P.E.R.C. No. 2004-23, Irvington B/E

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of IRVINGTON BOARD OF EDUCATION, Respondent, -and- Docket Nos. CO-H-2001-161 CO-H-2001-206 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 when it failed to appoint the president of the Irvington Education Association to the position of School- Based Technology Coordinator at either the Florence Avenue School or the Mount Vernon School, in retaliation for her Association activities and by directing the president to vacate office space she and two other teachers were using, in retaliation for her Association activities. ¶

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 Nos. CO-H-2001-161 CO-H-2001-206 IRVINGTON EDUCATION ASSOCIATION, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, Hunt Hamlin & Ridley, attorneys (Raymond J. Hamlin, of counsel) ¶

For the Charging Party, Oxfeld Cohen, P.C., attorneys (Nancy Iris Oxfeld, of counsel) ¶

DECISION ¶

On December 13, 2000 and January 30, 2001, the Irvington Education Association filed unfair practice charges against the Irvington Board of Education. The first charge (CO-2001-161), amended on March 8, 2001, 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 failing to appoint Association President Madeline Edwards to the position of School- Based Technology Coordinator at either Florence Avenue School or Mount Vernon School, in retaliation for her Association activity. The second charge (CO-2001-206) alleges that the Board violated 5.4a(1) and (3) by directing Edwards to vacate office space she and two other teachers were using, in retaliation for her protected activity. ¶

On March 14, 2001, the charges were consolidated and a Complaint and Notice of Hearing issued. On April 2, the Board filed an Answer generally denying the allegations and asserting that the Commission does not have jurisdiction to consider CO- 2001-161. 2/ ¶

On September 12 and 13, and November 15 and 28, 2001 and March 5, 6 and 7, 2002, Hearing Examiner Patricia T. Todd conducted a hearing. The parties examined witnesses, introduced exhibits, and filed post-hearing briefs. ¶

On July 11, 2003, the Hearing Examiner issued her report and recommendations. H.E. No. 2004-4, 29 NJPER 351 (¶110 2003). We summarize her factual findings. ¶

The first charge involved the failure to appoint Association President Madeline Edwards to technology coordinator positions. ¶

Irvington is one of approximately 30 neediest school districts covered by Abbott v. Burke, 153 N.J . 480 (1998). These districts have been directed to institute Whole School Reform. Part of that program requires that each school have a School Management Team (SMT) comprised of the principal, elected teachers, certain other staff, and parent volunteers. Each SMT develops a multi-year implementation plan and a budget to meet its school’s needs. Team functions also include making budget and personnel recommendations. ¶

One of the State-mandated components of Whole School Reform is education technology. The State Board of Education created the position of School-Based Technology Coordinator to implement the technology component in each Abbott school. The district’s job description requires that the candidate hold a New Jersey teaching certification. ¶

Alan Gamba was the principal at Florence Avenue School from July 1999 until June 2001. He submitted a posting to Superintendent Ernest Smith for a technology coordinator. No one applied. ¶

Gamba had known Madeline Edwards because he had been principal for six years at Mount Vernon School, where Edwards worked. He knew that Edwards had worked on the computer- intensive gifted and talented program, assisted Mount Vernon’s computer teacher with developing a technology budget, helped obtain laptop computers for classrooms and developed curriculum for their use, and implemented the technology component of Whole School Reform. He also recalled that her work performance was very good and that all work assignments were completed in a timely fashion. ¶

In June 2000, Gamba approached Edwards about becoming the technology coordinator at Florence Avenue. Gamba felt pressure to fill the position and thought it would look good on reports to the State to have someone with Edwards’ credentials and doctoral degree. Because of the difficulty in getting applicants for teaching positions, Gamba had hired sole applicants. He therefore recommended that Edwards be hired. ¶

