H.E. NO. 84-57

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

NEWARK BOARD OF EDUCATION,1/

Respondent,

-and-	Docket No. CO-83-159-84

NEWARK TEACHERS UNION,

LOCAL 481, AFT, AFL-CIO,

Charging Party.

Appearances:

For the Respondent

Louis C. Rosen, Esq.

For the Charging Party

Tomar, Gelade, Kamensky, Klein, Smith & Lehmann, Esqs.

(Sidney H. Lehmann, Esq.)

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the "Commission") on December 30, 1982 by the Newark Teachers Union, Local 481, AFT, AFL-CIO (hereinafter the "Charging Party" or the "NTU") alleging that the Newark 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") -- Count I: that on November 29, 1982, after the conclusion of negotiations in September 1982 for the current collective negotiations agreement, which is effective July 1, 1982 to June 30, 1985, the Board unilaterally and without negotiations with the NTU adopted a resolution providing for the implementation of an "Attendance Improvement Program" (hereinafter the "AIP"), which, it is alleged, revokes and modifies terms and conditions of employment of employees represented by the NTU in such areas as personal leave, funeral leave, leave for union business and the conditions for receipt of accumulated sick leave reimbursement; Count II: that the AIP unilaterally rescinds the grievance procedure, including binding arbitration, for breaches of the agreement covering sick leave, personal leave, accumulation of sick leave, and for other grievances arising from the application of the AIP, i.e., the AIP provides that if sick time is misused an individual is subject to the loss of increment or reduction in salary, and for a second offense, termination; Count III: that negotiations for the current agreement commenced in October 1981 and, during these negotiations, the NTU made concessions with respect to wages, hours and other conditions in order to convince the Board to drop its proposals on sick leave, personal leave, evening meetings, funeral leave and other matters, all the while the Board was in the process of developing the AIP, which would alter and abridge provisions of the agreement previously agreed to, supra, which conduct is alleged to constitute bad faith negotiations by the Board; Count IV: that the employees represented by the NTU are entitled to have their conditions of employment governed by the agreement; the adoption of AIP is intended to discourage these employees in the exercise of the rights guaranteed to them by the Act; and Count V: that the Board has attempted to deal directly with employees represented by the NTU with respect to the AIP by encouraging them to bypass the NTU, such communications by the Board for example being a memorandum dated December 6, 1982 to all employees from the Superintendent. All of the foregoing is alleged to be a violation of N.J.S.A. 34:13A-5.4(a)(1), (2), (3) and (5) of the Act.2/

The Unfair Practice Charge was followed by an application for interim relief, which was heard by Hearing Examiner Edmund G. Gerber on February 10, 1983. On February 23, 1983 a decision issued, which denied the request for interim relief in all respects except one3/ (I.R. No. 83-14).

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 April 25, 1983. Pursuant to the Complaint and Notice of Hearing, hearings were held November 7, 9, 14, 15 and December 20, 22, 1983 and January 9, 10 and 13, 19844/ 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 March 23, 1984.

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 Newark Board of Education is a public employer within the meaning of the Act, as amended, and is subject to its provisions.

2.	The Newark Teachers Union, Local 481, AFT, AFL-CIO is a public employee representative within the meaning of the Act, and is subject to its provisions.

3.	The NTU represents approximately 5500 employees in two collective negotiations units: Teachers5/ and Clerks (contracts J-4 & J-5) and Aides and Per Diem Substitutes (contracts J-6 & J-
7). The contracts cover the period July 1, 1980 through June 30, 1985.

4.	The Board's Executive Superintendent is Dr. Columbus Salley.

5.	In November 1981 negotiations commenced for the agreement, which ultimately became effective July 1, 1982 through June 30, 1985 (J-5 & J-7). The agreement which is material hereto is Exhibit J-5, which covers, in particular, the teachers who are the subject of this proceeding. Under date of December 22, 1981 the NTU and the Board submitted to one another their contract proposals covering teachers (CP-5 and CP-6). The collective negotiations concluded with a memorandum of agreement on August 20, 1982 (CP-9). The Board's ratification occurred on August 26, 1982 (CP-8) and the NTU ratified on September 7, 1982.

