P.E.R.C. No. 2010-2, W Paterson B/E

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of WEST PATERSON BOARD OF EDUCATION, Respondent, -and- Docket No. CO-2007-255 WEST PATERSON EDUCATION ASSOCIATION, Charging Party. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission adopts, with modification, a Hearing Examiner’s recommended decision that the West Paterson Board of Education violated the Employer-Employee Relations Act when it refused to grant discretionary time off to custodians and secretaries in retaliation for the West Paterson Education Association’s filing of grievances and the rejection of the superintendent’s proposal to alter terms and conditions of employment. ¶

The Board filed exceptions to the Hearing Examiner’s report alleging various mistakes of fact and conclusions of law. The Association filed cross-exceptions regarding the Hearing Examiner’s dismissal of the allegation that an employee was transferred in retaliation for testifying in the case and that the Hearing Examiner should have awarded monetary damages. ¶

The Commission finds that the Board violated the Act when the superintendent: issued memorandum refusing to grant secretaries and custodians discretionary time off; refusing to grant secretaries early release time before holidays after the filing of a grievance over Thanksgiving release time; refusing to give extra tasks for custodians to perform in November 2006 in order to get discretionary time off during the Christmas break after the filing of a mail-run grievance; and insisting that custodians work the Christmas holiday, discretionary time they previously had off, after the Association rejected his proposal that they work in-service days that they were contractually entitled to as time off. The Commission rejects the Association’s cross-exceptions. ¶

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 WEST PATERSON BOARD OF EDUCATION, Respondent, -and- Docket No. CO-2007-255 WEST PATERSON EDUCATION ASSOCIATION, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, Schenck, Price, Smith & King, LLP, attorneys (Joanne L. Butler, of counsel) ¶

For the Charging Party, Zazzali, Fagella, Nowak, Kleinbaum & Friedman, P.C., attorneys (Richard A. Friedman, of counsel and on the brief; Kathleen Naprstek Cerisano, on the brief) ¶

DECISION ¶

This case comes to us by way of exceptions and cross- exceptions to a Hearing Examiner’s Report and Recommended Decision. H.E. No. 2009-9, 35 NJPER 113 (¶45 2009). The case involves an unfair practice charge filed by the West Paterson Education Association against the West Paterson Board of Education. The Association alleges that the Board violated the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq., specifically 5.4a(1), (2), (3), (4) and (5).1/ ¶

The Association filed its charge on March 5, 2007. The Association alleged that in response to protected activities – - the filing of numerous grievances, objections to Superintendent Scott Rixford's alleged direct dealing with custodians, the filing of a unit clarification petition regarding secretaries, and the raising of various other concerns -- Rixford engaged in a pattern of behavior evidencing anti-union animus. The Association asserted that Rixford generally threatened to exercise his discretion in unfavorable ways towards individuals who did not cooperate with him and towards the Association for filing grievances. It is also alleged that Rixford threatened to: (1) subcontract maintenance work, (2) reduce the number of floating holidays for custodians, (3) reassign work from confidential to non-confidential secretaries, and (4) require secretaries to work a half-day longer before the Thanksgiving and Christmas holidays in contravention of past practice. Finally, the Association alleged that Rixford dealt directly with custodians over their working schedules. Rixford's actions, the Association contended, independently chilled or interfered with the exercise of protected activities. ¶

On November 16, 2007, a Complaint and Notice of Hearing issued. On May 22, 2007 and February 13, 2008, the Board filed its Answer generally denying the allegations. ¶

Four days of hearing were held at which the parties examined witnesses and introduced exhibits. On May 27, 2008, after the first day of hearing, Hearing Examiner Wendy L. Young granted the Association’s motion to amend the Complaint to allege that Rixford transferred secretary Sharon Lovas and custodian Massimo Amato in retaliation for their testimony at the first day of hearing in violation of 5.4a(1), (3) and (4). The parties filed post-hearing briefs by February 13, 2009. ¶

