P.E.R.C. No. 2014-10, Paterson State Operated Sch Dist

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of PATERSON STATE-OPERATED SCHOOL DISTRICT, Respondent, -and- Docket No. CO-2011-283 PATERSON EDUCATION ASSOCIATION, Charging Party. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission accepts in part and rejects in part a Hearing Examiner’s report and recommended findings in an unfair practice case filed by the Paterson Education Association against the Paterson State-Operated School District. That Hearing Examiner recommended that the Commission find that the District violated the New Jersey Employer-Employee Relations Act, specifically N.J.S.A. 34:13A-5.4a(1), in two different instances involving interactions between the Principal and the Association Treasurer. The Commission agrees with the Hearing Examiner that comments regarding the Treasurer’s protected activity that were in letters placed in her personnel file interfered with her rights to represent Association members. The Commission rejects the Hearing Examiner’s finding that the Principal’s comment that if she had to comply with the collective negotiations agreement’s teacher schedules, then so did everyone else including teachers losing perquisites such as leaving school during prep periods, was a threat and independent a(1) violation. The Commission finds that employers may always expect compliance with the precise terms of an agreement, the timing of the statement did not escalate it into a threat, the record does not support a clear past practice allowing teachers to leave the building outside the limitations of the agreement, and there was no evidence in the record that the Principal took any action limiting teachers’ ability to leave the building. ¶

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 PATERSON STATE-OPERATED SCHOOL DISTRICT, Respondent, -and- Docket No. CO-2011-283 PATERSON EDUCATION ASSOCIATION, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, Robert E. Murray, of counsel ¶

For the Charging Party, Bucceri and Pincus, attorneys (Sheldon Pincus, of counsel) ¶

DECISION ¶

On January 24, 2011 the Paterson Education Association filed an unfair practice charge. The charge was amended on April 29. As amended, the charge alleges that the Paterson State-Operated School District violated 5.4a(1), (3) and (5)1/ of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. The Association’s amended charge was based on numerous incidents. However, the exceptions from both the Association and the District center around interactions between Principal Isabelle Grassi and Association Treasurer Wanda Koch during a September 1 and 2, 2010 in-service meeting and a statement made by Grassi during a February 9, 2011 staff meeting. We accept in part and reject in part the Hearing Examiner’s Report and Recommended Findings. ¶

A Complaint and Notice of Hearing was issued on May 9, 2011. The District filed an answer on May 24, 2011. Hearing Examiner Wendy Young conducted hearings on November 3, 17 and December 19, 2011 and February 1, March 20 and June 12, 2012. ¶

On January 22, 2013, the Hearing Examiner issued her report and recommended decision. H.E. No. 2013-011, 39 NJPER 374 (¶124 2013). The Hearing Examiner made extensive findings of fact, which we adopt and incorporate, except as noted infra.2/ H.E. No. 2013-011, 6 - 66. She found that the District violated a(1) independently in two different instances. The first was, after the September 1 and 2, 2010 in-service meetings when Grassi included criticisms of Koch’s conduct as a union representative in two letters placed in Koch’s personnel file. The second instance was when, during the February 9, 2011 staff meeting, Koch advised Grassi that several of the teachers’ schedules were not in compliance with the Agreement, Grassi changed the schedules and announced that if she had to comply with the Agreement, then so did everyone else, including losing perks such as leaving school during prep periods and having food delivered to the school. ¶

On February 27, 2013 the Association and the District each filed exceptions, and on March 5 they each filed replies. ¶

Factual History ¶

The Health and Related Professions Academy (HARP) was started by the District in 1995 as a program within Eastside High School and eventually moved to its own building. The District and Association are parties to successive collective negotiations agreements effective from July 1, 2004 through June 30, 2010. ¶

