P.E.R.C. No. 2003-77, Camden B/E

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of CAMDEN BOARD OF EDUCATION, Respondent, -and- Docket No. CO-H-2001-53 CAMDEN CITY FEDERATION OF SCHOOL ADMINISTRATORS, LOCAL 39, Charging Party. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission finds that the Camden Board of Education violated the New Jersey Employer- Employee Relations Act transferring a vice-principal and not paying her commensurate with her new position, in retaliation for union activities. The Commission concludes that the vice- principal’s acting pay grievance motivated the Board’s decision to transfer her and the Board did not prove that it would have transferred her absent its hostility to her protected activity. However, the Commission concludes that the Federation did not prove that the vice-principal was not appointed to several positions because of anti-union animus. The Commission orders the Board to immediately transfer the vice-principal back to her original school or to another school by mutual consent of the parties. ¶

This synopsis is not part of the Commission decision. It has been prepared for the convenience of the reader. It has been neither reviewed nor approved by the Commission. ¶

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of CAMDEN BOARD OF EDUCATION, Respondent, -and- Docket No. CO-H-2001-53 CAMDEN CITY FEDERATION OF SCHOOL ADMINISTRATORS, LOCAL 39, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, The Murray Law Firm, attorneys (Karen A. Murray, of counsel) ¶

For the Charging Party, Jennings Sigmond, attorneys (Mary L. Crangle, of counsel) ¶

DECISION ¶

On September 11 and October 20, 2000 and September 6, 2001, the Camden City Federation of School Administrators, Local 39, filed an unfair practice charge and amended charges against the Camden Board of Education. The charge, as amended, 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) and (3) 1/ , by not appointing Claudia Cream, a vice-principal, to various positions and by transferring her and not paying her commensurate with her new position, in retaliation for her union activities. ¶

On November 21, 2000, a Complaint and Notice of Hearing issued. On December 7, 2000 and October 1, 2001, the Board filed Answers generally denying the allegations and stating that it transferred Cream to fulfill an educational need. ¶

On October 10 and 11 and December 12, 2001 and March 13, April 10 and June 21, 2002, Hearing Examiner Wendy L. Young conducted a hearing. The parties examined witnesses and introduced exhibits. They waived oral argument, but filed post- hearing briefs. ¶

On January 17, 2003, the Hearing Examiner issued her report and recommendations. H.E. No. 2003-13, 29 NJPER 43 (¶16 2003). She concluded that the Board violated the Act when it transferred Cream as vice principal to head an alternative school, formerly administered by a principal, in retaliation for her filing a grievance claiming she was entitled to acting pay for filling in for the principal of her school. In particular, the Hearing Examiner found that suspicious timing, together with the different reasons offered for the transfer and the manner in which Cream’s transfer appeal was handled, supported an inference of hostility against her for filing the grievance. Also, there was a nexus between the acting pay grievance and the transfer. However, the Hearing Examiner found no violation in the Board’s handling of Cream’s applications for various principal positions. She also concluded that the Board did not violate the Act in paying Cream as a vice principal in the school to which she was transferred. She found that the Federation failed to establish that Cream was treated differently from other applicants for principal positions or from two other vice principals assigned to head alternative schools. ¶

The parties each filed exceptions and responses. We will address the issues raised by those submissions in the course of this decision. ¶

We have reviewed the record. We incorporate the Hearing Examiner’s findings of fact (H.E. at 5-53) with the following modifications. ¶

We modify finding 23 to reflect that the then Director of Human Resources testified that she did not recall whether the principal position at Pyne Poynt Family School was re-posted because of Federation concerns or because of a request by the first interview team (3T229). ¶

In finding 24, the Hearing Examiner inferred that a second round of interviews for the Pyne Poynt principalship was not scheduled after the June reposting because the former principal consented to stay until a replacement was found. The Association excepts to this finding and contends that a more reasonable inference is that hostility to Cream and the complaints she had made motivated that decision. The Director of Human Resources testified that she did not recall who told her not to schedule the second interviews. Absent some other evidence explaining why the interviews were not conducted, we reject the Hearing Examiner’s inference that it was the principal’s staying on that explained the decision not to have the interviews at that time. Absent additional evidence, we similarly reject the Association’s request that we infer that it was Cream’s protected activity that motivated the decision not to have interviews that summer. ¶

The Association excepts to the Hearing Examiner’s statement in finding 37 that Cream’s new duties as vice-principal at Challenge Square Academy and at Pyne Poynt “only differ in a couple of respects.” We modify that finding so as not to comment on the magnitude of the difference in the two assignments. ¶

