H.E. NO. 80-43

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. CO-79-79-24

SOUTH RIVER EDUCATION ASSOCIATION,

Charging Party.

Appearances:

For the Respondent, Wilentz, Goldman & Spitzer, Esqs.

(Mr. Gordon J. Golum, Of Counsel)

For the Charging Party, Rothbard, Harris & Oxfeld, Esqs. (Mr. Sanford R. Oxfeld, Of Counsel)

HEARING EXAMINER'S	RECOMMENDED

REPORT AND DECISION

On October 10, 1978, the South River Education Association ("Charging Party" or "Association") filed an unfair practice charge with the Public Employment Relations Commission ("Commission") alleging that on May 23, 1978 and again on July 25, 1978 the South River Board of Education ("Respondent" or "Board") refused to allow unit employees (teachers), their chosen representatives at Board meetings at which the employees intended to discuss their individual requests for extended sick leave and extended maternity leave, respectively, in violation of N.J.S.A. 34:13A-5.4(a)(1) and (5).1/

It appearing that the allegations of the charge, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on October 22, 1979. By Answer filed November 2, 1979, the Respondent denied the material allegations of the Complaint except admitted that on the dates specified it refused to allow representatives of the Charging Party to accompany certain teachers in closed sessions of the Board, closed in accordance with the wishes of the teachers pursuant to the Open Public Meeting Law, at which the Board had informed them it would discuss their individual requests for extended sick leave or for child care leave. The Respondent's Answer also contains 12 separate affirmative defenses to the Complaint. A number of them raised procedural defenses which have been resolved as a consequence of a later executed stipulation of facts. A number of the others shall be dealt with in the analysis portion of this Report insofar as they have been pressed in Respondent's brief.

On January 30, 1980, the respective attorneys for the parties filed with the undersigned Examiner a stipulation of facts with exhibits annexed and by covering letter noted on behalf of their clients their agreement to waiver of hearing. Accordingly, by letter of the same date, the undersigned acknowledged the agreement to waive hearing pursuant to N.J.A.C. 19:14-6.7 and advised the parties that the full stipulation shall constitute the record for purposes of all further proceedings.

On February 15, 1980, Charging Party filed a letter memorandum in lieu of formal brief, and on February 29, 1980, Respondent filed a brief. These submissions have been duly considered. Upon the entire record in this case, consisting of the stipulation of facts and annexed exhibits, I make the following:

FINDINGS OF FACT

At all material times, the Association has been the exclusive representative of classroom teachers and other professional employees employed by the Board for purposes of collective negotiations concerning their terms and conditions of employment.2/ An agreement between the parties covering school years 1976 through 1978 contains a Grievance Procedure, Article III, defining a grievance as "a claim by a teacher or group of teachers based upon an alleged violation, misinterpretation, or inequitable application, of any of the provisions of this Agreement as required by Paragraph 7, Chapter 303 laws."3/ A grievance to be considered under this procedure must be initiated by the employee within 30 calendar days of its occurrence.

Both the 1976-78 and 1978-81 agreement contain the identical Leave of Absence clause, Article XIII. Within that clause is a provision providing for extension of a child care leave upon the birth of a child.4/ The provision reads as follows:

"15. Child Care Leave

* * *

b.	If the child is born on March 1 or thereafter, the Board shall, upon written application made not later than sixty (60) days after the birth of the child or June 30, whichever comes first, grant an extension of the Child Care Leave through the following school year. This provision shall apply to non-
tenured teachers only if the Board grants said teacher a renewal of contract for the following year."

By letter dated June 20, 1978, directed to Board Secretary Edward S. Perdik, unit employee Linda Linke requested reconsideration of a recent Board decision rejecting her request for a one-year extension of her child care leave. The latter notes her difficulty in arranging satisfactory care for her two small children. By letter dated June 27, 1978 directed to the Board, unit employee Patricia C. Carney requested an extension of her child care leave for the following school year. She noted in the letter certain difficulties in obtaining competent child care for her two children. Both employees noted their understanding that if their requests were denied they would resume teaching in the fall.5/

By almost identical letters dated July 21, 1978, directed to Linke and Carney, Superintendent of Schools Anthony F. Agnone advised each of them that their request would be discussed by the Board at a closed session to be held in the Board's office on the evening of July 25. The letters noted that the employees may be present at this session or they may request that the Board discuss it at the regular open meeting of the Board to be held later that evening. The letters closed with a request that the writer be advised of their preference and whether they planned to attend. Both teachers replied in writing, Linke by letter dated July 22, and Carney by letter dated July 23, in which each advised she would attend the Board's closed session and had asked an Association representative to accompany her.

The Board's position is that its letters to the teachers with respect to its July 25 consideration of their requests and their right to request a discussion of their applications at a public session were sent pursuant to the Open Public Meeting Law, N.J.S.A. 10:4-6 et seq.6/

Linke and Carney attended the July 25, 1978 regular meeting of the Board with Doris Wenger, Treasurer of the Association, as their representative. The President of the Board, Regis Wyluda, advised Wenger, Linke and Carney that the Association representative would not be permitted to attend the closed portion of the Board meeting which Linke and Carney requested by closed, but could address the Board in its open session that evening and that after the closed session he would inform Linke and Carney that if they desired representation, the Board would hear their request in open session. The Board did not require a closed session, indicating to Linke and Carney that they could request the discussion be at an open session instead of a closed session of the Board. Doris Wenger was not allowed to attend the closed session which the two teachers elected to attend. The Board solicited information from Linke and Carney during the closed session relating to their applications but did not require them to remain at the closed session. The Board advised both teachers that no decision would be effective and final until the Board voted on the leave requests in its public session.

