P.E.R.C. No. 2003-5, Irvington B/E

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of IRVINGTON BOARD OF EDUCATION, Respondent, -and- Docket No. CI-H-2001-8 GWENDOLYN E. SMITH, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, Hunt, Hamlin & Ridley, attorneys ¶

(Raymond L. Hamlin, of counsel) ¶

For the Charging Party, Gwendolyn E. Smith, pro se ¶

DECISION ¶

On August 2, 2000, Gwendolyn Smith filed an unfair practice charge against the Irvington Board of Education. The charge alleges that the employer violated the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq ., specifically 5.4a(1), (4), (5) and (7),1/ by failing to comply ¶

Note1/ These provisions prohibit public employers, their representatives or agents from: "(1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act. (4) Discharging or otherwise discriminating against any employee because he has signed or filed an affidavit, petition or complaint or given any information or testimony under this act. (5) Refusing to negotiate in good faith with a majority representative ¶

Footnote Continued on Next Page ¶

with the terms of a June 1999 agreement settling a prior unfair practice charge (CI-98-92). In particular, Smith alleges that the Board is giving negative references, even though it agreed not to, and is blocking her from obtaining or keeping a job. ¶

On May 4, 2001, a Complaint and Notice of Hearing issued with respect to the alleged violations of 5.4a(1) and (4) only. On May 8, the Board filed an Answer denying that it violated the Act. ¶

On August 23 and October 18, 2001, Hearing Examiner Arnold H. Zudick conducted a hearing. The parties examined witnesses and introduced exhibits. They argued orally and filed post-hearing briefs. ¶

On April 3, 2002, the Hearing Examiner issued his report and recommendations. H.E. No. 2002-13, 28 NJPER 210 (¶33072 2002). He concluded that the Board violated 5.4a(1), but not a(4) by failing to comply fully with the settlement agreement. That agreement provides that the Board will provide a neutral letter of employment reference in response to any appropriate inquiry ¶

Note1/ Footnote Continued From Previous Page ¶

of employees in an appropriate unit concerning terms and conditions of employment of employees in that unit, or refusing to process grievances presented by the majority representative. (7) Violating any of the rules and regulations established by the commission." The charge also asserted that the employer violated 5.4b(1), (3), and (5) and 5.5. These provisions, however, address the obligations of majority representatives, not employers. ¶

(paragraph 5); the superintendent's office will complete Smith's substitute teacher application and forward it to the County Superintendent (paragraph 6); six months from the execution of the agreement, the Board will remove four performance evaluations from Smith's personnel file (paragraph 7); seven months from the execution of the agreement, the Board will submit a letter to Smith indicating that the evaluations were removed from the file; and Smith may examine her personnel file given adequate notice and a mutually convenient appointment. In particular, the Hearing Examiner found that the Board was obligated to give a "neutral response" to any employment inquiry and that at least one Board employee gave a negative oral response to an employment inquiry, thereby violating the spirit of paragraph 5. He found that the Board's superintendent failed to sign Smith's application for a substitute teacher certification, thereby repudiating paragraph 6. And he found that the Board did not remove the evaluation documents from Smith's personnel file and submit a letter to Smith indicating it had done so, thereby repudiating paragraphs 8 and 9. The report states that the Hearing Examiner believed that the Board failed to comply with the settlement agreement out of its dislike for Smith. By way of remedy, the Hearing Examiner recommended that the Board be ordered to comply with all provisions of the agreement that it has not already complied with and, in particular, to provide a neutral letter of reference and neutral oral, e-mail or written responses to all employment inquiries; provide notice that it has removed the evaluation documents from her personnel file; continue to give Smith access to her personnel file; and post a notice of its violation. ¶

On May 6, 2002, the Board filed exceptions. With respect to paragraph 5, the Board argues that the Hearing Examiner improperly inferred that the language of the paragraph was broader than written and that there was no evidence that the Board had failed to provide a neutral reference, written or oral, to any employer inquiry. ¶

