Most recent decisions of interest

From the Courts:

Mount Holly Twp Bd. of Educ, 199 N.J. 319(A-24-08)

Decided June 24, 2009, the New Jersey Supreme Court reverses an Appellate Division decision to hold that the mid-contract termination of a custodian was subject to arbitration under the parties’ collective negotiations agreement (CNA). The CNA contained a provision that no employee shall be discharged without just cause and that such action is subject to the grievance procedure. However, the custodian’s individual employment contract expressly provided that either party could terminate the contract upon 14 days’ notice. The App. Div. decision held that the Board had the right to terminate the employee pursuant to the terms of the individual employment contract, without showing just cause or having its termination decision subject to arbitration. However, the Supreme Court disagrees, finding that to the extent provisions in an individual employment contract conflict or interfere with rights provided by the CNA, the language in the individual contract must yield to the CNA. The Court also held that requiring arbitration in this case is consistent with the Legislature’s amendment to N.J.S.A. 34:13A-5.3, which reaffirmed the principle that “arbitration is a favored means of resolving labor disputes.” (The dissenting opinion in this case contends that there is no conflict between the individual employment contract and the CNA, much less one to justify nullifying portions of the individual contract; and that termination does not fall within the definition of a “grievance” necessary to trigger the CNA’s grievance procedure.) (Listed below under TERMINATIONS.)

Freehold Regional High School District Board of Education v. NJEA and Maryann Lipman

Appellate Division, Docket No. A-4130-06T1, decided May 8, 2009 (Unpublished).

The Appellate Division affirmed the lower court’s ruling which restrained arbitration of the Board’s decision to not renew the employment contract of a school bus driver. It held that N.J.S.A. 18A:27-4.1(b) does not afford a non-tenured employee the right to arbitrate non-renewal, and relied upon the Board’s adopted policy which provided that renewals will only occur when recommended by the superintendent and a non-renewed employee has the right to a statement of reasons from the Board. Further, the Appellate Division rejected the NJEA’s argument that N.J.S.A. 34:13A-5.3 creates a presumption in favor of arbitration, reasoning that the since there was no provision in the collective negotiations agreement which defined non-renewal as constituting a disciplinary action subject to the grievance procedure, there was no presumption in favor of arbitration. Thus, the Appellate Division held that the reliance on N.J.S.A. 34:13A-5.3 is misplaced, specifically holding that “non-renewal is not a disciplinary action and, therefore, not subject to arbitration.” (Listed below under TERMINATIONS.)

Township of Toms River v. Teamsters Local 97

Appelllate Division, Docket No. A-4969-06T3, decided July 22, 2008

The court reversed a PERC decision, PERC No. 2007-56, which permitted grievance arbitration over the Township’s decision to subcontract tree removal services. The court found that the decision to subcontract was not done in bad faith; nor was there any evidence to suggest that the purpose was to avoid overtime expenses. The court distinguishes this case from other cases that involved circumstances in which only overtime hours were transferred to private employees. Citing Local 195, IFPTE v. State, (88 NJ 393, 1982), the court agreed with the Township that the decision to contract with a private entity for tree removal services and the terms of that contract were non-negotiable managerial prerogatives.

Mount Holly Board of Education,, Appellate Division, Docket No. A-5579-05T3, decided April 21, 2008. The court affirmed a lower court ruling which held that the Board’s decision to terminate a custodian mid-contract pursuant to his individual employment contract was not subject to review by an arbitrator under the collective bargaining agreement. (The parties’ contract states that no employee shall be discharged without just cause and that any such action shall be subject to the grievance procedure.) The court specifically differentiated this case from Pascack Valley Regional H.S. Bd. of Ed., 192 N.J. 489 (2007), where the collective bargaining agreement contained a just cause provision that was “expansive in its scope.” That clause stated that “[a]ny dismissal or suspension shall be considered a disciplinary action and shall at the option of the custodian…be subject to the grievance procedure.” In the instant case, the court found that, in the absence of such provision or any comparable provision, the Board was entitled to terminate the employee on 14 days notice without showing just cause or having its termination decision subject to the grievance procedure. – Reversed by Supreme Court in June 2009. (See write up above and under TERMINATIONS).

Medford Township Board of Education, Appellate Division, Docket No. A-5580-05T3, decided April 21, 2008. The court affirmed a lower court ruling which held that the Board’s decision to terminate a custodian mid-contract pursuant to his individual employment contract was not subject to review by an arbitrator under the collective bargaining agreement’s just cause clause. The court specifically differentiated this case from Pascack Valley Regional H.S. Bd. of Ed., 192 N.J. 489 (2007), where the collective bargaining agreement contained a just cause provision that was “expansive in its scope.” That clause stated that “[a]ny dismissal or suspension shall be considered a disciplinary action and shall at the option of the custodian…be subject to the grievance procedure.” In the instant case, the court found that, in the absence of such provision or any comparable provision, the Board was entitled to terminate the employee on 14 days notice without showing just cause or having its termination decision subject to the grievance procedure. (Note that the Supreme Court’s June 2009 decision in the Mt. Holly case may have significant implications and should be reviewed as well) (Listed below under TERMINATIONS).

Northvale Board of Education, 192 N.J. 501 (2007), the New Jersey Supreme Court, by a 3-3 vote, allowed an Appellate Division decision to be affirmed that upheld the restraint of arbitration of a grievance challenging the mid-contract termination of a part-time secretary and teacher for performance reasons. The concurring opinion held that there was no language in the collective bargaining agreement that specifically supported grievance and arbitration proceedings for mid-contract terminations. In the absence of such specific contractual entitlement, the Court found that the Board had the right to terminate the employee consistent with the terms of the individual employment contract. The dissenting opinion stated that if the collective bargaining agreement was unclear, any doubts needed to be resolved in favor of arbitration as consistent with statute. (Listed below under TERMINATIONS.)

Pascack Valley Regional Board of Education, 192 N.J. 489 (2007), decided October 29, 2007, the New Jersey Supreme Court, reverses the Appellate Division to hold that the mid-contract termination of a custodian was subject to arbitration under the parties’ collective bargaining agreement. The Court held that where a collective bargaining agreement broadly defines discipline and a board’s mid-contract termination falls within that definition, the employee is entitled to the protections of the grievance procedures contained in the collective bargaining agreement. Under these circumstances, the Court ruled that the protections of the collective bargaining agreement superseded the terms of the individual employment contract which allowed termination on notice. (Listed below under TERMINATIONS.)

Board of Education of the Borough of Alpha, 188 N.J. 595, decided December 21, 2006, where the New Jersey Supreme Court reversed the Appellate Division decision and held that an arbitrator properly applied the “continuing violation” doctrine when he determined that each time the Board failed to provide a part-time employee health benefits was a separate violation of the parties’ collective bargaining agreement. (Listed below under CONTINUING VIOLATION.)

Lenape Regional High School District, Appellate Division Docket No. A-5095-04T1, decided July 12, 2006, where the court reversed a lower court’s order and permits a challenge to the nonrenewal of a custodian to proceed to binding arbitration. App. Div. unpub. op. (DKT No. A-5095-04T1, July 12, 2006) (Listed below under ARBITRATION and NONRENEWALS.)

County of Morris v. Morris Council No. 6, NJCSA, IFPTE, 182 N.J. 427. where the N.J. Supreme Court denied cert in two cases involving appeals of the Appellate Division’s affirmation of PERC No. 2003-22 and 2003-32. Accordingly, the courts have determined that unions have the right to receive the home addresses of negotiations unit employees so they can communicate with them confidentially about negotiations and grievances. (Listed below under MAJORITY REPRESENTATIVE.)

From PERC:

Bloomfield Board of Ed. And Bloomfield Educ. Assoc., PERC No. 2011-55, 2/3/11) – PERC granted the Board’s request for reconsideration of the Commission Designee to grant interim relief. In short, the Commission refused to require the Board to immediately pay the cost of increment upon the expiration of a one-year contract. The Commission specifically rejected the Union’s argument that the teacher’s salary could “be ‘red-circled’ as a recoupment option because the Board still currently suffers the harm of having to pay the money.” (Note that case was sent to the Director of Unfair Practices for further proceedings on the underlying UP charge.) Depending upon the unique circumstances of each case, the Board might not be required to pay the cost of increment at the expiration of a one or two-year contract. This is particularly important in the current environment, where many districts are seeking a wage freeze or a settlement below the cost of increment.

Rockaway Borough Board of Education & Rockaway Borough Education Association, PERC No. 2010-9, (8/13/09) – PERC ruled on Scope of Negotiations determination request by Superior Court that while the employer’s choice of carriers is not mandatorily negotiable, levels of health benefits are generally negotiable absent a preemptive statute or regulation. Thus, so long as the level of benefits is not changed, generally an employer has the right to change carriers. In this situation, the arbitrator’s decision as to whether the Board violated the agreement was a mandatorily negotiable issue. Indeed, PERC specifically noted that participation in the state plan is not required by either statute or regulation and is simply one method to obtain health insurance, as boards of education “can withdraw at anytime consistent with their obligations under the existing collective bargaining agreement.” PERC further that there is no regulation or rule which prevents or prohibits an arbitrator from ordering a reimbursement to employees for out-of-pocket expenses. Interestingly though, PERC also indicated that ”the question of whether the [employer] can reimburse employees and remain a participant in the SEHBP is a question for the School employees Health Commission (“SEHBC”). As of this date, there is no decision from the SEHBC on this issue. (Listed below under HEALTH INSURANCE)

State Operated School District of the City of Paterson v. Paterson Education Association, PERC No. 2009-58, SN-2009-006, decided April 30, 2009. PERC ruled on various Scope of Negotiations Petitions filed by the District during the course of negotiations for a new collective agreement. Of particular note was the District’s request for a determination as to whether the provision in the expiring agreement which provided that reimbursement would be made at the prevailing IRS Rate was negotiable in light of recent statutory and regulatory amendments. PERC held that “negotiations over a mileage reimbursement rate greater than that provided in the State Appropriations Act, currently 31 cents, is preempted by the express terms of N.J.A.C. 6A:23A-7.9(4)(c)(i) and (1)”, and is therefore not negotiable. (Listed below under MILEAGE REIMBURSEMENT.)

Franklin Township Board of Education, PERC No. 2006-103, 32 NJPER 102 (listed below under HEALTH INSURANCE) where PERC grants reconsideration of an interim relief decision filed as a result of the employer’s selection of a new insurance carrier. Finding that the union had proved that its membership faced substantial additional costs under the new plan, PERC ordered the employer to create a fund to cover any costs incurred by employees as a result of the new insurance coverage.

Hillsborough Township Board of Education, PERC No. 2006-97, 32 NJPER 97 (listed below under LEAVES OF ABSENCE) where PERC holds that reimbursement of health insurance premiums during FMLA/FLA leaves when employees do not return to work is a mandatory topic of negotiations.

Old Bridge Board of Education, PERC No. 2006-99, 32 NJPER 99 where (listed below under DISCIPLINE) PERC holds mandatorily negotiable a clause that provides that, except in the case of tenure charges or criminal indictments, all suspensions shall be with full pay.

Lebanon Township Board of Education, PDD No. 2006-5, 32 NJPER 50 (listed below under AGENCY SHOP) where PERC orders the Board to institute an agency shop deduction based on the Association’s assertion that no agreement had been reached on the issue, even though the parties were still engaged in ongoing negotiations.

Bergenfield Board of Education, PERC No. 2006-69, 32 NJPER 43 (listed below under WITHHOLDING OF INCREMENT) where PERC rejects the Board’s argument that the reasons for the withholding, which included the teacher’s sleeping during her classroom assignments, were predominantly evaluative and therefore not arbitrable. The Commission held that, under all the circumstances of this case, the teacher’s misconduct was the predominant reason for the withholding and thus refused to restrain arbitration.

Hillsborough Board of Education, PERC No. 2005-54, 31 NJPER 43 (listed below under ANTI UNION ANIMUS and HEALTH INSURANCE) where PERC finds that the board violated the Act when it dealt directly with part-time clerical assistants regarding individual waivers of health benefits in return for an increase in their work hours to a level which ordinarily entitled employees to those benefits. However, failing to see evidence of retaliation, PERC found no violation of the Act when, after the filing of the unfair practice charge, the board unilaterally reduced the clerks’ work hours to their prior levels.

Newark State-Operated School District, PERC No. 2005-49, 31 NJPER 38 (listed below under REPRESENTATION) where PERC holds that a board can deny a union’s partial access to its facilities if the board has substantial and legitimate security concerns and makes reasonable accommodations to ensure that employees are properly represented in grievance and disciplinary hearings.

Kearny Board of Education, PERC No. 2005-42, 30 NJPER 171 (listed below under REPRESENTATION) where PERC holds that a bargaining unit composed of full-time paraprofessionals, but excluding part-time paraprofessionals, is not the appropriate bargaining unit. Accordingly, PERC reverses an order to hold an election, even though this decision results in the inability of the full-time paraprofessionals to be represented for the purposes of collective negotiations.

Shamong Township Board of Education, PERC No. 2005-14, 30 NJPER 129 (listed below under TERMINATIONS) where PERC refused to restrain arbitration of a grievance challenging the board’s decision to terminate a nontenured teacher during the school year because of continuously deficient performance. While restraining the portion of the grievance seeking reinstatement, PERC held that the teacher’s interests in seeking to obtain limited back pay for an allegedly unjust termination outweighed the board’s interests.

Warren Hills Regional Board of Education, PERC No. 2005-26, 30 NJPER 145 (listed below under SUBCONTRACTING) where PERC found that the board subcontracted its bus routes and terminated its bus drivers in retaliation for the bus drivers’ decision to be represented for the purposes of negotiations. PERC ordered the board to reinstate all terminated employees, to make them whole for all lost salaries and benefits, and to negotiate in good faith with the employees’ selected representative.

Upper Saddle River Board of Education, DUP No. 2004-7, 30 NJPER 91 (listed below under LEAVES OF ABSENCE) where PERC’s Director of Unfair Practices refused to issue a complaint in a case alleging that the Board committed and unfair labor practice when it refused to engage in midcontract negotiations over the district’s policy concerning the implementation of the Federal Family and Medical Leave Act.

