P.E.R.C. No. 2005-4, Bergen Cty V/T B/E

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of BERGEN COUNTY VOCATIONAL SCHOOLS DISTRICT BOARD OF EDUCATION, Petitioner, -and- Docket No. SN-2004-048 BERGEN COUNTY VO-TECH ASSOCIATION OF CUSTODIAL AND MAINTENANCE PERSONNEL, Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission denies the request of the Bergen County Vocational Schools District Board of Education for a restraint of binding arbitration of a grievance filed by the Bergen County Vo-Tech Association of Custodial and Maintenance Personnel. The grievance alleges that the Board violated the parties’ collective negotiations agreement when it reassigned a custodial employee from a first shift grounds position to a third shift custodial position for unjust disciplinary reasons. The Commission concludes, based on the facts and assertions in the record, that this is a disciplinary dispute that the parties could have legally agreed to arbitrate. ¶

This synopsis is not part of the Commission decision. It has been prepared for the convenience of the reader. It has been neither reviewed nor approved by the Commission. ¶

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of BERGEN COUNTY VOCATIONAL SCHOOLS DISTRICT BOARD OF EDUCATION, Petitioner, -and- Docket No. SN-2004-048 BERGEN COUNTY VO-TECH ASSOCIATION OF CUSTODIAL AND MAINTENANCE PERSONNEL, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, Nowell, Amoroso, Klein, Bierman, P.A., attorneys (William C. Soukas, on the brief) ¶

For the Respondent, Bucceri & Pincus, attorneys ¶

(Gregory T. Syrek, on the brief) ¶

DECISION ¶

On March 4, 2004, the Bergen County Vocational Schools District Board of Education petitioned for a scope of negotiations determination. The Board seeks a restraint of binding arbitration of a grievance filed by the Bergen County Vo- Tech Association of Custodial and Maintenance Personnel. The grievance alleges that the Board violated the parties’ collective negotiations agreement when it reassigned a custodial employee from a first shift grounds position to a third shift custodial position for unjust disciplinary reasons. ¶

The parties have filed briefs and exhibits. The Board has submitted a certification and reply certification of Robert Csigi, the custodial and maintenance manager, and the reply certification of Andrew Nemec, the assistant business administrator. The Association has submitted the certification of John Meisner, the reassigned custodian. These facts appear. ¶

The Association represents maintenance personnel, grounds crew, custodians and bus drivers. The parties’ collective negotiations agreement is effective from July 1, 2003 through June 30, 2006. The grievance procedure ends in binding arbitration. ¶

Article XX is entitled Employee Rights. It provides: ¶

No employee shall be discharged, disciplined or reprimanded, reduced in rank or compensation, or deprived of any advantage, without just cause and due process. Termination notice is thirty (30) days. This provision excludes probationary employees. ¶

John Meisner has been employed by the Board as a custodian for approximately 11 years. He worked on the grounds crew on the day shift at the Hackensack campus. His duties included cutting grass, plowing snow, and maintaining the athletic fields. Grounds positions are paid pursuant to a higher salary structure than custodial positions because grounds positions are viewed as higher skilled. ¶

On August 7, 2003, Csigi informed Meisner that he was being reassigned from his first shift grounds position to a third shift custodial position effective August 18, 2003. Meisner continued to receive the salary he received in the grounds position. ¶

The Association filed a grievance alleging that the reassignment was discipline without just cause in violation of Article XX. The step one denial states that Meisner’s change in job assignment and schedule was made in the district’s best interest. The step two denial concluded that Meisner had not been discriminated against because of his age or singled out for disciplinary reasons. On February 3, 2004, the Board denied the grievance, asserting that the reassignment was a valid exercise of a managerial prerogative and in accordance with Board policy and practice. On February 23, the Association demanded arbitration. This petition ensued. ¶

Our jurisdiction is narrow. Ridgefield Park Ed. Ass'n v. Ridgefield Park Bd. of Ed., 78 N.J . 144, 154 (l978), states: ¶

The Commission is addressing the abstract issue: is the subject matter in dispute within the scope of collective negotiations. Whether that subject is within the arbitration clause of the agreement, whether the facts are as alleged by the grievant, whether the contract provides a defense for the employer's alleged action, or even whether there is a valid arbitration clause in the agreement or any other question which might be raised is not to be determined by the Commission in a scope proceeding. Those are questions appropriate for determination by an arbitrator and/or the courts. ¶

