P.E.R.C. No. 2003-83, 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. CO-H-2002-47 IRVINGTON EDUCATION ASSOCIATION, Charging Party. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission finds that the Irvington Board of Education violated the New Jersey Employer- Employee Relations Act by refusing to appoint Andaiye Foluke to the English/Language Arts Literacy Curriculum Review Committee, in retaliation for her protected activities as a negotiations team member, grievance co-chair, and Association vice-president. The Commission concludes that the preponderance of the evidence supports the inference that Foluke’s non-reappointment was substantially motivated by hostility toward Foluke’s role as an Association leader. ¶

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 IRVINGTON BOARD OF EDUCATION, Respondent, -and- Docket No. CO-H-2002-47 IRVINGTON EDUCATION ASSOCIATION, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, Hunt, Hamlin & Ridley, attorneys (Ronald C. Hunt, of counsel) ¶

For the Charging Party, Oxfeld Cohen, PC, attorneys (Nancy I. Oxfeld, of counsel) ¶

DECISION ¶

On August 16, 2001, the Irvington Education Association filed an unfair practice charge against the Irvington Board of Education. The charge alleges that the Board violated the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-5.4a(1) and (3)1/ by refusing, in June 2001, to appoint Andaiye Foluke to the English/Language Arts Literacy Curriculum Review Committee, in retaliation for her protected activities as a negotiations team member, grievance co-chair, and Association vice-president. ¶

On January 14, 2002, a Complaint and Notice of Hearing issued. On January 24, 2002, the Board filed an Answer, denying that it violated the Act and setting forth several defenses. ¶

On April 15, 2002, Hearing Examiner Jonathan Roth conducted a hearing. The parties examined witnesses, introduced exhibits, argued orally, and filed post-hearing briefs. ¶

On January 28, 2003, the Hearing Examiner recommended dismissing the Complaint. H.E. No. 2003-14, 29 NJPER 66 (¶19 2003). He concluded that the Association had proved that Foluke had engaged in protected activity and that the Board knew of it. However, he found no evidence that the Board was hostile to Foluke’s protected conduct when it deleted her name from a recommended list of candidates for several language arts curriculum writer positions. The Hearing Examiner concluded that Foluke was at least as qualified as three elementary teachers who were approved for the positions. However, he found that her non- appointment resulted from the fact that Ethel Davion, Assistant Superintendent for Academic Affairs, inaccurately described Foluke, during a personnel committee meeting, as primarily a science teacher. Further, he found that while Foluke was twice offered promotions and once offered college tuition payments for her daughter in exchange for quitting the Association, those efforts by the Board superintendent, president and vice-president did not establish hostility toward her protected conduct. ¶

The Association has filed exceptions. The Board has filed an answering brief urging adoption of the Hearing Examiner’s Report. ¶

The Association excepts to the finding that Foluke’s alleged science expertise was discussed at the April 2001 personnel committee meeting; asserts that Davion’s testimony to that effect should not be credited; and maintains that Foluke was removed because the personnel committee and the Board did not want her to earn extra money as a curriculum writer. It contends that Davion’s testimony is an after-the-fact attempt to justify the Board decision, and that anti-union animus is evidenced by the Board member efforts to persuade Foluke to leave the Association. ¶

The Association also reasons that, even assuming that Foluke’s alleged expertise in science was discussed during the April 2001 personnel committee meeting, hostility should be inferred from the fact that the qualifications of the other candidates were not similarly debated. Similarly, it maintains that anti-union animus is demonstrated by the fact that Foluke was discussed at the closed session prior to the June 20, 2001 Board meeting, even though her name was no longer on the list of recommended candidates. ¶

Finally, the Association has submitted 30 paragraphs of “proposed findings of fact” , many of which parallel the Hearing Examiner’s findings. We consider only those exceptions that are specifically described and supported, see N.J.A.C . 19:14-7.3(b), but note that the Association states that most of the facts in this matter are undisputed. ¶

Preliminarily, we reject the Association’s exception to the finding that there was a discussion of Foluke’s science expertise at the personnel committee meeting. The Hearing Examiner was in the best position to assess Davion’s demeanor and credibility and we decline to disturb his decision to credit her testimony on that point. We also accept and incorporate the Hearing Examiner’s factual findings, which we supplement in our factual summary. However, we conclude that the Association met its burden of proving, by a preponderance of the evidence, that anti- union animus motivated the decision not to appoint Foluke to a curriculum writer position. ¶

The standards for assessing discrimination claims are set forth in In re Bridgewater Tp., 95 N.J . 235 (1994). 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 and motivating factor in the adverse personnel action. This may be done by direct or circumstantial evidence showing that the employee engaged in protected activity, the employer knew of this activity, and the employer was hostile towards the exercise of protected rights. Id. at 246. ¶

If the employer does not present any evidence of a motive not illegal under the 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 unlawful motives under the Act and other motives contributed to a personnel action. In these dual motive cases, the employer has not 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 proven, on the record as a whole, that union animus was a motivating or substantial reason for the personnel action. ¶

