Lora, Seidman and Milmed. The opinion of the court was delivered by Seidman, J.A.D.
[157 NJSuper Page 77] 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 7 1/4 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 sevenhour 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 ...