P.E.R.C. No. 2004-, Florham Park B/E

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of FLORHAM PARK BOARD OF EDUCATION, Respondent, -and- Docket No. CO-H-2003-225 FLORHAM PARK EDUCATION ASSOCIATION, Charging Party. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission finds that the Florham Park Board of Education violated the New Jersey Employer- Employee Relations Act when its superintendent issued two memoranda criticizing and retaliating against the Florham Park Education Association president in his role as a teacher for a telephone message he left in his role as Association president. ¶

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 FLORHAM PARK BOARD OF EDUCATION, Respondent, -and- Docket No. CO-H-2003-225 FLORHAM PARK EDUCATION ASSOCIATION, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, Simon, Edelstein, Celso & Kessler, attorneys (Nicholas Celso, of counsel) ¶

For the Charging Party, Oxfeld Cohen, attorneys ¶

(Sanford R. Oxfeld, of counsel) ¶

DECISION ¶

On May 7, 2004, the Florham Park Board of Education filed exceptions to a Hearing Examiner’s report and recommendations. The Hearing Examiner found that the Board violated the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq., specifically 5.4a(1) and (3), 1/ when its Superintendent, Fred R. Ferrone, issued two memoranda criticizing and retaliating against Association President Jeff Gruenwald in his role as a teacher for a telephone message he left in his role as Association president. The Hearing Examiner concluded that a small portion of one memorandum and the entire second memorandum violated the Act and should be withdrawn from Board files. He further concluded that the Board should post a notice of its violation. ¶

The unfair practice charge was filed by the Florham Park Education Association on March 5, 2003. On May 22, a Complaint and Notice of Hearing issued. On June 3, the Board filed its Answer asserting, in part, that Gruenwald’s message did not constitute protected activity, and that Ferrone had no reason to believe that Gruenwald left the message in his capacity as Association President. The Board also claimed that it acted for legitimate business reasons. ¶

On August 6 and 7 and September 26, 2003, Hearing Examiner Arnold H. Zudick conducted a hearing. The parties examined witnesses and introduced exhibits. They waived oral argument but filed post-hearing briefs. ¶

On April 23, 2004, the Hearing Examiner issued his report and recommendations. H.E. No. 2004-15, 30 NJPER 163 (¶64 2004). ¶

On May 7, 2004, the Board filed exceptions. The Association did not file exceptions or an answering brief. ¶

We have reviewed the record. We adopt and incorporate the Hearing Examiner’s findings of fact, including his credibility determinations (H.E. at 3-30). We agree with him that the memoranda violated the Act. We now summarize the key events and respond to the Board’s factual exceptions. ¶

On February 11, 2003, the Association’s representative council directed Gruenwald to contact Ferrone by telephone to express the Association’s indignation and deep concerns over what it viewed as the Board’s lack of preparation for a teachers’ workshop to be held on February 18. On February 12, Gruenwald called Ferrone’s office; he was told that Ferrone was not available. Gruenwald told Ferrone’s secretary that he was calling for the Association and that he had a message regarding the workshop. He related the Association’s concerns and asked the secretary to recount the entire message to Ferrone. ¶

The secretary told Ferrone that she had taken the message from Gruenwald. Ferrone was startled by the message and asked the secretary to type it. Her typed version states: ¶

Telephone call from Jeff Gruenwald on 2/12/03 at 8:50 AM. ¶

1. Staff Development Day on 2/18 - The staff is extremely indignant because of the “lack-luster” workshops. District had a year to prepare and it seems that it is “thrown together” at the last minute. If staff dared to go into the classroom as unprepared and poorly planned, teachers would get poor evaluations. District has high expectations – why shouldn’t staff have same for professional development workshops. Staff extremely disgusted over this. There are so many good things out there. ¶

He understands that staff will get six hours credit for this workshop. ¶

2. RMS - He understands a number of staff members are presenting. How many hours do they get for preparation of their presentation? Time spent prior to their presentation. ¶

Ferrone did not understand what Gruenwald meant by the message, but he not return his call to ask for clarification. ¶

On February 12, 2003, Ferrone issued a four-page memorandum to Gruenwald and sent copies of the summary of Gruenwald’s call and his memorandum to Board members. 2/ The Hearing Examiner found that the underlined sentence in the section on Technology was included in retaliation for Gruenwald’s telephone call. That section states: ¶

The Ridgedale Middle School staff will be receiving training regarding technology. My response is a simple “ditto.” Yes, the same answers are true – inclusive of you asking that we provide training during work hours. You even suggest that we use an in-service day for the need to have staff trained. ¶

Concern: Again, I assume your comments are based on the district using local resources to present the in-service program. Are you suggesting that we spend money to send staff out of district or train after school via faculty meetings? Are you saying that the staff is insulted that we are continuing our efforts in technological staff development activities, since you must believe the staff is well trained? I will send the principal and Mr. Christ into your room to assess how proficient you are to determine the validity of the accusations made via your phone message . ¶