On March 31, 2009, the Hearing Examiner issued her report and recommendation. On April 14, the Board filed its exceptions. On April 24, the Association filed its cross-exceptions and answering brief. On April 30, the Board filed its answering brief. ¶

We adopt and incorporate the Hearing Examiner’s findings of fact (H.E. at 4-70) with the modification explained below. We now briefly summarize the Hearing Examiner’s findings of fact and address the Board’s exceptions to those findings. ¶

The Hearing Examiner’s Finding of Facts and the Board’s Factual Exceptions ¶

On July 1, 2006, Scott Rixford became superintendent. He came to West Paterson from the Paterson State-Operated School District. The former superintendent and former Association president had enjoyed a friendly relationship. No unfair practice charges and only one grievance had been filed in recent years. That grievance was arbitrated in July 2006, shortly after Rixford became superintendent. The grievance challenged the requirement that teacher’s aides be required to attend in-service days with teachers. Despite the contract’s silence, the Association maintained that by past practice, the aides were not required to attend. Rixford testified at the arbitration that aides should be required to do so. The grievance was sustained. ¶

As a result of concerns raised by Rixford’s testimony at the arbitration, the current Association co-presidents Cassandra Lazzara and Venous Tashayodi invited Rixford to an informal meet and greet dinner with the Passaic County Education Association president, the mayor of West Paterson, and the NJEA UniServ representative assigned to West Paterson, Richard Loccke. The interaction between Rixford and Loccke was heated and combative, in part because Rixford explained that he intended to rely on the letter of the collective agreement, not past practice.2/ ¶

In August 2006, Rixford sent a letter to all staff members, including aides, requiring their attendance at an orientation day. In the past, aides had not been required to attend. Since the arbitration award on the in-service days had not yet issued, Rixford instructed his staff to tell any aides that called about it that their attendance was voluntary. Loccke complained to Board attorney Peter Tucci about Rixford’s instructions and told Tucci that Rixford was ignoring past practice and was disrupting what had been good relations. Loccke also indicated that he would do his best to make sure the Board did not renew Rixford’s contract. Tucci told Rixford about what he considered to be Loccke’s threats. Loccke was displeased that Tucci had told Rixford and told Tucci so. In Rixford’s view, any attempt to work with the Association was made virtually impossible with Loccke involved.3/ Rixford then told Tashayodi and Lazzara not to go to Loccke for advice and that it would be better if they spoke to Carol Pierce, the NJEA UniServ representative assigned to the Paterson State-Operated School District whom Rixford got along with.4/ ¶

Rixford inherited another issue. Even though there was no formal maintenance position, Sal Navarre and Massimo Amato were two custodians who had been assigned maintenance-only work. The Board was concerned about those assignments, especially since some custodians questioned their fairness. Rixford met with Supervisor of Building and Grounds Jack Wittig about the custodial assignments. Based on Wittig’s input, Navarre and Amato were reassigned as custodians. Lazzara arranged a meeting with Rixford to discuss their concerns. ¶

On August 21, 2006, Lazzara, Navarre, and Amato met with Rixford and Wittig. Lazzara and Amato testified that Rixford told them that he was dissolving the maintenance department and that if his decision was questioned, he would let two custodians go and privatize maintenance services. ¶

The Hearing Examiner found that Rixford admitted that during the August 21 meeting about the maintenance department, he said something like “if you don’t work with me, I won’t work with you.” She further found that Rixford also told them that he was not looking to cause trouble but to work collegially with them. However, Lazzara was the only one to testify that Rixford made the comment and she testified that he made the comment at a different meeting in a different context (1T38-1T39). She testified that Rixford made the statement during a September 2006 meeting to discuss the Association’s refusal to have custodians swap contractual days off for days off during the Christmas break. We modify findings 24 and 25 to eliminate any references to this conversation taking place during the meeting to discuss maintenance duties. ¶