County of Hunterdon v. CWA Local 1034 (Supervisors), PDD No. 2004-8, 30 NJPER 15 ,(listed below under AGENCY SHOP) where a PERC designee ordered the County to deduct a representation fee from the salaries of employees within the supervisory bargaining unit. The Designee rejected the County’s argument that the CWA had not met the standards for a PERC order as it had not raised the issue of agency shop in this round of negotiations.

Westwood Regional Board of Education, PERC No. 2004-37, 29 NJPER 175 (listed below under EXTRACURRICULAR) where PERC refused to restrain arbitration of a grievance contesting the Board’s decision to assign guidance counselors to administer the SAT tests on two Saturdays during the school year. PERC found that the assignments fell under the Act’s definition of extracurricular assignments and thus were both legally negotiable and arbitrable.

Decisions of Interest According to Topic

The following decisions could have a significant impact on school districts’ contract administration and negotiations:

Agency Shop

April 2006: Lebanon Township Board of Education, PDD No. 2006-5, 32 NJPER 50 in which PERC rejected the Board’s argument that the ongoing negotiations process rendered the Association’s request to deduct a representation fee untimely and inappropriate. The Board held that the issue of representation fees was a topic of negotiations and that, while the parties had agreed upon some aspects of the union’s proposal, a number of other related procedures (such as a demand and return system; an indemnification clause; and the amount of the fee) remained in dispute. The Board noted that it was still seeking agreement on those issues, but that the Association refused to further negotiate over those aspects of the proposal. PERC found that the evidence indicated that no further negotiations was occurring over agency shop and that no agreement had been reached on that issue. Holding that the statute and rule merely required that no agreement had been reached on an agency fee article, PERC found that the intent of the legislature had been met and that the Association’s petition was properly filed. Finding that the Association met all the other statutory criteria, PERC ordered the Board to implement a representation fee provision. In its decision, PERC also held that its order does not require the Board “to implement any particular agency fee article into the parties’ collective agreement.” PERC further held that the Board’s concern over attempting to obtain indemnification language through negotiations is obviated by the order since the order “based upon a legislative mandate requiring deduction, the Board is being compelled to act instead of choosing to act. Thus, it does not need indemnification for deducting the fee.”

June 2004: Hunterdon County and CWA Local 1034, Appellate Division, Dkt. No. A-1869-02T5, June 1, 2004, in which the court rejected the County’s argument that the new Agency Shop Law was unconstitutional. The court also upheld PERC’s decision to apply the law retroactively. The court found that the CWA had met the statutory standards for PERC’s intervention and that the Commission was not unreasonable when it did not require new negotiations over the inclusion of an agency shop provision. Note: The New Jersey Supreme Court has denied certification to review this decision.

January 2004: County of Hunterdon v. CWA Local 1034 (Supervisors), PDD No. 2004-8, 30 NJPER 15 , where a PERC designee ordered the County to deduct a representation fee from the salaries of employees within the supervisory bargaining unit. The Designee rejected the County’s argument that the CWA had not met the standards for a PERC order as it had not raised the issue of agency shop in this round of negotiations. Rather, the Designee found that in having failed to obtain agreement in negotiations that took place in December 2000, the CWA had met the new law’s standard of seeking a PERC review “if no agreement is reached” at the bargaining table. Finding that all the CWA had met all the other standards of the law, the Designee ordered the deduction. The Designee also rejected the County’s argument that this decision should be pended until the constitutionality of the statute is determined by the Court.

November, 2002: Hunterdon County, PERC No. PD-2003-1,29 NJPER 42 represents PERC’s first application of its authority, under the August 2002 Agency Shop amendment to the Act, to order a public employer to institute a representation fee deduction. In this case, CWA Local 1034 asserted that it had failed to obtain the County’s agreement to an agency shop provision in its last round of negotiations that ended in a settlement in June 2002. Holding that it had met the conditions of the new law, the Local filed a petition seeking a PERC investigation and an order to deduct fees from unit members who were not members of the CWA.. The County countered that negotiations conducted before the effective date of the amendment did not satisfy the new law’s prerequisite conditions. The County also argued that its contract with the CWA did not expire until December 2002, that the new law does not require a reopening of negotiations during the term a current contract, and that the Commission lacked jurisdiction to process the CWA petition.

PERC rejected the County’s arguments. Rather, it held that the County’s position that the CWA needed to wait until the conclusion of the next round of negotiations would defeat the legislature’s intention to grant majority representatives the right to receive representation fees so that the cost of negotiating contracts and processing grievances would be equitably shared by all members of a bargaining unit. PERC further held that a requirement to enter negotiations when they have already negotiated over that issue, and that there is no basis to believe that they will reach agreement, is not conducive to good labor relations. Accordingly, PERC ordered the County to immediately institute a fee deduction and to post an explanation of the investigation process and inform employees that fees would be deducted from the salaries of unit members who are not CWA members.

Anti Union Animus

February 2005: Hillsborough Board of Education, PERC No. 2005-54, 31 NJPER 43 where PERC found that the board’s decision to rescind a prior arrangement which had extended certain part-time assistant clerks’ work hours in return for the employees’ waivers of health insurance benefits was not motivated by a desire to retaliate against the union’s exercise of protected activity. PERC found that, unlike the factual pattern in Hunterdon County and CWA, 116 N.J. 322 (1989), the record in this case did not demonstrate the employer’s anti-union animus or a desire to retaliate against the union for filing an unfair practice charge. Rather, PERC found that, from the outset, the board did not wish to provide health insurance to part-time clerical assistants and that the board’s decision to return to the prior work schedule was based on its concern that the unfair practice proceedings could result in a finding that the waivers were invalid, thus creating an obligation to provide unintended benefits to this group of employees. Applying the Bridgewater Twp. standard (95 N.J. 235, 1984), PERC concluded that the board’s action was based on a legitimate business justification of protecting itself from a financial obligation it never wanted to incur.

(See same decision listed under HEALTH INSURANCE for a summary of the health benefit waiver issue, where PERC found that the board violated the Act when it dealt directly with individual employees rather than the majority representative.)

Arbitration

July 2006: Lenape Regional High School District, Appellate Division Docket No. A-5095-04T1, decided July 12, 2006, where the court reverses a lower court’s order and permits a challenge to the nonrenewal of a custodian to proceed to binding arbitration. Given the parties agreement that the statutory amendments to the PERC Law favor deferral to arbitration, the court found that the contract language in this dispute differed sufficiently from that in Marlboro (299 N.J. Super 283, certif. denied, 151 N.J. 71). The court concluded that under these circumstances, it could not say “with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” The Court further held that if the arbitrator finds that the contract does not restrict the Board’s power to non-renew, then the grievance must be barred from further consideration. (also see entry under NONRENEWALS below.)

In this case, the Court also reaffirmed the principle that the established Steelworkers Trilogy ‘s presumption favoring arbitration is applicable in the private sector but not applicable in the public sector. Rather, the Court held that the matter of public sector contractual arbitrability requires a court’s assessment of the negotiated agreement’s “language to determine whether it reasonably can be interpreted to have required non-renewals to be subject to arbitrator review for good cause.” The Court concluded that, absent a specific agreement to the contrary that establishes a “clear and unmistakable waiver” of the board’s statutory right, a challenged decision to not nonrenew a fixed term contract cannot proceed to binding arbitration. (also see entry under NONRENEWALS below.)

July 2001: In State of New Jersey, Department of Corrections v. IFPTE, Local 195 (A-20-2000), decided July 12, 2001 where the court affirmed an arbitrator’s back pay remedy and rejected the State’s argument that the “no work, no pay” rule prohibited this type of remedy. With Justice Zazzali writing for the majority of the Court, the decision reversed an Appellate Division decision to abolish the rule as an anachronism that was largely irrelevant and unworkable. The Court also stated that awards of back pay are essential to stability in labor relations and the usefulness of arbitration provisions depends on effective remedies, such as back pay, when the contract is violated.

Assignments (also see WORK HOURS, below)

May 2003: In Clifton Board of Education, PERC No. 2003-80, 29 NJPER 62, PERC partially restrained arbitration of a grievance challenging the district’s decision to respond to staffing shortages by assigning a sixth teaching period to certain high school teachers. In this situation, the board faced an inability to hire the appropriate number of qualified teachers to meet its unexpected significant increase in student enrollment. Finding that increasing class size or eliminating certain classes would interfere with the district’s educational program, the board decided to assign a sixth instructional period to 18 teachers. PERC found that arbitration over the claims that a negotiated agreement obligated the board to adjust class size or alter its course offering before it could assign an additional instructional period would significantly interfere with the board’s educational policy decisions in this area. However, PERC also held that other aspects of the grievance alleging violations of contractual employment conditions could proceed to arbitration, but that an award could not significantly interfere with the board’s ability to assign qualified staff to carry out its educational goals. PERC further stated that if the arbitrator found a contractual violation, and the board believed that the award presented significant interference, it could refile its scope petition within 30 days after receiving the award.

June 2000: In Wood-Ridge Board of Education, PERC No. 2000-109, 26 NJPER 31128, PERC restrained arbitration of a grievance to the extent that it challenged the board’s assignment of two teachers to supervisory duties prior to the start of the contractual workday. Citing a number of prior decisions (see, for example, Bergenfield Board of Education, PERC No. 99-100, 25 NJPER 30120), PERC held that a board has a managerial prerogative to assign teaching staff members to supervise students before and after school. However, PERC refused to bar arbitration to the extent the grievance addressed the negotiable issues of compensation or the method of selecting qualified staff to perform the duty.

Class Size

June 2004: Franklin Township Board of Education, Appellate Division, Dkt. No. A-4242-02T3, June 10, 2004, where under the specific facts of this case, the court rejected the Board’s argument that a grievance challenged the board’s nonnegotiable class size decision and affirmed PERC’s decision that the grievance addressed the arbitrable issue of additional compensation. (see PERC No. 2003-58, listed below.)

February 2003: Franklin Township Board of Education, PERC No. 2003-58, 29 NJPER 27 where PERC refused to restrain arbitration of the portion of a grievance seeking additional compensation for the addition of two students to a teacher’s resource center classroom.

This dispute arose when, as a result of staffing and student needs, two resource center classes were combined. This action resulted in a class of 8 students, rather than the prior enrollment of 6 students. The district stated that although the new enrollment exceeded N.J.A.C. 6A:14-4.6(h)’s guidelines for the number of students in a resource class, the Department of Education had conceded that the District had no alternative to its approach. The teacher of the increased resource class filed a grievance seeking compliance with the state’s special education code and additional compensation for the addition of two students to her class. When the grievance was denied, the Association sought arbitration and the Board petitioned PERC for a restraint of arbitration.

Citing a number of prior decisions, PERC reaffirmed that a school board has a managerial prerogative to set class size and restrained arbitration of the portion of the grievance which challenged the number of students assigned to the class. However, PERC also held that the issue of compensation for the assignment of additional duties is mandatorily negotiable and arbitrable. Here, PERC found that the grievant was required to teach, in addition to her own students, students that had previously been taught by another teacher. Citing prior decisions (e.g. Bloomfield Bd. of Ed., PERC No. 93-95, 19 NJPER 24119, aff’d App. Div. 20 NJPER 25165) PERC found that allegations that one employee did the work of two carries with it an implicit assertion that workload was increased and that an arbitrator could review this issue as well as the assertion that the teacher had an entitlement to additional compensation.

Concerted Activities

February 2000: In Green Township Education Ass. v. Rowe, et al and Green Township Board of Education, App. Div. A-2528-98T5. February 28, 2000, the Appellate Division upheld the portion of the Board’s Conflict of Interest policy that barred the wearing of NJEA “Settle Now” buttons while in the school premises in the presence of students. The court found that there was no constitutional impediment to enforcement of the Board’s prohibition against the display of political buttons in the context of this case.

Citing a number of prior decisions (including Pickering v. Bd. of Ed. 391 U.S.563 S.Ct 1731, 20 L.Ed. 811), the court agreed with the Chancery Division that the right of free speech is not a license to express one’s opinions at any public place and at any time. The court found that the prohibition was limited and did not preclude teachers from wearing the buttons in other settings not involving the presence of students. Under the facts of this case, where the prohibition applied only when students were present, the court found that the Board’s interest in achieving its educational objectives outweighed the teachers’ First Amendment right to comment on matters of public concern.

However, the court also found that other aspects of the Board’s policy suffered from “overbreadth”, as they constituted excessive governmental intrusion into constitutionally protected areas. Those policy statements precluded all employees from actively campaigning or promoting any opinions on voting issues at all times while on school property and could be interpreted to even prevent employees from expressing their opinions outside of working hours and outside school property. The court held that these provisions were not related to students’ presence and violated employees’ constitutional rights.

Continuing Violation

***December 2006: In Board of Education of the Borough of Alpha, 188 N.J. 595, decided December 21, 2006, the New Jersey Supreme Court reversed the Appellate Division decision and held that an arbitrator properly applied the “continuing violation” doctrine when he determined that each time the Board failed to provide a part-time employee health benefits was a separate violation of the parties’ collective bargaining agreement. The parties’ collective bargaining agreement contained a seven-day timeframe to file a grievance. The Association did not file its grievance until more than two years after the Board discontinued providing part-time employees benefits.

The Court distinguished this case from North Plainfield Education Ass’n v. Board of Education, 96 N.J. 587, 476 A.2d 1245 (1984), which created the previous precedent for continuing violations. The decision also states that the 2006 amendment to the PERC Law, which requires a presumption in favor of arbitrability, “overruled” the Court’s decision in Camden Board of Education v. Alexander, 181 N.J. 187, 854 A.2d 342 (2004).

According to the dissenting opinion, the majority did not follow the standards outlined in North Plainfield. The dissent used the legal precedent created in Camden (Listed under ARBITRATION and NONRENEWALS) to substantiate his opinion.

Discipline

June 2006: Old Bridge Board of Education, PERC No. 2006-99, 32 NJPER 99, where PERC rejects the Board’s argument that the 1990 amendments preempt negotiations over the issue of paid suspensions. Rather, PERC finds mandatorily negotiable a provision establishing that suspensions, other than those involving tenure charges or criminal indictments, shall be with full pay. PERC holds that both the provisions of the amendment and legislative intent support an expansion of the negotiability over disciplinary actions. Further, PERC finds that the clause is not inconsistent with school law.

