P.E.R.C. No. 2018-49, Monmouth Cty V/T B/E

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of MONMOUTH COUNTY VOCATIONAL BOARD OF EDUCATION, Petitioner, -and- Docket No. SN-2018-023 MONMOUTH COUNTY VOCATIONAL EDUCATION ASSOCIATION, Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission denies the Monmouth County Vocational Board of Education’s request for a restraint of binding arbitration of a grievance filed by the Monmouth County Vocational Education Association contesting the placement of a teacher on the salary guide after completing graduate level courses. The Commission finds that N.J.S.A. 18A:6-8.5 is not preemptive and that there is no significant interference with governmental policy by allowing the factual determination of whether the additional academic credits relate to the employee’s current or future job responsibilities to be considered by an arbitrator. ¶

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 MONMOUTH COUNTY VOCATIONAL BOARD OF EDUCATION, Petitioner, -and- Docket No. SN-2018-023 MONMOUTH COUNTY VOCATIONAL EDUCATION ASSOCIATION, Respondent. ¶

AppearancesAppearances: ¶

For the Petitioner, Law Office of Sanford D. Brown, LLC, attorneys (Sanford D. Brown, on the brief) ¶

For the Respondent, Selikoff & Cohen, P.A., attorneys (Keith Waldman, on the brief) ¶

DECISION ¶

On December 19, 2017, the Monmouth County Vocational Board of Education (Board) filed a scope of negotiations petition. The Board seeks a restraint of binding arbitration of a grievance filed by the Monmouth County Vocational Education Association (Association). The grievance asserts that the Board violated the parties’ collective negotiations agreement (CNA) when it placed a teacher on the Master’s column of the salary guide rather than the Master’s +15 column. ¶

The Board has filed briefs, exhibits, and the certification of Superintendent Timothy M. McCorkell. The Association has filed a brief, exhibits, and the grievant’s certification. These facts appear. ¶

The Association represents contracted certificated staff, as well as other Board employees.1/ The parties’ current CNA has a term of July 1, 2017 through June 30, 2020.2/ The grievance procedure ends in binding arbitration with regard to “grievances arising under the express terms of this contract,” but excludes from arbitration “grievances which concern the interpretation, application, or alleged violations of policies and administrative decisions.” ¶

Article VIII of the CNA, entitled “Salaries,” pertains to certified staff only and states in relevant part: ¶

2. All credits must be earned as part of a matriculated program leading to a bachelor’s degree in the field of education or be earned for courses having significance for the individual’s development in their particular teaching speciality. ¶

3. When a teacher qualifies for a higher level on the guide, they will be granted the additional money at the start of the following month after official action has been taken by the Board. ¶

The grievant is employed by the Board as a mathematics teacher, and has an instructional certification as a teacher of mathematics with elementary teacher endorsements. ¶

In 1996 and 1997, the grievant took graduate level courses in drug and alcohol counseling at New Jersey City University, earning a total of 12 credits. In 2002 and 2003, she took graduate level math courses at Rutgers for another 12 credits. ¶

In December 2002, having amassed 15 graduate level credits after her Bachelor’s (BA) degree, the grievant applied for and was placed on the BA +15 column of the salary guide. ¶

In December 2016, the grievant received a Master’s in educational administration from Panuska College. She then asked to be moved to the MA +15 column on the guide. Instead, she was placed on the Master’s column effective February 1, 2017. On January 31, 2017, the Superintendent advised her that, in accordance with District practice, her request was denied because the extra graduate credits were earned before she achieved her Masters. By email of March 16, McCorkell advised the Association that “new hires must document 15 or more graduate credits earned after the completion of their last degree to be placed on the BA+15, MA+15, or MA+30 guide,” and “[t]his has been the practice at least for eight years that I have been Superintendent and the prior eight years that I was the Assistant Superintendent.” ¶

On April 7, 2017, the Association filed a grievance on behalf of the grievant. On May 5, McCorkell responded to the grievance stating that the grievant “was placed on the guide in the same manner as other employees have been for many years.” On May 11, the Association requested that the grievance be reviewed by the Board. On July 5th, the Board President advised the Association that the Board had considered the grievance at its June 27th meeting but denied it for the reasons cited by the Superintendent. ¶

McCorkell certifies that the District’s practice of recognizing, for purposes of moving to the MA +15 column of the guide, only academic credit earned after completion of the Master’s degree is an educational policy. He further certifies that as evidenced by Board Policy 3240, “Professional Development for Teachers and School Leaders,” the Board encourages teaching staff members to pursue a program of continuing professional development, not for their personal intellectual or financial interest, but rather to improve instruction or the operation of the school district. ¶

McCorkell maintains that the practice and policy is also aligned with N.J.S.A. 18A:6-8.5c which requires that additional compensation sought upon the acquisition of additional academic credit or completion of a degree program must be related to the employee’s current or future job responsibilities. He attests that even if the Board policy had not been in effect, he still would have denied the grievant’s request for additional compensation because the requirement contained in N.J.S.A. 18A:6- 8.5c had not been satisfied. ¶