In August 2006, Rixford and the Association amicably agreed to add a third parent-teacher conference. A grievance involving Rixford’s decision to have secretaries from Memorial School cover for a secretary at another school when she went to lunch was resolved when the lunch hours were restored. ¶

During either September or October 2006, Rixford asked Wittig to informally ask the custodians if they were interested in working staff development days that they were contractually off in exchange for time off at between Christmas and New Years, when the rest of the staff is off. Thereafter, Tashayodi and Lazzara met with Rixford and rejected his proposal. Rixford then told Tashayodi and Lazzara that custodians would have to work the Christmas break since time off at Christmas is left to his discretion. Lazzara viewed this as retaliation. Tashayodi and Lazzara later learned that Wittig had spoken to the custodians about Rixford’s suggestion. ¶

It was during this conversation that Rixford allegedly told Tashayodi and Lazzara that he could not possibly work with the custodians if they did not work with him. Rixford denied having said “if you don’t work with me, I won’t work with you,” but acknowledged that he probably said something like that. He went on to explain that he thought he said that he was not looking to cause trouble but to work collegially with them as a new person coming in.5/ ¶

Numerous grievances were filed during the first half of the 2006-2007 school year. All except the orientation-day grievance were arbitrated. ¶

During the second week of September, Rixford notified the secretaries that they could not leave at 3:30 p.m. on Fridays. The contract specifies the end of the secretarial day as 4:00 p.m. Rixford denied a grievance rejecting the Association’s past practice argument. An arbitrator sustained the grievance, finding that a 28-year practice was binding. ¶

On September 21, 2006, the Association filed a grievance seeking compensation for aides who voluntarily attended the orientation day. Rixford denied the grievance. After the related in-service day grievance was sustained in arbitration, the Board and Association settled the orientation-day grievance by granting compensatory time. ¶

On October 4, 2006, Rixford revised the number of floating holidays for the 2006-2007 school year. The contract allows certain holidays falling on a Saturday to be taken at a later time. Since Christmas Eve and New Year’s Eve both fell on a Sunday, Rixford decided that they would not be included in the floating holiday allotment. The Association filed a grievance that was sustained in arbitration. ¶

Sometime in September or October 2006, Rixford merged the responsibility of mail delivery with custodial responsibilities, but did not pay the $800 contractual mail-run stipend. The Association filed a grievance that was sustained in arbitration. At some point after the filing of the mail delivery grievance, Tashayodi approached Rixford about any job custodians could do that would allow them to get some discretionary days off during the Christmas vacation. Rixford responded that if the custodians started working with him then he could consider it, but that since there were so many complaints, his hands were tied. ¶

On November 8, 2006, Rixford issued a memorandum concerning dismissal time the day before Thanksgiving. Secretaries would be dismissed at either 1:30 p.m. or 1:45 p.m., depending on the school they were assigned to, while custodians would work their regular shifts. The Association filed a grievance concerning the secretaries’ dismissal time relying on past practice. The Association contended that the past practice required secretaries to be dismissed at 1:00 p.m. or 1:15 p.m., when the teachers were dismissed. Rixford denied the grievance relying on what he considered to be clear contract language. Rixford was upset that the Association had grieved his “goodwill gesture” to release secretaries early but not at the same time as teachers and assured them that “I will not cause the Association issue with future potential early release times, days or dates.” The issue arose again on the day before the Christmas break and the Association filed another grievance. Both grievances were sustained in arbitration. The award covered early release time before Thanksgiving 2006, Christmas 2006 and Easter 2007 as well as those holidays in the 2007-2008 school year. For Christmas 2006, at the last minute Rixford released the secretaries at 2:30 p.m. ¶

On October 13, 2006, Rixford began composing a memorandum that was dated October 30, but not received by custodians or secretaries until November 13. The memorandum notified them that he would not be granting any discretionary time “both now and for the foreseeable future.” For secretaries, that meant working during the spring recess and no reduction in hours during the summer. For custodians, that meant regular hours over the Christmas vacation and spring break and no abbreviation of summer work hours. ¶