The Hearing Examiner discredited Ferrone’s testimony that, although the Gruenwald’s message refers to the staff at least three times, Ferrone nevertheless believed that Gruenwald was representing himself as an individual and not the staff. Ferrone did not place his memorandum in Gruenwald’s personnel file, but he did send it to all Board members as part of their weekly packet. ¶

Gruenwald is a social studies teacher, but his classroom is often filled with arts and crafts projects. In September 2002, a night custodian told Business Administrator John Csatlos that Gruenwald’s classroom floor had debris and markings and would have to be cleaned and stripped again. Csatlos sent a letter to the building principal, with a copy to Ferrone. Csatlos wrote that the classroom was an atrocity and had been trashed. He directed that the floor be stripped and sealed again. ¶

On February 11, 2003, the day before Gruenwald left the telephone message, Csatlos spoke to the Board’s insurance carrier about an upcoming inspection. Csatlos sent Ferrone a memorandum indicating that the inspection was scheduled for March 3-5, 2003. ¶

On February 14, 2003, two days after receiving the message, Ferrone saw Gruenwald’s classroom. The floor had crayon, marker, ink and paint marks. Ferrone directed the principal to have Gruenwald’s floor cleaned. Ferrone also sent a memorandum to the principal, with a copy to all Board members and Csatlos entitled “Building Health/Safety.” The memorandum states: ¶

As per my previous conversation, the classrooms must be kept in a safe and healthy manner to protect students, and in general, all occupants. Mr. Gruenwald’s room is presently in a condition rated “unacceptable.” ¶

Please take the time to visit the classroom. Observe the filthy floor (dirt, paint/markers, crayons, etc). Observe the cardboard poles, paper hanging from the walls, the lack of work exhibited around the room, and a desk that is absolutely a mess. This is not the first time I have observed the room in a substandard condition. (The condition of the room could also cause an air quality problem) ¶

I am asking that on Friday, February 21, 2003, Tom Mangan strip and wax the floor. Mr. Gruenwald must move from classroom to classroom (not music room). I also expect that the continued misuse of school property and time be cited in his evaluation. ¶

The Hearing Examiner found that the cleanliness of Gruenwald’s classroom floor was not a new issue and that the February 14 memorandum was sent in reaction to Gruenwald’s February 12 telephone message. The Hearing Examiner discredited Ferrone’s explanation for sending the memorandum and concluded that the memorandum was intended, in part, to intimidate Gruenwald. 3/ ¶

The Hearing Examiner found that the underlined sentence of the February 12 memorandum violated 5.4a(1) and (3) of the Act because it threatened Gruenwald in his capacity as a teacher for his leaving the telephone message on the Association’s behalf and discriminated against him for that activity.4/ The Hearing Examiner also found that Ferrone’s February 14 memorandum violated the Act because it directed the principal to cite Gruenwald for misuse of school property in his upcoming evaluation in retaliation for his telephone message. The Hearing Examiner concluded that, but for the message, Ferrone would not have issued the memorandum and sent it to all Board members. The Hearing Examiner recommended an order rescinding the underlined sentence in the memorandum about the Staff Development Workshop and the entire memorandum about the condition of the classroom floor. ¶

N.J.S.A . 34:13A-5.4a(1) and (3) protect the right of public employees to engage in activity on behalf of labor organizations without fear of retaliation. “When an employee is engaged in protected activity, the employee and the employer are equals advocating respective positions[;] one is not the subordinate of the other.” Black Horse Pike Reg. Bd. Ed ., P.E.R.C. No. 82-19, 7 NJPER 502, 503 (¶12223 1981). When an employee’s conduct as a union representative is unrelated to his or her performance as an employee, the employer cannot express its dissatisfaction by exercising its power over the representative’s employment. Ibid. Applying Black Horse Pike , we conclude that the Board violated the Act when Superintendent Ferrone issued two memoranda criticizing and retaliating against Association President Gruenwald in his role as a teacher for the telephone message he left in his role as Association president. ¶

The superintendent issued two memoranda in response to Gruenwald’s telephone message. One included a sentence threatening to send supervisors into his classroom to assess his technological proficiency. The other informed supervisors and Board members that Gruenwald’s classroom had an unacceptably filthy floor, and that his continued misuse of school property and time should be cited in his evaluation. Both these memoranda went over the line drawn in Black Horse Pike because they impermissibly criticized and punished Gruenwald as a teacher for his role as a union representative. ¶