I. September 1 and 2 In-Service Meetings ¶

In-service meetings at the beginning of a school year are held before the first day of school for students. In 2010-2011, HARP in-service meetings were conducted on September 1 and 2, 2010. The whole staff of approximately 35 to 40 teachers attended these meetings. This was the first time Grassi was meeting with her staff in her new role as principal. On September 1, Grassi began the meeting with an “ice-breaker” activity, asking staff to find specific items in their wallets. This was designed to get them talking. Grassi then gave out a newspaper article from The Record, written in August 2010 and entitled “Reforming Tenure: Is It the Answer?” . The article addressed tenure changes and what was happening in this regard throughout the State. The staff was then broken up into small groups for the purpose of discussing how best to help non-tenured teachers. In response to one suggestion that teachers mentor teachers and that evaluations be conducted by committee consisting of administrators and teachers, Koch pointed out that this issue had to be treated carefully, because teacher-on-teacher evaluations were prohibited by the parties’ collective negotiations agreement. Koch spoke for a minute or two and describes her voice as loud enough to be heard over the large-group discussion. Grassi made no comment at this time, and the discussion among staff continued. ¶

Later during the September 1 meeting, Grassi passed out teaching schedules and announced that the schedules were in compliance with the parties’ collective agreement, and that there was to be no discussion about the schedules at that time. However, Koch looked at her schedule, determined that the length of her work day was too long and raised her hand. Grassi recognized Koch who informed her that her own schedule was, in fact, not in compliance with the collective agreement. Grassi responded that Koch’s schedule would be fixed before the end of the day. Grassi again stated there would be no more discussion on schedules and moved on to another topic. ¶

At some point during the meeting that day, Koch, in a cordial and conversational tone, also broached the subject of rumors pertaining to the faculty room being moved and the faculty bathroom being taken away. Faculty facilities are covered by Article 16:1.3 and 1.7 of the collective agreement. According to Koch, Grassi confirmed that the rumors were true but requested no further discussion of the subject. Koch observed that Grassi’s voice in responding to her was louder than before, but admits Grassi did not indicate in any way that Koch was out of order in raising the issue. ¶

Other staff, however, pursued the topic, and Grassi responded that staff would be using the restroom in another wing of the building. When some pointed out that the bathroom Grassi was moving them to had no lock and was filthy, Grassi said it would be cleaned or painted and a lock installed with keys distributed to staff. Koch describes Grassi’s tone of voice in response to these staff inquiries as elevated, but not yelling, and that Grassi seemed to want to move on to other topics. ¶

During the lunch break that day, three or four teachers approached Koch to discuss their schedules which they also believed were not in compliance with the collective agreement. In particular, they believed their schedules were not in compliance with recent arbitration awards, the John F. Kennedy award and supplemental award, issued on April 7 and November 17, 2009, respectively. The Kennedy awards addressed teacher schedules at the District’s high schools. The awards covered school years beginning in 2007-2008. Although the awards were issued a year earlier, the application of the awards continued to create confusion in the beginning of the 2010-2011 as to teacher schedules at all of the high schools. Many individual grievances were filed at all the high schools about the schedules. Director of Labor Relations Luis Rojas is still working with the Association to gather schedules for the years between 2007-2008 and 2010-2011 to ensure compliance with the awards and to determine appropriate remedies for individual teachers. ¶

Koch’s advice to the teachers who approached her at the lunch break on September 1 was to first take their schedules to Grassi to be corrected. ¶

Sometime on September 2, before the beginning of the second in-service meeting, Koch instructed Lecia Minor, who had been a building representative the year before at HARP, to conduct elections for new building representatives. As a result, three delegates were elected for the 2010-2011 school year – Lecia Minor, Ronnie Denburg and Patty Spilitopoulos (1T79). It is unclear from the record whether the delegates were elected that day or later. ¶

The September 2 meeting opened with Grassi explaining that she had met with department heads to discuss the ideas that were presented the day before, including evaluation by committee. About five minutes into the meeting, Koch raised her hand and was recognized by Grassi. Koch remained seated and reiterated her position that the subject had to be treated carefully, and that it was a slippery slope when considering peer-on-peer evaluation. Koch describes her own tone of voice at this time as conversational, but states that Grassi cut her off mid-sentence, stating that they were not going to discuss the subject at that time. According to Koch, Grassi’s tone at this point was “forceful, but fine.” ¶

Koch continued her testimony and described the incident as follows: ¶

At that point, I still had the floor, as I had been cut off in mid-sentence. So, I turned to her and said: ¶

“I think it is very important that we discuss it because it’s against the Collective Bargaining Agreement. And, more importantly, it could lead to legal action.” ¶