In making his recommendation to dismiss the Complaint, the Hearing Examiner focused primarily on the deliberations at the personnel committee and Board meetings. We view the case through a broader lens and believe that those discussions must be considered in the context of the past interactions between Foluke, Superintendent Ernest Smith, Board President Andrea McElroy and Board Vice-President Lorraine Capers. Central to our analysis is our conclusion that the offers of promotion and tuition-payment evidence hostility toward Foluke’s protected activity in the legal, if not colloquial, sense. ¶

These are the basic facts and chronology. Foluke has been an elementary school teacher with the district since 1986. For the first 13 years of her employment, she was assigned to a self- contained classroom where she taught all elementary subjects, including language arts, science, math and social studies. Beginning in 1999-2000, she was transferred to the “semi- departmentalized” University Six school, which is attended by all sixth grade students in the district. Of her six classes per day, Foluke teaches three science classes and three periods of language arts, a subject which is divided into six “strands” – reading, writing, spelling or vocabulary, grammar, mechanics and public speaking. ¶

In the three years preceding the challenged action, Foluke held significant Association positions, and positions of increasing responsibility. She was a negotiations team member in 1998-2000 and a building representative in 1999-2000. During 2000-2001, Foluke became grievance co-chair; her name appeared on all grievances presented to the Board; and Davion and Foluke met an unspecified number of times after April 2000 to discuss grievances. In June 2001, around the same time that the Board appointed the summer curriculum writers, Foluke became Association vice president. We add to finding no. 4 that she continued as grievance co-chair (T121). ¶

In May 2000, Smith pulled Foluke out of a negotiations session and offered her an assistant superintendent position at the Union Avenue School. Also during the 1999-2000 negotiations, McElroy and Capers took her to a diner and assured her that they would see that her daughter’s college tuition was taken care of if she would disassociate herself from the Association. Foluke refused both offers and, as noted, assumed positions of increased responsibility within the Association. ¶

These offers do not show personal hostility to Foluke – quite the contrary. But they reflect a desire on the part of key actors in the non-appointment decision that Foluke cease her efforts on behalf of the Association. The college tuition proffer was a direct quid pro quo. And we infer from the timing and context of Smith’s action that a promotion into a managerial executive position was offered at least in part so that Foluke could no longer be a union member. We thus find that the offers show hostility toward Foluke’s protected activity. ¶

Our finding reflects the well-established principle that an employer may violate the Act, not only by retaliating against or punishing employees who engage in protected conduct, but by promising wage or benefit increases for employees not supporting union activity. See NLRB v. Exchange Parts Co., 375 U.S . 405, 409 (1964); Bridgewater, 95 N.J. at 246-247; see also Thorgen Tool & Molding, Inc. and Local Lodge 1227, District Lodge 72 of the Intern'l Ass'n of Machinists & Aerospace Workers, AFL-CIO , 312 NLRB 628, 144 LRRM 1162 (1993) (employer violated Sections 8(a)(1) and (3) of the National Labor Relations Act by greatly increasing overtime in order to encourage employees to back decertification effort). ¶

We next consider whether the Association proved that this hostility was a substantial and motivating factor in Foluke’s non-appointment. Under all the circumstances, we conclude that it did. Foluke’s name was one of several submitted to a personnel committee comprised of Smith, Davion, McElroy, and three other board members. Lucia T. Schneck, the language arts literacy supervisor, had personally solicited Foluke’s application for a curriculum writer position and knew of her experience as a curriculum writer. We add to finding no. 6 that although Schneck understood Foluke to be primarily a science teacher, she knew that Foluke and all other teachers at the University Six school taught language arts (T60). ¶

At the personnel committee meeting, there was no discussion of the qualifications of the other elementary school teachers who, unlike the English or reading teacher candidates, were not language arts specialists. Yet McElroy, one of the Board members who offered to see that Foluke’s daughter’s tuition was paid, focused only on Foluke and asked what she taught. Davion responded that Foluke taught “mostly science courses.” McElroy then went on at length about how Foluke should not be assigned a position that did not match her strengths, evidently convincing the other committee members not to approve Foluke for consideration by the full Board. Davion never volunteered that, in 1988 or 1989, she and Foluke had worked together on a language arts curriculum when Davion was language arts supervisor. We add to finding no. 3 that Davion “spearheaded” that curriculum committee (T65). ¶

Foluke was the only candidate who was not approved by the committee and, in the one other instance where committee members questioned a teacher’s qualification for the language arts assignment, the committee placed her in a social studies position, consistent with her teaching specialty. The committee’s action meant that there was no sixth grade teacher on the list of curriculum writers – the only K through 8 grade left out. Moreover, while Davion stated that Foluke taught mostly science, we add to finding no. 8 that Davion also testified that the Board members already knew that Foluke taught some language arts classes (T103). ¶

