P.E.R.C. No. 2003-78, Somerset Hills B/E

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of SOMERSET HILLS REGIONAL BOARD OF EDUCATION, Respondent, -and- Docket No. CO-H-2001-215 SOMERSET HILLS EDUCATION ASSOCIATION, Charging Party. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission dismisses a Complaint against the Somerset Hills Regional Board of Education. The Complaint was based on an unfair practice charge filed by the Somerset Hills Education Association alleging that the Board violated the New Jersey Employer-Employee Relations Act by changing a custodian’s shift from morning/day hours to afternoon/evening hours to keep him from serving as an Association grievance representative. The Commission concludes that the Association did not meet its burden of proving, by a preponderance of the evidence, that anti-union animus motivated the decision to transfer the custodian to the evening shift. ¶

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 SOMERSET HILLS REGIONAL BOARD OF EDUCATION, Respondent, -and- Docket No. CO-H-2001-215 SOMERSET HILLS EDUCATION ASSOCIATION, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, Sills Cummis Radin Tischman Epstein & Gross, attorneys (Philip E. Stern, of counsel) ¶

For the Charging Party, Klausner & Hunter, attorneys (Stephen B. Hunter, of counsel) ¶

DECISION ¶

On February 5, 2001, the Somerset Hills Education Association filed an unfair practice charge against the Somerset Hills Regional Board of Education. The charge alleged that the employer violated the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq ., specifically 5.4a(1), (3) and (5),1/ by changing custodian Glenn Deter’s shift from morning/day hours to afternoon/evening hours to keep him from serving as an Association grievance representative. The charge further alleged that the change tended to interfere with employee rights under the Act. On June 26, the Association filed an amended charge alleging that the work schedule change led to Deter’s constructive discharge. The amendment also withdrew the 5.4a(5) allegation. ¶

The charge was accompanied by applications for interim relief and temporary restraints. The applications were denied. I.R. No. 2001-9, 27 NJPER 208 (¶32071 2001). ¶

On August 6, 2001, a Complaint and Notice of Hearing issued. On January 24 and 30, 2002, Hearing Examiner Kevin M. St.Onge conducted a hearing. The parties examined witnesses, stipulated facts, introduced exhibits, and filed post-hearing briefs. ¶

On December 3, 2002, the Hearing Examiner recommended that the Complaint be dismissed. H.E. No. 2003-10, 29 NJPER 3 (¶2 2002). He found that Deter was the Association’s high school grievance representative and a member of the negotiating committee. He was one of two custodians who worked a morning/day shift. Five other custodians and the head custodian worked later afternoon/evening shifts. The Board decided to transfer the head custodian to the morning shift and to move Deter to afternoon/evenings. The Hearing Examiner concluded that the Association failed to prove hostility or interference with the exercise of rights protected by the Act. He also concluded that the Association, having failed to establish discrimination, did not meet the threshold requirement to establish its constructive discharge claim nor did it demonstrate that Deter’s resignation was involuntary. ¶

On January 24, 2003, after an extension of time, the Association filed exceptions. It asserts that the Hearing Examiner erred when he failed to conclude that the Board was hostile toward Deter’s protected activity. In particular, it contends that there were shifting and pretextual reasons for Deter’s transfer; the mid-year transfer was timed to constructively discharge Deter; supervisors and administrators exhibited anti-union animus; there was increased grievance activity prior to the change; the change violated a contractual seniority provision and practice of seniority-based assignments; and administrators and supervisors knew the mid-year schedule change would cause Deter to quit. The Association also asserts that the Hearing Examiner erred by failing to conclude that the Board violated 5.4a(3) when it involuntarily transferred Deter and erred by failing to respond to the Association’s argument that the Board’s actions violated 5.4a(1) because they were “inherently destructive of employee rights.” Finally, the Association asserts that the Hearing Examiner erred in failing to appropriately apply the standards for analyzing constructive discharge cases to the uncontroverted facts. The Association relies on its post-hearing brief. ¶

On February 4, 2003, the Board filed an answering brief urging adoption of the Hearing Examiner’s recommendations. It asserts that we should defer to the Hearing Examiner’s credibility determinations. It contends that the Hearing Examiner properly concluded that the Board did not violate 5.4a(3). It further contends that the Hearing Examiner addressed the 5.4a(1) allegation and concluded that Deter was not prevented from performing his responsibilities as grievance representative during his shift, or from going to school before his shift to meet with Association members. The Board argues that the Hearing Examiner recognized that the Board’s reasons for transferring Deter were legitimate and neither shifting nor pretextual; the transfer did not violate any contract seniority language or past practice; and the timing of the transfer does not indicate animus. Finally, the Board asserts that the Hearing Examiner was not required to discuss the constructive discharge standard because he properly concluded that there was no unfair practice. ¶

On March 12, 2003, the Association requested leave to reply to the Board’s answering brief. Absent objection, we grant that request. The Association asserts that: the Hearing Examiner found all witnesses to be credible; the Hearing Examiner failed to properly analyze the shifting reasons for the mid-year schedule change and the testimony of three witnesses that all previous transfers had been consistent with seniority; and any operational justification for the transfer was outweighed by the interference with the right of employees to assist the Association. ¶