(1T73, 2T73) ¶

Koch states that her own tone was still conversational but then: ¶

Ms. Grassi shrieked at me and said: ¶

“We’re not going to discuss it. And if you don’t like it, you can leave.” ¶

She was pointing to the door and saying: “If you don’t like it you can leave.” ¶

I then said, and I’m sure my tone got louder because I felt attacked, but I in no way was screaming at her. And I was still seated in my seat at a desk, a school desk. ¶

So, I turned and I said to her: “I thought this was a staff meeting where we were going to have discussion not that you were going to dictate to us.” ¶

And with that she pointed to the door and screamed: “Go to your room and sit there.” ¶

(1T74) ¶

Koch admits that she raised her voice at this time, but denies that she was yelling. ¶

Koch concluded that Grassi was very angry at this point. Koch was, however, taken aback by Grassi’s directive that she go to her room and was basically “flabbergasted.” Once Koch realized that Grassi was serious and recognizing that Grassi was her principal, Koch got up, walked around the desk and to the door of the room. Koch felt she was being demeaned and treated like a two-year old given a time-out. So when she walked by Grassi and was approximately eight to ten feet from her, Koch turned and said, in what Koch described as a loud and sarcastic voice with a disgusted expression, “Yes, mommy” . ¶

Grassi then instructed Koch to go to her room and prepare. As Koch was leaving the room, she turned back to Grassi and with her hand on the door stated: “I will go to my room” and “No, I will go and call your superior.” (1T75). Koch then left the meeting feeling humiliated. Upon leaving the meeting, she broke down in tears in the hallway. ¶

Several teacher witnesses testified as to the events that day, but the Hearing Examiner found that Art Teacher Katherine Benevento had the best recollection of any witness, other than Koch, as to the final Grassi/Koch exchange on September 2. Benevento was assigned to HARP in 2010-2011 but was employed by the District since 1999. The Hearing Examiner found that Benevento’s testimony comported, for the most part, with Koch’s description of events. Benevento testified that Koch raised her hand during the discussion of peer review, asked to speak and then explained that peers are not allowed to evaluate peers under the parties’ collective agreement. Benevento felt Koch was appropriately advocating the position of the Association on this issue. Benevento recalled Grassi allowing Koch to finish her statement, but then explaining what she (Grassi) meant by the District initiative and peer support with classroom walk-throughs. Grassi then thanked Koch and stated she wanted to move-on. Benevento corroborated Koch’s testimony that Koch retorted to Grassi that she thought this was a staff meeting, that it was the appropriate time for such a discussion and wanted to continue to discuss peer review. Grassi, however, wanted to move on, and, according to Benevento, she and Koch became agitated with each other, both speaking in a loud voice. When Koch refused to respond to Grassi’s request to be quiet and move on, Grassi told Koch to leave and go to her room. Benevento testified that at this point, Koch and Grassi were screaming at each other, although the Hearing Examiner found that both Grassi and Koch had raised voices. Benevento also corroborated Koch’s testimony that she (Koch) advised Grassi, as she was leaving, that she was going to call Grassi’s supervisor. ¶

Based on all the witnesses’ testimony, the Hearing Examiner found that on September 2, both Koch and Grassi had raised voices, became agitated with each other and were probably yelling at the end of their exchange. She also found that Koch ignored Grassi’s directive to end the peer review discussion and move on. Koch wanted to press her point about peer review being a violation of the parties’ collective agreement. Grassi sent Koch to her room in response to Koch’s refusal to end the discussion. I also credit Koch’s testimony that she said “yes, mommy” as she was leaving the meeting and advised Grassi she was going to call her supervisor. These parting statements were made in front of the staff and loud enough to be heard by those in attendance at the meeting. ¶

Benevento also testified to a conversation that took place between she and Koch after the meeting that day. Benevento went to Koch, because she appreciated Koch’s role as an advocate for the union membership, having been at other schools where the union was not so supportive. However, on that day, Benevento told Koch that her responses to Grassi at the meeting set her up for a charge of insubordination, since Grassi was her (Koch’s) supervisor. ¶

