P.E.R.C. No. 2001-29, Mountainside B/E

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of MOUNTAINSIDE BOARD OF EDUCATION, Respondent, -and- Docket No. CO-H-2000-95 MOUNTAINSIDE EDUCATION ASSOCIATION, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, David B. Rubin, attorney ¶

For the Charging Party, Bucceri & Pincus, attorneys (Sheldon H. Pincus, of counsel) ¶

DECISION ¶

On October 20, 1999, the Mountainside Education Association filed an unfair practice charge against the Mountainside Board of Education. The charge alleges that the employer violated the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq., specifically 5.4a(1) and (5), 1/ by unilaterally changing a longstanding practice of scheduling half day sessions on the days before winter and spring recess. The ¶

Note1/ These provisions 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. (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, or refusing to process grievances presented by the majority representative." ¶

Association further alleges that the Board refused its demand to negotiate over these changes. The Association sought a cease and desist order, compensation for employees required to work the additional half days in the 1999-2000 school year, and counsel fees. ¶

On February 8, 2000, a Complaint and Notice of Hearing issued. The Board filed an Answer incorporating an earlier statement of position and asserting that the charge was untimely. Relying on Article X, Section B of the parties' collective negotiations agreement, the employer asserted that it had distributed a proposed calendar to the Association in January 1999 and discussed the proposed calendar at a February 1999 faculty meeting. No grievance was filed or demand to negotiate made at that time. The Association first demanded to negotiate during the next school year. The Board also asserts that the calendar conforms to Article X, Section A's workday limit. ¶

On April 11, 2000, Hearing Examiner Arnold H. Zudick conducted a hearing. The Association called the only witness, the Association president. Both parties filed post-hearing briefs and the Board filed a reply. ¶

On August 25, 2000, the Hearing Examiner recommended dismissing the Complaint. H.E. No. 2001-7, NJPER (¶2000). He found that despite contrary past practice, the Board acted within the confines of the parties' contract. Specifically, he found that Article XI, Section A(3) provides that the teachers' normal workday will generally be from 8:15 a.m. to 3:20 p.m. Reading that clause along with Article X, Section A, the work year clause, the Hearing Examiner found that the Board was authorized to schedule teachers to work 185 normal work days from 8:15 a.m. to 3:20 p.m. He concluded that the Board's practice to close at 1:00 p.m. was inconsistent with the clear intent of the contract and therefore did not alter or waive the terms of the contract. Having found that the Board acted within the confines of the contract, the Hearing Examiner did not discuss the Board's prerogative or statute of limitations defenses. ¶

On September 8, 2000, the Association filed exceptions. It argues that the only witness testified that the contract language on the normal workday was ambiguous and that the parties' longstanding practice of six half days was compatible with the contractual language. It objects to the Hearing Examiner's considering a contractual defense not raised by the Board. The Association incorporates its post-hearing brief which argued, in part, that the Board repudiated Article XI, Section A(3)and the parties' past practice in administering that article. ¶

On September 14, 2000, the Board filed an answering brief. It accepts the Hearing Examiner's findings, but adds that it also raised a timeliness defense. It also relies on its post-hearing brief. ¶

We have reviewed the record. We adopt and incorporate the Hearing Examiner's undisputed findings of fact (H.E. at 3-8). ¶

The Board had a prerogative to establish the school calendar, including a right to set the length of the school day before these holidays. See Burlington Cty. College Faculty Ass'n v. Bd. of Trustees , 64 N.J. 10 (1973); Egg Harbor Tp. Bd. of Ed ., P.E.R.C. No. 2000-50, 26 NJPER 65 (¶31023 1999). That prerogative, however, does not extend to increasing teacher workload without first negotiating. See, e.g., Liberty Tp. Bd. of Ed ., P.E.R.C. No. 85-37, 10 NJPER 572 (¶15267 1984). In addition, a demand for extra pay for extra work would be within the scope of negotiations. See Woodstown-Pilesgrove Reg. School Dist. Bd. of Ed. v. Woodstown-Pilesgrove Ed. Ass'n , 81 N.J. 582 (1980). ¶

We reject the Association's repudiation argument. Article XI, Section A(3) does not mention half days before winter and spring recess. Even if the clause was violated, it was at most a breach of contract that had to be challenged through the negotiated grievance procedure. 2/ ¶

We also reject the Association's alternative argument that the Board had an obligation to negotiate before implementing the calendar change. The Board announced the calendar change to the Association in January 1999 and adopted it in February without Association protest. ¶

Note2/ We decline to consider whether Article XI(A)(3) authorized the Board to schedule full days without having to respond to a demand to negotiate over additional compensation. That contractual defense was not raised in the Board's Answer nor was it fully or fairly litigated. ¶

It was not until July 1999, when the Association's president returned from labor relations training, that the president informed the Board that he believed the change in work hours on the days before winter and spring vacations was negotiable. He notified the Board of the Association's desire to negotiate, but limited the request to hours of work. He did not make a general request to negotiate over the impact of the calendar change or a specific request to negotiate over any severable impact issue such as compensation. The request was focused on the calendar/work hours issue and demanded a return to the status quo pending negotiations. The Board responded that it had presented the proposed calendar to the Association the previous spring and that the Association had not filed a demand to negotiate at that time. ¶

Under all these circumstances, we cannot conclude that the Board refused to negotiate in good faith in violation of N.J.S.A . 34:13A-5.4a(5) and, derivatively 5.4a(1), when it set the calendar, set the workday for teachers to coincide with the calendar, and refused a demand to negotiate over the change in closing times for those two days. ¶

Article X(B) gives the Association input into the school calendar. It is not a general waiver of the Association's right to negotiate over workload changes that might result from a calendar change. Nevertheless, under these facts, we believe that the Association's actions under Article X(B) constituted a waiver of its right to claim that the Board was obligated to negotiate before adopting a calendar that included full days before winter and spring recess. The Association had ample opportunity to object to the announced calendar before it was adopted and it would not serve the purposes of the Act to penalize the Board for going forward after the Association failed to raise a timely objection. ¶

Finally, we reject the Association's argument that the Board unlawfully refused to negotiate over the impact of the calendar change. See Piscataway Tp. Ed. Ass'n v. Piscataway Tp. Bd. of Ed., 307 N.J. Super. 363 (App. Div. 1998), certif. den. 156 N.J . 385 (1998), on remand 24 NJPER 520 (¶29242 1998). Negotiations in August over compensation, rather than over the length of the teacher workday, would not necessarily have significantly interfered with any educational policy determinations. The record indicates, however, that the Association's negotiations demands were focused on workday, not compensation. We hold that the Board was not obligated to respond affirmatively to those demands. ¶

OrderORDER ¶

The Complaint is dismissed. ¶

BY ORDER OF THE COMMISSION ¶

Millicent A. Wasell ¶

Chair ¶

Chair Wasell, Commissioners Buchanan, Madonna, McGlynn, Muscato, Ricci and Sandman voted in favor of this decision. None opposed. ¶

DATED: October 30, 2000 ¶

Trenton, New Jersey ¶

ISSUED: October 31, 2000 ¶