Thus, we do not consider the contractual merits of this grievance or any contractual defenses the employer may have. We specifically do not determine whether the Board had a contractual right or just cause to reassign Meisner to a custodial position on the third shift. ¶

The decision to reassign a school district employee is normally the exercise of a managerial prerogative and not subject to review through binding arbitration. However, where a district reassigns an employee for disciplinary reasons without changing the employee’s work site, section 5.3 of the Act permits an agreement to submit such disputes to binding arbitration. 1/ Rumson-Fair Haven Reg. Bd. of Ed ., P.E.R.C. No. 2002-10, 27 NJPER 367 (¶32133 2001) (as arbitrator found that change in teacher's class schedule was disciplinary and not made for educational reasons, grievance was legally arbitrable); Mt. Arlington Bd. of Ed., P.E.R.C. No. 98-4, 23 NJPER 450 (¶28211 1997) (assertion that reassignment was motivated by needs of district insufficient to dispel link between alleged misconduct and reassignment; alleged misconduct could be reviewed by arbitrator). We believe that this case involves a disciplinary dispute that the parties may agree to arbitrate under section 5.3. ¶

In its initial brief and certifications, the Board asserted that Meisner’s reassignment to the third shift was based on Csigi’s determination that the third shift was understaffed and required another employee. The Association responded with a brief and certification from Meisner explaining that reassigning him to the third shift did not add a custodian; a third shift custodian replaced him on the first shift. The Board has not filed a response disputing that fact so this reason will not preclude arbitration. ¶

Meisner also asserted that the administration was not happy that the Association had interceded to help him secure a vacation during Spring break 2003 and that Csigi had warned afterwards that “things would change.” In his reply certification, Csigi stated that it is possible he said something to that effect, although he does not recall doing so and any statement would not have been meant as a threat or an indication of intended discipline. An arbitrator may assess the validity of Meisner’s assertion. ¶

Meisner also asserted that he had raised several complaints at staff meetings and that the business administrator’s response was to tell Csigi to reassign Meisner. In his reply certification, Csigi explained that it was only after it was apparent the Meisner was dissatisfied with his assignment that the business administrator mentioned that it might be best to reassign him. Csigi also explained that when the Board hired him, he was advised that the grounds at the Hackensack campus were to be made a priority. Various areas had fallen into disrepair and he thought that grounds work was not being performed as it should be. According to Csigi, in May 2003, Meisner informed him that a job cleaning and preparing beds was a “big job,” and that he needed extra help; in response, Csigi asked Meisner many times for his plan for completing the tasks, but Meisner never provided a plan. Also according to Csigi, a reason for reassigning Meisner was that Meisner was reluctant or unable to perform tasks independently. Csigi referred to a 2002 performance evaluation with unsatisfactory ratings in four categories as evidence that Meisner did not perform as expected. ¶

In his certification, the business administrator stated that it appeared that Meisner disagreed with management polices and practices with respect to grounds maintenance. In particular, he stated that the reassignment was precipitated by Meisner’s failure to follow Csigi’s direction or supervision. ¶

The Board’s new reasons for the reassignment - – poor performance and insubordination – - are also ones that may be reviewed in an arbitration concerning a disciplinary dispute. Cf. Bloomfield Bd. of Ed., P.E.R.C. No. 99-53, 25 NJPER 38 (¶30014 1998) (mid-year discharge of custodian for poor performance could be submitted to binding arbitration); N.J.A.C. 4A:2-2.3 (Civil Service causes for discipline include “incompetency, inefficiency or failure to perform duties” and “inability to perform duties” ). Based on the facts and assertions in the record, we conclude that this is a disciplinary dispute that the parties could have legally agreed to arbitrate. An arbitrator can therefore determine whether there was just cause for the reassignment. ¶

OrderORDER ¶

The request of the Bergen County Vocational Schools District Board of Education for a restraint of binding arbitration is denied. ¶

BY ORDER OF THE COMMISSION ¶

Lawrence Henderson ¶

Chairman ¶

Chairman Henderson, Commissioners Buchanan, DiNardo, Katz, Mastriani, Sandman and Watkins voted in favor of this decision. None opposed. ¶

DATED: August 12, 2004 ¶

Trenton, New Jersey ¶

ISSUED: August 13, 2004 ¶

Note1/ Disciplinary transfers of school board employees between work sites are prohibited. N.J.S.A . 34:13A-25. In addition, for school board employees, binding arbitration is the terminal step with respect to discipline as defined by the amendment. N.J.S.A. 34:13A-29. ¶