According to Benevento, Koch responded, that she knew she was wrong, but Grassi pushes her buttons and gets her upset. Benevento’s testimony regarding Koch’s response is hearsay, but the hHearing Examiner drew a negative inference from the failure of Respondent to call Koch on rebuttal to refute this testimony. Accordingly, she credited Benevento’s testimony about the conversation. The Hearing Examiner found that Grassi determined that Koch’s refusal to end the discussion on peer review and comply with her directive to move on was insubordinate. ¶

Although Koch had indicated to Grassi upon leaving the September 2 meeting that she was going to contact Grassi’s supervisor – Assistant Superintendent Eileen Shafer, Koch thought better of calling Shafer because Koch was too upset. Koch decided instead to write Shafer a letter about the incident which she did between 9:00 a.m. when she left the meeting and 11:00 a.m. when she reported to her next meeting. ¶

Koch’s letter to Shafer is dated September 2, 2010 and describes the events of September 2 and states in pertinent part: ¶

On the morning of September 2, 2010, Ms. Grassi, Principal HARP Academy, began her staff meeting by expressing her thought in regard to teacher evaluations. She stated that she had spoken with some Department Heads about evaluating teachers by committee. I was recognized and again pointed out that it was a violation of the collective bargaining agreement for teachers to evaluate teachers. Ms. Grassi immediately cut me off stating that the topic was not up for discussion. I stated that I felt this was very important as an evaluation of this sort was against contract and that it could lead to legal action. ¶

At this point Ms. Grassi changed the entire tone of the meeting from a discussion to a personal attack. She screamed at me stating that she would not discuss the issue and, as she pointed to the door, told me that if I did not like it I could leave. I explained that I thought this was to be a staff meeting, with discussion, not just her dictating to us. She told me to leave and “Go to your room and sit there.” I felt humiliated and demeaned as an adult and a professional being treated instead like a child. I left informing her that I would be contacting her supervisor.3/ ¶

Koch’s letter goes on to explain that Grassi had verbally assaulted her in public before but that this was the first time she gave Koch a “time out” . Koch described Grassi as “ill advised about District policy, school law and contractual obligations” and that, when Grassi is called on her errors, she gets angry.4/ ¶

Koch then wrote that: ¶

My colleagues have informed me that Ms. Grassi has expressed to them her hated [sic] for me often screaming that I should mind my own business when I, acting as an Officer of the Association, am standing up for staff members rights, which is my obligation under the laws of the State of New Jersey. Ms. Grassi is my Principal, I report directly to her, therefore I respect her position. However, this last incident is a clear violation of Article 4:7 of the Collective Bargaining Agreement. Ms. Grassi has once again criticized me publicly and I would like a public apology in the same forum. (CP-4) ¶

On September 2, after writing to Shafer, Koch stayed in her room until about 11:00 a.m., when she left to attend a math department meeting with staff from all the District’s other academies which lasted for about one hour. According to Koch, the HARP staff who attended were “busting” Koch about the fact that she got a “time out” . ¶

After the meeting, Koch went to lunch from 12:00 p.m. to 1:00 p.m., but did not return to the in-service meeting thereafter because she understood from Grassi’s earlier directive that she was to stay in her room. ¶

When Koch got home that night, she mailed her letter to Shafer with a copy to Grassi. She hand delivered the letter to Association President Peter Tirri the next week. ¶

On September 7, the first day of school, Shafer was at HARP going from one classroom to another. Koch and she exchanged small talk about the commute, and Koch asked her whether she had received the letter. Shafer had not yet seen it, but Koch told her to read it and that they would discuss it later. Koch also told Shafer that there were issues in the building which, she felt, could be resolved quickly without the filing of grievances such as the facilities issues.5/ ¶

On or about September 9, 2010, Shafer sent Koch an e-mail asking Koch to call her. When Koch contacted Shafer, Shafer explained she had read Koch’s letter and wanted to know how Koch wanted her to handle the situation. Koch explained to Shafer, that she was very personally upset, and that she was concerned because, in her opinion, the staff was very fearful of Grassi and afraid to speak up because of Grassi’s treatment of Koch. Also, according to Koch, the staff was afraid of losing their jobs due to RIFs that were taking place. Shafer agreed that she would arrange to meet with Koch and Grassi. ¶

