P.E.R.C. No. 2002-12, N Bergen Tp B/E

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of NORTH BERGEN TOWNSHIP BOARD OF EDUCATION, Respondent, -and- Docket No. TO-H-2000-2 NORTH BERGEN FEDERATION OF TEACHERS, Petitioner. ¶

AppearancesAppearances: ¶

For the Respondent, Giblin & Giblin, attorneys ¶

(Michael A. Gannaio, of counsel) ¶

For the Petitioner, Mullica & Mullica, attorneys ¶

(Victor P. Mullica, of counsel) ¶

DECISION ¶

On June 10, 2000, the North Bergen Federation of Teachers, Local 1060, AFL-CIO, filed a petition for contested transfer determination. The petition alleges that the North Bergen Board of Education violated N.J.S.A . 34:13A-25 by transferring a switchboard operator, Louise Peterkin, from the Board office to an elementary school for disciplinary reasons. ¶

On August 31, 2000, the Board filed an Answer denying that the transfer was for disciplinary reasons. It asserts that Peterkin was transferred for reasons of economy and efficiency. ¶

On November 28, 2000, a Notice of Hearing issued. On May 2, 2001, Hearing Examiner Jonathon Roth conducted a hearing. The parties examined witnesses, introduced exhibits, and filed post-hearing briefs. ¶

On July 9, 2001, the Hearing Examiner issued his recommendations. H.E. No. 2002-1, 27 NJPER 315 (¶32112 2002). He concluded that Peterkin was transferred because, immediately before the transfer, she had filed a grievance over losing an overtime opportunity to a part-time employee. He rejected the Board's defense that Peterkin was transferred from her switchboard position because she did not speak Spanish and because it was efficient. ¶

On July 23, 2001, the Board filed exceptions. The Board argues that this case need not be decided on circumstantial evidence, as the testimony of its superintendent, Peter Fischbach, provided direct evidence of its intentions. The Board maintains that the petitioner did not sustain its burden of proof due to the lack of direct evidence and its inability to disprove Fischbach's testimony. It contends that a reprimand issued to Peterkin was not disciplinary and that Peterkin was transferred to fill a temporary vacancy and was not transferred back for programmatic reasons. ¶

On July 24, 2001, the petitioner filed an answering brief. It contends that the Hearing Examiner, as the trier of fact, made appropriate credibility determinations. ¶

We have reviewed the record. We adopt and incorporate the Hearing Examiner's findings of fact (H.E. at 2-14). ¶

N.J.S.A . 34:13A-25 prohibits transfers of school employees between work sites for disciplinary reasons. The petitioner has the burden of proving its allegations by a preponderance of the evidence. Irvington Bd. of Ed., P.E.R.C. No. 98-94, 24 NJPER 113 (¶29056 1998). ¶

Our case law provides a framework for assessing whether a transfer is disciplinary under N.J.S.A . 34:13A-25. A transfer is predominately disciplinary when it is punitive and/or is not made for educational or staffing reasons. West New York Bd. of Ed., P.E.R.C. No. 2001-41, 27 NJPER 96 (¶32037 2001). Accordingly, in exercising our jurisdiction under N.J.S.A . 34:13A-27, we will consider such factors as whether the transfer was intended to accomplish educational, staffing or operational objectives; whether the Board has explained how the transfer was so linked; and whether the employee was reprimanded for any conduct or incident that prompted the transfer. ¶

The Hearing Examiner concluded that Peterkin was transferred from her switchboard position in the Board office to a secretarial position at the Franklin school for predominately disciplinary reasons. He relied on the fact that the transfer came on the heels of her filing a grievance and receiving a reprimand for leaving work without a replacement. He rejected the Board's proffered non-disciplinary rationale for the transfer, noting that Peterkin had worked at the switchboard for 25 years without incident; the Board had never criticized her inability to speak Spanish; and there was no evidence of a recent increase in the percentage of Spanish-speaking residents. The Hearing ¶

Examiner also drew an adverse inference from the lack of testimony from the Board Secretary, whose signature appeared on the posting for a bilingual clerical employee who replaced Peterkin and who issued the reprimand to Peterkin for leaving work at the end of her shift even though the next operator had not yet arrived. ¶

We need not accept all of the Hearing Examiner's credibility determinations to accept his conclusion that the transfer was predominately disciplinary. Under all the circumstances, we believe that conclusion was correct. ¶

Peterkin has worked for the district for 31 years, the last 25 as the full-time switchboard operator at the Board offices. She filed a grievance contesting the awarding of overtime to a part-time employee rather than her. A few days later, she left work shortly after her normal quitting time. It appears that there was no replacement, but there were at least two other clerical employees available to cover the switchboard. ¶

Two days later, a "positions available" notice was posted for "clerks (bilingual helpful)." The Board Secretary's signature was stamped on the posting. Peterkin is not bilingual, but has always been able to arrange for a Spanish-speaking co-worker to take any calls from a Spanish speaker. The school population is about 75 percent Hispanic. ¶

Three days later, the Board Secretary wrote a memorandum to Peterkin criticizing her for leaving the switchboard unattended at the end of her shift. Peterkin had never received such a memorandum in her 31 years as a Board employee. Nor had she ever been disciplined. ¶

That same day, a Franklin School clerical employee advised the Board that she would be going on a maternity leave. Even before the job was posted, the superintendent told Peterkin that she would be transferred to temporarily fill that position. ¶

The Board then appointed a bilingual clerical employee to the "Board Office Switchboard." When the employee returned from maternity leave to her secretary/clerk position, the Board did not return Peterkin to her position at the Board offices. ¶

The Board offered no other evidence other than its superintendent's testimony to support its explanations for the transfer. The Board has provided no basis for rejecting the Hearing Examiner's overall conclusion that discipline, not the need to fill a temporary vacancy, triggered this transfer and his specific credibility determination rejecting the superintendent's testimony that the transfer was not motivated by a punitive intent. 1/ The disciplinary nature of the memorandum that ¶

Note1/ We need not accept all parts of the Hearing Examiner's analysis to find that the transfer was predominately disciplinary. We are not sure, for example, that the grievance alone would have motivated the transfer or that the Board Secretary's memorandum referenced that grievance. Nor do we discount the interest in having bi-lingual employees in light of possibly changing demographics. Nevertheless, we are persuaded that the transfer would not have happened when it did but for the grievance and the disciplinary incident. ¶

immediately preceded the transfer is plain on its face and the Board Secretary was not called as a witness to explain why it was not. We also note that the transfer occurred mid-year, without a convincing explanation of why it had to be done at that time or any evidence of a precipitating problem caused by Peterkin's inability to speak Spanish. Accordingly, we adopt the Hearing Examiner's recommendations and proposed remedy. ¶

OrderORDER ¶

The North Bergen Township Board of Education is ordered to return Louise Peterkin to the switchboard operator position in the Board office at her regular work hours. ¶

BY ORDER OF THE COMMISSION ¶

Millicent A. Wasell ¶

Chair ¶

Chair Wasell, Commissioners Buchanan, Madonna, McGlynn, Muscato, Ricci and Sandman voted in favor of this decision. None opposed. ¶

DATED: September 26, 2001 ¶

Trenton, New Jersey ¶

ISSUED: September 27, 2001 ¶