6.	Of the Board's 26 proposals for contract changes six of them pertained to sick leave (CP-6, pp. 1, 3, 3a, 3b, 6 and 20). The memorandum of agreement of August 20, 1982 indicates that only one item out of the six items set forth pertains to sick leave (CP-9, Agreement #1). This provision was incorporated into Exhibit J-5. The Board's other sick leave proposals were abandoned or withdrawn.

7.	Sometime immediately prior to July 1982 Superintendent Salley directed Anthony Megaro, the Special Assistant to the Executive Superintendent, to work with the Policy Review Committee (J-1, p. ii) and to develop a proposed AIP. Megaro was the Chairman of the Committee, which worked during July and August 1982 and completed its proposal in late August 1982. This document was then submitted to Salley and the Board's counsel. The document was reproduced under date of September 1982 and received in evidence as Exhibit J-1.

8.	The NTU first learned of the existence of the AIP when it received a copy of J-1 under date of November 16, 1982 (CP-1). Shortly after receiving J-1, representatives of the NTU spoke to Beverly A. Williams, the Board's Executive Director of Labor Relations, in an effort to negotiate regarding the proposed AIP, but Williams stated that it was "not negotiable." Other collective negotiations units in the Newark School District were solicited by the Board for comment and discussion regarding the proposed AIP. However, none of those units sought to negotiate with the Board on the subject. The NTU elected not to participate in informal discussions with the Board regarding the AIP.

9.	The Board, at a special meeting on November 29, 1982, approved the proposed AIP by a vote of 8-1 (CP-3, p. 4 and CP-4, p. 51).

10.	On December 6, 1982 Superintendent Salley issued a memo to all employees regarding the AIP, which reassured the employees that the Board would "continue to respect and recognize the rights of personnel to absent themselves, in an appropriate manner, from work in cases of illness or other valid reasons..." He added that it was hoped that employees would be encouraged to "...accumulate unused sick days..." He concluded by stating that each site administrator would receive a copy of the AIP program prior to its implementation on January 3, 1983 (CP-12).

11.	In January 1983 the Board's Office of Public Information issued a brochure to students, the community and employees explaining the AIP, how it came about and how it works (CP-13). See also, Exhibit CP-14.

12.	The AIP (J-1, ultimately succeeded by J-2 in 1983) is a 78 page document, portions of which are intended to improve and standardize the Board procedures for reporting and recording employee absences. The NTU does not contest the Board's managerial prerogative to attempt to improve the recording of employee attendance, nor does it dispute its right to monitor employee absences and take action against employees who are misusing or abusing sick leave. What the NTU objects to is the Board's effort to improve employee attendance by unilaterally altering terms and conditions of employment established by law, agreement (J-5) and/or past practice.6/ The Board counters that its purpose, in adopting the AIP, was to monitor the use of sick leave, and other types of leave, and to impose progressive discipline for abuse of leave thereby effectuating very substantial savings.7/ The Board argues that there was never any intent to limit the taking of legitimate sick leave or any other kind of leave.8/

13.	Article X, Section 2, Sick and Personal Leaves, Para. A of the current agreement (J-5, p. 41) and the prior agreement (J-
4, p. 44) provides that teachers "...shall be granted sick leave for illness for fifteen (15) days in each school year..." and, further, in Para. C that "Unused sick leave shall be accumulated without limit" Section 5 of the same Article X provides in each agreement that "No deduction of salary of a regular employee shall be made for absences as follows: A. Death in immediate family or household - absence not to exceed the four (4) consecutive calendar days immediately following the death. B. Funeral of near relative other than member of immediate family - absence not to exceed one (1) day..." (J-5, p. 43; J-4, pp. 46, 47).

14.	It was stipulated that the past practice of the Board has been to require medical certification of illness commencing with the sixth consecutive day of absence, no medical certification having been required for the first five consecutive days of absence (1 Tr. 73-75). Article V, Section 3E, Para. 1 (J-5, p. 20) provides that all teachers are required to report their absence one hour prior to their scheduled sign-in time and failure to do so will result in the deduction of one day's pay.