On November 9, 2006, the Association filed a clarification of unit petition challenging the Board’s determination that six out of 11 secretaries were confidential employees. The matter eventually settled. ¶

Shortly after the clarification of unit petition was filed, secretaries assigned to the three schools were notified that they would be responsible for handling banking in their individual schools. ¶

On May 16, 2008, approximately two weeks after testifying on the first day of hearing in this case, secretary Sharon Lovas was notified that she would be assigned to work under the newly- created supervisor of curriculum and instruction. Planning for this change had begun in the fall of 2007. Although Rixford had told Lovas that he had great plans for her for the next school year, he had not told her that the plans included a new assignment. ¶

Massimo Amato is the Association’s negotiations chair and also testified at the first day of hearing on April 30, 2008. Amato was notified in May 2008 of a transfer to a different school with earlier work hours. Later hours were preferable because of child care issues. He never requested the new assignment nor had anyone spoken to him about it. Amato was sitting with his supervisor, Jack Wittig, when he received the new assignment. Amato testified that Wittig denied any knowledge of the transfer. Rixford testified that he had discussed it with Wittig. The Hearing Examiner credited Amato’s testimony. She drew a negative inference from the Board’s failure to call Wittig as a witness. Amato requested a meeting with Rixford to discuss the transfer, but was told by Wittig that since the hearing in this matter was still ongoing, Rixford could not meet with him. In late July or August 2008, Amato approached Rixford about changing his work hours. According to Rixford, the Board did not support his recommendation that another custodian be given the earlier shift. ¶

The Hearing Examiner’s Conclusions of Law ¶

Under In re Bridgewater Tp., 95 N.J. 235 (1984), no violation of 5.4a(3) 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. ¶

Based on her findings of fact and her application of Bridgewater to the facts, the Hearing Examiner recommended finding that the Board violated 5.4a(3) and, derivatively, a(1) of the Act when Superintendent Rixford refused to grant discretionary time off to custodians and secretaries in retaliation for the Association’s filing of grievances and the rejection of his proposals to alter terms and conditions of employment; independently violated 5.4a(1) when Rixford threatened to lay off custodians if they did not work with him; and violated 5.4a(4) when Rixford transferred custodian Amato for the 2008-2009 school year to another school with different, less desirable work hours shortly after he testified at the first day of hearing in this matter. The Hearing Examiner recommended dismissing an allegation that Rixford's statements to the Association co-presidents that they should not seek advice from Uniserv Representative Loccke because he prevented the parties from resolving issues independently violated 5.4a(1). She also recommended dismissing an allegation that the Board reassigned secretary Lovas in violation of 5.4a(4), finding that Rixford planned the reassignment well before her testimony in the unfair practice hearing and would have reassigned her whether or not she testified at the hearing. Finally, the Hearing Examiner recommended that the 5.4a(1) and (5) allegations regarding direct dealing be dismissed. She determined that Rixford's polling of custodians regarding his proposal that they work certain in-service days in exchange for discretionary time off at Christmas was permissible conduct. ¶

We now address the Board’s exceptions to the Hearing Examiner’s conclusions of law. ¶

Violations of 5.4a(3) and, derivatively, a(1) ¶

Release Time for Thanksgiving Day ¶

The Board argues that the Hearing Examiner improperly found that Rixford’s response to the Association grievance about release time before Thanksgiving was threatening. The Board states that the finding is wholly unfounded and unsupported by the record. However, the Hearing Examiner explained that although Rixford’s initial decision not to release secretaries as early as the Association wanted before Thanksgiving was not a violation of the Act, his decision not to grant early release time before subsequent holidays was in retaliation for the Thanksgiving Day early release grievance (H.E. at 46-48). The Hearing Examiner’s record citations provide ample support for her finding that Rixford’s response was intended to give secretaries no more breaks in regard to early release time and was therefore threatening. ¶

