P.E.R.C. No. 2015-61, Middle Tp B/E

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of MIDDLE TOWNSHIP BOARD OF EDUCATION, Petitioner, -and- Docket No. SN-2015-013 MIDDLE TOWNSHIP EDUCATION ASSOCIATION, Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission grants in part and denies in part the request of the Middle Township Board of Education for a restraint of binding arbitration of a grievance filed by the Middle Township Education Association contesting the transfer of a guidance counselor from the high school to the middle school, which resulted in a loss of extra compensation for summer work. The Commission holds that the Board’s decision to transfer the grievant is not mandatorily negotiable, but that the alleged reduction in compensation accompanying the transfer is mandatorily negotiable. ¶

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 MIDDLE TOWNSHIP BOARD OF EDUCATION, Petitioner, -and- Docket No. SN-2015-013 MIDDLE TOWNSHIP EDUCATION ASSOCIATION, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, Raymond A. Cassetta, Consultant ¶

For the Respondent, Selikoff & Cohen, P.A., attorneys (Keith Waldman, of counsel and Kathleen L. Kirvan, of counsel) ¶

DECISION ¶

On September 2, 2014, the Middle Township Board of Education petitioned for a scope of negotiations determination. The Board seeks a restraint of binding arbitration of a grievance filed by the Middle Township Education Association. The grievance contests a guidance counselor’s transfer from the district’s high school to its middle school which resulted in the loss of an opportunity to earn extra compensation by working during the summer. ¶

The parties have filed briefs and exhibits. Neither party requested an evidentiary hearing or filed an affidavit or certification. These facts appear. ¶

The Association represents teachers and other Board employees including guidance counselors. The parties entered into a collective negotiations agreement effective from July 1, 2012 to June 30, 2015. The grievance procedure ends in binding arbitration. Article A-II, Teacher work year, provides in pertinent part: ¶

2. In addition to the (normal work year) . . . high school guidance counselors may be required to work fourteen (14) additional days. The fourteen additional days will be scheduled . . . not later than May 15th of each school year. The additional days will include at least ten (10) days during July and August. ¶

3. High School guidance counselors who were employed in this capacity prior to July 1, 2006, may elect not to work the extra ten (10) days during . . . July and August.1/ ¶

4. Each . . . High School guidance counselor who chooses to work the fourteen additional days shall receive pensionable salary at the rate of . . . ($325) per day. . . The summer compensation will be added to the ... counselor’s salary and paid in accordance with the regular ten month pay schedule. 2/ ¶

During the 2013 to 2014 school year the Board employed seven guidance counselors, all tenured. Four were assigned to the high school, two to the middle school and one to its elementary school. Following that school year, the Board determined that, due to declining enrollment, it would eliminate several positions, among them one guidance counselor. The least senior counselor, who had been assigned to the middle school, “bumped” into a teaching position. The Board decided that in the next school year, the high school would have three counselors, the middle school two and the elementary school one. This required a transfer of a high school counselor to the middle school. The counselor chosen, William Orr, was the most senior in service among the high school counselors, but had prior experience as a middle school counselor. As a result of the transfer, Orr would lose the summer work assignment and the corresponding extra compensation. ¶

The Association filed a grievance asserting that the transfer: ¶

• Should have been made based on seniority, with the least senior of the high school counselors moved to the middle school; ¶

• Deprived the counselor of the additional pensionable compensation paid to high school counselors who perform summer work. ¶

The Board denied the grievance asserting that the decision to transfer a teacher is non-negotiable and not controlled by seniority. The Board asserted that it made its decision because Orr had prior experience as a middle school counselor. ¶

After 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 (1978), 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 dispute or any contractual defenses the Board may have. ¶

Under Local 195, IFPTE v. State, 88 N.J. 393, 404-405 (1982), a subject is mandatorily negotiable and legally arbitrable if: ¶

(1) the item intimately and directly affects the work and welfare of public employees; (2) the subject has not been fully or partially preempted by statute or regulation; and (3) a negotiated agreement would not significantly interfere with the determination of governmental policy. To decide whether a negotiated agreement would significantly interfere with the determination of governmental policy, it is necessary to balance the interests of the public employees and the public employer. When the dominant concern is the government's managerial prerogative to determine policy, a subject may not be included in collective negotiations even though it may intimately affect employees' working conditions. ¶

