P.E.R.C. No. 2004-12, Wood-Ridge B/E

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of WOOD-RIDGE BOARD OF EDUCATION, Respondent, -and- Docket No. CO-H-2002-80 WOOD-RIDGE EDUCATION ASSOCIATION, Charging Party. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission dismisses a Complaint against the Wood-Ridge Board of Education. The Complaint was based on an unfair practice charge filed by the Wood-Ridge Education Association. The charge alleges that the Board violated the New Jersey Employer-Employer Relations Act when it did not renew the employment contract of a custodian in retaliation for his activity as Association representative. The charges also alleges that this custodian was the third Association custodian representative to be terminated and that the Board’s actions chilled employee rights. The Commission concludes that the Board has proven, by a preponderance of the evidence on the entire record, that it would not have renewed the custodian’s contract even absent his protected activity. It further concludes that there was insufficient evidence in the record to find that the employer violated the Act by otherwise interfering with protected rights. ¶

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 WOOD-RIDGE BOARD OF EDUCATION, Respondent, -and- Docket No. CO-H-2002-80 WOOD-RIDGE EDUCATION ASSOCIATION, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, Mark T. Janeczko, attorney ¶

For the Charging Party, Springstead & Maurice, attorneys (Alfred F. Maurice, of counsel) ¶

DECISION ¶

On September 24, 2001, the Wood-Ridge Education Association filed an unfair practice charge against the Wood-Ridge 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), (3) and (4),1/ when it did not renew the employment contract of custodian Albert D’ Aurizio in retaliation for his activity as Association representative. The charge further alleges that D’ Aurizio was the third Association custodial representative to be terminated and that the Board’s action has chilled employee rights. ¶

On February 27, 2002, a Complaint and Notice of Hearing issued. On March 14, the Board filed an Answer denying the allegations and asserting that D’ Aurizio’s non-renewal was motivated by his poor work habits, not his Association activity. ¶

On October 1 and 2, 2002, Hearing Examiner Don Horowitz conducted a hearing. The parties examined witnesses and introduced exhibits. They waived oral argument, but filed post- hearing briefs. ¶

On July 3, 2003, the Hearing Examiner recommended dismissing the Complaint. H.E. No. 2004-1, 29 NJPER 312 (¶97 2003). He found that the termination was motivated both by D’ Aurizio’s protected activity and his declining work performance, which paralleled deficiencies that had been documented for years. The Hearing Examiner concluded that the Board would not have renewed D’ Aurizio’s contract even absent his protected activities, and that therefore the Board did not violate the Act. Finally, the Hearing Examiner found that the record concerning other terminated Association representatives was not sufficient to establish that D’ Aurzio’s termination was part of a pattern or policy of discharging Association representatives. ¶

On July 18, 2003, the Association filed exceptions. It argues that the Hearing Examiner’s findings of fact and conclusions of law regarding hostility to protected activity and anti-union animus are inconsistent with his ultimate recommendation to dismiss the Complaint. In particular, the Association contends that a former Association representative who had been rehired did not testify because he was afraid for his job, and that there was no evidence that D’ Aurzio’s performance was worse than that of the remaining custodians. ¶

On July 28, 2003, the Board filed an answering brief. It argues that a pattern of poor work performance and unsuccessful remediation attempts led to D’ Aurizio’s non-renewal. In addition, it argues that the record lacks any testimony indicating that former Association representatives failed to testify because they were afraid. The Board urges adoption of the Hearing Examiner’s recommendations. ¶

We have reviewed the record. We incorporate the Hearing Examiner’s undisputed findings of fact (H.E. at 3-29). ¶

Allegations of retaliation for union activity are governed by the standards established 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. ¶

The Hearing Examiner inferred hostility to protected activity from the juxtaposition of D’ Aurizio’s Association activities in late 2000 and a series of written reprimands and criticisms in early 2001. However, he credited the testimony of D’ Aurizio’s supervisor about why he rated D’ Aurizio unacceptable in ability to get along with staff and fellow workers. Absent compelling contrary evidence, we will not substitute our reading of the transcript for the Hearing Examiner's credibility determination. City of Trenton, P.E.R.C. No. 80-90, 6 NJPER 49 (¶11025 1980). ¶

The Hearing Examiner also found that deficiencies in D’ Aurizio’s performance during the 2000-2001 school year were similar to problems that had been documented during previous years. Applying Bridgewater , he concluded that the Board had proven, by a preponderance of the evidence on the entire record, that it would not have renewed D’ Aurizio’s contract even absent his protected conduct. Given the Hearing Examiner’s decision to credit the performance evaluations that preceded D’ Aurizio’s non- renewal, we accept his conclusion that the Board did not violate 5.4a(3) or (4). ¶

The Hearing Examiner acknowledged that an employer’s conduct can tend to interfere with protected rights and independently violate 5.4a(1). He concluded, however, that there was insufficient evidence in this record to find such a violation in this case. We agree and dismiss that allegation as well. ¶

OrderORDER ¶

The Complaint is dismissed. ¶

BY ORDER OF THE COMMISSION ¶

Millicent A. Wasell ¶

Chair ¶

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

DATED: September 25, 2003 ¶

Trenton, New Jersey ¶

ISSUED: September 25, 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; (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.” ¶