On September 16, 2010, Koch received a call after school from Shafer who said she and Grassi were waiting in Shafer’s office for her. However, after Koch explained she knew nothing about the meeting, Shafer realized she had not notified Koch, and the meeting was rescheduled. There was no testimony as to what was discussed between Grassi and Shafer on September 16. ¶

Koch received a letter, dated September 16, from Grassi in her school mailbox which provided Grassi’s version of the events of the September in-service meetings. The letter was copied to Shafer and to Koch’s personnel file. ¶

Koch read the letter and felt that it was full of distortions. In particular, as to the September 1 meeting, Grassi’s letter described sidebar discussions between Koch and a colleague which she asserted affected the productivity of the meeting and required her (Grassi) to tell Koch a number of times to stop talking because some people needed silence to review the material they were given. Koch admitted she was speaking to a new teacher but stated many people were carrying on conversations and, specifically, denied Grassi’s allegation that Grassi had to continually tell Koch to stop her conversations. ¶

As to the September 2 meeting itself, Grassi wrote that she started the meeting with a recap of the prior day and claimed that Koch became immediately aggressive and loud, describing Koch’s behavior as “defiant, obstructive, obnoxious, and unprofessional.” Koch’s behavior, Grassi wrote, bordered on insubordination and caused her to ask Koch to “[g]o to your room and prepare for student’s entering.” Grassi stated that as Koch was leaving the meeting she “verbally and abusively” stated “I am going to take this to your superior.” ¶

In summation, Grassi wrote that she had observed Koch’s behavior, namely that Koch has demonstrated the following: ¶

-consistently trying to undermine meeting agendas by attempting to insert union business into the discussion. Ex.: ¶

– “that’s against contract” ¶

- “you can’t do that” ¶

- “if anyone does that, you’re a fool” (referring to teachers) ¶

-frequently refusing to wait to be called upon – consistently shouting out loudly, and rudely to give opinion and then looks around the room as if seeking support (which is usually not given) ¶

-random staff members have verbalized the fact that they do not like to be in the teachers’ room because of your loud and obnoxious behavior ¶

-consistently attacks administrative initiatives and complaining we work in a dictatorship ¶

-does not get involved, in a positive manner, with groups or committees ¶

-forcefully tries to impose personal opinion on other staff members, especially new staff and those who are reluctant to speak out on their own behalf ¶

-consistently tries to usurp management prerogatives by attempting to debate non negotiable issues (such as space allocation & facility usage) [CP-7] ¶

Grassi concluded the letter by telling Koch that she was an excellent teacher who provided the students with the tools needed for success. However, in Grassi’s opinion, Koch’s attitude and actions “clouded [her] as a person.” Grassi expected Koch to change the way she conducted herself in meetings, in the classroom or teacher’s room, and how Koch spoke to her. ¶

Koch disagreed with Grassi’s characterization of her behavior and, specifically, her behavior at the September 2 meeting although Koch admits that when Grassi told her to go to her room, she was very upset and that her voice was raised. Otherwise, Koch vehemently disagreed with Grassi’s summation statements. The entire letter, Koch concluded, was a distortion. ¶

On September 28, 2010, Grassi, Shafer and Koch met after school. At the beginning of the meeting, Grassi handed Koch a sealed envelope which Koch did not open until afterward. ¶

According to Koch, the meeting itself was very informal. Shafer was cordial and asked both Grassi and Koch to state their cases. After hearing from both women, Shafer stated that they were both strong women, and that she believed they both had the best interest of the school in mind. According to Koch, Shafer told Grassi that as an educational leader in the building, she should not have lost her temper and screamed at Koch, and that she was wrong when she sent Koch to her room. Neither Shafer nor Grassi testified. Accordingly, the hearing Examiner found that Koch’s testimony as to Shafer’s statement that Grassi was “wrong” was uncorroborated hearsay, that no other residuum evidence supports it, and that it was inadmissible. ¶

