SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-6013-96T2
IN THE MATTER OF
MORRIS SCHOOL DISTRICT
BOARD OF EDUCATION,
Respondent-Appellant
and
THE EDUCATION ASSOCIATION
OF MORRIS,
Petitioner-Respondent.
__________________________________
Argued March 25, 1998 - Decided April 22, 1998
Before Judges Baime, Brochin and Wefing.
On appeal from Public Employment Relations Commission.
David W. Carroll argued the cause for
appellant (Carroll & Weiss, attorneys; Mr.
Carroll and James F. Schwerin, on the brief).
Gail Oxfeld Kanef argued the cause for respondent
(Balk, Oxfeld, Mandell & Cohen, attorneys; Ms.
Kanef, of counsel and on the brief).
Don Horowitz, Deputy General Counsel, argued
the cause for the Public Employment Relations
Commission (Robert E. Anderson, General Counsel;
Mr. Horowitz, on the brief).
The opinion of the court was delivered by
BAIME, P.J.A.D.
The Morris School District Board of Education (Board) appeals from a scope of negotiation determination by the Public Employment Relations Commission (Commission). The Commission decided that a proposed cap on payments for unused paid sick
leave, which retroactively diminished the value of amounts
already earned by employees unless they retired within a phased
in grace period, constituted an illegal inducement to early
retirement and was thus non-negotiable. The Commission concluded
alternatively that the Education Association of Morris
(Association) did not knowingly bargain away the accrued sick
leave compensation of its members by consenting in advance to be
bound by the recommendations of a factfinder, where the
retroactive cap was first conceived by the factfinder and had
never been proposed by either of the parties. We affirm.
The Board is a public employer within the purview of the New Jersey Employer-Employee Relations Act (N.J.S.A. 34:13A-1 to
-21). The Association is the exclusive collective bargaining representative of the Board's teachers and other non-supervisory employees. The previous collective bargaining agreement expired on June 30, 1995. Upon reaching an impasse in their negotiations, the parties asked the Commission to appoint a factfinder. A factfinder's report is only a recommendation. We are told, however, that parties commonly agree to be bound by the factfinder's decision. In this case, the Association agreed in advance to accept the factfinder's recommendations, but the Board did not consent to be similarly bound.
The expired collective bargaining agreement provided that employees were entitled to accumulated sick leave compensation upon retirement. This fringe benefit has been permitted in the
school district for some forty-five years. In its presentation
to the factfinder, the Board proposed capping paid leave
entitlements or, in the case of employees who had already earned
more than that capped amount, freezing their paid leave accounts
at present values. The Association proposed to maintain the
current benefit with no change. Neither party suggested or
argued that any cap would apply retroactively, reducing already
earned accumulated sick leave benefits.
In his report, the factfinder characterized as "unusual" the
expired collective bargaining agreement's failure to delineate a
cap on accumulated sick leave. He recommended that the agreement
be modified to cap the amount employees could receive at $25,000
if they retired after July 1, 1997, or at $20,000 if they retired
after July 1, 1998. The factfinder proposed that accumulations
exceeding the caps be forfeited, but the effective date be
delayed "[t]o permit employees who are eligible for compensatory
pay [above] the July 1, 1997 cap to retire during the 1996-1997
school year and receive the [higher amount]."
The Board quickly accepted the factfinder's recommendations.
The Association brought suit in the Chancery Division, claiming
that the cap would unconstitutionally deprive teachers of vested
benefits and discriminate against older members. In its
pleadings, the Association alleged that sixty to seventy
employees would be affected by the caps. Some would lose
substantial amounts unless they retired before July 1, 1997.
Others who were ineligible to retire would be divested of
accumulated sick leave pay exceeding the caps. The Chancery
Division dismissed the action on the ground that the Commission
had primary jurisdiction concerning whether retroactive
application of the caps was outside the scope of negotiations.
The Association then petitioned the Commission for a scope
of negotiations determination, seeking both interim and final
relief. The Commission's designee stayed the factfinder's
proposed caps on accumulated sick leave compensation. He
concluded that implementation of the cap beginning July 1, 1997
would constitute an unlawful inducement to retire, thus impairing
the actuarial assumptions underlying the teachers' statutorily
created pensions. He also found that the Association had not
knowingly waived the vested rights of its members to accrued sick
leave compensation, because neither party had proposed
retroactive application of the cap.
