H.E. NO. 78-13

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

TOWNSHIP OF DENVILLE,

Respondent,

-and-	Docket No. CO-77-298-140

DENVILLE PUBLIC WORKS ASSOCIATION,

Charging Party.

Appearances:

For the Township of Denville

Einhorn & Harris, Esqs.

(Gary Platt, Esq.)

For the Denville Public Works Association

HEARING EXAMINER'S REPORT

AND RECOMMENDED DECISION

An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the "Commission") on April 13, 1977 by the Denville Public Works Association (hereinafter the "Charging Party" or the "Association"), alleging that the Township of Denville, (hereinafter the "Respondent" or the "Township") 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 Township had: (1) On November 10, 1976 and January 13, 1977 threatened a reduction in force in order to coerce a contract settlement; (2) During the course of negotiations issued a notice cancelling the prior agreement, placing everyone on an eight hour shift with no work guarantee and ceasing all prior contractual benefits; and (3) Refused to negotiate in good faith with the Association by its action in cancelling the prior agreement and ceasing all contractual benefits. The foregoing was alleged to be violations 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 charge, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on June 30, 1977.

Pursuant to the Complaint and Notice of Hearing, a hearing was held in Newark, New Jersey on September 12, 1977, at which time the parties were given the opportunity to examine witnesses, present relevant evidence, and argue orally. Post-hearing briefs were submitted by the Charging Party on October 18, 1977 by the Respondent on November 2, 1977.

An Unfair Practice Charge having been filed with the Commission, a question concerning the alleged violations within the Act, as amended, exists and, after hearing and after the filing and considerations of briefs, 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 Township of Denville is a public employer within

the meaning of the Act, as amended, and is subject to its provisions.

2.	The Denville Public Works Association is a public

employee representative within the meaning of the Act, as amended, and is subject to its provisions.

3.	The parties have executed a series of collective

negotiations agreements, the most recent being dated June 8, 1976 and effective during the term January 1, 1975 to December 31, 1976. The terms and conditions of the said agreement have been continued in full force and effect pending negotiations for a successor agreement.

4.	Negotiations for a successor agreement commenced

September 22, 1976 and a series of negotiations sessions have been held since that date.

5.	At a negotiations session on November 10, 1976, Thomas

Grady, the Township Administrator, advised representatives of the Association that the Township had not received "budget cap" data from the State but the Township expected to receive it by January 1, 1977. Grady stated that without this data the Township could not respond to the Association's economic demands. Grady also discussed the possibility of reductions in the work force in the context of the 5% "budget cap".

6.	Upon receipt of the "budget cap" data from the State,

the Township Administrator asked the State to increase the 5% "budget cap", which was refused by the State. The Township was told by a representative of the State Treasurer's Office that in order to make more money available it could reduce its work force or its services.

7.	At a negotiations session on January 13, 1977, Grady

informed the representatives of the Association that in order for the Township to exceed the 5% "budget cap" it would have to reduce the work force or services.

8.	Following a negotiations session on March 30, 1977, the

attorney for the Charging Party wrote to Grady on March 30, 1977 advising that the Association required one of the following in order to reach an agreement: One additional holiday; one additional personal day; a paid lunch hour; or a 6% raise in 1977 and a 5% raise in 1978 with no wage reopener.

9.	On April 5, 1977, Grady responded, denying each of the

four requested alternatives to settlement of the contract, and stating further, as follows:

"I will now institute the procedures that we have no further contract with the Department of Public Works Association and we will be on an eight hour shift, no work guaranteed. All previous contracts, benefits, and commitments are now ceased as of April 1, 1977."

10.	Shortly after the receipt of Grady's letter of April 5,

1977, the attorney for the Association provided Grady with a copy of the Commission's decision in "Piscataway" [P.E.R.C. No. 90]. After Grady discussed the "Piscataway" decision with the attorney for the Township, the above-quoted provisions of Grady's letter of April 5, 1977 were never implemented.

11.	The provisions of Grady's April 5, 1977 letter, above-

quoted, were never revoked in writing although the Township Superintendent was orally advised that the letter was revoked. Grady assumed that the Superintendent thereafter informed the affected unit employees.

12.	The representatives of the Association who attended the

exploratory conference and the hearing in this matter were not paid by the Township for time lost. These employees are seeking reimbursement for lost time by way of remedy in the instant proceeding.

THE ISSUE

1.	Did the Township violate the Act by its conduct on

November 10, 1976, January 13, 1977 and April 5, 1977?

2.	Are Association representatives who attended an

exploratory conference and hearing on the instant charges entitled to reimbursement by the Township for lost time?