15.	The AIP in its Policy Statement (J-1, p. 2) notes a concern about the high incidence of absenteeism and tardiness throughout the school district. It next states that it is reasonable to expect that staff attendance can be maximized if an attempt is made to improve the work environment. To this end, it is stated, an attendance improvement program shall be implemented, maintained and reviewed periodically. The Executive Superintendent is delegated the responsibility for implementing, monitoring and maintaining the program, the primary purpose of which is to improve the attendance of "all Board employees."

16.	The AIP provides for a Form 2.1A (CP-11), which must be completed and executed by every Board employee upon return from absence due to personal illness. A certification to that effect is made by each employee. The form is placed in the employee's personnel folder for future reference (J-1, pp. 3, 14).

17.	The AIP also provides for a Form 5.0 for use on the occasion of funeral leave. In its original form the employee was to "swear and affirm" regarding the absence, including the name of the decedent and relationship, following which the employee executed the form (J-1, pp. 56, 57). In a clarification by Salley on January 24, 1983, Form 5.0 was amended to insert "certify" in place of "swear and affirm," and providing further that NTU members do not require verification beyond the completion of form 5.0 (CP-15, p. 2). The AIP also provides for penalties for abuse of funeral leave, commencing with the loss of an increment or reduction of salary upon the first offense and termination upon the second offense (J-1, p. 56).

18.	A written stipulation was received in evidence as Exhibit J-3, which notes, initially, that under the AIP employees are required to execute Form 2.1A upon return to work from illness and to execute Form 5.0 upon return from funeral leave. Failure to execute these forms results in non-payment of salary for each day of absence. In January and February 1983 a number of teachers represented by the NTU refused to sign Forms 2.1A and 5.0 and, even though they had not exhausted their sick days or funeral leave days, they were docket a day's pay for each day of absence.9/ Thereafter the NTU filed a series of group grievances seeking pay for each affected employee and ultimately the NTU filed for arbitration. The Board then filed a Petition for Scope of Negotiations Determination (Docket No. SN-84-21) and sought to restrain the arbitration. The instant Hearing Examiner, on an application for interim relief, restrained the arbitration pending a Commission decision.

19.	By way of the implementation of Form 2.1A and 5.0, supra, the AIP provides for employee conferences with administration of both an informal and formal nature (J-1, pp. 40-48). It is first provided that after any three-day absence for ten-month employees an informal conference is to be held in the administrative office (J-1, pp. 40-43). The NTU offered in evidence a series of informal conference reports for three-day absences (CP-16, CP-17, CP-19, CP-23 and CP-28). If, thereafter, five days of absence occur then a formal conference is convened with the employee and his or her administrator (J-1, pp. 44, 45). The NTU offered Exhibits CP-18 and CP-20 as evidence of five-day conferences having been held. Finally, the AIP provides for the holding of a formal conference after eight absences have occurred (J-1, pp. 46, 47). One eight-day conference report was received in evidence (CP-21). In connection with the eight-day conference, a Form 4.2 is utilized by the administrator in conducting the conference, which sets forth, inter alia, the date of the informal conference (3-day) and the first formal conference (5-day). In the case of eight days of absence the individual "...may be subject to loss of increment or reduction in salary, or, if the two full years of prior history of absences, plus current year's history warrant such, separation from district..." (J-1, p. 54). However, the AIP then goes on to provide that the submission of a clearly written, dated medical certificate for any single day's absence "will negate the effect of said absence for purposes of this section..." (J-1, p. 54). Thus, upon the submission of a valid medical certificate, the penalty of a loss of increment, a reduction in salary or termination is obviated.

20.	Article X, Section 2, Para. B (J-5, p. 41) provides that: "Teachers with twenty-five (25) years' experience in the system shall receive ten (10) additional non-cumulative days per year after accumulated (sick) leave has been exhausted..." The AIP, on the other hand, provides, under a heading "Exhausted Sick Time," that:

All clerks are hereby notified that no additional paid sick-time is to be credited or given to individuals who have exhausted their annual and accumulated sick time without prior application to, and approval by, the Board on an individual basis. (J-1, p. 52).10/