The Board argues that because Gruenwald’s telephone call concerned matters of managerial prerogative, it was unprotected activity. We disagree. Public employees and their representatives have a statutory right to grieve employer policies and administrative decisions concerning matters that involve employment conditions even if they are not mandatorily negotiable or subject to binding arbitration. N.J.S.A. 34:13A- 5.3; Bernards Tp. Bd. of Ed. v. Bernards Tp. Ed. Ass'n, 79 N.J . 311 (1979) (grievance procedure with advisory arbitration over applicability of managerial prerogatives is itself a term and condition of employment). Similarly, union representatives have a protected right to telephone management representatives to express the concerns of unit members about their work, even on matters that are not mandatorily negotiable. No facts suggest that Gruenwald’s call was hostile or belligerent or warrants finding that the call was outside the Act’s protection. Contrast State of New Jersey, P.E.R.C. No. 2001-52, 27 NJPER 177 (¶32057 2001) (union representative’s yelling at supervisor not protected activity). ¶

We also decline the Board’s invitation to infer that Gruenwald knew, or should have known, that his statements were false, and that his activity was therefore not protected. After arguing that questions at the hearing about the truth or falsity of statements in Gruenwald’s message were time-consuming and irrelevant to the Association’s claim that the Superintendent’s memoranda violated the Act, the Association’s attorney stipulated that everything Gruenwald said was wrong and that all of the teachers were wrong to criticize the workshop. The stipulation did not address whether Gruenwald or the Association members knew at the time that they were wrong. ¶

We conclude that the underlined sentence in Ferrone’s February 12 memorandum threatens retaliation for Gruenwald’s Association activity. Accordingly, we adopt the Hearing Examiner’s conclusion that it violated 5.4a(1). 5/ ¶

Under all the circumstances of this case, we adopt the Hearing Examiner’s credibility determination that the memorandum was issued primarily in response to Gruenwald’s telephone call just two days before. We note that the administration may have had legitimate concerns about the condition of Gruenwald’s classroom, but it took no adverse action for several years. We conclude that the memorandum interfered with Gruenwald’s right to act as an Association representative by punishing him as an employee for that representation and therefore violated 5.4a(1) and a(3). We also note that any legitimate need Ferrone might have had to direct that Gruenwald’s classroom be cleaned could have been met without sending a copy of a memorandum to all Board members. ¶

We also adopt the Hearing Examiner’s recommendation that the Board rescind the retaliatory aspects of the memoranda and post a notice of its violation. The Board’s exceptions to the Hearing Examiner’s remedy are predicated on its belief that the Act was not violated. Having found a violation, we need not consider those exceptions. ¶

OrderORDER ¶

The Florham Park 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 Superintendent Fred R. Ferrone’s issuance of a memorandum to Jeff Gruenwald on February 12, 2003 with copies to all Board members that contained a threat that Gruenwald’s classroom proficiency would be assessed; and by issuing a memorandum concerning Gruenwald on February 14, 2003, with copies to all Board members, that contained a directive to the principal to adversely evaluate Gruenwald. ¶

(2) Discriminating in regard to hire or tenure of employment or any terms and conditions to encourage or discourage employees in the exercise of the rights guaranteed them by the Act, particularly by Superintendent Ferrone’s issuing a memorandum concerning Jeff Gruenwald on February 14, 2003, with copies to all Board members, that contained a directive to the principal to adversely evaluate Gruenwald. ¶

B. Take this action: ¶

1. Withdraw from all Board files and records the original and any copies of the memorandum of February 12, 2003 from Ferrone to Gruenwald and reissue that document minus the underlined language at the end of the RMS-Technology section. ¶

2. Withdraw from all Board files and records the original and any copies of the memorandum of February 14, 2003 from Ferrone to Principal Altmire. ¶

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 shall, after being signed by the Respondent's authorized representative, be posted immediately and 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. ¶

Within twenty (20) days of receipt of this decision, notify the Chairman of the Commission of the steps the Respondent has taken to comply with this order. ¶

BY ORDER OF THE COMMISSION ¶

Lawrence Henderson ¶

Chairman ¶

Chairman Henderson, Commissioners Buchanan, DiNardo, Katz, Sandman and Watkins voted in favor of this decision. None opposed. Commissioner Mastriani abstained. ¶

DATED: June 24, 2004 ¶

Trenton, New Jersey ¶

ISSUED: June 25, 2004 ¶

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/ Differences in testimony about the date and delivery of the workshop memorandum are immaterial. ¶

3/ The Hearing Examiner rejected Ferrone’s explanation for sending that memorandum. Given Gruenwald’s history of having a “dirty” classroom floor, the timing of this memorandum (just after the telephone call), and the fact that copies of the memorandum were sent to Board members, we accept the Hearing Examiner’s inference that the memorandum was motivated by hostility to Gruenwald for leaving the telephone message. ¶

4/ The Hearing Examiner found that the reference to assessing Gruenwald’s technological proficiency was made in retaliation for Gruenwald’s telephone message. The Board contends that Ferrone was simply advising Gruenwald that he would investigate Gruenwald’s concern that a workshop on technology was not needed. The Hearing Examiner did not credit Ferrone’s explanation. We will not disturb a credibility determination absent compelling reasons. ¶

5/ Given the identical remedy, we need not decide whether the memorandum also violated 5.4a(3). ¶