Rixford’s October 30, 2006 Memorandum Regarding Discretionary Work Periods and Custodial Time Off During the Christmas Holiday ¶

We also reject the Board’s challenge to the Hearing Examiner’s finding that Rixford’s memorandum that informed custodians and secretaries that, although the contract gives the superintendent the discretion to grant time off during the year, he would not be granting any discretionary time “both now and for the foreseeable future.” The Board argues that after rejecting the allegation that Rixford’s memorandum was issued in response to the Association’s having filed a clarification of unit petition, the Hearing Examiner reached to find another reason for the memorandum. The Board contends that the Hearing Examiner made an argument for the Association without providing the Board an opportunity for rebuttal. We disagree. Both the unfair practice charge and the Association’s post-hearing brief assert that the memorandum was issued “to retaliate against the Association for engaging in protected activity, including but not limited to the filing of the Unit Clarification Petition.” This allegation was pled and argued by the Association. In addition, the record supports the Hearing Examiner’s inference of hostility from the fact that immediately after the Association rejected Rixford’s suggestion that custodians work certain holidays in exchange for days off at Christmas, Rixford told the Association co-presidents that the custodians would have to work the Christmas holiday.6/ Bridgewater (absent direct evidence of anti-union animus, charging party may provide circumstantial evidence showing that employee engaged in protected activity, the employer knew of this activity, and the employer was hostile towards the exercise of protected rights). ¶

The Connection Between Rixford’s Statements at the August 2006 Meeting and His October 30, 2006 Memorandum on Discretionary Time and the Independent Violation of 5.4a(1) ¶

The Board argues that the Hearing Examiner erred in making a connection between Rixford’s statements at an August 2006 meeting with Lazzara and two custodians and his actions regarding discretionary time. The Hearing Examiner found that at that meeting, Rixford stated that if they didn’t work with him, he wouldn’t work with them. From this testimony, the Hearing Examiner inferred that Rixford’s decision not to grant discretionary time off now and for the foreseeable future without considering the merits of a future request was in retaliation for the Association’s intervening grievances and other decisions not to “work with him.” However, the testimony does not support the fact that Rixford made that statement at the August 2006 meeting. The statement was made at a later meeting where the Association was refusing to “work with” Rixford by not agreeing to swap contractual days off for time off during Christmas break. We do not view the statement as retaliation or threatening in the context of that meeting. It was understandable for Rixford to make such a statement in the context of the Association’s refusal to give up contractual days off in order for him to exercise what he thought was his discretion to grant additional time off during the Christmas break. Accordingly, we will not find that the statement, if made in the context of a failed agreement to swap days off, was without a legitimate business justification or threatening. An employer independently violates 5.4a(1) only if its action tends to interfere with an employee’s statutory rights and lacks a legitimate and substantial business justification. New Jersey Sports & Exposition Auth., P.E.R.C. No. 80-73, 5 NJPER 550 (¶10285 1979). We thus find no independent violation of 5.4a(1) related to the statement. In addition, we will not rely on the statement in accepting the Hearing Examiner’s conclusion that Rixford issued his October 30, 2006 Memorandum on Discretionary Time in retaliation for the filing of grievances and the rejection of his proposals to change mandatorily negotiable terms and conditions of employment. The record supports the Hearing Examiner’s conclusion on this violation even without reliance on that statement. ¶