Employment Practices

April 2002: Marlboro Board of Education, PERC No. 2002-61, 28 NJPER 33078 where PERC refused to restrain arbitration of a grievance challenging the board’s guide placement of a new world language teacher. In this case, the board hired a French teacher who had a certificate of eligibility with advanced standing. Although the teacher had 18 years of experience as a translator at the U.N., she had little or no experience as a teacher. When the teacher, considered the most qualified applicant by the board, refused employment at the first step of the salary guide, the board granted her credit for her experience as a translator and placed her on step 14 of the guide. The Association filed a grievance seeking placement on the guide based on experience and the contract provision.

The Commission rejected the board’s argument that educational policy and the shortage of world language teacher dictated the board’s decision to place the teacher at a higher step on the guide than indicated by the teacher’s experience. Rather, PERC held that the board had not offered evidence that it could not obtain a “qualified” candidate nor that placement on the guide that concurred with the contractual provision on placement on the salary guide would present significant interference with educational policy. (Compare New Jersey Institute of Technology, PERC No. 83-72, 9 NJPER 14016.)

However, as in its Vernon decision (see February 2001 entry below), PERC held that “arbitration may not be used to block the Board’s ability to hire qualified staff” and ruled that the board could reactivate its petition if it believed that the award significantly interfered with its educational obligation to provide necessary staff.

February 2001: In Vernon Township Board of Education, PERC No. 2001-49, 27 NJPER 32049, PERC addressed the arbitrability of a grievance filed when, in August of 2000, the Board placed newly hired math and science teachers, without prior experience, at step 6 of the salary guide. In addition to its contractual defense, the Board argued that if it had not placed these teachers at that step on the guide, it would have been unable to fill math and science vacancies with certified and qualified full-time teachers. The Board held that this would have resulted in the cancellation of courses or the filling of the vacancies with substitutes who do not hold the required certification. The Board further noted that the Department of Education does not allow noncertificated substitutes to serve for more than 20 days.

Asserting that the district’s practice was to hire teachers without experience at step one of the salary guide, the Association argued that the issue of salaries of teachers, even for those to be hired, is a mandatorily negotiable term and condition of employment which cannot be changed without negotiations. By way of remedy, the Association sought new guide placement for all employees who have greater experience than the newly hired teachers or red circling of the teachers who were given improper guide placement.

PERC holds that, at this time, it will not restrain arbitration of a dispute involving initial guide placement, an issue that has consistently been held to be mandatorily negotiable. However, PERC also holds that arbitration “cannot be used to block management from fulfilling its educational obligation to provide qualified teachers to teach math and science courses.” Under the circumstances of this case, PERC holds that this grievance does not appear to seek that remedy and may therefore proceed to arbitration. However, PERC also holds that the Board may reactivate its petition if it finds that the arbitration award significantly interferes with its prerogative to provide necessary staff.

Ethics

January 2003: Rockaway Twp. Board of Education, SEC Docket Nos. C34-02, and C40-02, (also see C13-02/C14-02/C 15-0, listed below), where the SEC dismissed several complaints alleging a number of violations involving board members’ relationships with the association. Here, while noting the apparent discrepancies with Advisory Opinions A13-02 and A14-02 (listed below), the SEC dismissed the complaints’ allegations that board members who had been endorsed by the association,violated the Act when they subsequently voted for the agreement negotiated with the same association. However, the SEC clarifies that prior to the public opinions listed below, it had issued a private opinion, advising these board members that they could participate in negotiations. The SEC held that, unless new facts were introduced, it would have difficulty finding that a school official violated Act after receiving the Commission’s opinion that no violation would exist. In this case, however, the SEC held that no new facts have been presented to warrant a reversal of its earlier advice. The SEC also dismissed a complaint alleging that board members whose candidacy had been endorsed by the association violated the Act when they voted in favor of monetary stipends for the performance of extra duties as the assigned employees were also co-presidents of the local association. The SEC found that there was no evidence that the votes were connected to the endorsements and that the stipends had been recommended by the superintendent.

December 2002: Rockaway Twp. Board of Education, SEC Docket Nos. C13-02/C14-02/C 15-02 where the SEC dismissed consolidated complaints alleging the Act was violated by newly elected board members who were endorsed by the association and who accepted the association’s financial support. Finding that these individuals were not sitting on the board when they received the support of the association, the SEC held that these board members were then not school officials and were not subject to the Commission’s jurisdiction at the time of their endorsement.

In dismissing another of these complaints, the SEC further reaffirms that it does not have jurisdiction over candidates’ conduct which occur prior to becoming a school official. The SEC also found that one of the newly elected board members did not violate the Act when, during the election, the association’s political action committee paid the business owned by the candidate for mailings and signs expressing the union’s endorsement of his candidacy.

December 2002: Advisory Opinion A13-02 (December 2, 2002) where the School Ethics Commission (SEC) issued advice in the two following areas affecting boards’ conduct of negotiations:

Conflicts arising from union endorsement of candidates for election: In assessing this issue, the SEC applied the standards used in determining possible ethics conflicts arising from political involvements that could affect board members’ votes for appointments to district positions. Famularo, C23-96 (February 24, 1998). The three-pronged standard includes: 1) the prominence of the support in the campaign; 2) the amount of time that has elapsed between the political activity and the issue considered by the board; 3) the extent to which the issue remains a matter of controversy.

In applying these standards, the SEC advised that the three board members who received the association’s endorsement in the April 2001 election could participate in negotiations of the contract with the association that would be beginning in November 2002. While finding that the association’s endorsement was prominent and that matters of negotiations are continuously controversial, the SEC concluded that sufficient time had elapsed between the union’s support and the onset of negotiations. In addition, the SEC held that these board members would not be up for re-election until 2004, well after a collective agreement had been reached.

However, board members who had received the association’s endorsement in the April 2002 election could not participate in negotiations slated to begin in November 2002. In addition, the SEC advised that board members whose terms would end in April 2003 could not continue to participate in on-going negotiations if they received the association’s endorsement in their bid for reelection. (Also see C34-02, 38-02 and C40-02, listed above, for the applicability of these opinions to circumstances involving newly elected board members.)

Invoking the Doctrine of Necessity: The SEC advised that the board did not have to invoke the doctrine for negotiations since three of the nine board members did not have a conflict and could participate in negotiations. However, since three board members cannot ratify a contract, the SEC found that the board may need to invoke the doctrine to vote on the contract, if the board members who were up for reelection became conflicted as a result of the union’s endorsement of those board members’ candidacies.

November 2002: Advisory Opinion A14-02 , November 2002, where the SEC reaffirmed its advice in Advisory Opinion A55-95, January 1996 that: 1) an in-law’s employment in another school district did not create a conflict of interest that requires the board member’s recusal from participating in negotiations; and 2) that the Doctrine of Necessity is not required when two or three board members are permitted to negotiate.

The SEC also reaffirmed its prior advice that an administrator in conflict is permitted to participate in negotiations to provide technical advice if there are no other administrators who can provide that information. In this case, the SEC noted that a Business Administrator has special knowledge of budgetary and financial issues and, in spite of a conflict of interest, can participate in negotiations for the limited purpose of providing his technical expertise, as long as the B.A. restricted his comments to providing the financial information requested. The SEC also held that these circumstances do not create a need to invoke the Doctrine of Necessity. (see Advisory Opinion A13-99.eptember 28, 1999.)

August 2001: In the matter of Patricia Hodges v. David Ball, Lakehurst Board of Education, Ocean County, Docket No. C15-01, the School Ethics Commission held that a board member whose wife was a teacher aide covered by the teacher’s contract could be present and participate in closed session discussions involving negotiations after a tentative agreement had been reached. The SEC reasoned that participation in discussions at that time would be permissible as this would not provide an otherwise conflicted board member with the opportunity to influence negotiations. Note, however, that this decision is in conflict with earlier SEC opinions which held that board members who could only vote on a contract after the invocation of the Doctrine of Necessity could not have access to closed session discussions (see, for example, Advisory Opinion A08-96, issued July 1996). This conflict will need to be resolved through future decisions. We will keep you posted of subsequent developments.

June 2000: In SEC Dkt. No. C18/C22-99, the Commissioner of Education determined that the violations found by the SEC were insufficient to warrant the Commission’s recommended “extreme result” of removal from elected office. Rather, the Commissioner found that the appropriate penalty was a suspension from the board for a period of 45 days. (See March 2000 entry below.)

March 2000: In In the Matter of Bruce J. White, Ewing Township Board of Education, Mercer County, Docket No. C18-99, C22-99, decision on return, the School Ethics Commission (SEC) relied on the State Board’s Pannucci decision and reversed its initial recommendation that Mr. White had violated the Act when he voted on contracts with the teachers’ association when his wife was a member of an NJEA unit in a neighboring district. However, the SEC also found that other aspects of Mr. White’s conduct during negotiations were even more troubling than the vote and therefore continued to hold that the Act was violated when the board member: privately initiated and conducted negotiations, without the authorization or knowledge of the board; and ultimately reached a settlement with the union without the knowledge or involvement of his fellow board members. The SEC held that this totality of conduct resulted in an “unwarranted privilege” and a violation of public trust. Under all the facts of this case, the SEC concluded that the State Board’s decision did not affect its recommendation that the board member’s conduct violated the Act and warranted its recommendation that the Commissioner impose the maximum penalty of removal from the board. (See June 2000 entry above.)

March 2000: In Advisory Opinion A02-00, issued March 28, 2000 the SEC advised a board member with a spouse employed in another district represented by the same statewide association that he could not serve on the board committee charged with negotiating the teachers’ contract. In this case, the SEC held that the Pannucci decision applied only to the issue of voting on the contract. Finding that board members who participate in negotiations are privy to information that is not released to the public or even to other board members, the SEC held that such information could prove useful to the union that negotiates the contract of the board member’s spouse. Therefore, the SEC concluded that the board member’s participation in negotiations would be a violation of the Act.

March 2000: In the Matter of Frank Pannucci, State Board Decision, March 1, 2000, where the State Board of Education reversed the Commissioner of Education’s imposition of a sanction based on the School Ethics Commission’s (SEC) finding that a board member violated the School Ethics Act when he voted on an agreement negotiated by the Brick Township Board of Education and the Brick Township Education Association.

The Board member found to have violated the Act is a teacher in East Orange and the SEC held that the undisputed fact that he voted on the Brick Township teachers’ contract in November 1994 violated opinions issued by the Commission in June 1994. These opinions held that, under the School Ethics Act, a school board member is prohibited from voting on a negotiated contract for a local bargaining unit of a statewide union when the board member, or a member of the board member’s family, is by virtue of employment in another district a member of a bargaining unit affiliated with the same state wide union with which the board has negotiated a tentative agreement.

The State Board rejected the view that an out-of-district connection with the same statewide union would “on a per se basis, preclude a board member from voting on a collective negotiations agreement in the district where he or she is a member of the district board of education.” A majority of the State Board found that the connection of a salary increase negotiated by the board and the salary structure of a whole class of employees on a statewide basis is

far too attenuated to justify mechanically barring all board members with ties to a statewide union from voting….The unreasonableness of such a blanket disqualification is even more dramatic if applied to a board member whose spouse is represented by a different local affiliate and who is employed in an entirely different job classification than the one to which the contract at issue would apply. The School Ethics Act does not demand such a result.

Note, however, that the State Board stressed that its jurisdiction in this matter addresses only the issue involved in this SEC decision: a vote on a negotiated agreement. The decision does not address the impact of an “out-of-district” connection on board members’ ability to participate in other aspects of contract negotiations. Also note that three State Board members disagreed with the majority and joined in a dissenting opinion.

Evaluations and PIPs

September 2005 : The Administrative Code regulating Professional Licensure and Standards was amended as follows: the term “Professional Improvement Plan” (PIP) has been replaced by the term “Professional Development Plan” (PDP). However, the definitions and process of developing these plans remains unchanged. In addition, there has been a recodification of this section of the code. The Code can now be found at N.J.A.C. 6A: 32-1 et seq. The full text of the Code can be found at www.nj.gov/njded/nas/content/live/njsba/current/. Rules governing superintendents’ evaluations appear at 6A: 32-4.3; tenured teachers’ evaluations are at 4.4, and nontenured teachers’ evaluations at 4.5 of Chapter 32.

May 2001: In Kinnelon Board of Education, Dkt. No. 245-8/99, issued May 18, 2001, the Commissioner of Education found that that the inclusion of school-wide or grade-wide goals, in addition to other choices made in collaboration between the teachers and supervisors, does not unduly circumscribe the role of teacher in developing their PIPs. In agreement with the ALJ, the Commissioner held that the schools’ approach to the development of PIPs did not improperly restrict teachers’ development of their PIPs and did not force teachers to rely soley on predetermined topics and goals for professional development. However, the Commissioner also stated that while school and district goals could be infused into a PIP, they may not substitute or foreclose other aspects of professional needs and development.

The Commissioner also reaffirmed that the delineation of districts’ responsibilities for implementing a PIP must be explicitly stated within the PIP document.

June 2000: In Woodbury Board of Education, PERC No. 2000-108, 26 NJPER 31127, PERC restrained arbitration of a grievance alleging that the Board violated the parties’ contract when it adopted and implemented a “differentiated supervision” program and placed four teachers in the program. Finding that the new supervision program had been designed to provide intensified supervision for teachers whose performance had been evaluated as marginal, PERC concluded that the adoption of the program related to a board’s right to establish evaluation criteria and educational policy. The Commission further held that placing teachers in the new supervisory program involved the nonnegotiable issues of application of criteria and of evaluative judgments of performance.

PERC refused to restrain arbitration of the portions of the grievance that alleged violations of contractual provisions addressing the negotiable issues of: notice of the establishment of the program; notice of the criteria for placement in the program; and providing a statement of the reasons to a teacher placed into differentiated supervision.

June 2000: In Woodstown-Pilesgrove Regional Board of Education, PERC No. 2000-103, 26 NJPER 31122, PERC restrained arbitration of a grievance challenging the inclusion of a memo in a teacher’s personnel file. The memo noted an administrator’s suggestions for improvement following a classroom visitation that lasted less than a full class period. PERC found that prohibiting memos whenever informal visitations were not for a full period would significantly interfere with administrators’ ability to visit classrooms, evaluate instruction and suggest improvements.

