P.E.R.C. No. 2021-37, Southampton Tp B/E

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of SOUTHAMPTON TOWNSHIP BOARD OF EDUCATION, Respondent, -and- Docket No. CO-2020-222 SOUTHAMPTON TOWNSHIP EDUCATION ASSOCIATION, Charging Party. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission partially grants the Association’s exceptions to a Hearing Examiner’s report, H.E. No. 2021-4, which had denied the Association’s motion for summary judgment and granted the Board’s cross-motion for summary judgment to dismiss the Association’s unfair practice charge. The Association’s charge alleges that the Board violated the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1, et seq. (Act) by refusing to negotiate over the scheduling of two non-student faculty work days preceding the start of the 2020-2021 student school year. The Commission finds that, to the extent the Association sought to negotiate over scheduling non-student faculty work days in a way which would have changed the Board’s scheduled start date for the student school year, the issue was non-negotiable. The Commission also finds that to the extent the Association sought to negotiate over the scheduling of non-student faculty work days in a way which would not affect the start of the student school year, the issue was mandatorily negotiable and the Board violated the Act by refusing to negotiate over scheduling those days during the week prior to the student start date. Accordingly, the Association’s motion for summary is partially granted, the Board’s cross-motion is partially denied, and the Board is ordered to negotiate in good faith with the Association over the scheduling of non-student faculty work days. ¶

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 SOUTHAMPTON TOWNSHIP BOARD OF EDUCATION, Respondent, -and- Docket No. CO-2020-222 SOUTHAMPTON TOWNSHIP EDUCATION ASSOCIATION, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, ¶

Capehart & Scatchard, P.A., attorneys ¶

(Robert Muccilli, of counsel) ¶

For the Charging Party, ¶

Oxfeld Cohen, P.C. attorneys ¶

(Sanford R. Oxfeld, of counsel) ¶

DECISION ¶

This case is before the Commission on exceptions filed by the Southampton Township Education Association (Association) to a Hearing Examiner’s Report and Recommended Decision on the Association’s motion for summary judgment and the cross-motion for summary judgment filed by the Southampton Township Board of Education (Board). H.E. No. 2021-4, 47 NJPER 303 (¶71 2021). The case involves an unfair practice charge filed by the Association alleging that the Board violated the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. (Act), specifically subsection 5.4a(5), and, derivatively, 5.4a(1), by refusing to negotiate over the scheduling of two non-student faculty work days (staff development days) preceding the start of the 2020-2021 student school year.1/1/The Association’s charge was accompanied by an application for interim relief, which was denied by a Commission Designee on April 22, 2020. I.R. No. 2020-19, 46 NJPER 502 (¶111 2020). On May 15, 2020, the Association filed a motion for leave to appeal the interim relief decision to the Appellate Division, which denied the motion on June 12, 2020. ¶

On July 8, 2020, the Director of Unfair Practices issued a Complaint and Notice of Pre-hearing. On July 13, the Board filed an Answer denying that it violated the Act and asserting affirmative defenses that the issue was not mandatorily negotiable and that it did not change the status quo. On August 28, the Association filed a motion for summary judgment supported by a brief and the certification of NJEA UniServ Representative Michael Kaminski (Kaminski Cert.). On September 8, the Board filed a cross-motion for summary judgment supported by a brief, exhibits, and the certification of Michael Harris, the Superintendent of the Southampton Township School District (Harris Cert.). On September 10, the Association filed a reply brief to the Board’s cross-motion. ¶

On January 14, 2021, the Hearing Examiner issued his decision denying the Association’s motion for summary judgment and granting the Board’s cross-motion for summary judgment. The Hearing Examiner framed the issue as the Association seeking “to negotiate over scheduling these professional development days so that teachers could enjoy a longer Labor Day weekend by scheduling orientation and in-service training the week of Labor Day,” which he found “would undoubtedly preclude the Board from providing students four consecutive days of instruction during the week of Labor Day.” (H.E. at 14-15). The Hearing Examiner found the issue non-negotiable and therefore concluded that the Board did not violate the Act by unilaterally scheduling the two staff development days for the 2020-2021 school year. ¶

On January 20, 2021, the Association filed exceptions to the Hearing Examiner’s decision. On January 27, the Board filed a brief in opposition to exceptions. ¶

SUMMARY OF FACTS ¶

We adopt and incorporate the Hearing Examiner’s findings of fact. (H.E. at 4-8). We summarize and supplement the pertinent facts as follows. ¶

1. The Association is the exclusive majority representative of a unit of certificated employees including teachers. ¶

2. On December 16, 2019, the Board voted to approve a school calendar for the 2020-2021 school year. ¶

3. The 2020-2021 calendar scheduled the student school year to begin on Tuesday, September 8, 2020 (the day after Labor Day). ¶

4. The 2020-2021 calendar scheduled two non-student faculty work days, i.e., staff development days (one “teacher orientation” day and one “teacher in-service” day) for September 3 and 4, 2020, the Thursday and Friday before Labor Day weekend. ¶

5. The Board did not negotiate with the Association over the scheduling of these two staff development days prior to approving the 2020-2021 calendar. (Kaminski Cert., ¶4). ¶

6. The Board certified that it scheduled the staff development days for the Thursday and Friday before Labor Day weekend to ensure that the start of the faculty work year with orientation and professional in-service integrates seamlessly with commencement of student attendance the following Tuesday. (Harris Cert., ¶¶3-5). ¶

7. On December 18, 2019, Association President Susan McNally e-mailed Superintendent Michael Harris seeking to negotiate over the Board’s unilateral scheduling of these two non-student faculty work days on Thursday and Friday, noting that Tuesday through Friday of that week (September 1-4, 2020) were all September days. ¶