21.	The NTU proposed in contract negotiations for the current agreement that upon retirement with 20 years of service application might be made for payment in lieu of accumulated sick leave at the rate of one day's pay for every three days of accumulated sick leave up to a maximum of $1,000 (CP-6, p. 1). The Board refused to agree to this proposal and it was not included in the current agreement (J-5). However, the AIP provided for certain incentives in the case of employees who have accumulated large numbers of unused sick days (J-1, p. 78). This provision of the AIP was deleted by Salley in a clarifying memo of January 24, 1983 (CP-15, p. 3).11/

22.	In and around the effective day of the AIP, January 3, 1983, Marvin W. Wynche, the Board's Chief of Staff, undertook with Salley the clarification of certain provisions of the AIP, based upon the input from other collective negotiations units. This resulted in Salley's memorandum of January 24, 1983 to all administrators (CP-15). This memo made the following pertinent clarifications and changes in the AIP:

a.	Providing the manner in which Form 2.1A is to be completed by the administrator in the case of employees who refuse to complete and execute the form.

b.	Eliminating the requirement of "swear and affirm" from the funeral leave Form 5.0 and providing that NTU members do not require verification beyond the completion of the form.

c.	Providing that the AIP has no effect on an employee's use of personal days - personal days are to be used in exactly the same manner as prior to the AIP.

d.	Clarifying that sick days utilized by an employee for which the employee produces a doctor's certificate are not to be counted toward the number of days which trigger an informal or formal conference under the AIP.

e.	Eliminating the incentive program for sick leave (J-1, p. 78).

f.	Clarifying the right of an employee to file a grievance under his or her collective negotiations agreement as a result of the application of the AIP.

23.	The Board, in support of its reasons for adopting the AIP, offered several witnesses and documents to establish that both the County and the State Department of Education require a program to monitor the absences of staff in order to obtain a satisfactory evaluation for the district (6 Tr. 111-151, 8 Tr. 2-
35, R-12, R-12A and R-13).

THE POSITIONS OF THE PARTIES

The Charging Party

The NTU's first point is that the AIP unilaterally changes terms and conditions of employment, which must be negotiated before being implemented, citing Section 5.3 of the Act with respect to proposed new rules or modifications of existing rules: Galloway Township Board of Education v. Galloway Township Education Association, 78 N.J. 25, 48, 49 (1978). The Charging Party then cites a series of cases, which hold that sick leave is a negotiable term and condition of employment.12/ The Charging Party then cites and urges reversal of Piscataway Township Board of Education (Piscataway I), P.E.R.C. No. 82-64, 8 NJPER 95 (1982) and subsequent like decisions of the Commission13/ with the Charging Party contending that the cases subsequent to Piscataway I do not recognize the right of the employer to impose discipline except in cases of abuse of sick leave. The Charging Party next cites decisions of the New York State Public Employment Relations Board (PERB), two of which the Commission has relied upon in Piscataway I,14/ and additional decisions of PERB for the proposition that requiring teachers to document, upon demand, absences due to illness is an unfair practice.15/ Finally, the Charging Party cites decisions of the NLRB, enforced by the Circuit Courts, for example, Murphy Diesel Co. v NLRB, 454 F.2d 303 (7th Cir. 1971).

The Charging Party in its second point argues that the Board violated N.J.S.A. 18A:30-2 when it established eight days as a standard for excessive absenteeism. This section of Title 18A provides that teachers should be allowed sick leave with full pay for a minimum of 10 school days in any school year. It is contended that the three, five and eight-day conferences interfere with the right to take 10 days sick leave per year. Thereafter, the Charging Party cites Commissioner of Education decisions which deal with excessive absence and tenure charges in support of its contention that the imposition of discipline for other than excessive absence is a violation of N.J.S.A. 18A:30-2.

The Charging Party next argues that the unilateral imposition of the AIP by the Board contravenes the Board's obligation to negotiate mandatorily upon "disciplinary disputes, and other terms and conditions of employment" as provided in Section 5.3 of the Act, as amended July 30, 1982.

The NTU contends, additionally, that the AIP's attempt to negate Article X, Section 2, Para. B in J-5 is contrary to Hoboken, supra. That case implicitly upheld the instant clause, which provides for an additional 10 days of non-cumulative sick leave after accumulated sick leave has been exhausted for teachers with 25 years' experience and is consistent with N.J.S.A. 18A:30-7.