Extracurricular: Assignments and Nonrenewals

December 2003: In Westwood Regional Board of Education, PERC No. 2004-37, 29 NJPER 175 PERC refused to restrain arbitration of a grievance contesting the Board’s decision to assign guidance counselors to administer SAT tests on two Saturdays during the school year. Relying on N.J.S.A. 34:13A-22 (which defines extracurricular activities as those “assignments not specified as part of the teaching and duty assignments scheduled in the regular work day, work week, or work year”), PERC rejected the Board’s argument that the assignments were not extracurricular as they did not involve supervising a sport or a club activity. Rather, PERC held that under the statute’s definition, the administration of SAT tests on a Saturday were extracurricular assignments that were legally negotiable and arbitrable. PERC thus concluded that the Board’s contractual and past practice defense could be reviewed by an arbitrator.

However, PERC also rejected the Association’s desired remedy to have the Board assign other teaching staff members to the duty of administering SAT tests. Citing N.J.S.A. 34:13A-23, PERC held that boards have a nonnegotiable right to set the qualifications for assignments to extracurricular duties. PERC thus concluded that the board’s decision to assign guidance counselors, rather than other staff members, could not proceed to binding arbitration.

August 2000: Jackson Township Board of Education, App. Div., Docket No. A-3477-98T2, decided August 1, 2000, in which the court affirmed PERC’s decision to not restrain arbitration of a grievance contesting the nonrenewal of golf coach (see PERC No. 99-62, below). The court agreed with PERC that N.J.S.A. 18A:27-4.1, which requires the superintendent’s recommendation for the renewal of contracts, does not preempt arbitration of this grievance. The court further rejected the board’s argument that N.J.S.A. 34:13A-23, which declares the negotiability of retention in and dismissal from extracurricular activities, represents an unconstitutional delegation of governmental power to a private arbitrator. Rather, the court held that the arbitrator ruling in this dispute “will not be setting educational policy, and will be called upon to decide only whether the non-renewal decision conformed with the parties’ agreement and the requirements of law.”

January 1999: In Jackson Township Board of Education, PERC No. 99-62, 25 NJPER 30037 PERC refused to restrain binding arbitration of a grievance contesting the nonrenewal of a teacher’s contract as head golf coach. PERC rejected the Board’s argument that N.J.S.A. 18A: 27-4.1, which requires that contract renewals receive the recommendation of the Chief School Administrator, precludes arbitration of this grievance. PERC reiterated that, under N.J.S.A. 34: 13A-23, assignments to and retention in extracurricular positions is mandatorily negotiable and legally arbitrable.

Facilities and Equipment

March 2002: In Dennis Township Board of Education, PERC No. 2002-48, 28 NJPER 33052, PERC refused to restrain arbitration contesting the Board’s bar on the Association’s use of school equipment and the intra-school mail to disseminate flyers to its members which endorsed certain candidates in the school board election. PERC held that clauses permitting the Association’s use of school equipment and facilities were mandatorily negotiable and thus legally arbitrable. PERC rejected the Board’s argument that a school board cannot legally agree to permit the use of school facilities and funds to support school board candidates. Relying on a number of U.S. Supreme Court decisions, [see Perry Ed. Ass’n, 460 U.S, 37 (1983) and Lehnert v. Ferris, 500 U.S. 507 (1991) ] PERC held that a school’s internal mail system is not a forum for public communication and that the flyers, specifically addressed to the membership, was within the scope of the Association’s permissible activity as a majority representative.

Health Insurance

August 2009: Rockaway Borough Board of Education & Rockaway Borough education Association, PERC No. 2010-9 (8/13/09) – This case was forwarded to PERC pursuant to a Court Order of the Superior Court for PERC’s position regarding the legality of the arbitration award issued by Arbitrator Jeffrey B. Tener in December 2008. [See below, Rockaway Borough Education Association and Rockaway Borough Board of Education (American Arbitration Association, Case No. 18-390-00692-08) (12/22/08]. In said arbitration decision, the arbitrator ruled that the Board had violated the parties’ collective bargaining agreement not by remaining in the SEHBP in July 2008, but by failing to provide the contractually set forth level of benefits. The arbitrator found that the Board could reimburse employees for out-of-pocket expenses associated with the failure to provide traditional coverage as contractually required.

The board appealed the arbitrator’s decision to the Superior Court, seeking to vacate it, at which point the Superior Court sought PERC’s input on the question of negotiability of the issue. PERC summarized the status of the law regarding health benefits, namely that the while the employer’s choice of carriers is not mandatorily negotiable, levels of health benefits are generally negotiable absent a preemptive statute or regulation. Thus, so long as the level of benefits is not changed, generally an employer has the right to change carriers. In this situation, the arbitrator’s decision as to whether the Board violated the agreement was a mandatorily negotiable issue. Indeed, PERC specifically noted that participation in the state plan is not required by either statute or regulation and is simply one method to obtain health insurance, as boards of education “can withdraw at anytime consistent with their obligations under the existing collective bargaining agreement.”

However, the real issue before PERC in this situation was the arbitrator’s opinion that the Board could simply reimburse employees for out-of-pocket expenses. In finding that the award was permissible as neither being unlawful or preempted, PERC found that there is no regulation or rule which prevents or prohibits an arbitrator from ordering a reimbursement. Interestingly though, PERC also indicated that ”the question of whether the [employer] can reimburse employees and remain a participant in the SEHBP is a question for the School employees Health Commission (“SEHBC”). As of this date, there is no decision from the SEHBC on this issue.

January 2009: City of Bayonne & Bayonne Police Superior Officers Association, PERC No. 2009-40 (1/29/09) – This case involved a request by the City to restrain arbitration. In its grievance, the Association asserted that the City violated the contract by not paying the cost of the increased maximum out-of-pocket expense for employees who moved from the traditional coverage under the old SHBP to the NJDirect plan under the new SHBP. The specific contract language provided that the “City shall assume the full cost for maintaining the present State Health benefits for all employees…”

In support of its request for a restraint on arbitration, the City asserted that all employers who participate in the SHBP are subject to the rate structure and levels of benefit set by the State Health Benefits Commission, and once the rates and benefits are set, a local employer has no discretion over how to implement the co-pays, deductible and maximum out-of-pocket expenses. It also asserted that the contract does not set any specific level of benefits. In response, the Association asserted that it was not seeking any change to the SHBP or a roll back, only to have an arbitrator determine whether the City had a contractual obligation to maintain a certain level of benefits, and if so, whether the City violated that obligation, and then determine how it members will “be made whole for the change in the level of health benefits.”

In denying the request for restraint of arbitration, PERC relied upon its prior decision in Township of Rockaway & Fraternal Order of Police, Lodge No.31, PERC No. 2008-21 (10/25/07), and held that the matter is one requiring a fact determination as to whether the City agreed to a certain level of coverage. As such, it is an argument on the merits, thereby requiring arbitration. However, PERC further found that it “need not decide at this juncture whether an arbitrator can issue a remedial order requiring the employer to reimburse employees for increased out-of-pocket expenses.” Thus, the issue of remedy may be addressed at a later time by PERC.

December 2008: Rockaway Borough Education Association and Rockaway Borough Board of Education (American Arbitration Association, Case No. 18-390-00692-08) (12/22/08) – This was an arbitration decision issued following a denial by PERC of a request by the Board to restrain arbitration. The Board was a member of the SHBP and had contract language with the association that said medical insurance coverage would be provided at the Board’s expense “under the Public Employee Health Benefits Program at the benefit level in effect on January 1, 2007.” In April 2008, the SEHBP (SHBP) changed is coverage plans and eliminated traditional coverage. The issue before the arbitrator was whether the Board violated the contract by failing to provide medical benefits at levels in effect on January 1, 2007. The SEHBP plan which took effect in April 2008 had different coverage than that of January 1, 2007 (specifically the traditional coverage was eliminated).

Although indicating the issue was not as simple as it might appear, the arbitrator nonetheless found that the Board had indeed violated the contract language. Specifically, the arbitrator found that while there was no violation by the Board’s decision not to leave the SEHBP, the Board’s failure to provide the coverage levels in effect on January 1, 2007 was a violation. [It is important to note that the arbitrator viewed only the “loses” realized by the elimination of the traditional coverage, but did not compare what was gained over NJPlus by the new NJ Direct plan.]

However, although the arbitrator found a violation of the contract language, he found that the issue was then “whether it is possible to enforce the terms of the parties’ agreement while also respecting what I believe to be the legislative intent regarding the elimination of the SHBP coverage, with its traditional plan, for employees of school districts.” The arbitrator found that it was in fact possible to reconcile these competing interests, by way of the Board’s reimbursement for added out-of-pocket expenses.

December 2008: State of New Jersey (Division of State Police) and State Troopers NCO Association, State Troopers Fraternal Association, and State Troopers Superior Officers Association, I.R. No. 2009-15 (12/19/08) – This matter involved an application for interim relief brought by three separate employee collective bargaining associations seeking a restraint on the State’s decision to cease reimbursement for vision care. The State’s decision to cease the reimbursement followed the expiration of a collective bargaining agreement and during the term of negotiations for a successor agreement.

The associations asserted that the State’s actions amounted to a unilateral change in terms and conditions of employment in violation of the NJ Employer- Employee Relations Act, which is a situation for which the PERC has granted interim relief in the past. In response the State asserted that while the contract language was clear, there was a past practice of ceasing these reimbursements following the expiration of an agreement, regardless of whether a new agreement had been reached.

In denying the request, the Commission Designee held that the associations had not met the “heavy burden” for interim relief, because this situation called for a resolution of a fact issue. The issue, as viewed by the Commission Designee, was whether in the past the term of the agreement was continued following the agreement’s expiration. Since the resolution of this issue was unknown, due to the differing facts submitted by the parties, there was no “substantial likelihood of success” by the associations. As such, one of the necessary elements for interim relief was not met.

November 2008: City of Bayonne & Bayonne FMBA, Local 211 (PERC No. 2009-11) (11/20/08) – PERC denied the union’s request to require the City to change its prescription drug coverage back to its prior insurance carrier. PERC holds that although the first two prongs of the test for interim relief have been met [(1) substantial likelihood of success, and (2) irreparable harm will occur], the public interest would be injured in this case by granting the relief sought.

The facts are very basic in this matter. The parties were in negotiations and the City proposed to change prescription drug coverage to the SHBP. When no deal had yet been reached, and while negotiations were still on-going, the City unilaterally changed its prescription drug coverage to the SHBP in the spring/summer of 2008. This change resulted in a co-pay increase. However, upon implementing the new plan, the City announced that it would reimburse all employees for any additional co-pays.

PERC’s decision to deny the relief sought focuses not upon the actual merits of the union’s claim, but rather upon the public interest involved, namely the substantial monetary savings the City would realize through this change (approximately $3.1 million). Indeed, PERC specifically held that “in evaluating the difference in the affected co-pays versus the cost to return to the prior plan, the public interest would not be served to require the City to bear the substantial cost to change back.” PERC reasoned that “[t]he city demonstrated certain financial hardships and given its concession it would reimburse employees with the co-pay differences,” all three criteria for interim relief had not been met.

October 2008: Passaic Board of Education & Education Association of Passaic, (PERC No 2009-8) (10/15/08) – PERC denied a request for interim relief and restraints filed by the Association regarding the Board’s unilateral implementation of changes to the prescription drug coverage. The Borough’s contract provided that drug coverage would be provided to employees, and their dependents. The Board had a number of employees who were married to each other, and had both chosen “family coverage”. In an effort to save money, the Board unilaterally changed the designation of one spouse to “single” and one to “parent/child”, thus, resulting in a savings to the district.

In this situation, PERC denied the request for interim relief and restraints, as the identical matter had already processed through arbitration, with the arbitrator ruling in the Board’s favor. PERC reiterated its long standing practice of deferral to arbitration. Interestingly, the arbitrator ruled that the board’s unilateral change was “merely an administrative change, not a change in benefits received by employees. Therefore, the Board did not have to negotiate the change in status determination.”

September 2008: East Rutherford & PBA 275 (PERC No 2009-15) (9/25/08) – This case dates back prior to the elimination of traditional coverage and NJPlus under the SHBP plan. However, it still has importance. The case was before PERC on a request for a restraint of arbitration filed by the municipality. The PBA had filed a grievance challenging the co-pay increases for NJPlus and HMO. The contract provided in pertinent part as follows:

Borough will continue to provide and pay for existing medical and prescription plans and coverage for Employees covered by this Agreement and their families. Any change in carrier or source of coverage shall result in equal or better coverage.

A three ($3) dollar co-payment will be attached to the prescription Insurance Plan, per prescription. All increases in premiums during the term of this Agreement shall be borne entirely by the Borough pursuant to present practice.

Following the submission of the grievance, the municipality requested a ruling from the SHBP on whether reimbursement of increased co-pay is permitted. However, no response was received, and PERC declined to hold off a decision until after the SHBP responded to the letter for two reasons. First, it was unknown if the SHBP would respond. Second, PERC reasoned that the arbitrator will consider whether the Board had a contract obligation and if so, whether the Board violated the obligation. The issue of possible reimbursement went to the remedy issue.

Relying on its prior decision in Rockaway, PERC held that the level of health benefits is generally negotiable absent a preemptive statute. Whether the municipality agreed to a certain co-pay level is a contractual argument addressing the merits of the grievance. Thus, the arbitrator will determine whether the municipality violated the alleged contractual obligation to maintain a certain level of health benefits. PERC reasoned that “purchasing insurance from the SHBP does not insulate an employer from enforcement of an agreement over a level of health benefits…an employer must reconcile its contractual obligations with its choice of health insurance providers.”

June 2008: Camden County College & Administrators Association (PERC No. 2008-67) (6/26/08) – PERC denied a request by Association for interim relief and restraint of change in carriers from private carrier to the SHBP. PERC’s designee reviewed both insurance plans and found that the SHBP was better in some respects, but worse in others. The designee found that a question of fact existed, which would make the matter not appropriate for the interim relief and restraint sought, because the “equivalence” standard, as opposed to the “equal to” or “equal to or better than” standard allows room for evaluating the particular factors to determine whether the contractual standard has been met.