The Board argues that it had a prerogative to reassign the counselor under Ridgefield Park Bd. of Ed. v. Ridgefield Park Ed. Ass'n, 78 N.J. 144 (1978). It cites prior Commission cases holding that contract language that would base transfers of teaching staff on seniority are not mandatorily negotiable. See, e.g., Milltown Bd. Of Ed., P.E.R.C. No. 97-66, 23 NJPER 28 (¶28020 1996) (clause providing that length of service will be considered in involuntary transfer decisions not mandatorily negotiable). ¶

The Association responds that the Board’s managerial prerogative to make a transfer does not encompass the severable effects of its decision on mandatorily negotiable terms and conditions of employment, here the loss of the summer work and the stipend which is part of pensionable salary. ¶

The Board replies that in almost every case that has addressed the issue, a transferred employee may not be kept on the salary guide of his/her former position or maintain shift differentials that accompanied the prior post. See, e.g., Plainfield Asso. of School Adm'rs v. Plainfield Board of Education, 187 N.J. Super. 11 (following transfer to elementary school of former high school principal, administrator, who suffered no immediate loss of compensation, could not seek to remain on higher salary guide for high school principal). ¶

In deciding the negotiability of contract proposals and the legal arbitrability of grievances, the Courts have directed the Commission to undertake case-by-case analysis. See Jersey City and POBA and PSOA, 154 N.J. 555, 574-575 (1998). ¶

Of the cases cited to us, the facts of Plainfield Asso. of School Adm'rs v. Plainfield Board of Education , are similar in many but not all respects. ¶

First, in both cases the employees’ former positions carried either higher present or future compensation than their new jobs. ¶

Second, in both cases the employees’ were tenured meaning that their present compensation levels could not be reduced absent just cause and only through adherence to the procedures mandated by the education laws. ¶

Third, in both cases the employees held certifications qualifying them to perform the duties of both their old and new positions. ¶

However, in Plainfield the transferred principal’s salary was not immediately reduced as a result of her reassignment from the high school to the elementary school. That may not be the case here. ¶

Neither party to this dispute submitted an affidavit, certification or documentation establishing the amount of the compensation paid to Orr during the last year he was assigned to the high school compared to his earnings as a middle school counselor. The grievance asserts that the transfer resulted in decreased compensation. Without any statements to the contrary based on personal knowledge, we will assume that Orr’s earnings as a middle school counselor will not include the $4,550.00 that was earned in previous years from the 14 days of summer work. As the parties agreement describes those amounts as “pensionable,” they appear to be part of the employee’s regular compensation. ¶

It is well-established that the involuntary transfer of a tenured teaching staff member may not be accompanied by a reduction in compensation. See Carpenito v. Board of Educ. of Borough of Rumson, 322 N.J. Super. 522, 529-530 (App. Div. 1999) and cases discussed therein. But, a transfer of an administrator to a teaching position can be effectuated if the administrator’s salary is not reduced. See Lascari v. Board of Education, 36 N.J. Super. 426 (App. Div. 1955). ¶

Even though construction of the tenure laws was at issue, in Plainfield, 187 N.J. Super at 15, the Court observed that the Commission had jurisdiction to determine whether the dispute in that case was legally arbitrable. Similarly, the claim that the Association raises here is that reduction of Orr’s compensation conflicts with his tenure rights not to have his salary reduced.3/ ¶

Accordingly, we will allow arbitration of the claim that Orr may not be paid less in his new position. But, we will not allow arbitration of the decision to reassign the counselor from the high school to the middle school. ¶

OrderORDER ¶

The request of the Middle Township Board of Education for a permanent restraint of binding arbitration is: ¶

A. GRANTED regarding the claim that the Board could not transfer William Orr from the position of High School Guidance Counselor to Middle School Guidance Counsel; ¶

B. DENIED regarding the claim that the transfer reduced William Orr’s annual compensation. ¶

BY ORDER OF THE COMMISSION ¶

Chair Hatfield, Commissioners Bonanni, Boudreau, Eskilson, Jones, Voos and Wall voted in favor of this decision. None opposed. ¶

ISSUED: March 26, 2015 ¶

Trenton, New Jersey ¶

Note1/ We construe this paragraph as giving scheduling flexibility to qualifying counselors so they can complete their 14 days of summer work without reporting during July and/or August. ¶

2/ Gross additional compensation for working all 14 days is $4,550.00. ¶

3/ Again, as no affidavits or certifications have been submitted we do not know whether or to what extent the loss of the summer work may be offset by any increases payable to Orr as a result of an additional year of service. ¶