Finally, the Charging Party contends that the Board cannot avoid the finding of an unfair practice, or a cease and desist order, by the Executive Superintendent's clarification of the AIP on January 24, 1983 (CP-15).

The Board

The Board, citing Piscataway I, supra, argues that it had a unilateral right to adopt the AIP as a lawful exercise of a managerial prerogative to monitor and control the performance of its work force. The Board, too, cites Rahway, Freehold, East Orange and Elizabeth, all of which were cited by the Charging Party, supra.

The Board next argues that the criteria for disciplinary action are non-negotiable and non-arbitrable, citing State of New Jersey v. Local 195, IFPTE, 179 N.J. Super. 146 (App. Div. 1981), pet. for certif. den. __ N.J. ___ (1982). Also cited is New Providence Board of Education, P.E.R.C. No. 83-88, 9 NJPER 70 (1982).

Finally, the Board contends that it may not grant sick leave in excess of 15 days as a blanket policy without making a determination on a case-by-case basis, citing Piscataway Township Board of Education v. Piscataway Maintenance & Custodial Association, 152 N.J. Super. 235 (App. Div. 1977). That case, according to the Board, holds that by granting extended sick leave benefits "as a matter of right" the Board surrenders its statutory obligation to deal with each case on an individual basis. By this argument the Board attacks Article X, Section 2, Para. B, supra.

DISCUSSION AND ANALYSIS

The AIP, As Implemented, Illegally

Conflicts With Article X, Section 2,

Para. B Of The Current NTU Agreement

The Board in its Brief (pp. 26-28) argues that the AIP provision, which instructs clerks that no additional paid "sick time" is to be credited automatically to individuals who have exhausted their annual and accumulated sick leave (J-1, p. 52), is lawful and consistent with the Appellate Division decision in Piscataway Township Board of Education v. Piscataway Maintenance & Custodial Association, 152 N.J. Super. 235, supra. In Piscataway the Court first noted that: "Unquestionably, sick leave or other leaves of absence are matters that directly and intimately affect the terms and conditions of employment..." (152 N.J. Super. at 243, 244). The Court was there confronted with the contractual grant of extended leave for "total disability" arising from injury in the course of employment. The contract provided for benefits not to exceed one calendar year or 260 working days. The Board there relied on N.J.S.A. 18A:30-6 and 30-7,16/ in particular the former, to support its contention that the contractual provision was ultra vires.

The Court said that its concern was over the payment of salary "...for prolonged absence beyond the allowable annual and accumulated sick leave. As to such payment, the controlling statute, N.J.S.A. 18A:30-6, plainly leaves the matter to the discretion of the local board of education, which may pay any such person each day's salary...for such length of time as may be determined by the board of education in each individual case." (152 N.J. Super. at 246; emphasis by the Court). The Court then held that by granting its employees extended total disability leave benefits "as a matter of right" the Board surrendered its statutory obligation to deal with each case on an individual basis.

Unfortunately for the Board Piscataway is not the last word on the matter. For next came Hoboken, supra, which, while it dealt with the method of calculating sick leave, arose under a contract which allowed teachers 10 to 25 sick leave days per year, depending upon length of service. Teachers who were allowed 10 or 15 days per year were permitted to accumulate all unused days for use in the future. Teachers who were allowed 20 to 25 days were permitted to accumulate to a maximum of 15 unused days each year under N.J.S.A. 18A:30-7, supra. Prior to 1978-79, the Board in Hoboken did not differentiate between sick days above or below 15 as a teacher used up his or her annual sick leave in any given year. Beginning in the 1978-79 school year the Board unilaterally changed the method of calculating the number of accumulated sick days by which a teacher could increase his or her total in any one year. Thus, the Board divided annual sick leave into accumulative sick leave, the first 15 days of each year, and non-accumulative sick leave, all sick days over 15 for any given year. The Board then deducted from a teacher's sick leave as follows: first, from the 15 accumulative days, then from the bank of accumulated sick days from past years, and finally, from the teacher's annual allotment of non-accumulative days.