On June 20, 2001, just prior to the public meeting, the Board followed its practice of holding a closed session to review the agenda. Smith was asked if the teachers recommended for the language arts positions were language arts teachers. Smith replied that they were and that Foluke was not, which was why she was no longer on the list. However, Capers, who testified to this colloquy, could not recall what if anything had triggered the reference to Foluke, whose name was not on the list that was presented to the full Board. ¶

During the public comment session of the public Board meeting, Foluke asked McElroy if there was an oversight because her name was omitted from the list of summer curriculum writers. McElroy untruthfully responded that she knew nothing about the matter, and directed her to speak to Smith, who made the recommendations. Foluke ultimately met with Davion, who told her that the Board could appoint whomever it wanted. While Davion testified that she did not believe it was her place to reveal the personnel meeting discussions, the Hearing Examiner declined to credit that explanation, finding that Davion did not want to be drawn into a discussion of her own role at the meeting and Foluke’s language arts qualifications. ¶

We believe that this chain of events, viewed in its entirety, establishes that Foluke’s non-appointment was motivated by hostility toward the union official, either for her active advocacy or her refusal to discontinue it. While we have accepted the finding that the colloquy about Foluke’s teaching responsibilities occurred, we think the most salient point is that McElroy initiated the discussion about Foluke and vigorously espoused her non-appointment. We also place significant weight on the fact that there was no discussion of the qualifications of the other elementary teachers, even though the committee must have known that they taught many subjects other than language arts. Further, the committee adjusted the assignment of the one other teacher whose suitability was questioned; and Foluke’s non- appointment left the Board without a language arts curriculum writer who taught sixth grade. ¶

Moreover, we find it unusual that Davion, as assistant superintendent and former language arts supervisor, would not be aware of the standardized course load of the University Six teachers – i.e ., three periods of their specialty subject and three classes of language arts. We also find it unusual that Smith, who had offered to promote Foluke to assistant superintendent, was neither aware of Foluke’s teaching responsibilities nor confident enough of her abilities to recommend her to a stipended summer position, particularly when no other sixth grade teacher had volunteered for the assignment. ¶

In this posture, the preponderance of the evidence supports the inference that Foluke’s non-appointment was substantially motivated by hostility toward Foluke’s role as an Association leader. Our view of the record is that McElroy, and perhaps Smith, looked for a reason not to appoint Foluke, and persuaded the other Board members, who likely did not have a particular investment in this fairly routine matter. The likelihood that the non-appointment was the result of a misunderstanding about Foluke’s qualifications is further undermined by McElroy’s refusal to acknowledge her and the personnel committee’s concerns to Foluke, despite having had at least one personal interaction with her in the past. ¶

In reaching this conclusion, we have these additional comments. The Hearing Examiner found that the timing of Smith’s first discussion of a promotion, as well as McElroy’s and Capers’ tuition offer, did not particularly connote hostility because they occurred 12-14 months before the non-appointment. By contrast, we believe that the offers should be viewed as part of a continuum where Foluke refused the offers; assumed positions of increased responsibility in the Association; and was then denied appointment to a position for which her application had been solicited, despite being at least as well qualified as some other applicants and despite the fact that no one was chosen in her stead. Together, the incidents indicate a “carrot and stick” approach to dissuading Foluke from engaging in protected activity. ¶

That perspective is supported by a November 2001 conversation that Smith had with Foluke, where he indicated that he wanted to promote her to assistant vice-principal before he left the district, but that she would have to leave the Association. We add to finding no. 4 that the offer was made after the Association had objected to creation of a new position, and during a conversation in which Smith told Foluke that he could not deal with the Association president (T139-T140). As with Smith’s earlier offer, it was closely tied to Association activity and not merely a factual statement as to the consequence of a promotion. ¶

We also stress that the Board’s theory of the case relies solely on Davion’s testimony as to what she represented to the personnel committee. And even accepting, as we have, that Davion told the committee that Foluke taught "mostly science", Davion never testified as to the basis of her misunderstanding. Further, if, as Davion also asserted, the committee knew that Foluke also taught some language arts, no basis was offered to distinguish her from elementary teachers who also taught language arts, along with other subjects. ¶

For all these reasons, we find that the Board’s asserted reason for Foluke’s non-appointment is pretextual, and that it violated N.J.S.A . 5.4a(1) and (3) when it failed to appoint her to a summer curriculum writer position. ¶

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 failing to appoint Andaiye Foluke to a language arts curriculum writer position. ¶

2. 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 the Act, particularly by failing to appoint Andaiye Foluke to a language arts curriculum writer position. ¶

B. Take this action: ¶

1. Make Andaiye Foluke whole by compensating her for the lost wages sustained as the result of the non-appointment, together with interest as provided in R. 4:42-11(a)(ii). ¶

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 last 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 or the Commission within twenty (20) days of receipt what steps the Respondent has taken to comply herewith. ¶

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) Discrimination 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.” ¶