The grievant certifies that in 2017, she obtained administrative certificates as a supervisor in New Jersey and as a principal in New Jersey and Pennsylvania and that she plans to either continue as a math teacher or pursue an opportunity in educational administration as a supervisor or principal. She certifies that “teachers are often required to assist students with problems involving other students or at home, in some cases concerning parents who have alcohol or substance abuse issues” ; that students “are often willing to talk to teachers they know and trust more than to guidance counselors” ; and that “teachers can recognize personality types in their students and understand when someone is experiencing depression or stress or feeling suicidal.” ¶

The grievant also certifies that the courses she took in 1996 and 1997 at New Jersey City University “were toward becoming a Student Assistant Coordinator” and that she applied for and moved to the BA +15 column in December 2002 after she had taken a total of 15 graduate level courses. The grievant maintains that none of her prior 24 graduate credits were counted toward her Master’s degree. After being informed that she would not be moved to the MA +15 column of the guide, the grievant asked for a copy of the written policy on which the decision was based, and was informed that there is no written policy. ¶

On September 18, 2017, the Association filed its Request for Submission of a Panel of Arbitrators. 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 merits of the grievance or any contractual defenses the employer may have. ¶

Local 195, IFPTE v. State, 88 N.J. 393 (1982), articulates the standards for determining whether a subject is mandatorily negotiable: ¶

[A] subject is negotiable between public employers and employees when (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. ¶

[Id. at 404-405]. ¶

We must balance the parties’ interests in light of the particular facts and arguments presented. City of Jersey City v. Jersey City POBA, 154 N.J. 555, 574-575 (1998). ¶

The Board argues that this matter is preempted by N.J.S.A. 18A:6-8.5c, concerns the educational goal of protecting the District from systemic abuse by employees whose pursuit of graduate credits are motivated by personal, intellectual or financial interest, and there are no express written terms in the CNA addressing the disputed issue. The Association responds that this matter is not preempted, and a managerial prerogative does not exist because compensation is a mandatorily negotiable subject. ¶

At the outset, we note that at the time the Board denied the grievance, it relied solely on its asserted policy that additional compensation may only be obtained for course credits obtained after the completion of a Masters degree. The Board advanced its argument about statutory preemption only after the instant litigation was instituted . Nonetheless, we will respond to the Board’s argument that this matter is preempted by N.J.S.A. 18A:6-8.5c. ¶

Where a statute or regulation is alleged to preempt an otherwise negotiable term or condition of employment, it must do so expressly, specifically and comprehensively. Council of N.J. State College Locals, NJSFT-AFT/AFL-CIO v. State Ed. of Higher Ed., 91 N.J. 18, 30 (1982); Bethlehem Tp. Bd. of Ed. v. Bethlehem Tp. Ed. Ass’n, 91 N.J. 38, 44-45 (1982). The legislative provision must “speak in the imperative and leave nothing to the discretion of the public employer.” State v. State Supervisory Employees Ass’n, 78 N.J. 54, 80-82 (1978). ¶

N.J.S.A. 18A:6-8.5 states as follows: ¶

In order for a board of education to provide to an employee tuition assistance for course work taken at an institution of higher education or additional compensation upon the acquisition of additional academic credits or completion of a degree program at an institution of higher education: ¶

a. The institution shall be a duly authorized institution of higher education. . . . ¶

b. The employee shall obtain approval from the superintendent of schools prior to enrollment in any course for which tuition assistance is sought. In that the event that the superintendent denied the approval, the employee may appeal the denial to the board of education. ¶

In the case of a superintendent, the approval shall be obtained from the board of education; and c. The tuition assistance or additional compensation shall be provided only for a course or degree related to the employee’s current or future job responsibilities. ¶

[Ibid. (emphasis added).] ¶

We disagree with the Board that this matter is preempted by N.J.S.A. 18A:6-8.5c. Subsection c. establishes the requirement that additional compensation (upon the acquisition of additional academic credits or completion of a degree program at an institution of higher education) shall be provided only for a course or degree related to an employee’s current or future job responsibilities. For purposes of obtaining additional compensation, whether a course or degree is related to an employee’s current or future job responsibilities is a factual determination. Subsection c. does not expressly, specifically or comprehensively set out who must make that factual determination. In contrast, the statute addresses the handling of tuition assistance differently. While tuition assistance shall also be provided only for a course or degree related to the employee’s current or future job responsibilities, subsection b. specifies that when tuition assistance is sought, approval must be obtained from the Superintendent, whose decision is appealable to the Board of Education. No such review process is required for an employee who seeks additional compensation. ¶

