Galloway Tp. Bd. of Educ. v. Galloway Tp. Educ. Ass'n
| Decision Date | 20 January 1978 |
| Citation | 157 N.J.Super. 74,384 A.2d 547 |
| Parties | , 97 L.R.R.M. (BNA) 3077 In the Matter of GALLOWAY TOWNSHIP BOARD OF EDUCATION, Respondent-Appellant, and GALLOWAY TOWNSHIP EDUCATION ASSOCIATION, Charging Party-Respondent. |
| Court | New Jersey Superior Court — Appellate Division |
Murray, Meagher & Granello, Little Silver, for respondent-appellant (Robert J. Hrebek, Little Silver, on the brief).
Starkey, White & Kelly, Brick Town, for charging party-respondent (James M. Blaney, Brick Town, on the brief).
Sidney H. Lehmann, Gen. Counsel, Trenton, for Public Employment Relations Com'n (Don Horowitz, Deputy Gen. Counsel, Trenton, on the brief).
Before Judges LORA, SEIDMAN and MILMED.
The opinion of the court was delivered by
SEIDMAN, J. A. D.
Galloway Township Board of Education (Board) appeals from a decision and order of the Public Employment Relations Commission (PERC) entered after a hearing on an unfair labor practice charge filed by Galloway Township Education Association (Association). The Association alleged therein that a schedule change imposed by the Board unilaterally and without negotiation, which increased by 15 minutes the length of the school day for certain teachers, was contrary to the provisions of N.J.S.A. 34:13A-5.4(a)(1), (3) and (5). PERC held that the change involved a modification of a term and condition of employment which had to be negotiated with the majority representative before being established. It also ordered the Board to pay each affected teacher an amount equivalent to one day's salary, "to be computed as 1/200 of the 1975-1976 annual salary."
PERC "cross-applies" for an order affirming and enforcing its decision and order, pursuant to N.J.S.A. 34:13A-5.4(f).
The facts are not in substantial dispute. Two of the schools operated by the Board had been on split sessions for a number of years. The teachers at those schools who were assigned to the morning session were on duty from 7:30 a. m. until 1:30 p. m.; those assigned to the afternoon session were on duty from 11:45 a. m. until 5:45 p. m. In August 1975, each teacher at one of the two schools (the Arthur Rann School) was notified of a new teaching schedule which required the teachers at both sessions to report 15 minutes earlier each day. The Association protested the unilateral change and filed an unfair labor practice charge with PERC.
It appears that at the time in question the parties were in the process of negotiating a successor to their collective negotiations agreement which had expired on June 30, 1973, but under which they were still operating. The only provision in the contract concerning teachers' hours related to schools on full session, where the teachers were generally required to arrive 30 minutes prior to the commencement of the students' instructional day and were permitted to depart 15 minutes following the close thereof. The published "Board Policy" prescribed the "in-school" time for a teacher to be at least 71/4 hours. It also provided that in the case of double sessions the length of the "in-school day" could be shortened to less than, but not extended beyond, those hours in the discretion of the school principal and the superintendent of schools.
Teachers in schools not in split sessions worked a seven-hour day; those on split sessions, prior to the change, worked a six-hour day. All received the same salary without regard to the number of hours worked.
A new agreement covering the period July 1, 1975 to June 30, 1976 was ratified in April 1976. It included a clause concerning teachers' hours identical to the one in the former contract. The parties stipulated at the hearing below that during the negotiations of the new agreement there had been no discussion of the problem here involved.
The hearing examiner found that the lengthening of the working hours for teachers at the Arthur Rann School "related to required subjects for collective negotiations," and that the unilateral action of the Board "while engaged in collective negotiations" constituted an unfair labor practice within the intendment of the statute. PERC affirmed the hearing examiner's report, but added the award of back pay referred to above.
The Board contends on appeal that (1) PERC abused its discretion "by rendering a decision on a charge of failing to bargain in good faith where the parties had mooted the issue by reaching a negotiated agreement"; (2) PERC lacked jurisdiction to issue a back pay award or a punitive award; (3) the finding that the 15-minute increase in teachers' hours at the Arthur Rann school constituted a per se violation of N.J.S.A. 34:13A-5.4(a)(5) is not supported "upon substantial evidence on the record as a whole," and (4) the "decreased hours of work enjoyed by the split session teachers at the Arthur Rann School did not constitute a term and condition of employment" (not raised below).
We consider first the argument advanced by the Board that the "decreased hours of work enjoyed by the split session teachers" did not constitute a term or condition of employment. Its theory is that the decision was a matter of major educational policy within the Board's management prerogative, in that the change was beneficial to the students by offering them an increased instructional day while keeping the work day of the teachers less than that of teachers not on split session.
It is now well-settled that the length of a teacher's work day is a term and condition of employment and, as such, is mandatorily negotiable. Englewood Bd. of Ed. v. Englewood Teachers, 64 N.J. 1, 6-7, 311 A.2d 729 (1973); In re Byram Tp. v. Bd. of Ed., 152 N.J.Super. 12, 25, 377 A.2d 745 (App.Div.1977); Red Bank Bd. of Ed. v. Warrington, 138 N.J.Super. 564, 574, 351 A.2d 778 (App.Div.1976); see West Orange Bd. of Ed. v. West Orange Ed. Ass'n, 128 N.J.Super. 281, 285, 319 A.2d 776 (Ch.Div.1974). The fact that the length of the work day of the split-session teachers would still be less than that of other teachers even after the increase does not lead to a different result. Cf. Englewood Bd. of Ed. v. Englewood Teachers, supra.
The Board contends next that since negotiations for a successor agreement were in progress at the time the change in the work day was not "a per se refusal to negotiate in good faith," and therefore not an unfair labor practice under N.J.S.A. 34:13A-5.4(a)(5). It maintains, in reliance upon N.L.R.B. v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962), that because the issue of the increase in the work hours of the split-session teachers was not on the negotiating agenda, inquiry should have been made by PERC into the Board's "subjective" good faith. PERC's position, which we believe to be the sounder one, is that it was a per se refusal by the Board to negotiate in good faith, where the Board made a unilateral change in the existing working conditions of a group of its teachers, even though the decision was made as to a matter not under discussion during contract negotiations.
The issue in Katz was whether the statutory duty to bargain collectively was violated where the employer, without first consulting a union with which it was carrying on bona fide contract negotiations, instituted changes in matters which were subjects of mandatory bargaining and which were in fact under discussion. While the court held there that the N.L.R.B. in such case could find that a unilateral change by an employer in the terms and conditions of employment constituted an unfair labor practice without also finding the employer to be guilty of subjective bad faith, it does not follow therefrom that the same result may not be reached merely because the subject-matter was not in fact under discussion.
N.J.S.A. 34:13A-5.3 plainly states in pertinent part that "(p)roposed new rules or modifications of existing rules governing working conditions shall be negotiated with the majority representative before they are...
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