Also, according to Koch, Grassi stated during the meeting that Koch was not an Association delegate in HARP, but Koch explained that as an officer of the Association, she is a delegate in every building. Koch then testified that Shafer asked Koch what she wanted from the meeting, and Koch told her she wanted the District to be aware of what happened and that if she filed a grievance, she would receive an apology. Grassi also expressed during the meeting that she was injured and deserved an apology personally and to the entire staff. ¶

Shafer listened, took everything that was communicated under advisement and informed them she would get back to them. ¶

After the September 28 meeting, Koch went to the Association office and spoke to Association President Tirri. Koch asked him whether it was worth filing a grievance for public criticism. Koch and Tirri decided to wait and see what Shafer did. Shafer, however, never did get back to Koch or Grassi after the September 28 meeting. ¶

Thereafter, Koch opened the sealed envelope that Grassi had given her at the September 28 meeting. The letter, dated September 27, was addressed to Shafer with a copy to Koch and to Koch’s personnel file and was a direct response to Koch’s September 2 letter to Shafer which was copied to Grassi. Grassi reiterated what she had written in her September 16 letter about the events of September 1 and 2. In particular, Grassi said that after the staff read the article, entitled “Reforming tenure: Is it the answer?” , which she passed out, each group reported back. One of the groups suggested the possibility of team tenure evaluations and mentioned that mentor teachers should be part of the team. Grassi explained that she was about to point out that although this was a good idea, it was not feasible since teachers could not evaluate teachers under the parties’ collective agreement, but Koch would not allow her or anyone else to speak. ¶

Then, Grassi wrote, she answered questions regarding the teachers’ room, teachers’ bathroom and access to a copy machine, all of which are available to the staff under the parties’ agreement, namely “use of school facilities” and “equipment” . According to Grassi, Koch, however, continued to question things which did not have anything to do with contractual terms, and that Grassi considered administrative decisions. At which point, Grassi wrote, she told Koch that there would be no more discussion as these were administrative decisions. ¶

Grassi continued, that as the staff was leaving for lunch, Koch advised a few staff that they should file a grievance because the teachers’ room was too small. Grassi said that she ignored Koch’s comments but described Koch’s statements as an attempt to enlist a response from her, a tactic Koch often employed as a means of having a confrontation wherever she had a stage (main hallway, staff meetings and teachers’ room). Indeed, Grassi wrote, Koch also made comments to students about staff members and the administration. ¶

As to the events of September 2, Grassi described, that she began the meeting with a recap of the previous day’s discussions but Koch immediately “got on her soap box and was shouting about how teachers could not be part of the [evaluation] committee” . According to Grassi, although Koch was asked to stop a number of times, she continued to disrupt the meeting. Grassi admitted raising her voice at this point to be heard over Koch’s screaming. ¶

Grassi then described Koch’s actions as “unwarranted, abrasive, disrespectful and very unprofessional” and requested an apology from Koch to the staff for disrupting the meeting and also to her personally for Koch’s insubordination. Grassi pointed out that union representatives were given time at the end of meetings to speak with staff and added “[f]or the record, Mrs. Koch is NOT the building representative” . Finally, Grassi wrote that she took offense to Koch’s statements to Shafer which described her as ill-advised about District policy, school law and contractual obligations. ¶

Koch refuted Grassi’s assertions that Koch would not allow others to speak during the in-service meeting, told staff to file grievances, spoke to students about staff and the administration, and most particularly Koch denied that Grassi began the meeting by stating she wanted to recap the previous day’s discussion. Koch also stated that Grassi was screaming, not merely raising her voice, and that Grassi rarely gives the Association time at the end of a meeting to speak to staff. Finally, Koch states that Grassi should not take offense to her statements that Grassi did not know District policy or the collective agreement, because, before becoming principal, Grassi was constantly seeking advice from Koch about the collective agreement and knew nothing about the Kennedy awards. Since becoming principal, Grassi no longer seeks Koch’s advice. ¶

The February 7 and 9 Meetings ¶

At a staff common-planning meeting on February 7, 2011, Grassi announced that, although she thought that her teacher schedules were in compliance with the parties’ collective agreement and Kennedy Awards, after speaking to Koch, Grassi had learned that they were not in compliance and, therefore, she handed out new schedules to the teachers to go into effect February 9, 2011. ¶