In affirming the designee’s decision, PERC held that that “an employer will not be found to have acted unilaterally if the contract authorizes a particular change in health benefits. For the association to get interim relief, it “would have had to have proved that the new plan is not ‘equivalent to’ the old plan.”

March 2008: Borough of Rockaway & PBA Local 268 (PERC No. 2008-13) (3/31/08) In this case, PERC rejected the PBA’s request for interim relief to restrain the municipality for imposing unit employee contributions if the employee elected Direct10 coverage. (The municipality was a member of the SHBP).

This is a very fact sensitive case, which included a reference in the parties’ collective bargaining agreement to the municipality’s code and policies regarding health insurance. It is critical to note in this case that there was no specific language regarding health insurance in the parties’ agreement. However, the history had been that the municipality paid full coverage for all SHBP options. When the SHBP did away with Traditional and NJPlus coverage, the municipality indicated a willingness only to pay for Direct15 coverage, with those who chose Direct10 paying difference.

In support of its petition and request for interim relief, the PBA asserted that the municipality’s decision to require contributions for Direct10 coverage violated practice and contract. In opposition, the municipality contended that the ordinance on health benefits grants the municipality the “sole discretion” to provide and fully pay for health insurance. In rejecting the PBA’s request for interim relief to restrain, PERC held that the parties’ dispute is whether the agreement incorporates the municipal ordinance, and as such, it is a fact question for the arbitrator to decide.

February 2008: Bergenfield Board of Ed. & Bergenfield Ed. Ass. (PERC No 2008-47) (2/28/08) – This case involved a scope of negotiations petition filed by Association to determine if SHBP regulations preempt a prescription premium sharing clause in its contract with the board. The contract had a $1000 cap on employer’s contribution toward prescription coverage. However, the SHBP’s new rates in 2007 meant that the cap was exceeded and some employees would have to contribute a portion of the premium. The Association’s argument was that the contract language was preempted by the restrictions set forth in NJAC 17:9-2.1. PERC rejected the Association’s argument of preemption, arguing that the law (P.L. 2007, c. 62) superseded the regulation. (The new law permitted contributions). Thus, although the contract language may have been inapplicable and unenforceable previously under the regulation, the passage of the new law made the contract’s cap on the employer’s obligation permissible.

January 2008: City of Bayonne & PBA Local 7 (PERC No 2008-41) (1/24/08) – This case involved a challenge by the PBA to new SHBP rates. The municipality obtained its insurance through the State Plan, and the PBA was challenging the increases in co-pays, and sought a ruling from an arbitrator that the co-payments cannot be changed. PERC rejected the PBA’s position and restrained arbitration, holding that arbitrators cannot order the employer to continue the previous co-pay levels for NJPlus since SHBP has exercised its authority to set higher rates.

October 2007: Township of Rockaway & Fraternal Order of Police, Lodge No.31, (PERC No. 2008-21) (10/25/07) – This case involved a request for a restraint of arbitration by the Borough over the FOP’s challenge to the increase in co-pays by the SHBP. The Borough provided health insurance through the SHBP, and in January 2007, the co-pays increased from $5 to $10. The FOP filed a grievance over the increase, alleging that it violated the parties’ contract. The Borough sought to restrain the arbitration asserting that as the increase was required by the SHBP, the Borough could not lower it.

PERC declined to restrain arbitration, noting that that the issue was whether the parties agreed to a particular level of insurance, which would include a particular co-payment amount. Noting that levels of health insurance are generally negotiable absent a preemptive statute or regulation, PERC reasoned that arbitration should not be restrained as “an arbitrator may determine whether the parties made such an agreement and whether the employer violated said agreement.” PERC specifically held that this was a contractual issue, and as such arbitration was appropriate.

While PERC held that the issue of contract violation was in this case arbitrable, it also held that the arbitrator could not order the employer to continue the previous co-pay levels since the SHBP had exercised its authority to set higher levels. However, PERC specifically deferred a decision on whether the arbitrator can issue a remedial order requiring the employer to reimburse employees for their expense in meeting the higher co-pay. (This deferral was based upon the on-going appeal before the SHBP.)

[Note – PERC Reaffirmed this decision on an Order for Temporary Remand from the Appellate Division to permit the Township to supplement the record. PERC No. 2009-19]

June 2006: Franklin Township, PERC No. 2006-103, 32 NJPER 102) where PERC granted reconsideration of an interim relief decision filed as a result of the employer’s selection of a new insurance carrier. Citing its standards for reconsideration, PERC found that a significant change in health insurance coverage created exceptional importance that warranted reconsideration. Under the facts of this case, PERC held that the PBA had demonstrated that the new insurance plan’s increased co-pays and deductibles as well as its elimination of the ability to seek out-of-network services, substantially increased unit members’ out-of-pocket expenditures. While not ordering a restoration of the old plan at this time in the proceedings, PERC ordered the employer to create a fund to cover any costs incurred by employees as a result of the new insurance coverage.

February 2005: Hillsborough Board of Education, PERC No. 2005-54, 31 NJPER 43, where PERC found that the board violated the Act when it dealt directly with four part-time clerical assistants to solicit and obtain waivers of insurance coverage. The record shows that part-time clerical assistants are part of a bargaining unit. The unit’s negotiated contract permits clerical assistant work hours to be set by their individual contracts, but the contract does not address the number of work hours that entitle clerical assistants to insurance benefits. Four clerical assistants expressed an interest in obtaining extended work hours for the 2002-03 school year. The board agreed to the additional hours as long as this extension did not result in eligibility for insurance coverage. The board then obtained the employees’ voluntary signatures to the requested waivers of health insurance benefits.

PERC found that the contract’s authorization of individual negotiations over work hours did not extend to permit such negotiations over eligibility for health benefits. PERC thus concluded that any issue of health insurance, including waivers of coverage, needed to be negotiated with the employees’ majority representative and that the board’s direct dealing with the four assistants violated its obligation to negotiate in good faith. By way of remedy PERC voided the individual waiver agreements. * However, PERC also held that voiding the waivers did not mean that the part-time assistants were entitled to health insurance. PERC found that the extended hours did not exceed 32.5 hours per week and that the board had never provided health benefits to clerical assistant who worked less than 35 hours per week. Thus, in agreement with the H.E., PERC found that there was no evidence that the board had unilaterally changed a term and condition of employment. PERC further held that the union’s allegations that past practice established the assistants’ entitlement to insurance benefits is a contractual dispute that should be resolved through the parties’ negotiated grievance procedure. PERC granted the Association 15 days to file a contractual grievance claiming that the Board violated a contractual obligation to provide health benefits.

* Note: After the filing of these unfair practice charges, the board rescinded the additional hours and in the 2003-2004 school year, the part-time clerks returned to their prior work hours. The board’s decision to return to the prior schedule was based on its concern that the initiation of unfair practice proceedings called into question the validity of the individual waivers. PERC found that the rescinded hours were not based on illegal motivation. (See this case under ANTI UNION ANIMUS.) March 2002: In Township of Union, PERC No. 2002-55, 28 NJPER 33070, PERC denied a request to reconsider the interim relief granted by a PERC designee. (see December 2001 entry below.) Note: Leave to Appeal this decision was denied by the Appellate Division (App. Div. Dkt. No. A-4249-01T1, Nov. 4, 2002)

December 2001: In Township of Union, I.R. No. 2002-7, 28 NJPER 33031, a PERC designee granted interim relief in an unfair practice charge alleging that the Township’s intended change of insurance carrier would result in a unilateral reduction in the level of employees’ health insurance benefits. Although holding that the selection of an insurance carrier is not negotiable, the designee found that a change to the new carrier would, in this case, result in a reduction in employees’ level of health benefits: the new pool of in-network physicians was significantly smaller than the prior carrier’s and would result in employees’ additional up-front expenses. The designee noted that an employee using the same treating physician would no longer be assured of an 80% coverage of the charge, if the physician was not in the new network. In addition, the designee held that with the new carrier, employees could be required to pay the up-front costs of treatment at the time the service would be rendered rather than await partial reimbursement. Relying on Borough of Closter, PERC No. 2001-75, 27 NJPER 32104, the designee held that, given the costs of medical care, an employee may forego treatment rather than pay up-front costs and await reimbursement and thus concluded that this issue was not merely one of money damages that could be remedied at the conclusion of the case. Accordingly, in further reliance on Closter, the designee ordered the Township to establish an interim program, pending the final resolution of this case, that would guarantee that employees would have funds available to pay any up-front costs and any additional costs of treatment that would have been covered under the prior carrier. Alternatively, the designee held that the Township could maintain its current carrier, pending the conclusion of the case defining its statutory or contractual obligations. Note: Both this case and Borough of Closter are interim decisions. Watch this page for final decisions at the conclusion of the unfair practice litigation.

January 2001: In Township of Piscataway, PERC No. 2001-40, 27 NJPER 32036, PERC reaffirms that the issue of an employer’s full payment of the costs of HMO coverage is not preempted from negotiations. PERC rejects the Township’s argument that N.J.S.A. 26:2J-29 (which states that employers have to make HMOs available to employees, but that no employer shall be required to make a contribution for that coverage that is higher than the costs of providing traditional coverage) preempts agreements that employers pay the full cost of HMO coverage. Rather, PERC holds that the statute cited by the Township was enacted in 1973 and was intended to protect employers at that time and did not expressly, specifically or comprehensively prohibit employers from agreeing to pay the full costs of HMOs at a later time.

October 2000: In Hunterdon Central Regional High School Board of Education, PERC No. 2001-24, 27 NJPER 32004, PERC refuses to restrain arbitration of a grievance challenging the Board’s refusal to provide health insurance coverage to a teacher hired on a one-year contract to replace a teacher on leave. PERC rejects the Board’s argument that such “replacement” teachers are short-term employees and that N.J.S.A. 18A:16-12 prohibits boards from providing health insurance to persons employed on a short-term, seasonal, intermittent or emergency basis. PERC held that in the context of public school employment and the tenure scheme, staff hired on a one year contract are not short-term employees. PERC therefore concludes that the statute cited by the Board does not bar arbitration of an agreement to provide health benefits to all members of the bargaining unit.

September 2000: In Northern Burlington County Regional Board of Education, PERC No. 2001-19, 26 NJPER 31172 PERC restrains arbitration of a grievance alleging that the Board violated the parties’ contract when it discontinued board-paid supplemental dental and prescription drug benefits to retirees who received State-paid coverage under the SHBP. PERC holds that N.J.S.A. 18A: 16-19 b prohibits retirees who take State-paid coverage under the SHBP from receiving employer-paid coverage. PERC further holds that the prohibition against board-paid coverage would also prevent a board from reimbursing retirees for their costs for the supplemental coverage. The Association had argued that, in accordance with Middletown Tp. PBA, 162 N.J. 361 (2000) the Board is equitably estopped from discontinuing its dental and prescription coverage to these employees who decided to retire based on the Board’s promise to provide such insurance. PERC declines to address the estoppel argument as it holds that this issue is intertwined with the scope of a governmental entity’s authority and is more appropriately resolved in a judicial forum.

Leaves of Absense

June 2006 Hillsborough Township Board of Education, PERC No. 2006-97, 32 NJPER 97 where PERC holds that reimbursement of health insurance premiums during FMLA/FLA leaves when employees do not return to work is a mandatory topic of negotiations. Here, PERC rejected the Board’s argument that the FMLA preempted negotiations over such reimbursements. Rather, PERC found that the FMLA provides that, except for enumerated specific circumstances, an employer “may” recover the costs of insurance coverage during the period of leave. Citing the court’s affirmation of the Lumberton decision (summarized below), PERC holds that the Act’s language grants employers discretionary authority, but does not specifically and imperatively require this action and thus does not create a preemption of negotiations.

However, PERC denied the parties’ cross-motions for summary judgment in the allegation that the Board’s direct communication with affected employees represented a violation of the PERC Law’s prohibition against direct negotiations with individual employees. The Commission held that both FMLA and FLA require the employer to inform and notice individual employees and that, at this point, without a plenary hearing, there was insufficient evidence to determine whether the administration’s direct communications violated the Act.

May 2004 Upper Saddle River DUP No. 2004-7, 30 NJPER 91, where PERC’s Director of Unfair Practices refused to issue a complaint in a case alleging that the Board committed and unfair labor practice when it refused to engage in midcontract negotiations over the district’s policy concerning the implementation of the Federal Family and Medical Leave Act. The Director found that the association: knew of the Board’s policy; did not object to its adoption 1998 nor to its subsequent consistent implementation. Under these facts, the Director concluded that the association waived its ability to contest the continued use of the policy or to compel midcontract negotiations.

October, 2002 Lumberton Education Association v. Lumberton Board of Education, App. Div. Dkt. No. A-1328-01T5, decided Oct. 8, 2002, where the Court affirmed PERC’s holding that the issue of stacking contractual leaves with statutory leave entitlements under the FMLA is mandatorily negotiable.

September 2001: In Lumberton Township Board of Education, PERC No. 2002-13, 27 NJPER 32136, PERC held that the Board violated the Act when it unilaterally adopted a policy requiring employees to use their paid leave days accrued under the locally negotiated agreement before they could take leave under the federal Family and Medical Leave Act and further refused to negotiate over the issue. PERC found that a decision by a school board to prohibit stacking of leave is not preempted by statute and is generally subject to mandatory negotiations. PERC ordered the Board to rescind its policy and to negotiate with the Association over whether family leave must be taken concurrently with paid leave.

Majority Representative

January 2005: The New Jersey Supreme Court denied cert in County of Morris v. Morris Council No. 6, NJCSA, IFPTE, 371 N.J. Super. 246. As such, the courts upheld PERC’s determination that the County violated the Act when it refused to disclose employees’ home addresses to their majority representative (see PERC No. 2003-22, 28 NJPER 33154 and PERC No. 2003-32, 28 NJPER 33168.) As such the courts have determined that a union’s right to receive the home addresses of negotiations unit employees so that they could communicate with them confidentially about negotiations and grievances. (182 N.J. 427, 2005.)