Past Practice ¶

When Rixford became superintendent, he and the Association disagreed about the continuation of certain past practices in light of arguably inconsistent contract language. Rixford then ended certain practices and the Association filed grievances challenging those actions. The Board is correct that a public employer does not violate the Act when it acts pursuant to the terms of a collective negotiations agreement. See, e.g., Sussex- Wantage Reg. Bd. of Ed., P.E.R.C. No. 86-57, 11 NJPER 711 (¶16247 1985) (contract prevails over contrary past practice). However, the Hearing Examiner did not find that the Board violated the Act by deviating from past practices. She specifically found that the actions Rixford took that triggered a number of Association grievances were not taken in retaliation for the exercise of protected activity. Those actions included eliminating early-Friday release time for secretaries, insisting that aides attend orientation day, taking away two floating holidays that fell on Sunday that year, and changing secretarial dismissal time before Thanksgiving. In each instance, Rixford articulated different rationales for his actions that, although later rejected by arbitrators, were consistent with his belief that “clear” contract language superceded the parties’ past practices. The Hearing Examiner treated differently actions that Rixford took in retaliation for the Association’s challenging his decision to end certain past practices – issuing a memorandum refusing to grant discretionary time off to secretaries and custodians “both now and in the foreseeable future,” refusing to find extra tasks for custodians so they could have days off over the Christmas holidays as in the past, refusing to grant early- release time before Thanksgiving presently and in the foreseeable future, and insisting that custodians work the Christmas holiday after the Association rejected his proposal that they work in- service days that they were contractually entitled to as time off. Those acts of retaliation for protected activity violated the Act. ¶

The 5.4a(4) Violation ¶

Finally, the Board excepts to the Hearing Examiner’s finding that it, through Rixford, violated 5.4a(4) when it transferred Amato to another school after he testified during the first day of the unfair practice hearing. It argues that the Hearing Examiner misconstrued Rixford’s testimony about why he initiated the transfer. We disagree. The Hearing Examiner considered Rixford’s testimony and found his explanations for the transfer to be illogical and pretextual. Rixford claimed that he transferred another custodian to Memorial from Beatrice Gilmore School because he thought that custodian would be better at a larger school. But he did not provide a rationale for this conclusion. Nor did he explain why he waited to transfer Amato until two weeks after he testified or explain why he transferred Amato and not the other “strong” custodian? Rixford also did not explain how renewed interest by the Board in resurrecting maintenance-only assignments justified Amato’s transfer. Nor has the Board undermined the Hearing Examiner’s rejection of Rixford’s testimony that he consulted Wittig about the transfer decision. The Hearing Examiner credited Amato’s testimony that Wittig told him that he knew nothing about the transfer and the Board did not call Wittig as a witness to corroborate Rixford’s contrary testimony. Finally, the Hearing Examiner properly concluded that Rixford’s unsuccessful after-the-fact attempt to accommodate Amato’s request for different work hours is immaterial to her finding of a retaliatory transfer. ¶

The Association’s Cross-Exceptions ¶

We reject the Association’s cross-exceptions. The Association excepts to the Hearing Examiner’s conclusion that the transfer/reassignment of Sharon Lovas was not in retaliation for her testimony during the first day of the unfair practice hearing. Her reassignment to work for the newly-created position of supervisor of curriculum and instruction was initiated in the fall of 2007, long before her testimony on April 30, 2008. ¶

The Association also argues that the Hearing Examiner did not recommend a full and proper remedy. It seeks “an appropriate monetary and/or compensatory remedy for those secretaries and custodians who were improperly denied discretionary time in retaliation for the Association’s filing of grievances and/or rejection of Rixford’s proposals.” The Board responds that the Association did not seek that type of relief in its charge and did not comply with the procedural rules governing the filing of exceptions. ¶

We agree with the Board that the unfair practice charge did not specify that the Association was seeking any form of monetary relief. Nor did the Association’s post-hearing brief seek monetary relief. We will not find fault with a Hearing Examiner who does not recommend relief not sought by the charging party. ¶

In the absence of exceptions, we also adopt the Hearing Examiner’s recommendation to dismiss the 5.4a(2) and a(5) allegations. ¶

