Caldwell-West Caldwell Ed. Ass'n v. Caldwell-West Caldwell Bd. of Ed.

• Decision Date: 07 August 1981
• Docket Number: CALDWELL-WEST
• Parties: CALDWELL EDUCATION ASSOCIATION, Charging Party-Appellant and Cross-Respondent, v.CALDWELL BOARD OF EDUCATION, Respondent-Respondent and Cross- Appellant, and Public Employment Relations Commission, Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 440

180 N.J.Super. 440

435 A.2d 562

CALDWELL-WEST CALDWELL EDUCATION ASSOCIATION, Charging

Party-Appellant and Cross-Respondent, v. CALDWELL-WEST CALDWELL BOARD OF EDUCATION, Respondent-Respondent and Cross- Appellant, and Public Employment Relations Commission, Respondent.

Superior Court of New Jersey, Appellate Division.

Argued Feb. 10, 1981.

Decided Aug. 7, 1981.

Gerald M. Goldberg, Clifton, for charging party-appellant and cross-respondent (Goldberg & Simon, Clifton, attorneys; Gregory T. Syrek, East Rutherford, on the brief).

Lois M. Van Deusen, Newark, for respondent-respondent and cross-appellant Board of Education (McCarter & English, attorneys; Federick B. Lehlbach, Newark, of counsel, and Lois M. Van Deusen, newark, on the brief).

Sidney H. Lehmann, Gen. Counsel, Trenton, PERC, for respondent PERC (Don Horowitz, Deputy Gen. Counsel, Trenton, on the brief).

Before Judges BOTTER, KING and McELROY.

The opinion of the court was delivered by

BOTTER, J. A. D.

The Caldwell-West Caldwell Education Association (Association) appeals from a decision and order of the Public Employment Relations Commission (PERC) and the Caldwell-West Caldwell Board of Education (Board) cross-appeals.

The issues on the Association's appeal concern PERC's disposition of counts I, III and IV of the Association's amended unfair practice charge filed with PERC. Count I contains the charge that, commencing on September 1, 1976, the Board improperly increased the work hours and workload of seventh grade "CORE" teachers without negotiation. Count III charged the improper, unilateral elimination of a free period from the schedule of the Audio-Visual Aids Coordinator (the AV coordinator) commencing September 1, 1976. Count IV charged the improper reduction of employment and salary, from four weeks to two weeks, of the Cooperative Industrial Education Coordinator (the CIE coordinator) in the summer of 1976. With respect to count III, the Association contends that PERC erred in failing to make a monetary award for what PERC found to be the improper removal of a free period from the schedule of the AV coordinator. The cross-appeal challenges PERC's conclusion that elimination of this free period without prior negotiation was an unfair labor practice in violation of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq., N.J.S.A. 34:13A-5.3 and 5.4(a)(5).

We deal first with the issue concerning the change in teaching schedule for the seventh grade CORE teachers commencing September 1, 1976. The CORE educational program for seventh grade students was instituted around 1969. It was designed to ease the transition from the elementary school single teacher format to the high school departmentalized teaching format. The CORE program was a modified departmentalized system for seventh grade students that paired English and social studies as one block for 13/4 hours, and science and math in another similar block. The teachers of the separate instructional blocks worked together as a team to provide greater integration of subject matter and instructional flexibility. From 1971 to 1976 teachers in the CORE program were a relatively stable group with little turnover. CORE teachers during these years carried a uniform schedule of daily classroom instruction of 14 mods, 7 mods for each of the two instructional classes, plus at least 2 mods of supervisory duty and other mods of emergency coverage and preparation time. A "mod" refers to a 15-minute module of time for scheduling purposes. The workday for all teachers consisted of 24 mods (six hours), including a 2-mod (1/2 hour) duty-free lunch period. In addition to daily classroom instruction, teachers were assigned supervision of students in homeroom, lunchroom or study hall, emergency assignments primarily consisting of covering for absent or indisposed teachers, and nonsupervisory duties such as administering attendance records or school accounts. Some free time was also afforded which could be used for preparing and grading assignments, conferring with other teachers, as well as a teacher's personal affairs. Salary schedules were determined according to the length of service in the district as well as the number of graduate credits and degrees earned, but did not depend upon professional assignments during the course of the workday.