PERC and the courts rejected the county’s argument that the employees’ privacy interests in maintaining the confidentiality of their home addresses, and in determining who could have access, overrode any alleged interest that the unions might have in obtaining home addresses without employee consent. While considering the employees’ interests, the courts concluded that the record reflected no objections to disclosure by unit members, no reasonable basis for a fear of harassment or disclosure of the list to a third party, or any special considerations that would outweigh the unions’ fundamental need for the home addresses in order to meet their statutory obligation to represent unit employees.

Memos to Staff

January 2000: In Ridgefield Park Board of Education, PERC No. 2000-58, 26 NJPER 31037, PERC held that a memo issued to the Association president is not disciplinary and is not subject to binding arbitration as a matter of law. The memo, written by the high school principal, criticized the president for providing the superintendent with inaccurate information about a staff member and improperly attempting to participate in the evaluation of the staff member’s performance. The Association filed a grievance asserting that the memo was a disciplinary reprimand which, as a matter of law, should proceed to binding arbitration.

In the absence of a contractual arbitration clause, PERC refused to appoint an arbitrator and the Association challenged the Commission’s decision to the Chancery Division and ultimately to the Appellate Division. The courts dismissed the Association’s complaint but the Appellate Division transferred the dispute to PERC for a determination as to whether the grievance constituted discipline requiring arbitration.

PERC found that the memo did not appear in the president’s personnel file and did not address the president’s role as an employee. Rather, PERC held that the focus of the exchange was a disagreement over a labor-management issue. Therefore, PERC concluded that the memo was not a disciplinary reprimand under the PERC law and that arbitration of this issue is not statutorily mandated.

Mileage Reimbursement

Nonrenewals

July 2006: Lenape Regional High School District, Appellate Division Docket No. A-5095-04T1, decided July 12, 2006, where the court reverses a lower court’s order and permits a challenge to the nonrenewal of a custodian to proceed to binding arbitration. This grievance arose under the following factual pattern. Following series of incidents involving misconduct, the custodian was issued a letter of reprimand and placed on a paid leave of absence. In April 2002, while the custodian was still on leave, he was notified that the board had accepted the superintendent’s recommendation to not renew the custodian’s employment contract for the 2002-03 school year. It appears that the memo that triggered the initial discipline was also considered in the nonrenewal decision.

When the custodian received the notice of nonrenewal, two grievances challenging the discipline remained pending. Subsequently, in April 2003, an arbitrator sustained both grievances and ordered the board to remove the letter of reprimand and not to rely upon it in any future personnel actions or decisions. Following the custodian’s nonrenewal, the union filed an additional grievance seeking arbitration of the nonrenewal. The board then obtained a restraint of arbitration based on the Court’s 2004 decision in Camden Board of Education, 181 N.J.187, summarized below.) The Association appealed the lower court’s restraint. While this matter was under appeal, the Legislature amended N.J.S.A. 34:13A-5.3 to establish a presumption in favor of arbitration in the interpretation of a dispute over the extent of a contractual binding arbitration provision.

In this decision, the Appellate Division noted that both parties had conceded that the statutory amendments favoring deferral to arbitration was applicable to this dispute. In its review of these parties’ contract the court found that while containing a number of reserved areas of board authority, the contract, unlike that of Marlboro Board of Education, 299 N.J. Super 283, certif. denied, 151 N.J. 71), did not contain clear retention of the right to not renew employment contracts. The court thus concluded that while it did not find that the agreement contained a contractual tenure provision, the contract language is “susceptible to such a construction. At the very least, we cannot say “with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Finally, the Court further held that if the arbitrator finds that the contract does not restrict the Board’s power to non-renew, then the grievance must be barred from further consideration. (Note: This decision has been appealed to the N.J. Supreme Court.)

August 2004: Camden Board of Education, N.J. Supreme Court (A-34/35-02), decided August 12, 2004, where the Court reversed the Appellate Division decision to hold that, unless specifically and expressly authorized in a negotiated contract, an arbitrator does not have the legal right to review a board’s decision to not renew a fixed-term employee. The Court held that boards have a statutory right to decide whether or not to renew the employment contracts of noncertificated staff who are not protected by tenure rights and are employed on fixed-term contracts. As such, if the reason is neither arbitrary nor capricious, the decision to not renew an employment contract is both valid and unassailable. The Court thus concluded that, absent a specific agreement to the contrary that establishes a “clear and unmistakable waiver” of the board’s statutory right, a challenged decision to not nonrenew a fixed term contract cannot proceed to binding arbitration.

The Court further held that the nonarbitrality of nonrenewals is applicable to renewals which are alleged to be based on disciplinary reasons. The Court found that to hold otherwise would result in “the counterintuitive result” that would grant “a non-renewed, poorly performing employee, who claimed he or she was the subject of the supposed ‘disciplinary’ action, greater rights than those given a competently performing individual whose contract was simply not renewed.”

The decision also reaffirmed the principle that the established Steelworkers Trilogy ‘s presumption favoring arbitration is applicable in the private sector but not applicable in the public sector. Rather, the Court held that the matter of public sector contractual arbitrability requires a court’s assessment of the negotiated agreement’s “language to determine whether it reasonably can be interpreted to have required non-renewals to be subject to arbitrator review for good cause.”

October 2002: Mount Laurel Township Board of Education, App. Div., Dkt. No. A-971-01T5, decided October 17, 2002 which reversed a lower court to affirm an arbitration award reinstating a custodian who was not renewed by the board. The court rejected the board’s argument that since the arbitrator found that the contract did not include a promise of continued employment, the nonrenewal did not constitute arbitrable discipline. (see Wayne decision, below.) Rather, the court found that the parties’ contract did not specifically exclude nonrenewals from discipline and thus held that the arbitrator’s finding of discipline was reasonably debatable. But, see the N.J. Supreme Court August 2004 decision in Camden Board of Education.

June 2002: Camden Board of Education, App. Div. A-6789-00T1, in which the court upheld the contractual arbitrability of a grievance contesting the nonrenewals of nontenured custodians. The court found that the parties’ contract did not expressly address tenure, nonrenewal of employment contracts or the arbitrability of nonrenewals. However, the court also found that the contract contained a just cause clause and that the custodians had been threatened with disciplinary action, including the possibility of nonrenewals. The court thus concluded that the custodians could arbitrate their nonrenewal under the just cause provision, as long as they could prove that their contracts were not renewed for disciplinary reasons. If an employee could not carry that burden of proof, then the arbitrator’s jurisdiction would be foreclosed. Note: The N.J. Supreme Court reversed this decision in August 2004.

September 2001: Lumberton Township Board of Education, PERC No. 2002-13, 27 NJPER 32136, PERC held that the Board violated the Act when it unilaterally adopted a policy requiring employees to use their paid leave days accrued under the locally negotiated agreement before they could take leave under the federal Family and Medical Leave Act and further refused to negotiate over the issue. PERC found that a decision by a school board to prohibit stacking of leave is not preempted by statute and is generally subject to mandatory negotiations. PERC ordered the Board to rescind its policy and to negotiate with the Association over whether family leave must be taken concurrently with paid leave.

January 1999: Wayne Township Board of Education v. Wayne Education Association, App. Div., A-2749-97T5, decided Jan. 19, 1999,(certif. den. 3/31/99), the Appellate Division restrained arbitration of two grievances challenging the Board’s decision to not renew the employment contracts of a bus driver and a custodian hired under fixed-term contracts.

In this case, the court found that neither the bus drivers’ nor the custodians’ negotiated contract contained a job security clause. While the contracts did not specifically preclude binding arbitration of grievances challenging nonrenewals, the court found that the contracts did not contain an agreement conferring the right of reemployment to custodians or bus drivers beyond their fixed terms of employment and held that

“an arbitrability issue does not exist if the employees have neither a right to tenure nor a right to complain upon the nonrenewal of their contracts.”

The court further held that the contract’s provision that “No employee shall be disciplined, reprimanded, reduced in rank or deprived of any professional advantage without just cause” did not grant the right to arbitrate the employees’ nonrenewals. Rather, the court found that the provision

“only confers a contractual right to grieve a Board’s action during the one-year term of employment and cannot be read to confer a right of reemployment – – by way of just cause protection – – beyond that fixed term.”

Accordingly, the court concluded that there is simply nothing to submit to an arbitrator, as an arbitrator is prohibited from taking any action where jurisdiction is not conferred by the parties’ contract. The court also rejected the Association’s argument that N.J.S.A. 34:13A-29 eliminates the issue of contractual arbitrability as to matters involving the discipline of school employees. Citing Marlboro Township Board of Education, 299 N.J.Super 283 (1997), certif. denied, 151 N.J. 71 (1997), the court held that when the parties’ contract does not extend contractual tenure, a board’s decision to exercise its discretion to not renew a fixed term contract does not constitute discipline.

Obligation to Pay Increments

April 2000: The Appellate Division affirmed PERC’s holding in East Hanover, PERC No. 99-71, 25 NJPER 30052 prohibiting boards from paying increments to noncertificated staff included in a teachers’ unit at the end of a three-year contract.

Overtime

January 2001: In Paterson State Operated District, PERC No. 2001-42, 27 NJPER 32038, addressed a dispute arising out of the district’s partial subcontracting of security guard services. The Association representing the district’s employees filed a grievance asserting that the district’s use of private guards denied overtime opportunities to the guards employed by the district in violation of the parties’ agreement. PERC restrained arbitration of the portion of a grievance challenging the district’s overtime assignments to security guards provided by a private sector contractor when private guards had been assigned to fulfill the noneconomic policy of providing continuity of coverage of an activity previously supervised by those guards.

However, PERC refused to restrain arbitration when security guards who were employees of the district could provide continuity of coverage but were denied overtime opportunities and private guards were given those assignments and paid at straight time. PERC held that those assignments involved only economic considerations and did not reflect an educational policy determination.

Ratification of Contract

September 2002: Pemberton Borough Board of Education, I.R. No. 2003-7, 28 NJPER 33144, where a Commission designee found that members of the board’s negotiating team had voted against ratification of a Memorandum of Agreement, even though the memo stated that the signators agreed to recommend ratification of the negotiated changes. The designee rejected the board’s argument that the team members had met their obligation since they recommended ratification, but voted against ratification when they were advised of the board’s desire to have other issues included in the settlement. Rather, the designee held that when the board’s negotiating team voted against ratification they breached their duty to negotiate in good faith to reach a settlement. Finding that this failure caused a “chilling effect to the negotiations process” and constituted irreparable harm to the Association, the designee granted interim relief designed to “return the parties to a circumstance where the Board can fulfill its obligation to negotiate in good faith.” Accordingly, the designee ordered the board to conduct another ratification vote so that members of the bargaining team could recommend and vote in favor of ratification.

Reopeners

March 2000: In Ocean City Board of Education, I.R. No. 2000-13, 26 NJPER 31079 a Commission Designee refused to grant interim relief in an unfair practice charge alleging that the district’s associations had repudiated an agreement to reopen negotiations in the event an increase in health insurance premiums exceeded 10% of the prior year’s cost. The reopener clauses stated that those negotiations would be limited to the costs which exceeded the negotiated cap on the Board’s premium payments.

The Designee found that the Board was advised that its insurance premiums would increase by 19.5% as of July 1, 1999. The Board did not seek to reopen negotiations before that date and meetings with the Education Association, Supervisors’ Association and the Supportive Staff Association began in October 1999. After several meetings, the parties had not reached an agreement as to how to deal with the premium increase which exceeded the parties’ contractual commitments. Finding that the associations’ positions in negotiations sought quid pro quos and thus exceeded the contractual definition of the scope of the reopener, the Board filed unfair practice charges alleging that the Associations were not bargaining in good faith. The Board also sought interim relief.

The Designee held that the Board did not seek negotiations with sufficient “dispatch” to now warrant the imposition of injunctive relief. The Designee also found that the Board had not exhausted the negotiations process as it had not pursued impasse procedures. Finally, the Designee held that the dispute in negotiations involved a different interpretation of contractual language and that unfair practice charges may not be issued under these circumstances. (Note: in May 2000, PERC denied the Board’s motion to reconsider the denial of interim relief. PERC No. 2000-91, 26 NJPER 31007.)

Representation

January 2005: In Newark State-Operated School District, PERC No. 2005-49, 31 NJPER 38, PERC dismissed a complaint charging that the district had violated the Act when it denied a SEIU Local 617 business agent access to its central office to represent unit members in disciplinary and grievance hearings. The facts of this dispute indicated that, prior to becoming a union agent, the individual had been employed by the district as a clerical employee in the payroll department located in the district’s central office, who had resigned in accordance with a settlement agreement arising out of disciplinary charges brought against the employee. The disciplinary determination had been based on a district investigation that revealed that the employee’s tampering of her records resulted in the unauthorized overtime payments totaling approximately $6,000. Local 617 hired the former district employee as a business agent after she resigned from the district. Four months after her resignation, when she returned to the district’s central office to represent unit members at disciplinary proceedings, she was denied access to that office.

Finding that after checking into the building, union agents had free and unescorted access to the facilities and to district computers, PERC held that the board had a legitimate and substantial concerns for the security of its computers. PERC further found that district had not totally denied union access to its facilities as: the agent had been permitted access to the district’s 82 other facilities to service the membership; disciplinary hearings were relocated to permit the agent’s access to the membership; other accommodations had been made to assure that employees in the central office had access to union services. Under all the facts of this case, PERC held that the employer’s interest in denying access outweighed any tendency of the denial to interfere with employee rights to union representation.

December 2004: In Kearny Board of Education, PERC No. 2005-42, 30 NJPER 171 PERC reverses the Director of Representation and dismisses a representation petition seeking to form a bargaining unit of the nine full-time teacher aides employed by the district. PERC agreed with the Board that, under PERC’s well-established practices and policies, the proposed unit which specifically excluded the district’s 173 part-time aides was not the appropriate unit.

PERC recognized the Education Association’s arguments that a dismissal of the petition would result in the full-time aides’ inability to obtain representation as: the part-time aides were not interested in representation: and the major representatives of the existing units had rejected the inclusion of the full-time aides into their units. However, PERC held that unit structure “does not ordinarily depend on the extent of a petitioner’s willingness or ability to organize employees” but is based on a range of factors including the Commission’s long-standing policies and practices favoring broad-based bargaining units, opposing undue fragmentation, and refusal to certify units that excluded regularly employed part-time employees who shared a community of interest with the full-time positions.