OrderORDER ¶

The West Paterson Board of Education is 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 Superintendent Rixford’s issuing a memorandum refusing to grant secretaries and custodians discretionary time off presently and in the foreseeable future; refusing to grant secretaries early release time before holidays after the filing of a grievance over Thanksgiving release time; refusing to give extra tasks for custodians to perform in November 2006 in order to get discretionary time off during the Christmas break after the filing of a mail-run grievance; and insisting that custodians work the Christmas holiday, discretionary time they previously had off, after the Association rejected his proposal they work in-service days that they were contractually entitled to as time off. ¶

2. Discriminating in regard to the tenure of employment to discourage employees in the exercise of the rights guaranteed to them by the Act, particularly by Superintendent Rixford’s issuing a memorandum refusing to grant secretaries and custodians discretionary time off presently and in the foreseeable future; refusing to grant secretaries early release time before holidays after the filing of a grievance over Thanksgiving release time; refusing to give extra tasks for custodians to perform in November 2006 in order to get discretionary time off during the Christmas break after the filing of a mail-run grievance; and insisting that custodians work the Christmas holiday, discretionary time they previously had off, after the Association rejected his proposal they work in-service days that they were contractually entitled to as time off. ¶

3. 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, particularly by transferring Massimo Amato from Memorial School to Charles Olbon School and changing his hours of work from 9:00 a.m. to 6:00 p.m. to 7:30 a.m. to 4:30 p.m. in retaliation for his testifying at the hearing in this matter. ¶

B. Take this action: ¶

1. Cease and desist from threatening to lay off custodians and refuse to work with them, if they don’t work with Superintendent Rixford. ¶

2. Immediately rescind the memorandum refusing to grant discretionary time off to secretaries and custodians “both now and in the foreseeable future” and exercise that discretion in a non-retaliatory manner. ¶

3. Immediately give Massimo Amato the option to transfer back to Memorial School with his previous work schedule of 9:00 a.m. to 6:00 p.m. ¶

4. 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. ¶

5. 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. ¶

The remaining allegations in the Complaint are dismissed. ¶

BY ORDER OF THE COMMISSION ¶

Chairman Henderson, Commissioners Colligan, Joanis and Watkins voted in favor of this decision. None opposed. Commissioner Fuller abstained. Commissioners Branigan and Buchanan were not present. ¶

ISSUED: August 13, 2009 ¶

Trenton, New Jersey ¶

NOTICE TO EMPLOYEES ¶

PURSUANT TO ¶

AN ORDER OF THE ¶

PUBLIC EMPLOYMENT RELATIONS COMMISSION ¶

AND IN ORDER TO EFFECTUATE THE POLICIES OF THE ¶

NEW JERSEY EMPLOYER-EMPLOYEE RELATIONS ACT, ¶

AS AMENDED, ¶

We hereby notify our employees that: ¶

WE WILL cease and desist from interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by the Act, particularly by Superintendent Rixford’s issuing a memorandum refusing to grant secretaries and custodians discretionary time off presently and in the foreseeable future; refusing to grant secretaries early release time before holidays after the filing of a grievance over Thanksgiving release time; and refusing to give extra tasks for custodians to perform in November 2006 in order to get discretionary time off during the Christmas break after the filing of a mail-run grievance; and insisting that custodians work the Christmas holiday, discretionary time they previously had off, after the Association rejected his proposal they work in-service days that they were contractually entitled to as time off. ¶

WE WILL cease and desist from discriminating in regard to the tenure of employment to discourage employees in the exercise of the rights guaranteed to them by the Act, particularly by Superintendent Rixford’s issuing a memorandum refusing to grant secretaries and custodians discretionary time off presently and in the foreseeable future; refusing to grant secretaries early release time before holidays after the filing of a grievance over Thanksgiving release time; and refusing to give extra tasks for custodians to perform in November 2006 in order to get discretionary time off during the Christmas break after the filing of a mail-run grievance; and insisting that custodians work the Christmas holiday, discretionary time they previously had off, after the Association rejected his proposal they work in-service days that they were contractually entitled to as time off. ¶

