On appeal from the Public Employment Relations Commission, Docket No. SN-2010-053.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 1, 2011 -- Before Judges Baxter and Koblitz.
Flemington-Raritan Regional Board of Education (Board) appeals from a September 23, 2010 final agency decision of the Public Employment Relations Commission (PERC) that required the Board to arbitrate a grievance filed by the Flemington-Raritan Regional Education Association (Association) concerning the elimination of summer work hours for four groups of employees who were members of the Association. We affirm.
The Board and the Association were parties to a collective negotiation agreement covering the period July 1, 2007 through June 30, 2010. The agreement contained a provision requiring the following categories of staff members to be available for summer work if needed: media specialists, library clerks, computer teachers, school nurses, child study team members, members of the guidance department, "gifted and talented" teachers, and autism program staff.
In the spring of 2009, the Board was faced with significant financial constraints that necessitated budgetary restrictions. At its March 30, 2009 public hearing on the proposed budget, the Board proposed to reduce its expenditures for four categories of employees in the amount of $531,434. The budget was approved by the voters at the annual school election in April 2009. The Board proposed to eliminate more than 84,000 summer work hours for those categories of employees.
According to the Board, "a full week" before circulating a memorandum describing the elimination of the summer work hours, then-Superintendent, Dr. Jack Farr, forwarded to the president of the Association, Susan Vala, a copy of the memorandum he intended to send to all staff members whose summer hours were being eliminated. Vala was also one of the affected teachers. When no response to the draft memorandum was received from either the Association or Vala, Farr finalized the draft and forwarded it to each of the affected staff members on April 27, 2009. The memorandum notified the teachers that the summer work positions would be eliminated, and that some of the duties and responsibilities previously performed by them over the summer would be "re-directed to and handled by administrators and technology staff." The memorandum also advised each staff member that other duties each of them typically performed during the summer would "continue, but [would] be performed during the regular school year and the regular school work day."
On May 26, 2009, the Association filed a written grievance alleging violations of various contract provisions as well as a failure to negotiate terms and conditions of employment. In its grievance, the Association requested "re-instatement of the contracted summer hours and appropriate compensation." The Association also alleged that the Board's proposal to reassign to non-unit employees, namely, two of the administrators and several high school students, the tasks that had previously been performed by members of the Association violated the collective bargaining agreement.
Farr denied the grievance on June 25, 2009 prior to leaving his employment with the district. The Board posted job notices for the positions of Summer District Technology Maintenance and Summer District Technology Support. The Board hired employees into those positions who were not represented by the Association, and who were not therefore members of the bargaining unit. The incoming Superintendent, Greg Nolan, denied an identical grievance on July 2, 2009.
On January 25, 2010, the Board filed a petition with PERC seeking a scope of negotiations determination. In particular, the Board asked PERC to issue a restraint on the upcoming binding arbitration of the grievance that the Association had filed. The Board petitioned PERC to issue an order removing the Association's grievance from arbitration as a non-negotiable issue.
After considering the written submissions of the parties, PERC issued its written decision on September 23, 2010.
Notably, neither side requested an evidentiary hearing on any issues of fact. PERC ruled that the Board was entitled to eliminate the additional summer work previously performed by ten-month employees. Accordingly, PERC held that the Board was not obligated to arbitrate the Association's claim that the employees were contractually entitled to summer work. PERC reached a different conclusion however, on what it described as the "unit work claims." In particular, PERC held that a grievance challenging an employer's decision to move unit work to non-unit employees for economic reasons is an issue that is mandatorily arbitrable in the event of a dispute.
PERC also held that the elimination of the summer work, and the requirement that members of the Association instead perform the required tasks during the regular school year, ...