. Finally, the Charging Party argues that the Respondent Board has also violated the Act by the failure of its negotiators to recommend to the Board the ratification of the Memorandum of Understanding as clearly provided therein.3/

It is the Respondent Board's position that it has not violated its obligation under the Act to negotiate in good faith by its refusal to execute salary guides with the computation formulae at the head thereof. The Board contends that under a "salary reopener only" provision it is not obligated to include any language in any salary agreement reached with the Association. The Board further contends that the Commission is without authority to interpret the Memorandum of Understanding. Additionally, the Board urges that the matter is moot inasmuch as the agreement has expired and negotiations are under way for a new agreement. Finally, the Respondent Board contends that the Association is guilty of unfair practices, as alleged, in having refused to negotiate with the Board after disagreement arose over whether or not the computation formulae should be included at the heading of a salary guide.

The Board Violated the Act when it

Refused to Execute the 1976-77 Salary

Guides Containing the Computation Formulae

The Hearing Examiner finds and concludes that the Respondent Board has violated §(a)(5) and (6) of the Act, and derivatively §(a)(1) of the Act, by refusing to execute the salary guides as prepared by the Association. It is true that the 1975-77 collective negotiations agreement contained a provision for a salary reopener only. However, it does not follow therefrom that there can be no language involved in connection with negotiations fulfilling the reopener obligation.

The Memorandum of Understanding of October 22, 1976 necessarily contains language setting forth the agreement of the negotiators which was, of course, subject to ratification by the principals. The Hearing Examiner relies on the language utilized by the parties in the said Memorandum of Understanding, in particular that contained in ¶I(h), quoted above. The parties clearly provide that the "structure" of the salary guides for 1976-77 "shall remain as in the 1975-76 salary guides". The term "structure" coupled with the mandatory language that it "shall remain as in the 1975-76 salary guides" clearly indicates to the Hearing Examiner that the parties utilized the 1975-76 salary guides as a model for the 1976-77 salary guides in all structural respects.

An examination of the 1975-76 salary guides (Appendix A of the 1975-77 collective negotiations agreement) contains a computation formulae at the top of each salary guide. The Board claims weakly that its prior Superintendent did not have authority to include a formulae on the salary guides for 1975-76. There is no evidence before the Hearing Examiner that the Board ever repudiated the 1975-77 collective negotiations agreement, as it would have had to do if Appendix A is of no force and effect.

The Hearing Examiner also takes note that in June 1976 the Board prepared and presented to a Public Employment Relations Commission Fact-Finder its position on salary increases, Appendix A of which included at the top of the proposed salary guides the formulae of which the salary guides was computed. Obviously, the Board as recently as June 1976 was following the same format as that utilized by the parties in the 1975-76 salary guides. In so noting, the Hearing Examiner is aware of the fact that the 1974-
76 collective negotiations agreement did not set forth in Appendix A the formulae for computation of the salary guide. The Hearing Examiner concludes that the parties changes their method of presenting the salary guides with the advent of the 1975-76 salary guides.

The Memorandum of Understanding of October 22, 1976 was clearly adopted by the Association when it prepared the 1976-77 salary guides and submitted them to the Board for execution. Any contention by the Board that it has not adopted the Memorandum of Understanding is rendered academic by the fact that the Board in March 1977 commenced payment of the salaries as set forth in the salary guides prepared by the Association and it was stipulated at the hearing that the Board is so paying in accordance with the Association's salary guides and that the formulae prepared by the Association are correct.

Thus, given the mandatory language of ¶I(h) of the Memorandum of Understanding quoted previously and the fact that the Association has prepared salary guides with formulae, which are being implemented by the Board, and the fact that the figures in formulae are correct, the Hearing Examiner sees no obstacle to concluding that the Board has violated the Act by refusing to sign the negotiated salary guides. The Board has violated §(a)(5) and (6) of the Act, specifically, by its refusal. See Bergenfield Board of Education, P.E.R.C. No. 90, 1 NJPER 44, 45 (1975). Derivatively, the Board has violated §(a)(1) of the Act. See Galloway Township Board of Education, P.E.R.C. No. 77-3, 2 NJPER 254 (1976).

The Association's

Charges are not Moot

As noted previously, the Respondent Board filed a Motion to Dismiss the Association's charges, inter alia, on the ground of mootness. The argument of mootness was based upon the fact that the 1976-77 salary guides has been implemented by the Board and further by the fact that the 1975-77 collective negotiations agreement expired on June 30, 1977.

The Board cites as authority for a holding of mootness the decision of the Appellate Division in Galloway Township Board of Education v. Galloway Township Education Association, 149 N.J. Super. 353 (App. Div. 1977). The Hearing Examiner specifically declines to follow the holding in that case that a Commission order was moot by virtue of the expiration of a collective negotiations agreement in view of the action of the New Jersey Supreme Court on July 20, 1977, granting petitions for certification (Docket Nos. C-890 and 891, September Term 1976).

The Hearing Examiner finds and concludes that an order to execute the salary guides with the formulae thereon is not moot inasmuch as it provides continuity in the negotiations history of the parties, namely, that the parties have twice included formulae at the heading of the salary guides, these being for the salary guides for 1975-76 and 1976-77.

The Association did not

Violate the Act

The Hearing Examiner finds and concludes that the Board has failed to prove by a preponderance of the evidence adduced that the Association has violated the Act as alleged. Under the Rules of the Commission, it is incumbent upon the Charging Party to prove its case by a preponderance of the evidence. N.J.S.A. 19:14-6.8. Accordingly, the Board's charges of unfair practices will be dismissed.

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

CONCLUSIONS OF LAW

1.	The Respondent Board did by its refusal to execute the 1976-77 salary guides prepared by the Charging Party violate N.J.S.A. 34:13A-5.4(a)(5) and (6).

2.	The Respondent Board by the aforesaid conduct did derivatively violate N.J.S.A. 34:13A-5.4(a)(1).

3.	The Respondent Board's Motion to Dismiss is denied.

4.	The Association did not violate N.J.S.A. 34:13A-
5.4(b)(3), (4) and (5).

RECOMMENDED ORDER

Respondent, Lower Township Board of Education, is HEREBY ORDERED:

A.	To cease and desist from:

1.	Interfering with, restraining or coercing its employees in the exercise of the rights guaranteed to them by the Act.

2.	Refusing to execute the 1976-77 salary guides as prepared by the Association with the formulae included in the headings thereof.

B.	Take the following affirmative action:

1.	Upon request, execute the 1976-77 salary guides prepared by the Association.

2.	Post in all schools and locations where notices are normally given to employees copies of the attached notice marked Appendix "A". Copies of such notice, on forms provided by the Commission, shall, after being signed by the Respondent's representative, be posted by Respondent immediately upon receipt thereof and maintained by it for a period of sixty (60) consecutive days thereafter. Reasonable steps shall be taken to insure that such notices are not altered, defaced or covered by any other material.

3.	Notify the Chairman of the Commission, in writing, within twenty (20) days from the day of receipt of the Recommended Report and Decision what steps have been taken to comply herewith.

____________________________

Alan R. Howe

Hearing Examiner

DATED:	September 22, 1977

Trenton, New Jersey