P.E.R.C. No. 2000-24, Middletown Tp B/E

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of MIDDLETOWN TOWNSHIP BOARD OF EDUCATION, Respondent, -and- Docket No. CO-H-96-251 MIDDLETOWN TOWNSHIP EDUCATION ASSOCIATION, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, Kenney & Gross, attorneys ¶

(Malachi J. Kenney, of counsel) ¶

For the Charging Party, Zazzali, Zazzali, Fagella & Nowak, attorneys (Kenneth I. Nowak, of counsel) ¶

DECISION ¶

On March 4, 1996, the Middletown Township Education Association filed an unfair practice charge against the Middletown Township Board of Education. The Association alleged that the employer violated the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq ., specifically 5.4a(1), (3) and (5),1/ ¶

Note1/ 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...." ¶

when, during negotiations over stipends for Board employees who would work in an after-school intramural program, the Board unlawfully ceased negotiations and subcontracted the program to the Middletown Township Parks and Recreation Department. The Association contended that the contract with the Township was a pretext to avoid negotiations and that the program employees were effectively Board employees. The Association also alleged that the Board unlawfully refused to provide information regarding the names of coaches in the program and whether each was certified as a teacher. Finally, the Association alleged that the Board's actions were taken in retaliation for the Association's invoking its right to negotiate. ¶

On May 8, 1996, a Complaint and Notice of Hearing issued. On November 5, the Board filed an Answer. The Board asserted that after failing to reach an agreement with the Association over stipends for operating an intramural athletic program, it resolved to enter into an interlocal services agreement with the Township to provide an "after-school recreation program for middle school students." The Board asserted that the program was a new one for middle school students and that its decision was made for financial reasons. The Board denied that it acted in bad faith. ¶

On November 7, 1996 and January 14 and 16, April 28 and May 12, 1997, Hearing Examiner Jonathon Roth conducted a hearing. The parties examined witnesses, introduced exhibits and filed post-hearing briefs. At the hearing, the Association specified that it sought, by way of remedy, a return to the status quo, negotiations over salary, and compensation for time other people did unit work. ¶

On November 24, 1997, the Hearing Examiner recommended dismissing the Complaint. H.E. No. 98-15, 24 NJPER 61 (¶29038 1997). He rejected the Association's contentions that this case was governed by the unit work doctrine and that the after-school recreation program employees were "effectively Board employees." The Hearing Examiner found that the Township, not the Board, employed the program workers. Moreover, he found that the Association had not proved that the Board had shared or joint control over the employees. The Hearing Examiner concluded that because the Township became the employer, the Board was not required to negotiate with the Association before executing the interlocal services agreement with the Township. ¶

On December 19, 1997, the Association filed exceptions. It argues that the Hearing Examiner erred by: ¶

1. concluding that the Board and Township were separate employers; ¶

2. failing to apply the unit work doctrine; ¶

3. failing to find that the interlocal services agreement, by operation of law, conferred joint employer status on the Board and Township; ¶

4. concluding that the Board's decision to enter into the interlocal service agreement was not motivated by anti-union animus. ¶

On January 5, 1998, the Board filed an answering brief urging adoption of the Hearing Examiner's recommendations. ¶

On April 21, 1998, the Association filed a supplemental letter advising us of Kenney v. Meadowview Nursing and Convalescent Ctr., 308 N.J. Super . 565 (App. Div. 1998). The Association contends that the case demonstrates that the interlocal services agreement confers joint employer status on the Board and Township. ¶

We have reviewed the record. We incorporate the Hearing Examiner's undisputed findings of fact (H.E. at 3-24). We add that the Board discontinued the after-school recreation program after two years and no longer provides the program to students (4T64). ¶

N.J.S.A . 34:13A-5.3 requires a public employer and a majority representative to negotiate over "terms and conditions of employment." Local 195, IFPTE v. State, 88 N.J . 393 (1982), sets forth these tests for determining whether a subject is a "term and condition of employment" under section 5.3: ¶

[A] subject is negotiable between public employers and employees when (1) the item intimately and directly affects the work and welfare of public employees; (2) the subject has not been fully or partially preempted by statute or regulation; 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, a subject may not be included in collective negotiations even though it may intimately affect employees' working conditions. ¶

[ Id. at 404-405] ¶

No statute or regulation preempts negotiations. Unfair practices may occur when an employer refuses to negotiate over a mandatorily negotiable subject or when an employer discriminates against employees because they seek to negotiate over negotiable subjects. N.J.S.A. 34:13A-5.4a(3) and (5). ¶

The employer does not contest the negotiability of extracurricular stipends in the abstract. However, it argues that under Local 195 , it did not need to continue negotiations over the stipends because it had a managerial prerogative to contract with the Township for the after-school recreation program. ¶

Under the Supreme Court's holding in Local 195 , a public sector employer need not negotiate over a decision to subcontract with a private sector company to have that company take over governmental services. However, this is not a case where the public employer decided that services should no longer be delivered by public employees. In this case, public employees continued to staff the after-school program. Also, this is not a typical contract because the Board continued to exercise control over employees in the program. Through the interlocal services agreement, the Board exercised joint control over the specific activities to be provided, staffing levels, the number of sessions, the length of the sessions, and the salaries. The Board also paid for supplies, insurance and, for 1996, bus transportation. The Board continued to pay the salaries and associated taxes through the Township. ¶

In Cape May Cty. Bridge Commission, P.E.R.C. No. 92-8, 17 NJPER 382 (¶22180 1991) and Borough of Teterboro , P.E.R.C. No. 92-108, 18 NJPER 265 (¶23111 1992), we announced that in cases where a public employer contracts with another public employer to provide government services, we will apply the Local 195 balancing test to determine whether the decision to transfer work to the employees of another public employer is mandatorily negotiable. See also Jersey City and POBA and POSA, 154 N.J . 555 (1998). However, in this case, we decline to resolve that question or review the Hearing Examiner's analysis because the dispute has since become moot. After two years, the after-school recreation program was discontinued and, to our knowledge, it has not been reactivated. There is no longer a program. Any claim for backpay from the Board would be speculative and inappropriate. It is impossible to identify the employees who might have worked for the Board had it remained the sole employer. In addition, the Board alone was not the sole employer of the employees who actually worked in the program and the Board is not in a position to negotiate retroactive compensation for those employees. This is a past dispute between the Board and Association that cannot and, given the unfolding of events, need not be resolved. ¶

OrderORDER ¶

The Complaint is dismissed. ¶

BY ORDER OF THE COMMISSION ¶

Millicent A. Wasell ¶

Chair ¶

Chair Wasell, Commissioners Buchanan, Madonna, McGlynn and Ricci voted in favor of this decision. Commissioner Muscato was not present. ¶

DATED: September 30, 1999 ¶

Trenton, New Jersey ¶

ISSUED: October 1, 1999 ¶