The Commission adopted the designee's findings. In reaching
its conclusion, the Commission placed particular emphasis on the
"unusual circumstances of this case." The Commission stressed
that a party ordinarily may agree to accept a factfinder's report
"sight unseen," and that "factfinders and interest arbitrators
[commonly] make recommendations and decisions at variance with
the parties' proposals on a given subject." The Commission
carved out a "limited exception to the validity of [these]
practices" because previous collective bargaining agreements had
"encouraged employees not to use sick leave and personal days" by
entitling them to accumulate and "bank" unused days "for payment
upon retirement." The Commission chose not to decide whether a
union could bargain away the accrued wages and benefits of some
of its members. Instead, the agency assumed that "already
accumulated benefits in retirement bank [could] be reduced
through negotiated caps." However, the Commission determined
that "there was no knowing waiver in this case since neither
party had proposed retroactive caps and [because] the Association
voted to accept the factfinder's report before it was issued."
We first address the Commission's conclusion that the factfinder's proposed cap on accumulated sick leave compensation constituted an illegal inducement to retire. Under the factfinder's plan, eligible teachers could only avoid forfeiting that portion of their accumulated sick leave compensation that exceeded the cap by retiring during the 1996-1997 school year. Citing Fair Lawn Education Ass'n v. Fair Lawn Board of Education, 79 N.J. 574 (1979), the Commission concluded that the proposal might substantially affect retirement age and impair the fiscal integrity of the teachers' pension plan.
We harbor reservations concerning the Commission's application of the Fair Lawn decision. In Fair Lawn, our Supreme Court struck down a negotiated early retirement remuneration plan that had been agreed to by the local board and the teachers' union. The plan provided that teachers between the ages of fifty-five and sixty-four who retired early would receive an additional cash payment. Id. at 577. The payment was dependent
upon age, not years of service, and was structured to provide
greater benefits to those retiring at an earlier age. Ibid. The
principal purpose was to encourage early retirements in order
that tenured teachers could be replaced with less experienced
instructors whose salary levels would be much lower. Ibid.
Because an Attorney General's opinion indicated that a similar
plan adopted in another district constituted an impermissible
modification of the uniform pension plan applicable to teachers,
the union brought a declaratory judgment action. Id. at 578.
Both the union and the local board contended that the plan was
valid. The Teachers' Pension and Annuity Fund (TPAF) was joined
as a third party defendant and opposed the plan. A plenary
hearing was conducted in which the TPAF presented substantial
evidence indicating that if the plan were widely adopted, its
pension costs would be "significantly increased." Ibid.
Uncontradicted evidence was presented that the potential for
early retirement under the plan would necessitate an $11,865,000
increase in the State's annual contribution. Ibid.
The Supreme Court concluded that the early retirement plan:
"(1) lack[ed] statutory authorization; (2) contravene[d] [settled
precedent]; and (3) [was] preempted by the comprehensive
statutory scheme relating to the operation of retirement
benefits." Id. at 576-77. While recognizing that N.J.S.A.
18A:27-4 authorizes boards to provide compensation in various
forms, the Court held that the statute did not authorize payments
for early retirement that were unrelated to years of service.
Id. at 580. The Court stressed that "the parties to [the]
contract intended to reward early retirement rather than the
amount and quality of the work that a particular teacher had
performed." Ibid. Since the payments under the plan were
"unrelated to service, [they] [did] not constitute `compensation'
or `customary fringe benefits' with respect to which negotiation
[was deemed] permissible." Id. at 581.
Citing the strong evidence presented by the TPAF, the Court
also found that the plan had the potential "to undermine the
actuarial assumptions upon which the pension scheme was based."
Id. at 583. In reaching this conclusion, the Court noted that
"the probability of such plans being widely copied [was] strong."
Id. at 584. "Considering that the very purpose of the payments
[was] to induce early retirement," the Court emphasized that the
effects of the plan could "in no way be deemed incidental." Id.
at 585. As expressed by the Court, "[g]iven that the sole
purpose of the plan - from the [b]oard's point of view - [was] to
induce early retirement, its argument that it will not in fact do
so [was] not well taken." Id. at 584.