DISCUSSION AND ANALYSIS

Positions of the Parties

It is the position of the Charging Party that the Township independently violated §(a)(1) of the Act on November 10, 1976 and January 13, 1977 by threatening a reduction in force to coerce a contract settlement. Further, the Charging Party contends that the Township violated §§(a)(3) and (5) of the Act when Grady wrote the letter of April 5, 1977 cancelling the contract, placing everyone on an eight hour shift with no work guarantee and cancelling all previous contractual benefits. The Charging Party also seeks reimbursement for lost time at the exploratory conference and hearing.

It is the position of the Township that it never threatened a reduction in force to coerce a contract settlement but merely advised that if there was no additional revenue beyond the 5% "budget cap" it would either have to reduce the work force or reduce services in order to meet the Association's economic demands. The Township further argues that the latter part of Grady's letter of April 5, 1977 was never implemented (although never revoked in writing) and that the prior contract has remained in full force and effect. The Township argues that there is no statutory authority for payment of lost time. Finally, the Township dehors the record urges that the matter is moot because the basic contract was settled as of October 31, 1977.

The Alleged Violations by the Township

The Hearing Examiner finds and concludes that there was no independent §(a)(1) violation of the Act by the Township on November 10, 1976 and January 13, 1977. At the negotiations sessions on these dates reductions in force were discussed but the Township engaged in no conduct which constituted a threat seeking to coerce a contract settlement. At the November 10 session Grady informed the Association representatives that the "budget cap" data had not been received from the State but was expected by January 1, 1977. Thereafter, he was advised by the State that there could be no increase in the 5% "budget cap", and that to gain any additional revenue the Township would either have to reduce its work force or its services. This was subsequently communicated to the Association's representatives. It was in this context that a reduction in force was discussed by the parties in their negotiations on November 10 and January 13.

The Hearing Examiner finds and concludes that the provisions of Grady's letter of April 5, 1977 quoted above constituted a technical violation of §(a)(5) of the Act under the authority of the Commission's decision in Piscataway Township Board of Education, P.E.R.C. No. 90, 1 NJPER 49 (1975), notwithstanding that the clear threat contained in the letter was never implemented. This also constituted a derivative violation of §(a)(1) of the Act. See Galloway Township Board of Education, P.E.R.C. No. 77-3, 2 NJPER 254 (1976).

The Hearing Examiner finds and concludes that the Township did not independently violate the provisions of §(a)(3) of the Act by the communication of Grady's letter of April 5, 1977. The Hearing Examiner will, accordingly, recommend dismissal of this portion of the charge and Complaint.

The Requested Monetary Remedy

As noted previously, the Charging Party is requesting by way of remedy that the Association representatives, who attended the exploratory conference and hearing in this matter, be compensated for lost time by reason of the Township's refusal to pay for attendance at the exploratory conference and hearing. The Hearing Examiner finds and concludes that he is without authority to grant the relief requested by the Association. The provisions of the Act do not provide for such relief either expressly or by implication. It is well settled in the private sector that employees cannot be made whole for attendance at hearings or conferences in the course of an unfair labor practice proceeding.2/ Accordingly, the request for such relief is denied.

The Alleged Mootness

The Hearing Examiner will make no findings or conclusions with respect to matters not of record. The Township's claim of mootness is rejected.

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

CONCLUSIONS OF LAW

1.	The Respondent Township committed a technical violation

of N.J.S.A. 34:13A-5.4(a)(5) by Thomas Grady's letter of April 5, 1977, cancelling the terms and conditions of the prior agreement, which theretofore were in full force and effect.

2.	The Respondent Township did not independently violate

N.J.S.A. 34:13A-5.4(a)(1) on November 10, 1976 and January 13, 1977, but did not derivatively on April 5, 1977.

3.	The Respondent Township did not violate N.J.S.A.

34:13A-5.4(a)(3).

4.	The matter is not moot.

RECOMMENDED ORDER

I.	Respondent Township of Denville is HEREBY ORDERED:

A.	To cease and desist from:

1.	Interfering with, restraining or coercing its

employees in the exercise guaranteed to them by the Act.

2.	Threatening employees in the negotiating unit,

represented by the Denville Public Works Association, with unilateral alteration of the terms and conditions of their employment as set forth in the collective negotiations agreement of 1975-1976.

B.	Take the following affirmative action:

1.	Revoke immediately, in writing, the last paragraph

of Thomas Grady's letter of April 5, 1977.

2.	Post in all locations where notices are normally

given to employees copies of the attached notice marked Appendix "A". Copies of said 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 assure 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 this Recommended Report and Decision, what steps have been taken to comply herewith.

II.	Respondent Township of Denville did not violate

N.J.S.A. 34:13A-5.4(a)(3) and this allegation in the Complaint and charge is dismissed.

Alan R. Howe

Hearing Examiner

DATED:	November 9, 1977

Trenton, New Jersey