An open session then ensued at which time the Board voted to grant the requested leaves.

The parties agree that the appearance of Linke and Carney before the Board on July 25, 1978 was not pursuant to the grievance procedure, Article III of the 1976-78 agreement.

The Board argues that its action would not have been affected if the teachers had not attended the closed session where it considered their application. The Association asserts that an informal straw vote had been taken at the closed session.

ANALYSIS

The Charging Party argues that the form of leave sought by the two employees is clearly a term and condition of employment.7/ From this undisputed premise and without any further rationale, Charging Party concludes that the two teachers were entitled to have an Association representative at the Board's closed session. Charging Party also contends that the Supreme court's determination in Red Bank Regional Ed. Assn. v. Red Bank Board of Education, 78 N.J. 122, 393 A.2d 267, 272 (1978) further supports its position. Yet the quotation from the Court's opinion which appears at page 4 of its letter memorandum refers specifically to the constitutional right of public employees to make known "...their grievance and proposals by the representatives of their choosing." Id. at 272. The matters pending before the Board at the time the employees requested an Association representative was neither a grievance under the parties' agreement nor a proposal for negotiation.8/ A further quote from Red Bank appearing at page 5 of the Charging Party's memorandum is inapposite. The parties' stipulation of facts hardly presents a situation in which the public employer is requiring "...individual action at the critical moment when a vindication of employee rights is at stake..." Id. at 275. The instant employee requests cannot reasonably be interpreted as "short-circuiting" the system of collectivity which the legislature sought to promote under the Act and with which the Court in Red Bank was justifiably concerned.

As to the Charging Party's contention that East Brunswick Board of Education, P.E.R.C. No. 80-31, 5 NJPER par. 10206 (1979) supports a finding of violation here, I disagree. The Commission's footnote quoted at p. 7 of its memorandum (5 NJPER at 400,n.2) notes that a finding of violation of subsection (a)(5) could be predicated upon a refusal to negotiate with respect to a mandatory subject. Admittedly the extended leave request is a mandatory subject. However, the record contains no evidence that the Association was seeking to negotiate with respect to extended child care leave. Indeed, the subject had already been negotiated and the fruits of those negotiations are embodied in the last two contracts executed by the parties.9/

As the stipulation notes, Respondent provided the employees with an opportunity to appear in executive (closed) session because of a belief that its consideration of their requests presented a matter which could result in employee rights being adversely affected.10/ Thus, Linke and Carney were informed that they could elect to have their requests discussed at the Board's closed session. They chose to present their requests at the closed session and did not request in writing a public meeting.11/

Whether or not the Board is correct in its general position that representatives may be precluded from a closed session pursuant to the Open Public Meeting Law, it is clear on the stipulated record before me that the teachers' requests for favorable consideration of their claims for extended sick leave does not raise a serious issue of entitlement to representation by their collective negotiations representative.

The sole purpose for providing the exception to an open public meeting for consideration of personnel matters under the Open Public Meeting Law is to protect individual privacy.12/ That purpose would be seriously undermined were non-employees permitted to attend and in a representative capacity. As the closed session is held at the employee's election, it is the employee who determines whether or not representation in presenting an employee benefit request may be afforded13/ and whether or not the matter shall be submitted privately in the first instance.

As Respondent correctly notes in its brief, the teachers' requests did not involve an interview which they reasonably feared may result in sanctions or discipline.14/ The Respondent had not initiated an investigation of the employees. Rather, the employees were seeking to invoke rights under a collective agreement, either a right to which they were automatically entitled or a right which required the employer to exercise its discretion in determining entitlement. Only if the requests were denied would the matter be ripe for presentation as a grievance under the parties' agreement. See page 2 and f.n. 3, supra. Indeed, the applications never reached that stage as the Board granted both requests without the necessity for any further presentation or proceeding.

The Commission has now adopted the Weingarten standard in determining whether employees are to be denied or granted the presence of the majority representative where that presence is disputed by the employer.15/ The extension of that principle in the instant facts is not warranted for the reason stated. Accordingly, and upon the foregoing, and upon the entire record in this case, the Hearing Examiner makes the following:

CONCLUSIONS OF LAW

The Respondent South River Board of Education did not violate N.J.S.A. 34:13A-5.4(a)(1) and (5) by failing and refusing to permit the affected teachers to retain Association representation at their discussions held with the Board at closed sessions pursuant to their requests for extended child care leaves.

RECOMMENDED ORDER

The Respondent South River Board of Education having not violated the Act, it is HEREBY ORDERED that the Complaint be dismissed in its entirety.

____________________________

Robert T. Snyder

Hearing Examiner

DATED:	April 29, 1980

Newark, New Jersey