February 2000: In International Charter School of Trenton Board of Education, D.R. No. 2000-6, 26 NJPER 31057, the Director of Representation rejected the School’s argument that the NJEA’s opposition to Charter School was incompatible with its desire to represent the school’s staff.

Retirement

The Association had argued that, in accordance with Middletown Tp. PBA, 162 N.J. 361 (2000) the Board is equitably estopped from discontinuing its dental and prescription coverage to these employees who decided to retire based on the Board’s promise to provide such insurance. PERC declines to address the estoppel argument as it holds that this issue is intertwined with the scope of a governmental entity’s authority and is more appropriately resolved in a judicial forum.

Sick Leave

November 2001: In State-Operated School District of the City of Newark, App. Div. Dkt. No. A-6972-99T3 (11/28/01), the court reversed PERC’s ruling in PERC No. 2000-51 that permitting employees to use 5 of their annual 15 sick leave days for illness in the immediate family did not contradict N.J.S.A. 18A: 30-1. The court held that the statutory definition of sick leave as days that were to be used only for personal illness applied to all sick days, whether granted by statute or negotiated agreement.

Sick Leave Bank

May 2000: Winslow Township Board of Education, PERC No. 2000-95, 26 NJPER 31111, PERC held that sick leave banks are mandatorily negotiable as long as they do not violate the provisions of school law. In this particular case, PERC held that the contract’s sick leave bank provision would be legal by clarifying that the donated days could not include days granted by statute. (The district’s clause retained the board’s total discretion in granting additional leave, in accordance with N.J.S.A. 18A:30-6.)

Subcontracting

July 2008: In Township of Toms River v. Teamsters Local 97, Appelllate Division, Docket No. A-4969-06T3, decided July 22, 2008. The court reversed a PERC decision, PERC No. 2007-56, which permitted grievance arbitration over the Township’s decision to subcontract tree removal services. The court found that the decision to subcontract was not done in bad faith; nor was there any evidence to suggest that the purpose was to avoid overtime expenses. The court distinguishes this case from other cases that involved circumstances in which only overtime hours were transferred to private employees. Citing Local 195, IFPTE v. State, (88 NJ 393, 1982), the court agreed with the Township that the decision to contract with a private entity for tree removal services and the terms of that contract were non-negotiable managerial prerogatives.

October 2004: In Warren Hills Regional Board of Education, PERC No. 2005-26, 30 NJPER 145 PERC accepted the Hearing Examiner’s recommendations that found that the board’s decision to subcontract its bus routes and to terminate its transportation employees had been illegally motivated. In response to the board’s exceptions to the H.E.’s recommendations, the Commission ruled that, absent compelling contrary evidence, it would not substitute its reading of the transcript for the H.E.’s credibility determination. Citing a number of factors, including the timing of the decision to subcontract in relationship to the bus drivers’ selection of a majority representative and the witnesses’ testimony, PERC held that the record supported the H.E.’s finding that the superintendent had been hostile towards the bus drivers’ organization and that the board did not prove that it would have privatized its bus service absent that hostility.

PERC rejects the board’s argument that the H.E.’s decision tells a school district that despite its budgetary difficulties, it should not try to economize through subcontracting. Rather, PERC holds that the fact that subcontracting saved the board money does not make legal a motivation that is illegal under the PERC Law. By way of remedy, PERC orders the board to reinstate all terminated transportation employees, to make them whole for all lost salaries and benefits, and to negotiate in good faith with the employees’ selected representative.

January 2001: In Paterson State Operated District, PERC No. 2001-42, 27 NJPER 32038, addressed a dispute arising out of the district’s partial subcontracting of security guard services. The Association representing the district’s employees filed a grievance asserting that the district’s use of private guards denied overtime opportunities to the guards employed by the district and violated the parties’ agreement. PERC restrained arbitration of the portion of a grievance challenging the district’s overtime assignments to security guards provided by the private sector contractor when private guards had been assigned to fulfill the noneconomic policy of providing continuity of coverage of an activity previously supervised by those guards.

Teaching on Holidays

July 2000: In Rockaway Township Board of Education, PERC No. 2001-6, 26 NJPER 31169, PERC refused to restrain arbitration of a grievance contesting the board’s memo that required that summer school teachers work on July 5, 1999. PERC rejected the board’s argument that teachers had waived their statutory right to not work on a public holiday when they accepted summer school employment with full knowledge that summer school was scheduled to be held on July 5. Rather, PERC held that such a broad and general waiver claim would mean that all teachers who agree to work during the regular school year also waive their right not to work on legal holidays.

PERC concluded that an arbitrator can determine both issues raised by the grievance: whether the board’s requirement violated the parties’ contract; and whether teachers were contractually entitled to premium pay for working on a holiday.

Terminations

June 2009: Mount Holly Twp Bd. of Educ, __ NJ __ (A-24-08), decided June 24, 2009, the New Jersey Supreme Court reverses an Appellate Division decision to hold that the mid-contract termination of a custodian was subject to arbitration under the parties’ collective negotiations agreement (CNA). The CNA contained a provision that no employee shall be discharged without just cause and that such action is subject to the grievance procedure. However, the custodian’s individual employment contract expressly provided that either party could terminate the contract upon 14 days’ notice. The App. Div. decision held that the Board had the right to terminate the employee pursuant to the terms of the individual employment contract, without showing just cause or having its termination decision subject to arbitration. However, the Supreme Court disagrees, finding that to the extent provisions in an individual employment contract conflict or interfere with rights provided by the CNA, the language in the individual contract must yield to the CNA. The Court also held that requiring arbitration in this case is consistent with the Legislature’s amendment to N.J.S.A. 34:13A-5.3, which reaffirmed the principle that “arbitration is a favored means of resolving labor disputes.” (The dissenting opinion in this case contends that there is no conflict between the individual employment contract and the CNA, much less one to justify nullifying portions of the individual contract; and that termination does not fall within the definition of a “grievance” necessary to trigger the CNA’s grievance procedure.)

May 2009: Freehold Regional High School District Board of Education v. NJEA and Maryann Lipman, Appellate Division, Docket No. A-4130-06T1, decided May 8, 2009 (Unpublished). The Appellate Division affirmed the lower court’s ruling which restrained arbitration of the Board’s decision to not renew the employment contract of a school bus driver. It held that N.J.S.A. 18A:27-4.1(b) does not afford a non-tenured employee the right to arbitrate non-renewal, and relied upon the Board’s adopted policy which provided that renewals will only occur when recommended by the superintendent and a non-renewed employee has the right to a statement of reasons from the Board. Further, the Appellate Division rejected the NJEA’s argument that N.J.S.A. 34:13A-5.3 creates a presumption in favor of arbitration, reasoning that the since there was no provision in the collective negotiations agreement which defined non-renewal as constituting a disciplinary action subject to the grievance procedure, there was no presumption in favor of arbitration. Thus, the Appellate Division held that the reliance on N.J.S.A. 34:13A-5.3 is misplaced, specifically holding that “non-renewal is not a disciplinary action and, therefore, not subject to arbitration.”

April 2008: Mount Holly Board of Education Appellate Division, Docket No. A-5579-05T3, decided April 21, 2008. The court affirmed a lower court ruling which held that the Board’s decision to terminate a custodian mid-contract pursuant to his individual employment contract was not subject to review by an arbitrator under the collective bargaining agreement. (The parties’ contract states that no employee shall be discharged without just cause and that any such action shall be subject to the grievance procedure.) The court specifically differentiated this case from Pascack Valley Regional H.S. Bd. of Ed., 192 N.J. 489 (2007), where the collective bargaining agreement contained a just cause provision that was “expansive in its scope.” That clause stated that “[a]ny dismissal or suspension shall be considered a disciplinary action and shall at the option of the custodian…be subject to the grievance procedure.” In the instant case, the court found that, in the absence of such provision or any comparable provision, the Board was entitled to terminate the employee on 14 days notice without showing just cause or having its termination decision subject to the grievance procedure. (Reversed by Supreme Court in June 2009. (See write up above.)

April 2008: Medford Township Board of Education, Appellate Division, Docket No. A-5580-05T3, decided April 21, 2008. The court affirmed a lower court ruling which held that the Board’s decision to terminate a custodian mid-contract pursuant to his individual employment contract was not subject to review by an arbitrator under the collective bargaining agreement’s just cause clause. The court specifically differentiated this case from Pascack Valley Regional H.S. Bd. of Ed., 192 N.J. 489 (2007), where the collective bargaining agreement contained a just cause provision that was “expansive in its scope.” That clause stated that “[a]ny dismissal or suspension shall be considered a disciplinary action and shall at the option of the custodian…be subject to the grievance procedure.” In the instant case, the court found that, in the absence of such provision or any comparable provision, the Board was entitled to terminate the employee on 14 days notice without showing just cause or having its termination decision subject to the grievance procedure. . (Note that the Supreme Court’s June 2009 decision in the Mt. Holly case may have significant implications and should be reviewed as well.)

October 2007: In Northvale Board of Education, 192 N.J. 501 (2007), decided October 29, 2007, the New Jersey Supreme Court, by a 3-3 vote, allowed an Appellate Division decision to be affirmed that upheld the restraint of arbitration of a grievance challenging the mid-contract termination of a part-time secretary and teacher for performance reasons. The concurring opinion held that was no language in the collective bargaining agreement that specifically supported grievance and arbitration proceedings for mid-contract terminations. In the absence of such specific contractual entitlement, the Court found that the Board had the right to terminate the employee consistent with the terms of the individual employment contract. The dissenting opinion stated that if the collective bargaining agreement was unclear, any doubts needed to be resolved in favor of arbitration as consistent with statute.

October 2007: In Pascack Valley Regional Board of Education, 192 N.J. 489 (2007), decided October 29, 2007, the New Jersey Supreme Court, reverses the Appellate Division to hold that the mid-contract termination of a custodian was subject to arbitration under the parties’ collective bargaining agreement. The Court held that where a collective bargaining agreement broadly defines discipline and a board’s mid-contract termination falls within that definition, the employee is entitled to the protections of the grievance procedures contained in the collective bargaining agreement. Under these circumstances, the Court ruled that the protections of the collective bargaining agreement superseded the terms of the individual employment contract which allowed termination on notice.

September 2004: In Shamong Township Board of Education, PERC No. 2005-14, 30 NJPER 129, PERC restrained the portions of a grievance challenging the Board’s decision to exercise the 60 days’ termination clause in the employment contract of a nontenured teacher because of continuously deficient performance. The Commission agreed with the Board that a nontenured teacher who was terminated midcontract could not seek reinstatement through arbitration. However, PERC refused to restrain arbitration of the portion of the grievance which sought restoration of lost pay and benefits for the remaining months of the teacher’s employment contract.

Concerning those aspects of the grievance, PERC held that arbitrating this dispute would not significantly interfere with any educational policy as a school board’s interest in having students taught by effective teachers was protected by cases and statutes that permitted school boards to not renew nontenured teachers. PERC further found that a board could also protect its interests “through the negotiating process and a board’s power not to agree to any contract proposal it deems unwise and through the arbitration process and a board’s ability to present its positions on issues of liability and remedy.”

However, PERC also found that a nontenured teacher has no statutory appeal procedure for contesting a mid-year termination and that “a teacher’s future teaching prospects may be unfairly damaged if an allegedly unjust termination cannot be reviewed by a neutral decision maker. PERC further held that a teacher’s interest in continuing to receive pay and benefits is not diminished because a termination is based on alleged incompetence rather than alleged misconduct. PERC thus concluded that, on balance, the employee’s interests in seeming to obtain limited back pay for an alleged unjust termination outweighed the board’s interest.

In addition, PERC held that the Camden Board of Education, N.J. Supreme Court (A-34/35-02), decided August 12, 2004, decision did not apply to this case. PERC found that the Court’s decision involved contractual arbitrability and does not govern this case which concerns legal arbitrability.

Transfers

March 2002: East Orange Board of Education, PERC No. 2002-49, 28 NJPER 33053in which PERC dismisses a contested transfer petition alleging that the Board had violated N.J.S.A. 34: 13A-25 when it transferred several high school teachers to the middle school. PERC holds that the record does not support a finding that the in-between work site transfers were disciplinary, but rather were intended to address the causes of low student achievement in the first year of high school.

After holding a hearing, an H.E. had concluded that the assistant superintendent’s presented credible testimony indicating that the transfers were recommended on the belief that a change in schools, a different environment, and an opportunity to work with different administrators and students might result in improved teaching performance, which would in turn result in increased student achievement and better student preparation. PERC adopts the H.E.’s conclusions and the credibility judgment to hold that the transfers were based on student failure, not on teachers’ evaluations, and were not intended to punish teachers, but to enhance student performance.

January 2001: In Hamilton Township Board of Education, PERC No. 2001-39, 27 NJPER 32035, PERC restrained arbitration of a grievance asserting that the transfer of a physical education teacher from the elementary schools to the middle school and to the high school was a disciplinary transfer, based on parental complaints. PERC held that N.J.S.A. 34:13A-25 prohibits negotiations and thus also prohibits binding arbitration of disciplinary transfers. Rather, PERC holds that these allegations must be handled through the filing of contested transfer petitions.

January 2001: In West New York Board of Education, PERC No. 2001-41, 27 NJPER 32037, PERC reviewed a contested transfer petition which challenged the board’s decision to transfer the position of supervisor of technology to the position of supervisor of special education. The Association argued that the supervisor of technology was reassigned to the newly created position of supervisor of special education because of his complaints about the district’s computer network. PERC finds that the transfer of the supervisor from the high school to the administration building was an illegal between work-sites disciplinary transfer. PERC orders the board to transfer the supervisor back to the high school to perform his new responsibilities as supervisor of special education.

August 2000: Camden Board of Education, PERC No. 2001-9, 26 NJPER 31148 where PERC found that the transfer of a high school physical education teacher to the middle school constituted an illegal between work-sites transfer for disciplinary reasons. PERC found that the transfer was not based on judgments of the teacher’s performance, but that it was directly related to incidents that had occurred while the teacher was serving as a basketball coach. The incidents resulted in the New Jersey Interscholastic Athletic Association (NJSIAA) decision to suspend the team from post-season play for two years. Finding that the NJSIAA had held out the possibility of a waiver for the team if the board took “administrative action” against the coach, PERC concluded that the transfer was disciplinary as it was intended to punish the teacher and to placate the NJSIAA. However, PERC refused to address the teacher’s removal from his coaching position as it found that its jurisdiction in this case was limited to resolving the contested transfer.