Notwithstanding several Commissioner of Education decisions, cited by the Board in Hoboken, the Commission found that N.J.S.A. 18A:30-6 and 30-7, supra, do not preemptively specify the method of utilizing sick leave days,17/ and held that the Board's unilateral change in sick leave policy was negotiable and arbitrable.

In reaching its decision the Commission held that:

...(T)he parties... (are) free to negotiate that non-accumulative days be used first, or vice-versa, or to develop by mutual agreement any other formula regarding the reduction of sick days...What the statutes do mandate is that no more than 15 days per year may be 'banked.'

...We thus conclude that N.J.S.A. 18A:30-6 and 18A:30-7 do not mandate or even suggest a 'set' procedure requiring the exhaustion of accumulative before non-accumulative sick days... (7 NJPER at 136, 137).

While N.J.S.A. 18A:30-2 fixes a minimum of 10 days of sick leave per year, N.J.S.A. 18A:30-7 permits a board to "fix...by rule" sick leave over the minimum,18/ provided only that the total accumulation may not be increased "by more than 15 days in any one year." This appears to leave the total number of non-
accumulative days open to negotiations by the parties. Thus, the Hearing Examiner finds and concludes that the AIP (J-1, p. 52) unlawfully alters a term and condition of employment by unilaterally rescinding the 10 days of non-accumulative sick leave for teachers with 25 years of experience (J-5, p. 41). In so concluding, it is noted that the 10 additional non-
accumulative days of sick leave can only be taken after accumulated leave has been exhausted. The fact that the 10 non-
accumulative days are based on length of service was recognized as legal by the Appellate Division in Hoboken, supra. The Hearing Examiner will hereinafter order that the foregoing provision of the AIP (J-1, p. 52) be rescinded.

The AIP's Unilateral Establishment Of

Three, Five And Eight-Day Conferences

To Monitor Sick Leave Did Not Violate The Act

As noted in Finding of Fact No. 12, supra, the NTU in its Brief does not contest the Board's managerial prerogative to improve the recording of employee attendance, nor does it dispute the Board's right to monitor employee absences and take action against employees who are misusing or abusing sick leave. What the NTU objects to is the Board's effort to improve employee attendance by unilaterally altering terms and conditions of employment, established by law, agreement or past practice.

Bearing in mind that the AIP provides that the submission of a clearly written, dated medical certificate for any single day's absence negates the effect of the absence vis-a-vis a three-day, five-day or eight-day conference, it is difficult to perceive how the provision for such conferences constitutes other than the exercise of a managerial prerogative to monitor the use and possibly the abuse of sick leave or other leave. Thus, the employee is in complete control of the situation by the mere requirement of having to submit a clearly written, dated medical certificate for any single day's absence. Obviously, if an employee was out for three days or more due to illness, a single medical certificate covering those days would suffice. It is true, however, that if an employee was out for one day only due to illness he or she would have to produce a medical certificate for that single day in order for that day not to count in the triggering of a three-day, five-day or eight-day conference. The Hearing Examiner finds that the Board is not bound by its past practice of having required a doctor's certificate only after five consecutive days of absence (Finding of Fact No. 14, supra).

It appears to the Hearing Examiner that the Board's unilateral establishment of the three-day, five-day and eight-day informal and formal conferences constitutes the valid exercise of a managerial prerogative which "...serves a legitimate and non-
negotiable management need to insure that employees do not abuse contractual sick leave benefits..." (Piscataway I, 8 NJPER at 97).19/ As noted by the Commission in that decision the "mere establishment" by the Board of a sick leave policy "...does not impinge on the Association's ability to negotiate sick leave benefits or on an individual's ability to utilize sick leave for proper purposes..." (8 NJPER at 96, 97).20/

The Commission in Piscataway I made it clear that if an employee believes that the Board erred in determining that the employee was not actually sick the Association (here the NTU) may file a grievance and, if necessary, take the matter to binding arbitration. In other words, the Board may legitimately attempt to verify the bona fides of a claim of sickness but may not prevent the Association (NTU) from contesting its determination in a particular case. The subsequent decisions of the Commission in like cases confirm and reaffirm Piscataway I: see Freehold, Rahway, East Orange and Elizabeth, supra.21/

In Piscataway II, P.E.R.C. No. 83-111, 9 NJPER 152 (1983), the Commission, in a scope of negotiations determination, held that a grievance alleging that the Board violated the collective negotiations agreement by rejecting a teacher's claim for sick leave pay was arbitrable. The Board there had contended, inter alia, that the grievance was not arbitrable because it concerned a disciplinary determination. This contention was rejected by the Commission along with another contention by the Board, i.e., that the Commissioner of Education had jurisdiction to enforce statutory sick leave provisions.

