P.E.R.C. No. 2005-5, Hackettstown B/E

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of HACKETTSTOWN BOARD OF EDUCATION, Respondent, -and- Docket No. CO-2003-038 HACKETTSTOWN EDUCATION ASSOCIATION, Charging Party. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission finds that the Hackettstown Board of Education violated the New Jersey Employer- Employee Relations Act when it refused to negotiate with the Hackettstown Education Association over compensation for employees required to attend an overnight field trip. The Commission orders the Board to negotiable over mandatorily negotiable matters relating to overnight field trips. ¶

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 HACKETTSTOWN BOARD OF EDUCATION, Respondent, -and- Docket No. CO-2003-038 HACKETTSTOWN EDUCATION ASSOCIATION, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, Apruzzese, McDermott, Mastro & Murphy, attorneys (Robert J. Merryman, of counsel) ¶

For the Charging Party, Oxfeld Cohen, attorneys ¶

(Nancy I. Oxfeld, of counsel) ¶

DECISION ¶

On May 17, 2004, the Hackettstown Board of Education filed exceptions to a Hearing Examiner’s report and recommendations. The Hearing Examiner found that the Board 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 refusing to negotiate over changing teacher participation in an overnight school trip from voluntary to mandatory. The Hearing Examiner concluded that the Board should restore the practice of voluntary uncompensated attendance, negotiate regarding any changes, and post a notice of its violation. ¶

This case is based on an unfair practice charge filed by the Hackettstown Education Association on August 8, 2002. The charge sought findings that participation as a chaperone on the eighth grade trip to Washington, D.C. had always been voluntary and that a change to mandatory participation violated the Act. The charge sought an order requiring the Board to cease requiring staff members to act as chaperones pending negotiations over the change and directing the Board to negotiate over compensation for staff members who chaperoned the 2002 trip. ¶

On January 14, 2003, the Board filed its Answer, denying that attendance had been voluntary. ¶

On November 12, and 13, 2003, Hearing Examiner Jonathan Roth conducted a hearing. The parties examined witnesses, introduced exhibits, and filed post-hearing briefs. ¶

On April 30, 2004, the Hearing Examiner issued his report and recommendations. H.E. No. 2004-16, 30 NJPER 216 (¶82 2004). On May 17, the Board filed exceptions. On June 1, the Association filed an answering brief urging adoption of the Hearing Examiner’s recommendations. ¶

We have reviewed the record. We adopt and incorporate the Hearing Examiner’s findings of fact, including his credibility determinations (H.E. at 3-15) with a modification and an addition discussed later. We now summarize the key events and respond to the Board’s factual exceptions. ¶

The district has long sponsored an eighth grade overnight field trip to Washington, D.C. Before 1985, teachers assigned to eighth grade classes were expected to attend. From 1985 though 1998, an assistant to the middle school principal organized the trip and solicited teacher volunteers to act as chaperones. 2/ Staff volunteered or not, never having to explain their refusals. Beginning in 1992 or 1993, certain teachers received student invitations to attend the trip. 3/ The Hearing Examiner concluded that from 1994 through 2001, eighth grade “team” members (core subject and special education teachers) were not required to attend. Most eighth grade team members did attend the trip in and after 1994, but teachers who declined to attend were not required or asked to provide a reason. The Association sought unsuccessfully to negotiate compensation for trip attendance in two prior rounds of successor contract negotiations. ¶

In 2002, the Board required that the school nurse and one eighth grade team member attend the trip. 4/ In response, an NJEA field representative wrote to the superintendent protesting the proposed “punishment” of the two teaching staff members. She asserted that the trip had always been voluntary and that if attendance had become “required work,” the Association was prepared to reach agreement on appropriate compensation. The superintendent responded that the Board was not interested in negotiating compensation because the Board had always considered attendance to be mandatory and uncompensated. The Association then sent a letter to the Board urging it to continue to use volunteers to staff events beyond the bargained workday. We add to finding 16 that the Association’s letter stated that if the assignments were to be compulsory rather than voluntary, the Association demanded that the impact of this change be bargained, that the assignments be fairly distributed, and that the employees be fairly compensated. The Association urged the Board to reconsider its decision and allow employees to continue to voluntarily staff events without additional compensation. ¶

Based on the testimony of ten witnesses and related documents, the Hearing Examiner concluded that since 1985, teachers have not been required to attend the eighth grade trip or to provide an explanation for not attending. 5/ We recognize that from at least 1965 to 1985, attendance was required. But since 1985, teachers were free to decline invitations to attend without explanation and attendance was thus voluntary. In 2002, when the employer required the nurse and one teacher to provide an excuse for not attending, and subjected them to possible discipline, the employer effectively changed chaperoning duties from voluntary to mandatory. 6/ When the Association became aware of the change, it sought negotiations over compensation. The Board refused. We must now decide whether the Board’s action violated its obligation to negotiate in good faith and, if so, what remedy is appropriate. ¶

