P.E.R.C. No. 2005-54, Hillsborough Tp B/E

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of HILLSBOROUGH BOARD OF EDUCATION, Respondent, -and- Docket No. CO-2003-141 HILLSBOROUGH EDUCATION ASSOCIATION, Charging Party. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission finds that the Hillsborough Board of Education violated the New Jersey Employer Employee Relations Act by dealing directly with part-time clerical assistants represented by the Hillsborough Education Association regarding waivers of health insurance benefits. The Commission concludes that the Board violated its obligation to negotiate with the Association in good faith. By way of remedy, the Commission voids the individual waiver agreements. The Commission finds that part-time clericals working less than 35 hours per week had never received health benefits and therefore the Board did not unilaterally change a past practice of providing health benefits to part-time clerical assistants. Having voided the individual waiver agreements, the Commission grants the Association 15 days to file a contractual grievance alleging that the Board violated an obligation under the parties’ contract to provide health benefits. The Commission also finds that the Board was not seeking to punish or retaliate against employees when it reduced their hours after the filing of the unfair practice charge, but was simply acting to protect itself from a financial obligation it never wanted to incur. ¶

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 HILLSBOROUGH BOARD OF EDUCATION, Respondent, -and- Docket No. CO-2003-141 HILLSBOROUGH EDUCATION ASSOCIATION, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, Fogarty & Hara, attorneys (Stephen R. Fogarty, of counsel) ¶

For the Charging Party, Oxfeld Cohen, P.C., attorneys (Arnold Shep Cohen, of counsel) ¶

DECISION ¶

The Hillsborough Board of Education and the Hillsborough Education Association have filed exceptions to a Hearing Examiner’s Report and Recommendations. The Board excepts to the Hearing Examiner’s finding that it 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 dealing directly with part- time clerical assistants regarding health insurance benefits. The Association excepts to the Hearing Examiner’s finding that the Board did not violate 5.4a(3) or (4)2/ by reducing and capping employee work hours to avoid having to pay for health benefits or violate 5.4a(5) 3/ by paying an employee less than she was contractually entitled to be paid. ¶

The Association filed the unfair practice charge on November 27, 2002 and amended it on December 19, 2002 and June 23 and September 10, 2003. On October 15, 2003, a Complaint and Notice of Hearing issued. ¶

On October 27, 2003, the Board filed an Answer admitting that four part-time clerical employees agreed to waive health insurance benefits in exchange for being allowed to work additional hours, and denying that any later reduction in hours was in retaliation for the filing of the charge. The Answer contends that the Board’s actions were consistent with an established past practice and other legal authority. ¶

On January 5 and March 1, 2004, Hearing Examiner Jonathan Roth conducted a hearing. The parties examined witnesses, introduced exhibits, and filed post-hearing briefs. ¶

On October 7, 2004, the Hearing Examiner issued his report and recommendations. H.E. No. 2005-5, 30 NJPER ___ (¶150 2004). He found that the Board violated 5.4a(5) and, derivatively, a(1) by soliciting and obtaining waivers of health insurance benefits from part-time clerical assistants represented by the Association. The assistants had sought additional work hours and the Board conditioned the grant of additional hours on the assistants’ entering into individual health insurance waivers. The Hearing Examiner further found that the Board did not discriminate against unit employees or the Association in violation of 5.4a(3) or (4) by reducing the clerical assistants’ work hours after the filing of the charge. Finally, the Hearing Examiner found that an allegation concerning one clerical assistant’s rate of pay was a mere breach of contract claim that did not warrant the exercise of our unfair practice jurisdiction. ¶

Neither party has filed exceptions to the Hearing Examiner’s findings of fact. We adopt and incorporate them (H.E. at 4-22). We now address the parties’ exceptions to the Hearing Examiner’s legal analysis. ¶