Accordingly based on the foregoing Commission precedent, the Hearing Examiner finds and concludes that the Board has not violated the Act by its unilateral establishment of three-day, five-day and eight-day informal and formal conferences to monitor sick leave and other leave.

The AIP's Provision For Disciplinary

Criteria In Connection With The Eight-

Day Conference Does Not Violate The Act

The AIP provides, in connection with the eight-day conference, that an individual "...may be subject to loss of increment or reduction in salary, or, if the two full years of prior history of absences, plus current year's history warrant such, separation from district..." (J-1, p. 54). The NTU argues strenuously that this provision of the AIP constitutes a negotiable disciplinary dispute and/or disciplinary review procedure, which the Board must negotiate under Section 5.3 of the Act, as amended, July 30, 1982. Cf. Local 195, IFPTE, supra.

The same Section 5.3, as amended, provides that: "Nothing herein shall be construed as permitting negotiation of the standards or criteria for employee performance." The Hearing Examiner is of the opinion that the above-quoted language from the AIP (J-1, p. 54) involves "standards or criteria for employee performance." The key word in the AIP is "may," which provides a wide area of discretion in the Board in determining whether or not there is to be a loss of increment or a reduction in salary or separation from the district. It is noted that there is nothing in the AIP, or the Act, which would prevent the NTU from seeking to negotiate with the Board "disciplinary review procedures" short of binding arbitration, which is precluded by Section 5.3, as amended, since the teachers herein involved have statutory protection under the tenure laws. See Providence Board of Education, supra, at 72. The Commission said there that "...the parties may negotiate a clause consistent with N.J.S.A. 34:13A-5.3 which would make disciplinary determinations reviewable through the negotiated grievance procedures, but would exempt such determinations from binding arbitration if the affected employee had statutory protection under the tenure law or alternate statutory appeal procedures..." (9 NJPER at 72).22/

Thus, does the Hearing Examiner find and conclude that the Board did not violate the Act when it established disciplinary criteria in connection with the eight-day conference regarding sick leave and funeral leave.

There Is No Illegality In The Provision

Of The AIP Which Results In The Docking

Of A Day's Pay For Each Day Of Absence

In The Case Of An Employee Who Refuses

To Execute Forms 2.1A and 5.0 Upon Return

To Work

Exhibit J-3 was offered in evidence to demonstrate the effect of the implementation of the AIP in cases where employees refused to execute Forms 2.1A and 5.0 upon return to work from illness or funeral leave. Those employees who had acquainted themselves with the AIP must have understood that the failure to execute whichever form was applicable would result in non-payment of salary for each day of absence. In January and February 1983 a number of teachers represented by the NTU refused to execute Forms 2.1A and 5.0 and, even though they had not exhausted their sick or funeral leave days, they were docked a day's pay for each day of absence. Group grievances were filed by the NTU and arbitration was sought. As noted in Finding of Fact No. 18, supra, arbitration has been restrained pending the disposition by the Commission of a Scope of Negotiations Determination Petition.

It is interesting to note that following the initial response by teachers represented by the NTU there have been no further instances of docking since the teachers have executed Forms 2.1A or 5.0 on and after February or March 1983.

The Hearing Examiner finds and concludes that the provision in the AIP for docking a day's pay for each day that a Form 2.1A or 5.0 is not executed after a return from absence is a legitimate exercise of a managerial prerogative.

Miscellaneous

1.	The Hearing Examiner has previously found that the Executive Superintendent had the authority to modify or clarify the AIP (footnote 11, supra). Thus, everything contained in Salley's memorandum of January 24, 1983 (CP-15) is valid and operative. The Hearing Examiner here notes that Salley there provided for: (1) the AIP would have no effect on an employee's use of personal days; (b) the sick days utilized by an employee for which an employee produces a doctor's certificate are not to be counted toward the days which trigger a formal or informal conference; (c) the elimination of the incentive program for sick leave; and (d) the right of an employee to file a grievance as a result of the application of the AIP.