The Hearing Examiner properly articulated our analytical framework: ¶

Section 5.3 of the Act requires that “proposed new rules or modifications of existing rules governing working conditions shall be negotiated with the majority representative before they are established.” Section 5.4a(5) prohibits public employers from refusing to negotiate in good faith with the majority representative concerning terms and conditions of employment. The Act requires negotiations, but not agreement. Hunterdon Cty. Freeholder Bd. and CWA, 116 N.J . 332, 338 (1989). [H.E. at 17] ¶

Amendments to the Act enacted in 1990 changed the law on extracurricular activities by broadening the scope of mandatory negotiability. N.J.S.A. 34:13A-23 now makes mandatorily negotiable: ¶

all aspects of assignment to, retention in, dismissal from, and any terms and conditions of employment concerning extracurricular activities. . . . If the employer is unable to employ a qualified person from outside of the district, the employer may assign a qualified teaching staff member from within the district. ¶

Extracurricular activities are defined as: ¶

those activities or assignments not specified as part of the teaching and duty assignments scheduled in the regular work day, work week, or work year[; i.e.,] that period of time that all members of the bargaining unit are required to be present and at work. [ N.J.S.A. 34:13A-22] ¶

Under these provisions, overnight field trips are extracurricular and compensation for such trips, whether voluntary or mandatory, is mandatorily negotiable. When the Board required the nurse and teacher to attend the 2002 trip, it unilaterally changed a mandatorily negotiable term and condition of employment. In response, the Association requested negotiations. The Board’s refusal to negotiate over compensation for employees subject to the change violated the Act. 7/ ¶

The Board argues that this case should be controlled by our holding in Barrington Bd. of Ed., P.E.R.C. No. 81-122, 7 NJPER 240 (¶12108 1981), recon. den. P.E.R.C. No. 81-134, 7 NJPER 336 (¶12150 1981). Barrington , however, is distinguishable. In that case, after many years of voluntary uncompensated attendance on a school trip, the majority representative sought to change the status quo by demanding mid-contract negotiations over compensation for voluntary attendance. In this case, by contrast, it was the Board that changed the status quo by mandating attendance. ¶

We now address the appropriate remedy. Since neither the nurse nor the teacher ordered to attend the 2002 trip did attend, there is no basis to order retroactive negotiations. Nor will we order restoration of voluntary attendance , given the Association’s statements in its opening statement, post-hearing brief, and exceptions that it does not challenge the Board’s right to mandate attendance but instead seeks to negotiate over compensation for teachers now required to attend. ¶

However, we will order prospective negotiations over mandatorily negotiable aspects of this school trip consistent with N.J.S.A . 34:13A-23. The parties’ contract expired on June 30, 2002 so this issue may already have been addressed during those negotiations. If not, the Board is required to negotiate upon demand over all mandatorily negotiable aspects of the trip consistent with N.J.S.A. 34:13A-23. ¶

OrderORDER ¶

The Hackettstown Board of Education is ordered to: ¶

A. Cease and desist from: ¶

1. Interfering with, restraining or coercing employees in the exercise of rights guaranteed to them by this Act, particularly by refusing to negotiate over mandatorily negotiable matters relating to overnight field trips . ¶

2. Refusing to negotiate in good faith with a majority representative of employees concerning mandatorily negotiable terms and conditions of employment, particularly by refusing to negotiate over mandatorily negotiable matters relating to overnight field trips ¶

B. Take this action: ¶

1. Negotiate in good faith with the Association, upon demand, over mandatorily negotiable matters relating to overnight field trips unless such matters were already addressed during the negotiations for a contract to succeed the one that expired on June 30, 2002. ¶

2. 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. ¶

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

BY ORDER OF THE COMMISSION ¶

Lawrence Henderson ¶

Chairman ¶

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

DATED: August 12, 2004 ¶

Trenton, New Jersey ¶

ISSUED: August 13, 2004 ¶

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.” ¶

2/ The Board disputes findings that a former principal expected special subject teachers to attend the trip and that teacher Scott Tomlinson did not attend the trip in 1998. These facts are not material to our determination. ¶

3/ The Board disputes a determination crediting testimony that the students have decided which teachers they wanted to invite. We reject this exception because the Hearing Examiner also found that student invitations were not the exclusive means for securing chaperones. H.E. at 6. ¶

4/ We modify finding of fact 15 to indicate that none of the district’s nurses volunteered to go on the trip and that a certified substitute nurse did attend. Contrary to the Board’s suggestion, a Board policy authorizing the school nurse to administer certain medications on the overnight trip does not specify that it must be the middle school nurse who attends the trip. Whether parents who were nurses attended the trips in 1998 and 2001 is a fact not material to our determination. ¶

5/ We reject the Board’s exception asserting that the eighth grade team and the school nurse were required to attend. The Hearing Examiner found otherwise and we accept his findings. ¶

6/ The nurse had her increment withheld for failing to perform assigned duties and insubordination. Hackettstown Bd. of Ed., P.E.R.C. No. 2003-48, 29 NJPER 22 (¶6 2003). ¶

7/ Even before the 1990 amendments, compensation for extracurricular activities was mandatorily negotiable. See, e.g., Ramapo-Indian Hills H.S. Dist. Bd. of Ed ., P.E.R.C. No. 80-9, 5 NJPER 302 (¶10163 1979) , aff'd 176 N.J. Super . 35 (App. Div. 1980). ¶