P.E.R.C. No. 2002-2, Paterson State-Operated Sch Dist

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of PATERSON STATE-OPERATED SCHOOL DISTRICT, Respondent, -and- Docket No. CO-H-2001-93 PATERSON EDUCATION ASSOCIATION, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, Giblin & Giblin, attorneys ¶

(Michael Gannaio, of counsel) ¶

For the Charging Party, Klausner & Hunter, attorneys ¶

(Stephen B. Hunter, of counsel) ¶

DECISION ¶

On October 16, 2000, the Paterson Education Association filed an unfair practice charge against the Paterson State-Operated School District. 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), when it unilaterally increased the weekly hours required for employees to qualify for health benefits under the State Health Benefits Program. ¶

On April 12, 2001, a Complaint and Notice of Hearing issued. The respondent filed an Answer specifically admitting certain allegations, denying others, and seeking dismissal of the charge. ¶

The parties waived a hearing and stipulated the record for submission to the Commission directly. Their stipulations follow: ¶

1. The Paterson Education Association is the recognized majority representative for all certificated personnel and certain non-certificated support staff employed by the Paterson School District. ¶

2. The Paterson Public School District is a public employer within the meaning of the New Jersey Employer-Employee Relations Act and is subject to the Act's provisions. ¶

3. The present Collective Negotiations Agreement governing the terms and conditions of employment between the Paterson School District (hereinafter the "District") and the Paterson Education Association (hereinafter the "Association") covers the period between July 1, 1997 through June 30, 2000. ¶

4. Prior to April 17, 2000 the District, consistent with administrative regulations governing the State Health Benefits Program (hereinafter the "SHBP"), offered SHBP coverage to any school district employee who worked an average of 20 hours per week. ¶

5. Effective July 1, 1996 the State Health Benefits Commission voted to amend the New Jersey Administrative Code relating, in pertinent part, to the issue of an employee's status for State Health Benefits Program participation as follows: ¶

N.J.A.C. 17:9-4.6 Local, full time defined: ¶

(a) for the purpose of local coverage, "full-time" shall mean: ¶

1. Employment of any eligible employees who appear on a regular payroll and who receive a salary or wages for an average of the number of hours per week as prescribed by the governing body of the participating employer. Each participating employer shall, by resolution, determine the number of hours worked which shall be considered to be "full-time". In no case shall the number of hours for "full-time" be less than 20. ¶

6. N.J.S.A . 34:13A-5.3 states, in part, that "Proposed new rules or modifications of existing rules governing working conditions shall be negotiated with the majority representative before they are established." ¶

7. Effective on or about April 17, 2000 the District advised the State Division of Pensions and Benefits that it had redefined the in-district requirement for full-time status for the purpose of continued participation within the State Health Benefits Program. All district employees were required by said resolution to work at least 25 hours a week in order to qualify for State Health Benefits program participation in the future. The Association was not advised about this decision until September, 2000. ¶

The District argues that N.J.A.C . 17:9-4.6(a)(1) leaves it with the non-negotiable discretion to determine how "full-time" should be defined. The Association argues that the employer may exercise its discretion through the collective negotiations process. ¶

N.J.S.A . 34:13A-5.3 requires that mandatorily negotiable employment conditions be negotiated before they are implemented or changed. Unilateral implementation violates the obligation to negotiate in good faith. N.J.S.A. 34:13A-5.4. Health insurance benefits are mandatorily negotiable unless preempted. West Orange Bd. of Ed., P.E.R.C. No. 92-114, 18 NJPER 272 (¶23117 1992), aff'd NJPER Supp .2d 291 (¶232 App. Div. 1993). ¶

This case is virtually identical to Frankford Tp. Bd. of Ed ., P.E.R.C. No. 98-60, 23 NJPER 625 (¶28304 1997). There, we found that N.J.A.C . 17:9-4.6(a) does not preempt an employer's obligation to negotiate the number of hours which shall be considered "full-time" for the purposes of SHBP eligibility. After careful review of a 1995 amendment to N.J.A.C . 17:9-4.6(a), we found that the regulation preempts negotiations over SHBP coverage for any employee working less than 20 hours per week. Frankford . So long as local employees work at least 20 hours per week, the regulation does not preempt negotiations over the number of hours that an employee must work to be considered full-time and therefore eligible for benefits under the SHBP. Frankford. ¶

The respondent argues that Frankford was wrongly decided, but it provides no support for this contention. Rather, it directs our attention to Wright v. City of East Orange Bd. of Ed., 99 N.J . 112 (1985). That case states that a statute or regulation will not preempt negotiations unless it speaks in the imperative and expressly, specifically and comprehensively sets an employment condition. We considered Wright's application with regard to N.J.A.C . 17:9-4.6(a) and determined that the regulation does not expressly, specifically and comprehensively set the number of hours, not less than 20, that an employee must work to obtain SHBP coverage. Frankford . We have consistently held that a statute or regulation authorizing a public employer to exercise discretion in setting eligibility requirements does not preempt negotiations over how that discretion must be exercised. See, e.g., Pemberton Tp., P.E.R.C. No. 2000-5, 25 NJPER 369 (¶30159 1999). ¶

Accordingly, the respondent has violated 5.4a(1) and (5) by unilaterally changing the definition of "full-time employment" for purposes of eligibility in the SHBP. ¶

OrderORDER ¶

The Paterson State-Operated School District is ordered to: ¶

A. Cease and desist from: ¶

1. Interfering with, restraining or coercing employees in the exercise of rights guaranteed to them by the Act, particularly by unilaterally setting the average number of weekly hours an employee must work to be considered "full-time" for purposes of eligibility in the State Health Benefits Program. ¶

2. Refusing to negotiate in good faith with the Paterson Education Association concerning terms and conditions of employment of negotiations unit employees, particularly by unilaterally setting the average number of weekly hours an employee must work to be considered "full-time" for purposes of eligibility in the State Health Benefits Program. ¶

B. Take this action: ¶

1. Restore the definition of full-time employment for the purposes of employee eligibility under the State Health ¶

Benefits Program that was in effect prior to April 17, 2000. ¶

2. Make whole any employee who, after April 17, 2000, worked 20 or more hours per week on a regular basis and was denied insurance coverage. ¶

3. Post in all places where notices to employees are customarily posted, copies of the attached notice marked as Appendix "A". Copies of such notice shall, after being signed by the Respondent's authorized representative, be posted immediately and maintained by it for at least sixty (60) consecutive days. Reasonable steps shall be taken to ensure that such notices are not altered, defaced or covered by other materials. ¶

4. Within twenty (20) days of receipt of this decision, notify the Chair of the Commission of the steps the Respondent has taken to comply with this order. ¶

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: July 26, 2001 ¶

Trenton, New Jersey ¶

ISSUED: July 27, 2001 ¶