2.	Further, the Hearing Examiner rejects the NTU's contention that the Board illegally communicated directly with its employees when Salley issued a memo to all employees regarding the AIP on December 6, 1982 and thereafter in January 1983 caused a brochure and a newspaper to be issued, inter alia, to all employees (CP-12, CP-13 and CP-14). The Hearing Examiner finds that the Board's action in issuing this type of communication to its employees was completely lawful and not in derogation of the NTU's rights as the collective negotiations representative.

3.	Finally, the Hearing Examiner finds nothing illegal in the conduct of the Board in preparing the AIP in the Summer of 1982 during a period when contract negotiations with the NTU had not been concluded. Plainly, if the Board has a managerial prerogative to establish a verification program to monitor sick leave and funeral leave then its failure to negotiate that with the NTU during the Summer of 1982, or even to apprise the NTU that the proposal was being undertaken, does not constitute a violation of the Act.

* * *

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

CONCLUSIONS OF LAW

1.	The Respondent Board violated N.J.S.A. 34:13A-5.4(a)(1) and (5) when it implemented the AIP (J-1, p. 52) in a manner which negated Article X, Section 2, Para. B (J-5, p. 41) pertaining to the use of 10 non-accumulative sick days for teachers with 25 years in the system.

2.	The Respondent Board did not violate N.J.S.A. 34:13A-
5.4(a)(1), (2), (3) and (5) by establishing and implementing the AIP in all other respects, with the exception of J-1, p. 52, supra, including the provision for three-day, five-day and eight-
day conferences; the provision for disciplinary criteria in connection with the eight-day conference and the abuse of funeral leave; the docking of one day's pay for each day of absence in the case of teachers who refused to execute Forms 2.1A and 5.0; and the clarifying of the AIP by the Executive Superintendent's memorandum of January 24, 1983 (CP-15).

RECOMMENDED ORDER

The Hearing Examiner recommends that the Commission Order:

A.	That the Respondent Board cease and desist from:

1.	Interfering with, restraining or coercing its employees in the exercise of the rights guaranteed to them by the Act, particularly, by attempting, through the AIP (J-1, p. 52), to negate the provisions of Article X, Section 2, Para. B of the current agreement (J-5, p. 41).

2.	Unilaterally making changes or modifications in the collectively negotiated agreement unless and until agreed upon by the NTU.

B.	That the Respondent Board take the following affirmative action:

1.	Forthwith rescind those provisions of the AIP which conflict with or negate the provisions of Article X, Section 2, Para. B f the current collective negotiations agreement (J-5), particularly, J-1, p. 52, and make whole any teacher with 25 years of service for losses incurred as a result of the implementation of p. 52 of the AIP.

2.	Post in all places where notices to employees are customarily posted, copies of the attached notice marked as Appendix "A." 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 by it for at least sixty (60) consecutive days. Reasonable steps shall be taken by the Respondent Board to insure that such notices are not altered, defaced or covered by other materials.

3.	Notify the Chairman of the Commission within twenty (20) days of receipt what steps the Respondent Board has taken to comply herewith.

/s/Alan R. Howe

Hearing Examiner

DATED:	May 3, 1984

Trenton, New Jersey

WE WILL NOT interfere with, restrain or coerce our employees in the exercise of the rights guaranteed to them by the Act, particularly, by attempting, through the Attendance Improvement Program (AIP) (J-1, p. 52), to negate the provisions of Article X, Section 2, Para. B of the current agreement (J-5, p. 41).

WE WILL NOT unilaterally make changes or modifications in the collectively negotiated agreement unless and until agreed upon by the Newark Teachers Union.

WE WILL forthwith rescind those provisions of the AIP which conflict with or negate the provisions of Article X, Section 2, Para. B of the current collective negotiations agreement (J-5), particularly, p. 52 of the AIP. WE WILL make whole any teacher with 25 years of service for losses incurred as a result of the implementation of p. 52 of the AIP.