In its exceptions, the Board argues that the Hearing Examiner erred in finding that it violated 5.4a(5) and, derivatively, a(1), by soliciting and securing health insurance waiver agreements from part-time clerical assistants and finding that such action was incompatible with the principle of exclusive representation. The Board relies, in part, on Troy v. Rutgers, 168 N.J. 354 (2001). ¶

In Troy , the Court reaffirmed the decades-old principle that collective agreements are “designed to supersede the possible terms of individual agreements of employers with terms which reflect the strength and bargaining power and serve the welfare of the group.” 168 N.J. at 372, citing Lullo v. Int’ l Ass’n of Fire Fighters, 55 N.J . 409, 428 (1970). But collective agreements may reserve certain issues to be resolved by individual agreement. 168 N.J . at 375. Individual contracts are void only to the extent they conflict with collective agreements or interfere with the principles of collective negotiation. Id. at 376. In Troy , the Court found that the collective agreement did not preclude individual agreements over the work year for faculty members because the individual agreements were not inconsistent with the collective agreement, such agreements did not diminish any rights provided under the collective agreement, and the faculty union agreed to allow individual rights to be enforced by faculty members. ¶

The Board argues that the individual waivers did not conflict with Troy’s analysis or diminish any collective rights because the collective agreement is silent with respect to the hourly threshold that part-time assistants must work to be eligible for health benefits, and because there is no past practice of part-time assistants receiving benefits. However, we need not decide whether the individual agreements secured in this case conflicted with the terms of the collective agreement or diminished rights provided under that agreement. The very act of soliciting and securing those agreements conflicted with the principles of collective negotiations. ¶

Majority representatives have the statutory right and obligation to negotiate terms and conditions of employment for all unit members. N.J.S.A . 34:13A-5.3. Eligibility for health benefits is a mandatorily negotiable subject. Burlington Cty. College Fac. Ass’n v. Bd. of Trustees, 64 N.J . 10, 14 (1973). Waivers of health benefits must generally be negotiated with a majority representative. But see N.J.S.A . 40A:10-17.1 and 52:14-17.31a (decision of municipalities and counties to permit waivers and the amount of consideration are not negotiable). ¶

This union negotiated health benefit coverage for unit employees. It also negotiated a provision permitting clerical assistant work hours to be set by their individual contracts. We do not have to decide the number of hours contractually required to trigger eligibility for health benefits to conclude that any waiver of eligibility, whether real or surmised, had to be negotiated with the majority representative, not with individual employees, unless the majority representative agreed to permit such individual negotiations. The parties’ decision to permit employees to negotiate their individual work schedules did not encompass or extend to a decision to permit individuals to negotiate over health benefits. Contrast Troy (unusual circumstance where union approved pursuit of individual rights by individual plaintiffs). The Board’s direct dealing with unit employees violated its obligation to negotiate with the Association in good faith in violation of 5.4a(5). It also derivatively interfered with the exercise of the right to negotiate and therefore violated 5.4a(1). By way of remedy, we will void the individual waiver agreements. ¶

The Hearing Examiner next considered whether voiding the individual waiver agreements meant that the part-time clerical assistants who had entered into invalid waivers and worked as many as 32.5 hours per week were entitled to health insurance. He found that the collective agreements had no provision specifying a minimum number of weekly work hours entitling clerical assistants to health insurance benefits. He further found that one clerical assistant worked 35 hours per week and received health insurance, but no part-time clerical assistant working less than 35 hours per week had ever received benefits. The Hearing Examiner thus could not conclude that the Board had unilaterally changed a term and condition of employment by not providing health insurance benefits to part-time clerical assistants working less than 35 hours per week. The Association excepts to this conclusion. ¶

The Association acknowledges that the collective agreement does not specify a minimum number of weekly hours that would entitle clerical assistants to health insurance benefits. The Association argues, however, that the agreement otherwise requires the Board to provide health insurance coverage and that the parties have a mutual expectation and past practice under that agreement that part-time clerical assistants would be eligible for benefits upon working two-thirds the hours of a full-time position, or 23.5 hours per week. It notes that teachers and other certificated employees working two-thirds of the regular school year receive health benefits. ¶