The legislative history of N.J.S.A. 18A:6-8.5 also supports that this matter is not preempted. In the initial version of the bill, subsection b. required that prior approval of the Superintendent must be obtained not only for tuition assistance, but also for the payment of any additional compensation upon acquisition of additional academic credits or completion of a degree program. S. Bill No. 2127, 213th Leg. Sess., at 2 (Oct. 2, 2008). The requirement for prior approval for additional compensation was later omitted from the bill, however was retained for tuition assistance. S. Bill No. 2127, 213th Leg. Sess., at 2. (Oct. 2, 2008)(second reprint). ¶

The Board relies on Hillsborough Tp. Bd. of Ed., P.E.R.C. No. 2016-64, 42 NJPER 475 (¶130 2016), aff’d 43 NJPER 341 (¶96 App. Div. 2017). In Hillsborough, the Board denied employees’ requests for tuition reimbursement, relying on N.J.S.A. 18A:6-8.5 and finding that the courses were not related to their current or future job responsibilities. The court found that subsection c. sets an express, specific, and comprehensive condition for tuition assistance and mandates that it will only be provided for a course or degree related to the employee’s current or future job responsibilities. The court also found that subsection c. gives the employer no discretion and that the statute is comprehensive. However, the court went on to acknowledge that the issue of whether an employee’s proposed course relates to current or future job responsibilities may pose issues of fact. The court identified that in the event of a dispute as to whether an employee’s proposed course actually relates to current or future job responsibilities, subsection b. sets out that the Superintendent’s decision is reviewable by the Board of Education. Hillsborough is factually distinguishable because it addressed the treatment of tuition assistance under N.J.S.A. 18A:6-8.5. This dispute concerns additional compensation and, as discussed above, the statute does not mandate that when an employee is seeking additional compensation the determination as to a course’s relevancy is subject to the Superintendent’s approval. ¶

The Board next argues that this matter concerns its managerial prerogative “to protect the District from systemic abuse by employees whose pursuit of graduate educational opportunities is motivated primarily by personal intellectual and/or financial interest.” We must apply the Local 195 balancing test in considering this argument. On the grievant’s side, compensation is the prime example of a mandatorily negotiable employment condition. Woodstown-Pilesgrove Reg. H.S. Dist. Bd. of Ed. v. Woodstown-Pilesgrove Reg. Ed. Ass’n, 81 N.J. 582 (1980); Englewood Bd. of Ed. v. Englewood Teachers Ass’n, 64 N.J. 1 (1973); Belleville Bd. of Ed v. Belleville Ed. Ass’n, 209 N.J. Super. 93 (App. Div. 1986). An extension of this principle is that horizontal salary guide movement is also mandatorily negotiable, since such movement centers on employee compensation. South Harrison Tp. Bd. of Ed., P.E.R.C. No. 96-84, 22 NJPER 242 (¶27126 1996). On the Board’s side, educational policy is impacted by enforcement of the requirement that additional compensation only be granted for course work related to an employee’s current or future job responsibilities. However, this dispute is not about the Board’s right to enforce such a requirement. This dispute concerns the narrow factual determination as to whether additional compensation sought after obtaining additional academic credit or a degree program actually relates to a grievant’s current or future job responsibilities. That factual determination concerns educational policy, but not so significantly that it requires the expertise of the Superintendent and/or the Board . On balance, the employee’s interests outweigh the employer’s interests, and the factual determination of whether additional compensation sought upon the acquisition of additional academic credit or completion of a degree program relates to an employee’s current or future job responsibilities is legally arbitrable and may be considered by an arbitrator. Pemberton Bd. of Ed., P.E.R.C. No. 2016-53, 42 NJPER 364 (¶103 2016) (statute enacting a residency requirement for employees did not preempt the narrow fact question of whether a grievant actually maintains a residence in New Jersey, which was legally arbitrable). See also Camden Cty., P.E.R.C. No. 2008-13, 33 NJPER 227 (¶86 2007) (finding that the dispute was not about the County’s right to enact a residency policy, but rather about whether the County’s residency policy applies to a particular employee who was hired before the policy was adopted, which was 1legally arbitrable). ¶

Finally, the Board argues that this matter cannot proceed to arbitration because there are no express written terms in the CNA addressing the disputed issue. The Board’s argument raises a question of contractual arbitrability outside of our scope of negotiations jurisdiction. Ridgefield Park. ¶

OrderORDER ¶

The Monmouth County Vocational Board of Education’s request for a restraint of binding arbitration is denied. ¶

BY ORDER OF THE COMMISSION ¶

Chair Weisblatt, Commissioners Bonanni, Jones and Voos voted in favor of this decision. None opposed. Commissioner Boudreau was not present. ¶

ISSUED: May 31, 2018 ¶

Trenton, New Jersey ¶

Note1/ Including full-time 10-month school secretaries, and teacher aides under contract with the Board; excluding administrators, other full-time personnel, and part-time temporary/replacement personnel and substitutes without a yearly individual contract. ¶

2/ The dispute that is the subject of the Board’s petition arose under the parties’ prior agreement, but the provisions relevant to this matter remain the same. ¶