The plan at issue here bears some resemblance to that found
unlawful in Fair Lawn. However, there are substantial
differences. Unlike Fair Lawn, the option permitting retirement
without application of the cap on sick leave pay provides a
benefit that is appropriately keyed to length and quality of
service, i.e., those who have been employed in the district the
longest with the best attendance records receive the most
compensation. Further, the negotiated clause in this case was
not designed to encourage or induce early retirement. We note
that a plethora of negotiated terms and conditions of employment
may have the incidental effect of encouraging eligible teachers
to retire. Surely, not every such negotiated condition may be
deemed unlawful merely because it may incidentally cause teachers
to consider retiring earlier than they might otherwise have
chosen. Moreover, we are struck by the absence of any evidence
indicating that implementation of the plan might undermine the
actuarial assumptions underlying the statutorily created pension
plan. It can reasonably be inferred from the factfinder's report
that most districts presently apply a cap to sick leave
compensation. As we noted, the factfinder characterized the
absence of a cap as "unusual." We doubt that the plan would be
copied statewide if found to be valid. Consequently, there
should be little or no proliferation of effects on the teachers'
pension plan from bringing this district into line with others.
See Miller v. Teachers' Pension & Annuity Fund,
179 N.J. Super. 473, 476-77 (App. Div.), certif. denied,
88 N.J. 502 (1981).
We recognize that the entire subject matter of public
employee pensions must be insulated from negotiated agreement
which would be inconsistent with comprehensive regulation of that
area. Public employees and employee representatives may neither
negotiate nor agree upon any proposal that would affect the
subject of employee pensions. See State v. State Supervisory
Employees Assoc.,
78 N.J. 54, 83 (1978). However, our concern is
that sick leave pay and other forms of deferred compensation have
long been considered "additional compensation upon retirement"
subject to mandatory negotiation. See Maywood Educ. Ass'n, Inc.
v. Maywood Bd. of Educ.,
131 N.J. Super. 551, 555 (Ch. Div.
1974). "[D]ue to the relation of such payments to, and effect
upon, statutory pension plans, they must be subjected to careful
scrutiny . . . ." Fair Lawn Educ. Ass'n v. Fair Lawn Bd. of
Educ., 79 N.J. at 587 n.10; see also Jacobs v. New Jersey Highway
Auth.,
54 N.J. 393, 400-01 (1969). Where it is argued that a
negotiated term or condition of employment undermines the
actuarial integrity of a pension plan, the issue should be
carefully explored by the presentation of evidence.
Unfortunately, that was not done in this case, and we are left
with a record that is wholly uninformative.
We need not dwell upon the subject. We recognize that in the area of labor-management negotiations parties often agree in advance to accept as binding the recommendations of a factfinder. We also acknowledge that factfinders are generally authorized to innovate and make recommendations that have not been specifically proposed by the parties. We, nevertheless, hold that the Commission had the power to create a limited exception to these practices in cases where the factfinder's recommendation, if implemented, would impair the vested or accrued rights or reasonable expectations of the union's members.
We begin with the settled principle that the "judicial
capacity to review administrative actions is severely limited."
In re Musick,
143 N.J. 206, 216 (1996). Courts have only a
restricted role to play in reviewing the actions of other
branches of government. Gloucester County Welfare Bd. v. New
Jersey Civil Serv. Comm'n,
93 N.J. 384, 390 (1983). In a variety
of contexts, we have said that in cases involving scope of
negotiations, the Commission's decision "will stand unless it is
clearly demonstrated to be arbitrary or capricious." Edison Bd.
of Educ. v. Edison Township Principals and Supervisors Ass'n,
304 N.J. Super. 459, 464 (App. Div. 1997) (quoting In re Hunterdon
County Bd. of Chosen Freeholders,
116 N.J. 322, 329 (1989)); see
also Impey v. Board of Educ. of the Borough of Shrewsbury,
142 N.J. 388, 397 (1995); State v. Professional Ass'n of N.J. Dep't
of Educ.,
64 N.J. 231, 258-59 (1974). Courts can intervene only
in those rare instances in which an agency action is clearly
inconsistent with its statutory mission or other state policy.
In re Musick, 143 N.J. at 216.