Waivers of the Obligation to Negotiate

October 2000: In Mountainside Board of Education, PERC No. 2001-29, 27 NJPER 32009 where PERC dismisses an unfair practice charge alleging that the Board violated the parties’ past practice when it eliminated half days before the Winter and Spring recesses. PERC finds that the Board has a prerogative to establish the school calendar and to set the length of the school day before these holidays, but that this right does not extend to increasing the teachers’ work load without negotiation or to refuse to negotiate over compensation for extra work.

However, under the facts of this case, PERC holds that the Board did not repudiate the terms of the contract and, at most, this dispute is a contractual dispute that does not rise to the level of an unfair practice and must subjected to the parties’ grievance procedure. PERC further finds that the Association did not protest when the Board had informed the Association and adopted the change in half-days in February 1999, but did not file its unfair practice charge until the next school year. PERC holds that the Association’s delay constitutes a waiver of its right to negotiate. Finally, PERC holds that the Board did not refuse to negotiate over the impact of the change since the Association’s request to negotiate was framed in terms of the change in the length of the work day (which was fully addressed in the parties’ contract), but did not seek negotiations over the impact of the change.

Withholdings of Increments

March 2006: Bergenfield Board of Education, PERC No. 2006-69, 31 NJPER 43 where PERC refuses to restrain arbitration of a challenge to the Board’s withholding of a basic skill teacher’s increment. The Superintendent’s recommendation to withhold was based on performance deficiencies set forth in eleven documents: the teacher’s April 2005 evaluation; three reports concerning incidents that took place on December 22, 2004; and seven memoranda issued between 2001 through 2005 detailing administrators’ concerns about the teacher’s absences from her assigned classes or adherence to her schedule. In denying the Association’s grievance, the Superintendent and the Board noted that the reasons for the withholding were set forth in the evaluation documents which included: poor use of instructional techniques, lack of classroom discipline, sleeping in class, and excessive and unexcused absences.

However, in its review of the record, PERC found that while the reasons for the withholding involved both evaluative and disciplinary components, the predominant reasons for the withholding were non-teaching concerns. Specifically, PERC noted that ten out of the eleven documents cited by the Superintendent addressed the teacher’s failure to abide by her schedule and her unexcused absences from assignments, a concern also addressed in the remaining evaluation report. In this regard, PERC held that assessing alleged failures to follow an assigned schedule or to sign out properly are similar to misconduct allegations previously found to be disciplinary and to not require the Commissioner’s educational expertise. The Commission also found that the tone of these mounting administrative concerns far stronger and more emphatic than the comments critical of her classroom performance.

PERC further found that the sleeping in class incidents, cited in the December 22, 2004 documents, involved “non-performance” apparently due to illness. The Commission held that the focus of examination on this issue will be the teacher’s medical condition on this day, a question that does not require educational expertise to determine that a teacher should not sleep in class and that can be competently examined by an arbitrator.

January 2003: Hackettstown Board of Education, PERC No. 2003-48, 29 NJPER 6, where PERC refused to restrain arbitration of a grievance challenging the board’s withholding of a school nurse’s increment. In this case, the board’s action was the result of the nurse’s refusal to go on the 8th grade’s 2002 overnight class trip to Washington DC as she had for the past 30 years, even though her request to be excused had been denied by the Superintendent and the board. The nurse had been notified by the Superintendent that a failure to fulfill her professional responsibilities would be considered insubordination and subject to disciplinary action. To assure compliance with the law and the availability of a school nurse to administer medication on the trip, the Board used a substitute nurse to cover the trip. In June, the board approved the superintendent’s recommendation to withhold the nurse’s increment based on failure to perform assigned duties and insubordination.

In seeking to restrain arbitration of the ensuing grievance, the board relied on PERC’s past standards for assessing withholdings of teaching staff members who do not actually teach. The board held that in those instances, increments withheld for alleged failure to perform professional duties must be reviewed by the Commissioner of Education. The board argued that the responsibilities of a school nurse are set by school law and that the nurse failed to perform her duties by not attending the field trip.

PERC disagreed with the board as it held that the withholding was based on the nurse’s alleged insubordinate refusal to perform her duties and constituted arbitrable discipline and not an evaluation of her performance as a school nurse.

June 2000: On June 7, the New Jersey Supreme Court denied certification of the Appellate decision in Randolph Township Board of Education (see discussion below at March 2000 entry). At this point, the grievance involving a challenge to the withholding of two secretaries’ increment is before PERC. The Commission will determine whether the withholding was predominantly disciplinary or evaluative. Presumably, PERC will also determine whether the grievance is legally arbitrable. We will keep you posted of future developments.

May 2000: In Franklin Township Board of Education, PERC No. 2000-90, 26 NJPER 31106, PERC refused to restrain arbitration of a grievance challenging the withholding of a math teacher’s increment. PERC found that the increment was withheld for repeatedly failing to follow her supervisor’s directives to return a parent’s call. PERC recognizes that communications with parents is an element of teaching performance. However, under the circumstances of this case, where it is undisputed that the teacher’s teaching performance is exemplary and no other reasons were given for the withholding, this action predominantly relates to a failure to comply with an administrative directive and not to teaching performance.

April 2000: In Middlesex Board of Education, PERC No. 2000-86, 26 NJPER 31089, PERC refused to restrain arbitration of a grievance challenging the increment withholding of a guidance counselor who also serves as the district’s Substance Awareness Counselor. PERC rejected the Board’s argument that counselor’s excessive absenteeism was not the predominant reason for the withholding. The Board had argued that its decision was based on specific concerns regarding the counselor’s performance, interaction with students and lack of completion of paperwork requirements of his job. The Board pointed to specific incidents, including: unavailability to students; processing student requests for course changes and selections; poor record keeping which interfered with a student’s college visitation and the identification of a student’s need to take the H.S.P.T.

PERC found that the withholding was predominantly based on concerns arising from the guidance counselor’s inability to perform due to absenteeism. Citing previous decisions (see, for example, Edison Township Bd. of Ed.,, PERC No. 97-40, aff’d 304 N.J.Super 459, 1997), PERC concluded that this withholding was disciplinary and that the Board could raise all of its concerns about the counselor’s absenteeism to an arbitrator. In support of its position, PERC noted that prior to an extended medical leave the guidance counselor receive a positive observation report which was overturned in his annual evaluation issued during the period of prolonged absence. PERC further contrasted the facts of this case with those in Rockaway Township Bd. of Ed., PERC No. 97-88, 23 NJPER 28062, which found that although an extended absence was a reason for the withholding, the dominant concern was teaching performance.

April 2000: In Greater Egg Harbor Board of Education, PERC No. 2000-85, 26 NJPER 31088, PERC restrained arbitration of a grievance challenging the withholding of a teacher’s 1999-2000 increment for alleged deficiencies in communicating with students. PERC rejected the Association’s argument that the withholding was predominantly based on disciplinary reasons. The Association argued that the teacher’s 1998-1999 evaluation highlighting the teacher’s alleged difficulties in the classroom was prepared to support the vice-principal’s October 1998 punitive recommendation to withhold following the teacher’s verbal confrontation with a secretary. Rather, PERC held that the primary reasons for the withholding involved the teacher’s ineffective communication style, noted in a number of prior evaluation reports, and thus involved an evaluation of teaching performance which must be appealed to the Commissioner of Education.

Citing prior decisions (see Paterson School District, PERC No. 95-39, 21 NJPER 26023), PERC refused to look behind a board’s stated reasons to see if the withholding was induced by discriminatory or improper motives and that the Commissioner could evaluate the veracity of the Board’s claims of deficient performance.

March 2000: In Randolph Township Bd. of Ed., App. Div. Docket No. A-2541-98T3, the Appellate Division reversed PERC’s decision in PERC No. 99-45 which, after the issuance of Randolph, 306 N.J.Super 207(1997), continued to hold that as a matter of law all increments affecting noncertificated were disciplinary and subject to binding arbitration. The court held that it “perceived no legislative authority for PERC’s determination.”

Citing N.J.S.A. 34:13A-26 the court held that the legislature recognized a distinction between a disciplinary withholding and nondisciplinary withholding for all employees, but granted employees the right to appeal only their disciplinary withholdings to binding arbitration. The court held that the legislature intended that nondisciplinary withholdings affecting noncertificated staff would continue to be appealed through the parties’ negotiated grievance procedure and not through the mandated binding arbitration process. The court reasoned that had the legislature intended otherwise it would not have created a separate and distinct class of withholdings “for predominantly disciplinary reasons.”

The court further found that PERC’s reliance on East Brunswick, 101 N.J. 280 (1985) is flawed as that case was decided before the 1990 legislature established a distinction between disciplinary and nondisciplinary withholdings. The court also found that the agreement between the Board and the Randolph Township Education Association, which did not provide for arbitration of withholdings, was consistent with Bernards Township 79 N.J. 311 (1979) which held that nondisciplinary withholdings are managerial prerogatives.

Reiterating its finding in Randolph I, the court held that PERC had the jurisdiction to determine whether a withholding affecting a noncertificated staff member was predominately disciplinary or predominately evaluative. Accordingly, the court remanded the decision to PERC for a determination of whether the withholding of two secretaries’ increment was predominately evaluative or disciplinary.

Note: See June 2000 entry above for the N.J. Supreme Court’s denial of certification in this case.

Also note: Under this decision, it is clear that existing contract clauses precluding binding arbitration of noncertificated staff withholdings are not preempted by the mandate for binding arbitration and remain applicable for nondisciplinary withholdings. It is also clear that the parties can negotiate language that precludes binding arbitration of withholdings that are predominantly based on an evaluation of noncertificated staff performance from binding arbitration.

Work Hours/Load/Year

July 2003: In Elizabeth Board of Education, PERC No.2004-9, 29 NJPER 123 , PERC held that a school board has a prerogative to determine the structure of the school day and to establish block scheduling and thus restrained arbitration of a grievance to the extent it challenged the board’s decision to implement block scheduling. However, PERC also found that a board’s right to implement block scheduling does not affect its obligation to negotiate changes in mandatorily negotiable work conditions. Therefore, PERC refused to restrain arbitration of the portions of the grievance that claimed that the scheduling resulted in uncompensated increased teacher workload.

November 2002: Lakehurst Board of Education, PERC No. 2003-28, 28 NJPER 33164 in which PERC denied the association’s request to reconsider a designee’s refusal to grant interim relief. In this case, the designee had found that the normally negotiable issue of extending the work year was preempted by the Department of Education’s requirement to provide child study team services during special education students’ extended school year. The designee concluded that under these circumstances the board had the authority to unilaterally modify the work year of the Child Study Team and that the parties intended to negotiate over the impact of the extended work year. (See Lakehurst Board of Education, IR No. 2003-6, 28 NJPER 33138, listed below.

August 2002: Hillside Board of Education, IR No. 2003-5, 28 NJPER 33135, where a Commission designee refused to issue interim relief in pending unfair practice charges which allege that the Board violated the Act when, during the course of negotiations, it unilaterally initiated block scheduling which increased high school teachers’ instructional time, without additional compensation. The designee found that the Association did not show a likelihood of prevailing in the final decision (a requisite element in obtaining interim relief) as implementing block scheduling is a managerial prerogative. The designee held that implementing a managerial prerogative does not constitute a change in terms and conditions of employment and thus such action, even during the course of on-going successor negotiations, does not raise a negotiations obligation or otherwise chill on-going negotiations. The designee further found that the Board acknowledged its obligation to engage in negotiations on impact issues arising from the implementation of the new schedule.

August 2002 : Lakehurst Board of Education, IR No. 2003-6, 28 NJPER 33138 in which a Commission designee refused to issue interim relief in pending unfair practice charges which allege that the Board unilaterally altered terms and conditions of employment when, during on-going negotiations, it unilaterally extended the work year of the child study team. The designee found that Board had added 20 days to the CST work year to comply with the requirements of the Department of Education to provide child study team services during special education students’ extended school year program. Under these particular facts, the designee held that the normally negotiable issue of extending the work year was a managerial prerogative and could be implemented before the conclusion of negotiations. The designee also found that the parties intended to continue negotiating over impact issues stemming from the CST’s additional work days. Accordingly, the designee concluded that the Association had not demonstrated a substantial likelihood of success, a requisite to obtaining interim relief. Note: PERC denied the association’s request for reconsideration of the designee’s refusal to grant interim relief in November 2002. See Lakehurst Board of Education, PERC No. 2003-28, 28 NJPER 33164, above.)

January 2002: In Westfield Board of Education, PERC No. 2002-41, 28 NJPER 33042, a an English teacher filed grievances following a change in her schedule. Prior to the 2000-01 school year, the teacher had been assigned to an alternative English program and was scheduled to hold four instructional classes, including a period for writing conferences. In September 2000, based on programmatic needs, the writing conference was eliminated and the teacher’s schedule was changed to five instructional periods, including a basic skills class.

Finding that the decisions to eliminate the writing conference and to assign the teacher to teach basic skills were issues of educational policy, PERC restrained arbitration of those aspects of the grievances that sought the employment of a Basic Skills instructor and the restoration of the writing conference. However, PERC refused to restrain arbitration over the increase in the number of instructional periods and the teacher’s claim for additional compensation.

March 2001: In Passaic Board of Education, PERC No. 2001-54, 27 NJPER 32059, a post-arbitration case referred by the courts. In this case, the grievance challenged the board’s decision to extend the length of middle-school teachers’ work time by 17 minutes on the six scheduled half days. The board had argued that the change was a managerial educational policy that was based on the Department of Education’s directive that four hours of instruction, excluding passing time and lunch time, were required. The arbitrator sustained the grievance and ordered the board to compensate the affected teachers for the additional time worked and to return to a 1:00 p.m. dismissal time on scheduled half-days.

PERC found both aspects of the award to be within the scope of negotiations. PERC found that other buildings in the district had not delayed the 1:00 p.m. dismissal. PERC held that the board had not demonstrated that it could not achieve its goals of providing lunch to the middle school students and the required four hours of instruction, without extending the middle school teachers’ work time.

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