Pursuant to the parties’ collective negotiations agreement, the Association president serves on a “release time schedule” with half-time devoted to the Board and half-time devoted to Association business. Gamba was initially concerned whether Edwards would be able to perform effectively while continuing to serve as Association president. After discussing his concerns with Edwards, Gamba felt convinced by Edwards that she would be able to perform the duties within the confines of her release time position. ¶

The Florence Avenue SMT agreed with Gamba’s recommendation that Edwards be appointed because they believed she would be capable and because she was the only applicant. The SMT was aware of the release time concern, but, according to one team member, “Mrs. Edwards wears many hats, she takes work home on weekends and she gets the job done.” ¶

On June 12, 2000, Gamba wrote a letter to the Director of Human Resources recommending Edwards for the position. Gamba did not receive a response. The Hearing Examiner did not credit the Director’s testimony that he did not receive this letter. ¶

The Board’s Personnel Committee met on June 15, 2000 to decide what personnel actions to recommend to the Board for adoption at its next meeting. Item 6 on the agenda was transfers. The Board’s resolution lists 17 staff transfers. The Edwards’ appointment was listed as Item 6 (13). After the 17th item, the resolution reads, “Item 6 (13) was removed from the agenda.” The meeting minutes continue, “Item 6 minus (13) moved out of committee.” ¶

Andrea McElroy is the Board’s president and the chairperson of the Board’s Personnel Committee. The Association directed a subpoena duces tecum to McElroy seeking, among other things, any minutes, tapes or other records of the Personnel Committee. McElroy testified that there were no minutes, tapes, or tallies of votes; just a sheet of paper that listed attendees. Smith also testified that the Board keeps no records of the initial agenda of items considered by the Personnel Committee; only those items that are passed for consideration by the full Board are maintained. ¶

Minutes of Personnel Committee meetings were produced by the Board after the close of hearing in connection with other litigation, and subsequently admitted into evidence upon the Association’s motion to reopen the record. The Hearing Examiner therefore did not credit Smith’s testimony or McElroy’s testimony that such minutes did not exist. She also found that McElroy’s demeanor while being questioned concerning her compliance with the subpoena was cavalier and disdainful. ¶

McElroy testified that she could not recall Edwards’ name ever coming before the Personnel Committee in connection with the technology coordinator position. Given the minutes and the fact the McElroy chaired the meeting, the Hearing Examiner found McElroy’s testimony incredible. ¶

At a meeting of the district’s SMTs, members of the Florence Avenue SMT asked the Board Secretary why a technology coordinator had not been appointed at their school. He replied that the team was required to submit three names, but had submitted only one. ¶

On July 24, 2000, Gamba wrote a second letter to the Director of Human Resources asking that he expedite Board consideration. The letter stated that the Edwards matter and others had been removed from the Board’s agenda in July. Gamba did not receive a response. The Hearing Examiner did not credit the Director’s testimony that he did not receive this letter. ¶

At a principals’ workshop in August 2000, Smith called Gamba aside and told him that he would have to change his recommendation for the technology coordinator position. Gamba replied that he had no other applicant. Gamba testified that Smith replied that he did not know what the problem was, but when the Board hears Gamba’s name or Edwards’ name, they “see red.” Smith did not refute Gamba’s testimony and the Hearing Examiner credited it. ¶

A few days before the Board’s August meeting, the Board’s Supervisor of Staff Development told Edwards that he had seen Edwards’ name on the agenda for the upcoming Board meeting to be appointed technology coordinator at Florence Avenue. Edwards attended the meeting, but her name was not on any list for transfer or appointment. ¶

On August 23, 2000, Edwards wrote to Smith concerning the status of her and two other applications. Smith responded that most recommendations come from the principals or SMTs to the Central Office; after careful review, he then makes a recommendation to the Board through the Personnel Committee; and the listed individuals were not approved by the Personnel Committee. Edwards assumed from this response that Smith had recommended her to the Personnel Committee. ¶

On September 5, 2000, Edwards wrote to the Personnel Committee requesting the reasons for the denial of her appointment. Edwards did not receive a reply. ¶