We modify finding 40, consistent with our modification of finding 24. We do not find why the Board delayed the second round of interviews. ¶

The Federation alleges that Cream’s transfer and the decisions not to promote Cream to various principal positions were in retaliation for her protected activity. The Hearing Examiner found that the transfer decision was motivated by anti- union animus, but the promotion decisions were not. ¶

Under In re Bridgewater Tp., 95 N.J . 235 (1984), no violation will be found unless the charging party has proved, by a preponderance of the evidence on the entire record, that protected conduct was a substantial or motivating factor in the adverse action. This may be done by direct evidence or by circumstantial evidence showing that the employee engaged in protected activity, the employer knew of this activity and the employer was hostile toward the exercise of the protected rights. Id. at 246. ¶

If the employer did not present any evidence of a motive not illegal under our Act or if its explanation has been rejected as pretextual, there is sufficient basis for finding a violation without further analysis. Sometimes, however, the record demonstrates that both motives unlawful under our Act and other motives contributed to a personnel action. In these dual motive cases, the employer will not have violated the Act if it can prove, by a preponderance of the evidence on the entire record, that the adverse action would have taken place absent the protected conduct. Id . at 242. This affirmative defense, however, need not be considered unless the charging party has proved, on the record as a whole, that anti-union animus was a motivating or substantial reason for the personnel action. Conflicting proofs concerning the employer's motives are for us to resolve. ¶

The Hearing Examiner applied these standards to the facts of this case. We adopt her well-reasoned analysis. ¶

We begin with Cream’s transfer from her position as vice principal at Pyne Poynt to vice principal in charge of Challenge Square. ¶

The Hearing Examiner inferred hostility from the timing of the transfer occurring shortly after Cream's filing of a grievance seeking acting principal’s pay at Pyne Poynt together with the shifting explanations proffered for the transfer, the disparate treatment of Cream's transfer appeal by the Board, and the nexus between the acting pay grievance and her transfer as vice-principal to a position at Challenge Square formerly held by a principal. ¶

In its exceptions, the Board argues that there were no conflicting reasons sufficient to create an inference of anti- union animus. We disagree. The Assistant Superintendent told Cream that she was the best possible candidate for the Challenge Square position, and the Interim Superintendent told Cream that the transfer was based on a request of her principal because she could not get along with the other staff at Pyne Poynt. We reject the suggestion that these two reasons are not contradictory, but complementary and consistent. ¶

The Board argues that hostility should not have been inferred from its response to Cream’s “appeal” of the transfer. The Hearing Examiner noted that unlike nine other proposed and challenged transfers, Cream’s was the only one not rescinded or accommodated.2/ We agree with the Hearing Examiner that the Board did not explain what differing educational concerns led it to deny Cream’s appeal and grant the other appeals. ¶

The Board argues that an inference of hostility cannot be drawn based on timing since the interim superintendent was on the job for less than four weeks at the time of the transfer. We accept the Hearing Examiner’s inference that the timing was suspect. The transfer came as a surprise to Cream who had been a vice-principal at Pyne Poynt for four years with a spotless performance record. She was a strong candidate to become principal when the transfer was announced. The transfer came within six month’s of her filing a grievance seeking acting principal pay and two months after she complained about the interview process for the Pyne Poynt principal position. The Board did not call as witnesses either the superintendent or the principal involved in the transfer to explain the conflicting reasons for the transfer. 3/ Accordingly, we accept the Hearing Examiner’s conclusion that the explanations for the transfer were pretextual and draw an inference of hostility to protected activity. ¶

Finally, the Board argues that there is no evidence that either the superintendent or the principal knew of Cream’s acting pay grievance. We reject this exception. We are not prepared to find that the transfer decision was made in a vacuum by the principal and new superintendent. Given the totality of the circumstances, where various superintendents and Board members knew of Cream’s grievances, we accept the Hearing Examiner’s conclusion that Cream’s acting pay grievance motivated the transfer and that the Board did not prove that it would have transferred her absent its hostility to her protected activity. ¶

We continue with a discussion of the decisions not to promote Cream to various principal positions and the Federation’s exceptions to those determinations. ¶