WE WILL cease and desist from 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, particularly by transferring Massimo Amato from Memorial School to Charles Olbon School and changing his hours of work from 9:00 a.m. to 6:00 p.m. to 7:30 a.m. to 4:30 p.m. in retaliation for his testifying at the hearing in this matter. ¶

WE WILL cease and desist from threatening to lay off custodians and refuse to work with them, if they don’t work with Superintendent Rixford. ¶

WE WILL immediately rescind the memorandum refusing to grant discretionary time off to secretaries and custodians “both now and in the foreseeable future” and exercise that discretion in a non-retaliatory manner. ¶

WE WILL immediately give Massimo Amato the option to transfer back to Memorial School with his previous work schedule of 9:00 a.m. to 6:00 p.m. ¶

Docket No. CO-2007-255 WEST PATERSON BOARD OF EDUCATION ¶

(Public Employer) ¶

Date: By: ¶

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced or covered by any other material. ¶

If employees have any question concerning this Notice or compliance with its provisions, they may communicate directly with the Public Employment Relations Commission, 495 West State Street, P.O. Box 429, Trenton, NJ 08625-0429 (609) 984-7372. ¶

APPENDIX “A” ¶

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. (2) Dominating or interfering with the formation, existence or administration of any employee organization. (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. (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. . . .” ¶

2/ The Board questions the Hearing Examiner’s decision to credit Loccke’s testimony because he, unlike Rixford, recalled in detail the dinner conversation. However, it was within the Hearing Examiner’s discretion to credit the testimony of the witness best able to recall the circumstances of the meeting. N.J.S.A. 52:14B-10(c) (agency head may not reject or modify any findings of fact as to issues of credibility of lay witness testimony unless it is first determined from a review of the record that the findings are arbitrary, capricious or unreasonable or are not supported by sufficient, competent, and credible evidence in the record). No contrary description of the meeting was offered. ¶

3/ The Board argues that the Hearing Examiner minimized the import of Loccke’s statement to Board counsel Tucci “announcing his mission to get Mr. Rixford out of West Paterson.” Board brief at 2. The Board also argues that the Hearing Examiner failed to find that Loccke never denied making the threat to Rixford’s employment. However, the Hearing Examiner found that Loccke indicated he would do his best to make sure that the Board did not renew Rixford’s employment contract. We reject the suggestion that the Hearing Examiner minimized that finding. We also reject the Board’s assertion that by finding that Rixford never confronted Loccke about the threat, the Hearing Examiner implied that Rixford should have confronted Loccke. We do not draw such an inference. ¶

4/ The Hearing Examiner found that Rixford “never directly denied telling Tashayodi and Lazzara that they should speak to Pierce, not Loccke.” The Board asserts that Rixford did in fact deny having made any statement that Association members should not seek assistance from Loccke. We reject this exception. The Hearing Examiner accurately stated in her decision that “Rixford, however, denies telling Tashayodi and Lazzara not to talk to Loccke.” She also accurately found that Rixford did not directly deny telling Tashayodi and Lazzara that they should speak to Pierce, not Loccke. ¶

5/ Although the Hearing Examiner did not explicitly make a factual finding that Rixford said that if the custodians did not work with him, he would not work with them, she later referred to such a finding when she concluded that the statement violated the Act (H.E. at 57). ¶

6/ The Board argues that the Hearing Examiner failed to fully consider the fact that custodians ultimately did not work during the Christmas holiday. The Board cites Amato’s testimony (1T109). That testimony, however, was that custodians did not work Christmas 2007. Lazzara testified that in September 2006, she asked Rixford how he could sit home on a Christmas holiday and have the custodians work while everybody else in the district was sitting home, but it did happen (1T39). That testimony was not rebutted. We thus conclude that the custodians worked Christmas 2006, but not Christmas 2007. ¶