In October 2000, the SMT at Mount Vernon Avenue School asked Edwards to apply for their technology coordinator position. She refused, noting that the Board did not appoint her at Florence. The SMT persisted and Edwards reluctantly submitted an application. ¶

Edwards attended the Board’s October 2000 meeting where the Board approved the appointments of several technology coordinators. Edwards spoke to four teachers. None was aware prior to the meeting that the Board was considering transferring them. One was almost in tears because she knew nothing about technology. Smith told Edwards that he had to fill the positions and did not need to post them. ¶

Gamba and the Florence Avenue SMT heard that Edwards had applied for the technology coordinator position at Mount Vernon, so Gamba reopened the application process. The Florence Avenue computer teacher applied, was recommended by the SMT, and was appointed by the Board on November 15, 2000. ¶

In December 2000, Edwards learned that a substitute teacher who did not have any teaching certifications expected to be appointed to the technology coordinator position at Mount Vernon. Apparently, the SMT was not aware of his interest in the position and did not vote on his appointment. He was appointed by the full Board on December 20. Smith testified that he did not specifically recall whether he approved this appointment. ¶

Smith testified repeatedly that he did not recall if he had ever received a recommendation that Edwards be appointed to either position. But he also explained that he took no action on a recommendation he received – it is unclear from whom - because Edwards did not meet the qualifications for a full-time position. The Hearing Examiner discredited Smith’s testimony. She found his testimony vague and contradictory, and that his explanation seemed to arise at hearing as a retroactive justification for his deliberate non-action concerning Edwards’ application. ¶

The second unfair practice charge involved Smith’s order that Edwards vacate office space at Mount Vernon. ¶

In late September 2000, Edwards agreed to assist with processing paperwork related to Title I lunch form applications by parents. Because of the volume of work, the principal also asked Elizabeth Wallace, an academic representative of the teaching staff, to assist. Edwards decided that the Title I application information should be kept confidential and secure because it included detailed financial information, names of parents and guardians, social security numbers, places of work, public assistance and other personal information. Upon their request, the principal granted Edwards and Wallace permission to use a small cubbyhole office space to process the applications. Edwards gave a substitute teacher permission to use half of the bookcase in the room to store materials and personal items. ¶

Edwards stopped working on the Title I project in late October. She continued to use the office space to work on the school planning budget and technology implementation plan. ¶

At a parents’ meeting in November or December 2000, Smith learned that Edwards was using an office in the school. He visited the school and directed the principal to clear everybody out of that space. Smith testified that offices are usually for employees in administrative level positions. He concluded that the area Edwards and the other teachers were using was an office, not a work space, based on the small size of the room. According to Smith, a work space is an area where teachers go to spread out work materials; an office, by contrast, is smaller and usually contains a desk, chair and perhaps a flag. The principal then announced over the school public address system that Wallace and the substitute teacher had to remove their belongings from the office and vacate the space. Edwards was not in the school at that time. ¶

The next day, the principal told Edwards that he had been told by Smith that Edwards could not use the office, and that two Board members - McElroy and Lorene Capers - wanted Edwards “out of that room.” No use was made of the room after it was vacated. ¶

The Hearing Examiner found that the Board discriminated against Edwards because she is Association president by failing to appoint her to the technology coordinator positions and by ordering her to vacate office space. The Hearing Examiner recommended that the Board offer Edwards her choice of accepting either technology coordinator position, when one of these positions becomes vacant. She also recommended that the Board allow Edwards to use office space at Mount Vernon School to complete any unfinished Title I work that was originally assigned to her in the year 2000. ¶

On August 4, 2003, the Board filed a letter brief in support of exceptions. It did not file separate exceptions pursuant to N.J.A.C. 19:14-7.3. ¶