We agree with the Hearing Examiner that since no part-time clerical assistants working less than 35 hours per week have ever received health benefits, the Board did not unilaterally change a past practice of providing health benefits to part-time clerical assistants. The remaining question is whether the collective agreement would have entitled these employees to health benefits and whether they are therefore entitled to reimbursement for benefits for any period of time covered by this dispute. This is an issue of contract interpretation that we decline to consider further. Any entitlement to health benefits derives from the parties’ collective agreement. Any dispute over contractual benefits should be resolved through the parties’ negotiated grievance procedure. See also N.J.S.A . 34:13A-5.3 (grievance procedures shall be utilized for any dispute covered by the terms of the agreement). ¶

Having voided the individual waiver agreements, we will grant the Association 15 days to file a contractual grievance claiming that the Board violated an obligation under the collective negotiations agreement to provide health benefits. We will also order the Board to waive any contractual timeliness defenses should the Association seek binding arbitration of this contractual dispute. This remedy is appropriate because until the individual waivers were declared invalid, a contractual claim could not be upheld. Our remedy puts the parties back in the position they would have occupied if the waiver had not precluded employees who actually worked longer hours from seeking health benefits. We, of course, express no opinion on the merits of any such contractual claim. ¶

The Hearing Examiner next found that the Board did not reduce part-time clerical assistant work hours in the 2003-2004 school year in retaliation for the filing of this unfair practice charge. He found that from the outset, the Board did not wish to provide health insurance to part-time clerical assistants and that reducing the employees’ work hours after the charge challenged the validity of the waivers was consistent with its earlier effort to restrict benefits. The Association argues that the post-charge reduction in work hours was tainted by anti-union animus. The Board responds that there is no evidence that the filing of the charge was a motivating or substantial factor in the Board’s decision to return to the previous work schedules. ¶

N.J.S.A . 34:13A-5.4a(3) and (4) prohibit retaliation against employees for filing unfair practice charges. The determination of whether the Board violated these provisions when it reduced the 2003-2004 work hours of clerical assistants requires an application of the tests established in In re Bridgewater Tp., 95 N.J. 235 (1984). In re Hunterdon Cty. and CWA, 116 N.J. 322 (1989). Under Bridgewater , no violation will be found unless the charging party has proved, by a preponderance of the evidence on the entire record, that protected conduct was a substantial or motivating factor in the adverse action. This may be done by direct evidence or by circumstantial evidence showing that the employee engaged in protected activity, the employer knew of this activity and the employer was hostile toward the exercise of the protected rights. Id. at 246. ¶

If the employer did not present any evidence of a motive not illegal under our Act or if its explanation has been rejected as pretextual, there is sufficient basis for finding a violation without further analysis. Sometimes, however, the record demonstrates that both motives unlawful under our Act and other motives contributed to a personnel action. In these dual motive cases, the employer will not have violated the Act if it can prove, by a preponderance of the evidence on the entire record, that the adverse action would have taken place absent the protected conduct. Id . at 242. This affirmative defense, however, need not be considered unless the charging party has proved, on the record as a whole, that anti-union animus was a motivating or substantial reason for the personnel action. Conflicting proofs concerning the employer's motives are for us to resolve. ¶

There is no dispute that the filing of this unfair practice charge was protected activity and that the Board was aware of this activity. Under Bridgewater , we must next determine whether the Board was hostile to the exercise of protected rights. In a letter to the Association, Board counsel wrote: ¶

As a result of the filing of the Original UPC by the HEA and the uncertainty regarding whether such waivers of health benefits will be considered valid for the 2003-2004 school year, the Board decided to reduce all clerical assistants hours below 23½ hours per week. The Board’s decision to return the clerical assistants back to their original hours ( i.e ., before they waived the health benefits in return for additional hours) was based on the uncertainty regarding the validity of the waivers. For example, if the waivers are eventually held to be invalid, the Board will be required to reimburse the clerical assistants for health benefits not only for the 2002-2003 school year at issue in the Original UPC, but also any subsequent school years that the clerical assistants worked more than 23½ hours per week. ¶