8. The Board did not respond to McNally’s December 18 e-mail. ¶

9. On January 6, 2020, McNally sent Harris another e-mail requesting to negotiate alternate placement of the two non-student faculty work days prior to the start of the student school year. ¶

10. On January 8, 2020, Harris e-mailed McNally stating that “alternate placement/scheduling of the two teacher only work days is not an option.” Harris stated that scheduling the two days on Thursday and Friday is consistent with the 2019-2020 calendar, and that the 2020-2021 calendar takes into account planned summer facility/construction projects and the scheduling of professional development and summer programming. ¶

STANDARD OF REVIEW ¶

The standard we apply in reviewing a Hearing Examiner’s decision and recommended order is set forth in part in N.J.S.A. 52:14B-10(c). In the context of a motion for summary judgment, the relevant part of the statute provides: ¶

The head of the agency, upon a review of the record submitted by the [hearing examiner], shall adopt, reject or modify the recommended report and decision . . . after receipt of such recommendations. In reviewing the decision . . ., the agency head may reject or modify findings of fact, conclusions of law or interpretations of agency policy in the decision, but shall state clearly the reasons for doing so. . . . In rejecting or modifying any findings of fact, the agency head shall state with particularity the reasons for rejecting the findings and shall make new or modified findings supported by sufficient, competent, and credible evidence in the record. ¶

Summary judgment will be granted if there are no material facts in dispute and the movant is entitled to relief as a matter of law. Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 540 (1995); Judson v. Peoples Bank & Trust Co., 17 N.J. 67, 73-75 (1954). N.J.A.C. 19:14-4.8(e) provides: ¶

If it appears from the pleadings, together with the briefs, affidavits and other documents filed that there exists no genuine issue of material fact and that the movant or cross-movant is entitled to its requested relief as a matter of law, the motion or cross-motion for summary judgment may be granted and the requested relief may be ordered. ¶

In determining whether there exists a “genuine issue” of material fact that precludes summary judgment, we must “consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational fact finder to resolve the alleged disputed issue in favor of the non-moving party.” Brill, 142 N.J. at 540. We “must grant all the favorable inferences to the non-movant.” Id. at 536. The summary judgment procedure is not to be used as a substitute for a plenary trial. Baer v. Sorbello, 177 N.J. Super. 183 (App. Div. 1981), certif. denied, 87 N.J. 388 (1981). ¶

ANALYSIS ¶

N.J.S.A. 34:13A-5.3 requires that: “the majority representative and designated representatives of the public employer shall meet at reasonable times and negotiate in good faith with respect to grievances, disciplinary disputes, and other terms and conditions of employment.” “[U]nilateral imposition of working conditions is the antithesis of [the Legislature’s] goal that the terms and conditions of public employment be established through bilateral negotiation.” Atlantic Cty., 230 N.J. 237, 252 (2017), quoting Galloway Twp. Bd. of Educ., 78 N.J. 25, 48 (1978). ¶

Public employers are prohibited from “[r]efusing 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.” N.J.S.A. 34:13A-5.4a(5). Public employers are also prohibited from “[i]nterfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this Act.” N.J.S.A. 34:13A-5.4a(1). This provision will be violated derivatively when an employer violates another unfair practice provision. Lakehurst Bd. of Ed., P.E.R.C. No. 2004-74, 30 NJPER 186 (¶69 2004). ¶

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. ¶

[In re Local 195, IFPTE, 88 N.J. 393, 404-405.] ¶

“Questions concerning whether subjects are mandatorily negotiable should be made on a case-by-case basis.” Troy v. Rutgers, 168 N.J. 354, 383 (2001) (citing City of Jersey City v. Jersey City POBA, 154 N.J. 555, 574 (1998)). ¶

Public employers have a managerial prerogative to determine the hours and days that a public service will be provided. Work schedules of individual employees, however, are generally mandatorily negotiable. Local 195; see also Teaneck Tp. and Teaneck Tp. FMBA Local No. 42, 353 N.J. Super. 289 (App. Div. 2002), aff’d o.b., 177 N.J. 560 (2003); Woodstown-Pilesgrove Reg. H.S. Bd. of Ed. v. Woodstown-Pilesgrove Ed. Ass’n, 81 N.J. 582, 589 (1980); Englewood Bd. of Ed. v. Englewood Teachers Ass’n, 64 N.J. 1, 6-7 (1973); and Burlington Cty. College Faculty Ass’n v. Burlington Cty. College, 64 N.J. 10, 12, 14 (1973) (“BCCFA”). ¶

In the education setting, the Commission, Appellate Division, and Supreme Court of New Jersey have all recognized the distinction between the student calendar and faculty work schedules, noting that faculty work schedules are mandatorily negotiable to the extent negotiations do not interfere with scheduling the student school year. BCCFA, 64 N.J. at 12; Woodstown-Pilesgrove, 81 N.J. at 592-593; Troy v. Rutgers, 168 N.J. at 383; Piscataway Tp. Educ. Ass’n v. Piscataway Tp. Bd. of Ed., 307 N.J. Super. 263, 270 (App. Div. 1998); N.J.I.T., P.E.R.C. No. 80-54, 5 NJPER 491, 493 (¶10251 1979), aff’d, NJPER Supp.2d 263 (¶218 App. Div. 1980); Belvidere Bd. of Ed., P.E.R.C. No. 78-62, 4 NJPER 165 (¶4080 1978), aff’d, NJPER Supp.2d 57 (¶37 App. Div. 1979); and Edison Tp. Bd. of Ed., P.E.R.C. No. 78-53, 4 {plain NJPER ¶