These well-settled principles have particular pertinence
here. Although the parties have couched their arguments in
constitutional language, we decide this case on a much narrower
ground. While we will refer to the subject later in our opinion,
we need not determine whether due process concerns bar a labor
union from bargaining away the vested rights of its members. Nor
must we decide whether a teacher's accumulated sick leave
compensation constitutes an "accrued right," a "vested interest"
or a "mere expectancy." These issues have spawned substantial
litigation and scholarly comment, but we have no occasion to
resolve them in this case. As we perceive it, the narrow
question presented is whether the Commission is empowered to
adopt procedural rules it believes are necessary to protect the
interests of the negotiating parties. So posited, the short
answer is that the selection of procedures for the resolution of
public sector labor disputes lies at the very heart of the
Commission's experience. Newark Firemen's Mut. Benevolent Ass'n,
Local No. 4 v. Newark,
90 N.J. 44, 55 (1982); State v. Council of
N.J. State College Locals,
153 N.J. Super. 91, 93-94 (App. Div.
1977), certif. denied,
78 N.J. 326 (1978).
We add that the Commission's decision comports with common
sense and settled precedent. Chapter 30 of Title 18A (N.J.S.A.
18A:30-1 to -7) deals with leaves of absences for employees of
boards of education. It allows all employees sick leave with
full pay for a minimum of ten school days in any school year.
N.J.S.A. 18A:30-2. Sick leave is defined as "absence from [work]
. . . because of personal disability due to illness or injury."
N.J.S.A. 18A:30-1. The statutes authorize an accumulation of
sick leave. N.J.S.A. 18A-30-3. Sick leave days not utilized
during the year are "accumulative to be used for additional sick
times as needed in subsequent years." Ibid. We have said that
these sections provide only minimum standards and that, unless
expressly prohibited, "there is ample room for negotiation on
particular matters" relating to sick leave. Board of Educ. of
Piscataway Township v. Piscataway Maintenance & Custodial Assoc.,
152 N.J. Super. 235, 246 (App. Div. 1977). In Maywood Education
Ass'n, Inc. v. Maywood Board of Education,
131 N.J. Super. 551,
555, the Chancery Division concluded that a board of education
had the power to authorize payment of retirement benefits based
on unused sick leave. The court stated that whether and to what
extent sick leave compensation is paid upon retirement are
matters that are subject to "collective negotiation." Ibid.
Maywood Education Ass'n has been cited with approval by our
Supreme Court, see Gauer v. Essex County Div. of Welfare,
108 N.J. 140, 150 (1987), and the Board does not contest the fact
that sick leave pay may be accumulated and treated as deferred
compensation. It is undisputed that the Morris School District
has allowed the accumulation of sick leave to be exchanged as
deferred compensation upon retirement for at least forty-five
years.
In their briefs, the parties have devoted much of their
argument to whether teachers' accumulated sick leave constitutes
a vested right. The Association contends that to earn the right
to deferred payment, teachers presumably refrained from using
their paid sick leave and instead performed their jobs when they
otherwise could have stayed at home. It is argued that the
teacher's right to receive deferred compensation is thus "vested"
and cannot be taken away absent their express consent. The Board
contends that the teachers had no guaranty their right to fringe
benefits would extend beyond the period governed by the previous
collective bargaining agreement. It argues that under prior
agreements, retirement was the condition that triggered the right
to obtain deferred compensation. The Board thus asserts that
absent retirement during the period governed by the previous
collective bargaining agreement, the teachers had a mere
expectancy that was subject to negotiation.
We think there is no profit in dealing in labels such as
"vested right," "accrued interest" or "mere expectancy." None
fits precisely, and it would be a mistake to choose one and be
driven by the choice to an inevitable consequence. See Spina v.
Consolidated Police and Firemen's Pension Fund Comm'n,
41 N.J. 391, 401 (1964). However the teachers' right to sick leave
compensation is phrased, we are satisfied that the Commission's
policy barring divestment absent a knowing waiver was reasonable
and within its statutory powers.
We note that our Supreme Court has protected similar rights
against invasion. In Gauer v. Essex County Div. of Welfare,
108 N.J. 140, 144, for example, Essex County attempted to discontinue
certain health insurance benefits that had been granted to
retired welfare workers because other classes of retired
employees were not entitled to such benefits and N.J.S.A. 40A:10-23 purported to require uniform distribution. The Court
prohibited the County from rescinding its policy. In reaching
this conclusion, the Court stressed that the retired workers had
"served out their employment and retired" relying upon the
compensation scheme granting continued health benefits. Id. at
147-48.