The Board asserts that it did not appoint Edwards to the technology coordinator positions because they were full-time positions and there was no indication that Edwards was willing to commit to the position full time. The Board objects to the Hearing Examiner’s finding that Smith recommended an employee without a teaching certification to a technology coordinator position. It asserts that Smith testified that he did not recall recommending the employee. The Board also objects to the Hearing Examiner’s crediting of Gamba’s testimony that Smith indicated that the Board “sees red” whenever it hears Gamba’s or Edwards’ name. It asserts that to credit the comments as evidence of anti-union animus when the Board never considered a recommendation that Edwards be appointed to the technology positions is unsupported by the record. ¶

The Board argues that under In re Bridgewater Tp., 95 N.J . 235 (1984), the Hearing Examiner failed to consider whether or not the desire to have a full-time commitment in a full-time position is legitimate. ¶

As for the recommended remedy, the Board notes that since no recommendation to appoint Edwards reached the Board, at best, the remedy should be that in the event another position becomes available, Edwards’ name should be recommended to the Board for consideration. ¶

As for the second charge, the Board contends that since Edwards was not using the office space for Association business, the Board cannot be deemed to have violated the Act. ¶

On August 18, 2003, the Association filed an answering brief. It supports the Hearing Examiner’s finding that the Board’s argument that a full-time employee was desired for the coordinator positions was one developed after the fact to support the decision to deny Edwards the positions. The Association points to the job description for Technology Coordinator which lists a teaching certification as a qualification, and a full- time position as a goal. The Association claims that Smith misrepresented the job description to justify the appointment of a candidate without a certification and another candidate without any knowledge of computers. ¶

As for the second charge, the Association states that while office space can be assigned or denied for almost any reason, it cannot be assigned or denied for illegal reasons. ¶

We have reviewed the record. We adopt and incorporate the Hearing Examiner’s findings of fact (H.E. 5-40). We specifically adopt her credibility determinations and reject the Board’s suggestion that one of those determinations should be overturned. Gamba testified that Smith told him that the Board “sees red” when it hears his name or Edwards’ name. Smith testified but did not refute Gamba’s testimony. There is no basis to overturn the Hearing Examiner’s determination. The Board also suggests that we should reject the Hearing Examiner’s finding that Smith recommended the substitute teacher without a teaching certification to the technology coordinator position at Mount Vernon. The Board does not cite where the Hearing Examiner made such a finding. See N.J.A.C . 19:14-7.3(b). Smith testified that he did not recall making such a recommendation. We accept that he did not so recall, but do not know how the appointment would have progressed without his recommendation. ¶

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. 95 N.J. 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. ¶

Applying Bridgewater , the Hearing Examiner concluded that the Board, and in particular Smith, determined not to consider Edwards for the technology coordinator positions, solely because of her position as Association president. The Hearing Examiner found that Smith’s rationale, that Edwards was not eligible for the positions because of her contractual release time schedule, to be a pretext for anti-union animus. She noted that other employees were appointed without regard to their qualifications, experience or interest in the positions. Edwards was the only employee whose qualifications Smith considered. ¶

The Hearing Examiner noted that the record provides no explanation for why Edwards’ name appeared as a candidate for the position on the Board Personnel Committee’s June 15, 2000 agenda, and was subsequently removed, particularly since Smith claimed that he never recommended Edwards to the Personnel Committee. The Hearing Examiner also inferred anti-union animus from Smith and Board member McElroy’s testimony that there were no Personnel Committee minutes, when, in fact, those minutes were later supplied in response to interrogatories in another matter involving the same parties. The Hearing Examiner also relied on the unrefuted testimony of Principal Gamba that he and Smith discussed Edwards’ application for the technology position and that Smith stated that Board members “see red” when they hear Gamba’s name or Edwards’ name. ¶