The Board’s decision to return the clerical assistants back to their original weekly schedules is merely an attempt to return to the previous schedule and avoid any future litigation on the waiver of benefits issue. Simply stated, by reducing the clerical assistants hours the Board wishes to avoid a situation in which, pending on the outcome of the Original UPC, it may become financially responsible for the cost of the clerical assistants health benefits for the 2003-2004 school year (in addition to the 2002-2003 school year). ¶

Applying Bridgewater and agreeing with the Hearing Examiner, we conclude that the Board was not seeking to punish or retaliate against employees for filing the unfair practice charge. It was simply acting to protect itself from a financial obligation it never wanted to incur. ¶

In the absence of exceptions, we adopt the Hearing Examiner’s recommendation to dismiss the remaining allegations in the Complaint. ¶

OrderORDER ¶

The Hillsborough Board of Education is ordered to: ¶

A. Cease and desist from: ¶

1. I nterfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by the Act, particularly by dealing directly with part-time clerical assistants regarding waivers of health insurance benefits. ¶

2. Refusing to negotiate in good faith with the Hillsborough Education Association concerning terms and conditions of employment of employees in its negotiations unit, particularly by dealing directly with part-time clerical assistants regarding waivers of health insurance benefits. ¶

B. Take this action: ¶

1. Void any individual health benefit waivers signed by part-time clerical assistants. ¶

2. Waive any contractual timeliness defenses should the Association seek binding arbitration of a grievance, filed within 15 days of this decision, seeking reimbursement for health benefits for part-time clerical assistants who signed individual waivers of health benefits. ¶

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 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, Fuller, Katz, Mastriani and Watkins voted in favor of this decision. None opposed. ¶

DATED: February 24, 2005 ¶

Trenton, New Jersey ¶

ISSUED: February 24, 2005 ¶

NOTICE TO EMPLOYEES ¶

PURSUANT TO ¶

AN ORDER OF THE ¶

PUBLIC EMPLOYMENT RELATIONS COMMISSION ¶

AND IN ORDER TO EFFECTUATE THE POLICIES OF THE ¶

NEW JERSEY EMPLOYER-EMPLOYEE RELATIONS ACT, ¶

AS AMENDED, ¶

We hereby notify our employees that: ¶

WE WILL cease and desist from interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by the Act, particularly by dealing with part-time clerical assistants regarding waivers of health insurance benefits. ¶

WE WILL cease and desist from refusing to negotiate in good faith with the Hillsborough Education Association concerning terms and conditions of employment of employees in its negotiations unit, particularly by dealing directly with part-time clerical assistants regarding waivers of health insurance benefits. ¶

WE WILL void any individual health benefit waivers signed by part-time clerical assistants. ¶

WE WILL waive any contractual timeliness defenses should the Association seek binding arbitration of a grievance, filed within 15 days of the Commission’s February 24, 2005 decision, seeking reimbursement for health benefits for part-time clerical assistants who signed individual waivers of health benefits. ¶

CO-2003-141 HILLSBOROUGH BOARD OF EDUCATION ¶

Docket No. ¶

(Public Employer) ¶

Date: ¶

By: ¶

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced or covered by any other material. ¶

If employees have any question concerning this Notice or compliance with its provisions, they may communicate directly with the Public Employment Relations Commission, 495 West State Street, P.O. Box 429, Trenton, NJ 08625-0429 (609) 984-7372 ¶

APPENDIX "A" ¶

d:\percdocs\notice 10/93 ¶

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/ These provisions prohibit public employers, their representatives or agents from: “(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. (4) Discharging or otherwise discriminating against any employee because he has signed or filed an affidavit, petition or complaint or given any information or testimony under this act.” ¶

3/ This provision prohibits public employers, their representatives or agents from: “(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.” ¶