On March 30, 1976, the Board voted to eliminate the foreign language program that had been taught previously to seventh grade and eighth grade students. The change was to become effective in the new school year beginning September 1, 1976. Reasons cited for the change included a budget defeat, which resulted in a reduction of teaching force, as well as educational considerations, since the desirability of the program had been questioned over the years. Because of the elimination of foreign language instruction, a 30-minute or 2-mod block of time became available in the schedule of each seventh grade student. The Board left it to the administrators of the junior high school to determine how to absorb this instructional time.

On April 8, 1976 the junior high school principal met with CORE teachers and advised them that there were several alternatives for using this time, namely, additional instruction time, study period time, a longer lunch period or a shorter school day. Of these the principal stated that he chose the most advantageous educational alternative by assigning one additional mod to reading and one to math within the existing CORE blocks. In exchange for increasing by two mods instructional class time for CORE teachers, two mods of lunchroom duty, i. e., cafeteria supervision, would be eliminated from their schedules. No new subjects were assigned to the CORE teachers, nor was the overall length of the day increased, and the 16 mods of in-class instruction fell within the 14- to 18-mod parameters established as the permissible, general workload. There was testimony that the course content did not increase but that the extension of each CORE block of time by 15 minutes increased the amount of work required by a teacher in terms of preparation for classroom instruction and paper work to the extent that the 15-minute increase in classroom time could result in more student papers to be read and graded.

As a result of the proposed reduction in teaching staff, the elimination of the foreign language program and the claim of increased workload, the Association asked the Board to meet and negotiate these effects. The Board agreed to meet and discuss the effects of the reduction in work force, but refused to negotiate these effects. A meeting was held on May 10, 1976, at which time demands were made on behalf of the teachers to negotiate the contemplated changes. Negotiation was refused by the Board's representative because the school day was not lengthened and teachers were expected to perform within the existing mod structure which allowed for 14 to 18 assigned mods of instructional time a day. The meeting terminated without agreement on the Association's demands.

A few days before the meeting, CORE teachers filed a formal grievance over the unilateral increase in teaching time. This grievance was rejected by the Board in June 1976. The issue went to arbitration, but the arbitrator concluded that the issue was not arbitrable under the existing collective bargaining agreement. Accordingly, the Association sought relief in the PERC proceedings which led to this appeal.

The parties had entered into a collective agreement or contract for the 1975-1976 school year. Negotiations for a new collective agreement to succeed the one expiring on June 30, 1976 commenced in the fall of 1975. There is evidence in the record that during these negotiations the Association sought the assignment of personnel other than teachers for nonteaching duties and the elimination of cafeteria supervision, with this duty to be assumed by the employment of aides. The Association also sought to prevent the reduction in teaching staff and to provide certain rights for tenured and nontenured teachers in the event of such a reduction. A new agreement was reached on June 14, 1976 for the 1976-1977 school year, but none of the foregoing demands were incorporated in that agreement. The agreement was the outcome of negotiation sessions that were held as late as May and June of 1976. After arbitration of their grievance failed to satisfy the seventh grade CORE teachers, an unfair practice charge was filed with PERC on December 27, 1976. An amended unfair practice charge was filed thereafter, in October 1977. Hearings commenced before a hearing examiner in January 1978 and were held intermittently until they concluded in September of that year. Briefs were thereafter filed, the hearing examiner issued a Recommended Report and Decision, exceptions were filed, and the matter was thereafter argued before PERC.

Disagreeing with the hearing examiner's recommendations, PERC ruled as a matter of law that the increase in workload for seventh grade CORE teachers found by the hearing examiner was a direct result of the reduction in force and elimination of the foreign language teacher for the 1976-1977 school year, and, accordingly, since the reduction in force was a managerial prerogative, the impact thereof was not negotiable. In support of that decision PERC cited In re Maywood Bd. of Ed., 168 N.J.Super. 45, 58, 401 A.2d 711 (App.Div.), cert. den. 81 N.J. 292, 405 A.2d 836 (1979). This decision antedated Woodstown-Pilesgrove Bd. of Ed. v. Woodstown-Pilesgrove Ed. Ass'n, 81 N.J. 582, 410 A.2d 1131 (1980).

In Woodstown-Pilesgrove, the court held that if the dominant issue concerns an educational goal, it falls within the managerial prerogatives of a board of education and "there is no obligation to negotiate and subject the matter, including its impact, to binding arbitration." Id. at 591, 410 A.2d 1131. The court stated:

It is only when the result of bargaining may...