Given the Hearing Examiner’s credibility determinations and the supporting evidence of anti-union animus, we adopt her recommendation to find that the Board violated 5.4a(1) and (3) when it failed to appoint Edwards to the technology coordinator positions. The Association proved that anti-union animus was a substantial or motivating factor in Smith’s decision not to forward the recommendations that Edwards be appointed to the technology positions, and the Board’s rationale for Smith’s action was shown to be pretextual. 3/ At Florence Avenue, Gamba and the SMT were confident that Edwards could do all the duties in the time she had and, before the litigation began, no management representative ever expressed any concern about Edwards’ ability to fulfill her job duties. To the contrary, Edwards was never given any reason why her name was removed from the June 15 agenda and the Board president falsely denied that she knew of that action or that any minutes of that meeting existed. Further, the Director of Human Resources gave a different reason – the lack of three recommendations - which was never cited again and which was not required for approval of other applicants. See Bridgewater (shifting reasons for personnel action may indicate an illegal motive). And the superintendent told Gamba that Edwards could not be appointed because the Board sees red when it hears her name. ¶

We have no reason to treat Mount Vernon any differently. Neither recommendation was forwarded to the Board for consideration. ¶

In the absence of Association exceptions, we adopt the proposed remedy. Even though the Board never acted on a recommendation to appoint Edwards, nothing suggests that, had Smith not removed her name from consideration, Edwards would not have gotten the appointments. We note that Board members, not just Smith, were reported to “see red” at the mention of Edwards’ name, and that the Board president did not testify truthfully concerning the June 15 meeting of the Personnel Committee or about the minutes of that meeting. ¶

Absent specific Board exceptions, we also adopt the Hearing Examiner recommendation that we find that the Board independently violated 5.4a(1) by Smith’s determination not to consider Edwards for the technology coordinator positions due to her Association activity. That conduct tended to intimidate an employee from engaging in union activity and did not have a substantial business justification. New Jersey Sport and Exposition Auth., P.E.R.C. No. 80-73, 5 NJPER 550 (¶10285 1979). ¶

We also adopt the recommendation regarding the office space allegation. We agree with the Hearing Examiner that Smith’s level of attention to this issue seems unusual and that his conduct demonstrates hostility to the Association. Not only did Smith visit the school to inspect the area, but he overruled the determination of the building principal to permit Edwards to use the space, and told the principal that he and Board members Capers and McElroy wanted Edwards “out of that room.” Under all the circumstances, we agree with the Hearing Examiner that Smith’s order that Edwards vacate the office space violated 5.4a(1) and (3). We also adopt the Hearing Examiner’s recommended remedy. ¶

OrderORDER ¶

The Irvington Board of Education and its representatives and agents are 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 failing to appoint Madeline Edwards to the position of technology coordinator at Florence Avenue School or Mount Vernon Avenue School, and by directing Madeline Edwards to vacate office space she was using at Mount Vernon Avenue School. ¶

2. Discriminating in regard to hire or tenure of employment to discourage employees in the exercise of the rights guaranteed to them by the Act, particularly by failing to appoint Madeline Edwards to the position of technology coordinator at Florence Avenue School or Mount Vernon Avenue School; and by directing Madeline Edwards to vacate an office space she was using at Mount Vernon Avenue School. ¶

B. That the Board take the following affirmative action: ¶

1. Offer Madeline Edwards her choice of accepting the position of School Based Technology Coordinator at either Florence Avenue School or Mount Vernon Avenue School, when one of these positions becomes vacant. ¶

2. Allow Madeline Edwards to use office space at Mount Vernon Avenue School to complete any unfinished Title I work that was originally assigned to her in 2000. ¶

3. 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. ¶

4. Notify the Chair of 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, Katz, Ricci and Sandman voted in favor of this decision. None opposed. Commissioner Mastriani was not present. ¶

DATED: October 30, 2003 ¶

Trenton, New Jersey ¶

ISSUED: October 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/ The Board did not serve a copy of its Answer on the Association, but the Hearing Examiner denied the Association’s motion to deem the Answer not filed. ¶

3/ The parties appear to assume, and we accept, that a recommendation was made to appoint Edwards to the teaching coordinator position at Mount Vernon School. Smith knew that Edwards had applied for the position and the SMT at Mount Vernon had voted to appoint her. ¶