With respect to paragraph 6, the Board argues that the settlement agreement did not require it to maintain a copy of the signature showing that the substitute teaching certificate was executed. It further argues that there was no documentation from the County superintendent indicating that the Board superintendent's signature was still needed. ¶

With respect to paragraph 8, the Board contends that the agreed-upon items were removed. It acknowledges that it did not provide notice of removal of the items pursuant to paragraph 9. ¶

Finally, the Board argues that the record does not support the Hearing Examiner's finding that the Board did not like Smith. ¶

On May 20, 2002, Smith filed an answering brief. She argues that numerous requests for references were received and she was labeled a troublemaker; she has attached documents to her brief related to the renewal of her substitute certificate; when she went to Board counsel's office to review her personnel file, nothing had been removed; and the Board acknowledges that it breached the agreement by not notifying her that the documents had been removed from her personnel file. ¶

We have reviewed the record. We adopt the Hearing Examiner's undisputed findings of fact (H.E. at 3-11). ¶

N.J.S.A . 34:13A-5.4a(1) prohibits a public employer from interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by the Act. Repudiation of an agreement settling an unfair practice charge violates 5.4a(1) -- we cannot allow a charging party's right to file and pursue an unfair practice charge to be circumvented by a bad faith refusal to honor the clear terms of a settlement agreement. City of Asbury Park, P.E.R.C. No. 2002-73, 27 NJPER (¶2002). ¶

A finding of repudiation is appropriate because the Board took no action to comply with the settlement agreement. For example, the superintendent did not sign Smith's application for her substitute certification. 2/ Further, the Board failed to remove four performance evaluations from Smith's personnel file ¶

Note2/ The Hearing Examiner's inference that the application was submitted but not signed is not undermined because the agreement did not require the Board to maintain a copy of the signature showing that the document had been executed. ¶

until after the first day of hearing and even when it removed them, it still did not send Smith the required notice. 3/ ¶

By way of remedy, we will order the Board to stop repudiating the settlement agreement, to provide Smith with a letter indicating that it removed the evaluations from her personnel file, and to post a notice of its violation. 4/ ¶

In the absence of exceptions, we dismiss the remaining allegations in the Complaint. ¶

OrderORDER ¶

The Irvington Board of Education is ordered to: ¶

A. Cease and desist from: ¶

1. Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by the Act, particularly by repudiating an agreement settling an unfair practice charge filed by Gwendolyn E. Smith (CI-98-92). ¶

Note3/ We will not infer, however, that a negative comment to Smith's friend constitutes a repudiation of an agreement that the Board provide a neutral letter of employment reference. Nor is there any legally competent evidence of any inquiry seeking a reference or of any notice to the Board that Smith wanted to see her personnel file. ¶

4/ Given our determination, it is not necessary to consider the Board's exception to the Hearing Examiner's finding that the Board did not like Smith. ¶

OrderB. Take this action: ¶

1. Provide Smith with a letter verifying that we have removed the performance evaluations listed in paragraph 7 of the settlement agreement. ¶

2. Post in all places where notices to employees are customarily posted, copies of the attached notice marked as Appendix "A." Copies of such notice shall, after being signed by the Respondent's authorized representative, be posted immediately and maintained by it for at least sixty (60) consecutive days. Reasonable steps shall be taken to ensure that such notices are not altered, defaced or covered by other materials. ¶

3. Within twenty (20) days of receipt of this decision, notify the Chair of the Commission of the steps the Respondent has taken to comply with this order. ¶

The remaining allegations in the Complaint are dismissed. ¶

BY ORDER OF THE COMMISSION ¶

Millicent A. Wasell ¶

Chair ¶

Chair Wasell, Commissioners Buchanan, Katz, McGlynn, Muscato and Ricci voted in favor of this decisions. None opposed. Commissioner Sandman was not present. ¶

DATED: July 25, 2002 ¶

Trenton, New Jersey ¶

ISSUED: July 26, 2002 ¶