We have reviewed the record. We incorporate the Hearing Examiner’s findings of fact (H.E. at 4-26) with this modification. ¶

We modify the last sentence of the first paragraph of finding 7 to delete the phrase, “[d]espite Deter’s position as custodian.” That phrase does not reflect the testimony of Association Vice-President and General Grievance Chairperson Joseph Foglia. ¶

The standards for assessing discrimination claims are set forth in In re Bridgewater Tp., 95 N.J. 235 (1984). Under Bridgewater , 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. ¶

We adopt the Hearing Examiner’s conclusion, based in large part on his credibility determinations, that the Association did not meet its burden of proving, by a preponderance of the evidence, that anti-union animus motivated the decision to transfer Deter to the evening shift. ¶

We reject the Association’s contention that there were shifting and pretextual reasons for Deter’s transfer. The Board wanted to place its head custodian on the day shift. Its operational reasons for doing so remained essentially unchanged and were credited by the Hearing Examiner. That the Association may not agree with the rationale does not make the motivation anti-union or illegal. ¶

We also reject the contention that the mid-year transfer was timed to induce Deter to resign. Deter had made it clear at hiring and when he sought promotion to head custodian that he needed to be home to attend to his family around dinner time. That fact does not, however, prove anti-union animus. The Board’s unwillingness to consider reassigning another employee besides Deter so as to enable it to bring the head custodian to the day shift more likely reflected its belief that it did not have to abide by seniority, that a 3-way switch was more disruptive, and that it did not have to go out of its way to accommodate Deter’s personal or union needs. We do not infer that the Board’s unwillingness to have asked the other day shift custodian if he would have been willing to change shifts means that the Board acted for an illegal reason. ¶

We agree with the Association that there was some evidence of disdain for having a custodian as a union representative for teachers. There is, however, no nexus between those who expressed that sentiment and the decision to change Deter’s shift. ¶

We reject the Association’s contention that there was increased grievance activity prior to the change. The Hearing Examiner found that the record evidence did not warrant such a finding. We agree. ¶

We reject the Association’s contention that we should find that the change violated a contractual provision allegedly requiring seniority to be used in shift selection. The Hearing Examiner found that there are two “plausible” interpretations of the contract. That seniority may have been used in the past, as Deter and Foglia testified, does not resolve the differing contractual interpretations. We also reject the Association’s contention that Deter and Foglia’s testimony about the past use of seniority proves hostility in this case. Foglia testified that he was not aware of any other situations comparable to Deter’s where custodians were moved mid-year. Accordingly, even if we were to credit their testimony, we would not infer that the failure to use seniority in this situation evidences anti-union animus. The Hearing Examiner credited Soriano’s testimony that he did not abide by seniority because he did not believe that the contract required him to do so. ¶

Given the Hearing Examiner’s findings and our consideration of the Association’s exceptions to those findings, we dismiss the allegation that the transfer was in retaliation for Deter’s protected activity. ¶

We next address the alleged violation of N.J.S.A . 34:13A- 5.4a(1). An employer independently violates subsection 5.4a(1) if its action tends to interfere with an employee's statutory rights and lacks a legitimate and substantial business justification. Orange Bd. of Ed., P.E.R.C. No. 94-124, 20 NJPER 287 (¶25146 1994); Mine Hill Tp ., P.E.R.C. No. 86-145, 12 NJPER 526 (¶17197 1986); New Jersey Sports and Exposition Auth., P.E.R.C. No. 80-73, 5 NJPER 550 (¶10285 1979). Proof of actual interference, intimidation, restraint or coercion is unnecessary. The tendency to interfere is sufficient to prove a violation. Mine Hill Tp . Thus, a party asserting an independent violation of 5.4a(1) must establish that the employer engaged in some action which would tend to interfere with, intimidate, coerce or restrain an employee in the exercise of statutory rights. ¶

Unions can negotiate restrictions on an employer’s right to transfer union representatives, subject to an employer’s right to meet operational requirements. Local 195, IFPTE v. State, 88 N.J . 393, 418-419 (1982). No such provision was negotiated in this case and it would be inappropriate for us to read that protection into the Act. Cf. State of New Jersey, D.U.P. No. 84- 25, 10 NJPER 212 (¶15107 1984) (transfer of shop steward where other employees available to be transferred did not implicate right under the Act). To do so would obviate the need for unions to negotiate such protection. Deter had a statutory right to be a grievance representative. But his statutory right did not include a right to stay on a day shift. Under these circumstances, we dismiss the independent 5.4a(1) allegation. ¶

We need not further consider the constructive discharge allegation because we have found that Deter’s separation was not motivated by anti-union animus or that it otherwise tended to interfere with protected rights. ¶

OrderORDER ¶

The Complaint is 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. (5) Refusing to negotiate in good faith with a majority representative 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.” ¶