A similar result was reached in State Troopers Fraternal
Assoc. of New Jersey, Inc. v. New Jersey,
149 N.J. 38 (1997).
There, a group of former state troopers sought to recover a
retroactive pay adjustment under a collective-negotiations
agreement that was reached with the State after the troopers had
resigned in good standing. Id. at 44. The troopers claimed
that, because of an unwritten retroactive past practice of the
State Police, the agreement provided for the retroactive pay
adjustment. Ibid. During the course of the collective
negotiations, the State had adopted a regulation that prohibited
retroactive pay increases to all state employees who resigned
from state employment before the execution of a collective
bargaining agreement. Ibid. The Court held that the former
troopers were entitled to the retroactive pay increase up to the
date the regulation was promulgated. Id. at 55-56. This result
was said to be mandated because the former troopers had relied on
the continuation of the past practice when they decided to resign
before the new agreement was signed. Id. at 55.
In Owens v. Press Publishing Co.,
20 N.J. 537 (1956), the
Court considered whether the right to severance pay survived the
expiration of a collective bargaining agreement. The plaintiffs
had been discharged after the collective bargaining agreement had
terminated, but claimed that they had earned the right to
severance pay as a form of deferred compensation. Id. at 542-43.
The defendant contended that the plaintiffs' interest in
severance pay was not a "vested right" because the plaintiffs had
not been discharged during the period covered by the collective
bargaining agreement. Id. at 543. Characterizing severance pay
as "terminal compensation measured by the service given during
the subsistence of the contract," id. at 545, the Court held that
the deferred compensation "was not conditioned upon the
employee's discharge from service within the term of the
collective bargaining agreement." Id. at 548. The Court
reasoned that "once the right [came] into being it . . .
survive[d] the termination of the agreement." Ibid. In
contrast, the Court concluded that the plaintiffs' claims for
severance pay allegedly earned in the intervening period between
expiration of the collective bargaining agreement and their
respective discharge was "ill-founded." Id. at 549. Because the
right to severance pay was a creature of the collective
bargaining agreement alone, the plaintiffs could not have
reasonably relied upon it following expiration of the contract.
Id. at 551.
While these decisions do not deal with the precise issue
presented here, they disclose an underlying concern with the
protection of an employee's right to deferred compensation. The
Court has recognized that a contract arises and subsists by the
consent of the parties, and thus each collective bargaining
agreement supplants the preceding one in terms of compensation.
However, deferred compensation generally survives expiration of
the term of the agreement. In that context, the teachers' right
to accumulated sick leave compensation - like the health
insurance benefits in Gauer, the retroactive pay increase in
State Troopers Fraternal Assoc., and the severance pay in Owens
in a real sense constituted remuneration for services rendered
during the periods covered by the prior collective bargaining
agreements and was deserving of special protection.
The Board nevertheless argues that the Association had the
right to bargain away the teachers' interest in deferred
compensation to promote the common good of its membership. We
recognize that budgetary constraints sometimes fuel aggressive
management demands for concessions, and unions are thus forced to
attempt to equitably distribute to diverse factions, with
internally conflicting priorities, the remaining pieces of an
ever shrinking pie. See Bates, Benefits of Retirees:
Negotiations and the Duty of Fair Representation, 21 J. Marshall
L. Rev. 513 (1988). In a variety of factual settings, courts
have held that a union has no authority on behalf of its
membership to bargain away various forms of deferred compensation
earned during the terms of prior collective bargaining agreements
absent knowing consent by those who would be adversely affected.
In Hauser v. Farwell, Ozmun, Kirk & Co.,
299 F.Supp. 387,
388 (D. Minn. 1969), former employees of defendant's Metal
Fabrication Division brought a class action against their
employer and union challenging a collective bargaining agreement
eliminating their pension benefits. In upholding the employees'
right to damages, the district court reasoned:
[W]hereas a [u]nion may bargain as to prospective
matters such as seniority rights, future
conditions of employment, etc., it cannot bargain
away the accrued or vested rights of its members.
So without explicit authority or a power of
attorney from the individual members, the [u]nion
in this case could not bargain away the vested
rights of its membership, including plaintiffs'
vested rights.
[Id. at 393.]