The Hearing Examiner concluded that the decision not to promote Cream to principal at Pyne Poynt was unrelated to her protected activity. The Federation excepts, arguing that the preponderance of the evidence supports a finding of unlawful discrimination. Specifically, it points to these alleged indicia of discrimination: Cream’s precipitous transfer out of Pyne Poynt where she had successfully served as vice principal; the irregularities with respect to the May interview of Pyne Poynt principal; the failure to conduct interviews after the June 2000 reposting of that position; the appointment of an acting principal prior to the October 2000 interviews; the disparate manner in which Cream received notice of her October 2000 interview; and the fact that the October interview committee was essentially the same as the May interview committee. The Hearing Examiner considered all of these arguments and rejected them. We accept her analysis. ¶

Camden is an Abbott school district subject to whole-school reform. See N.J.A.C . 6A:24-1.2; Abbott v. Burke, 100 N.J . 269 (1985). The school management team is a component of whole- school reform. Each school has a team that, in addition to other duties, is authorized to make recommendations for the appointment of a building principal. The team must make recommendations to the superintendent who may select one of the candidates for recommendation to the Board. Under this system, the team acts as a screen and the superintendent cannot recommend a candidate not recommended by the team. ¶

Eleven candidates were interviewed for the Pyne Poynt principalship, including Cream and the then acting principal. As was district practice, the names of the top three scoring candidates were forwarded to the superintendent. Cream ranked fourth. The acting principal was the highest scoring candidate and was appointed. ¶

We are troubled by the fact that Cream was illegally transferred out of Pyne Poynt during the long interview process and that, as found by the Hearing Examiner, the transfer may have disadvantaged her candidacy. But the Hearing Examiner found that although Cream may have been disadvantaged, there is no evidence that she would have been appointed absent the transfer. We defer to the Hearing Examiner’s judgment and the inferences she drew and did not draw from the evidence presented. She was in the best position to evaluate all the circumstances of this case, and absent a compelling reason to reject her overall judgment, we accept her finding that the decision not to promote Cream to principal at Pyne Poynt was not motivated by hostility to her protected activity. ¶

There may have been deviations from what had been standard Board practice in how and when interviews were conducted. But in the end, it was the interview team that made the recommendations to the superintendent, and there is no evidence that the members of that team were hostile to Cream or that the team’s makeup was engineered to disadvantage her because of her protected activity. ¶

We also accept the Hearing Examiner’s recommendation to dismiss the allegations involving the principalships at Camden High School and Yorkship Family School. Cream was not one of the top five recommended candidates for the high school position. The evidence does not support a finding that the interview team’s recommendations were tainted by anti-union animus. As for the Yorkship Family School, Cream was on vacation during the interviews and, consistent with district practice, her individual vacation schedule was not accommodated. ¶

Finally, we reject the Federation’s exception which claims that but for Cream’s protected activities, the position at Challenge Square would have remained a principal position and the incumbent would be entitled to be paid as a principal. The record does not support the Federation’s claim. The Hearing Examiner found that the decision to change the administration of all the District’s three alternative schools was the proper exercise of a managerial prerogative and not motivated by hostility to Cream’s protected activities. We accept that finding. ¶

OrderORDER ¶

The Camden Board of Education is ordered to: ¶

A. Cease and desist from: ¶

1. Interfering with restraining or coercing employees in the exercise of rights guaranteed to them by the Act, particularly by transferring Claudia Cream to Challenge Square Academy because she had filed a grievance. ¶

2. Discriminating in regard to terms and conditions of employment to discourage employees in the exercise of the rights guaranteed to them by the Act, particularly by transferring Claudia Cream to Challenge Square Academy because she filed a grievance. ¶

B. Take this action: ¶

1. Immediately transfer Claudia Cream to Pyne Poynt Family School as vice principal or to another school by mutual consent of the parties. ¶

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 on forms to be provided by the Commission shall be posted immediately upon receipt thereof, and, after being signed by the Respondent's authorized representative, shall be 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. Notify the Chair of the Commission within twenty (20) days of receipt what steps the Respondent has taken to comply herewith. ¶

The remaining allegations in the Complaint are dismissed. ¶

BY ORDER OF THE COMMISSION ¶

Millicent A. Wasell ¶

Chair ¶

Chair Wasell, Commissioners Buchanan, DiNardo, Mastriani, Ricci and Sandman voted in favor of this decision. Commissioner Katz was not present. ¶

DATED: May 29, 2003 ¶

Trenton, New Jersey ¶

ISSUED: May 30, 2003 ¶

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; (3) Discriminating in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage employees in the exercise of the rights guaranteed to them by this act.” ¶

2/ One transfer occurred when a position was eliminated. ¶

3/ Unlike the Hearing Examiner, we draw no adverse inference from their failure to testify. We simply note that conflicting reasons for the transfer were not explained away. ¶