See also Allied Chemical & Alkali Workers of Am. v. Pittsburgh
Plate Glass Co.,
404 U.S. 157, 181 n.20,
92 S.Ct. 383, 399 n.20,
30 L.Ed.2d 341, 358 n.20 (1971); Elgin, J. & E. Ry. Co. v.
Burley,
325 U.S. 711, 738-40,
65 S.Ct. 1282, 1297-98,
89 L.Ed. 1886, 1902-03 (1945); Policy v. Powell Pressed Steel Co.,
770 F.2d 609, 613 (6th Cir. 1985), cert. denied,
475 U.S. 1017,
106 S.Ct. 1202,
89 L.Ed.2d 315 (1986). But see Turner v. Local Union
No. 302, Int'l Bhd. of Teamsters,
604 F.2d 1219, 1225 (9th Cir.
1979); Dwyer v. Climatrol Indus., Inc.,
544 F.2d 307, 310 (7th
Cir. 1976), cert. denied,
430 U.S. 932,
97 S.Ct. 1553,
51 L.Ed.2d 776 (1977); Gilman v. County of Cheshire,
126 N.H. 445, 448-49,
493 A.2d 485, 487-88 (N.H. 1983).
In facts strikingly similar to those in this case, the
Illinois Appellate Court held that a union could not bargain away
the right of an employee to accumulated sick leave compensation
granted in prior collective bargaining agreements. In Lawrence
v. Board of Education of School District 189,
152 Ill. App.3d 187,
503 N.E.2d 1201, 1203 (Ill. App. Ct. 1987), plaintiff, a
school attendance officer, brought suit against the Board of
Education claiming that he was wrongfully denied payment of sick
leave compensation at the time of his retirement. During most of
plaintiff's employment, the applicable collective bargaining
agreements allowed employees to accumulate sick leave time and
receive severance pay upon retirement consisting of a percentage
of the accrued compensation. Ibid. Prior to plaintiff's
retirement, however, the union and the Board entered into a
collective bargaining agreement that eliminated the right to
receive accumulated sick leave time upon retirement. Id. at
1204. At the time of plaintiff's retirement, he was informed
that he would not be receiving his severance pay because it was
not permitted under the collective bargaining agreement then in
effect. Ibid. Plaintiff was successful at trial, and the Board
appealed. As phrased by the court, the question presented was
"whether the plaintiff should be entitled to receive compensation
for such accumulated sick leave days when at the time of the
retirement there were no contractual provisions in the collective
bargaining agreement allowing for such payment." Id. at 1207.
In affirming the judgment, the court reasoned:
We conclude that the retirement benefit
sought by plaintiff can be characterized as a
form of deferred compensation in that
plaintiff worked days when he was ill in
order to accumulate the sick leave days as a
retirement benefit. . . . [We] find that the
`merit pay' for accumulated sick leave days
under the previous terms of the collective
bargaining agreements vested upon the date
that plaintiff fulfilled the service
condition. Once that service condition was
fulfilled, the benefit derived from
plaintiff's term of service was vested and
could only be divested by failure to satisfy
the eligibility requirements.
[Id. at 1209 (citation omitted).]
Cf. E.L. Weigand Div. v. NLRB,
650 F.2d 463, 468-69 (3d Cir.
1980), cert. denied,
455 U.S. 939,
102 S.Ct. 1429,
71 L.Ed.2d 649
(1982); Knecht v. Board of Trustees for State Colleges and
Universities and Northwestern State Univ.,
591 So.2d 690, 695
(La. Sup. Ct. 1991); Matson v. Housing Auth. of Pittsburgh,
353 Pa. Super. 588, 592-93,
510 A.2d 819, 821 (Pa. Super. Ct. 1986).
Although these decisions are not directly on point, they
support the policy adopted by the Commission barring the
divestment of accumulated sick leave compensation absent a
knowing and intentional waiver by the persons adversely affected.
As we noted, the Commission assumed, without deciding, that it
might be possible for a majority representative to waive
contractually acquired rights to deferred compensation. The
Commission nonetheless decided that such reductions or divestment
must be entered into knowingly, and that there was no knowing
waiver in this case, since neither party had proposed retroactive
caps and because the Association had voted to accept the
factfinder's report before it issued. We agree with the
Commission's conclusion. Both the Association's negotiators and
the employees they represented entered into the factfinding
proceeding with the reasonable expectation that whatever the new
proposal the factfinder might urge, the right to earned deferred
compensation would not be jeopardized. Accordingly, we find no
sound basis to disturb the Commission's determination that there
was no knowing waiver of the teachers' paid leave banks.
Affirmed.