Upon review of Grassi’s schedules that were supposedly in compliance with the Kennedy Awards, Koch realized that Grassi had merely taken double-period teaching blocks and split them into two single periods with a minute-passing time between them. However, neither the students nor the teacher left the room during the minute-passing time. This change, in Koch’s opinion, still violated the parties’ collective agreement. ¶

On February 9, 2011, Grassi had another staff meeting. There were many questions about the schedules which the teachers were concerned were not as workable in real life as on paper. Koch testified that Grassi then informed the staff that the schedules would remain in effect, and that if she had to follow the collective agreement, then so did the teachers and, in that event, they would lose perks, such as leaving the building during prep periods and deliveries of food or coffee to the building. ¶

No witness corroborated Koch’s testimony regarding Grassi’s alleged statement that if she had to follow the parties’ collective agreement, then so did the teachers who would lose all their perks. Director of Labor Relations Luis Rojas denied that Grassi ever related this alleged statement to her staff to him, even though Grassi did discuss the issue of food delivery with him. The Hearing Examiner drew a negative inference from Respondent’s failure to call Grassi to testify as to her own statements at the meeting. Moreover, shortly thereafter, Grassi changed the policy on food delivery, which the Hearing Examiner found supports that the statements attributed to her by Koch were made. ¶

On March 2, 2011, Rojas received a letter from Association President Tirri advising the District that he filed a group grievance to preserve rights under the parties’ collective agreement. The grievance claimed that HARP staff were prohibited from having food delivered to the school. Rojas investigated. He recalled having a discussion with Grassi sometime in the middle of February. Grassi was concerned about people walking through HARP delivering food. Grassi asked Rojas what she could do to better secure the building. Rojas told Grassi to implement a process directing all deliveries be made to the main office, and that the orders should be placed before school, during prep, lunch or free periods. Teacher’s should be directed to pick up any deliveries in the main office. Grassi concluded this process would address not only the security issue but would address the wasted time trying to track down staff who were not waiting for the delivery. ¶

Shortly thereafter, Grassi implemented the changes suggested by Rojas. Rojas then received a call from Tirri about what he perceived was a directive prohibiting all food deliveries. Rojas explained that food could be delivered at HARP, but staff was going to have to go to the main office to pick it up. Rojas thought that Tirri understood the rationale behind the policy, but Tirri told Rojas that he would have to file a grievance anyway to preserve his members’ rights. ¶

After receiving the formal group grievance and investigating, Rojas responded to Tirri on March 7, 2011 denying the grievance for the same reasons that he had explained to Tirri verbally. Rojas concluded, contrary to Koch’s belief, that Grassi did not prohibit staff from having food delivered to the school for staff lunches, but merely informed staff that they could only order and accept food deliveries during lunch periods, before the start of school or during their prep periods, and that deliveries could only be accepted in the main office. The practice before allowed delivery people to wonder the building which created a security issue. ¶

Subsequently, at the monthly level-two meeting, Tirri came in and wanted to confirm that the rationale Rojas gave was really what was going on. Rojas told Tirri that he assumed so because that was what Rojas had been told. He also assured Tirri that he had instructed Grassi to either give all staff Rojas’ response, namely that food could be delivered to the main office for pick-up by the staff, or that she should post it in the teacher’s lounge so that staff would understand the process for food delivery. Tirri seemed okay with Rojas’ explanations. ¶

The Association did not appeal Rojas’ denial of the grievance. When Rojas’ denial was issued, Koch had the delegates put a copy in the teachers’ mailboxes and posted. Teachers currently order food and have it delivered to the main office. Koch admits that the collective negotiations agreement only permits teachers to leave the building during their lunch periods, so the Association did not file a grievance over Grassi’s statement at the February staff meeting about leaving the building at other times. In any event, there is no evidence in the record that Grassi issued any directive in regard to her statement at the meeting about staff leaving the building. ¶

The Hearing Examiner’s Recommended Decision ¶

The Hearing Examiner found that the District independently violated N.J.S.A. 34:13A-5.4 (a)(1) of the Act when it included Grassi’s letters in Koch’s personnel file which included comments critical of Koch as a union representative. With regard to the events of September 2, 2010, the Hearing Examiner found as follows: ¶

[i]t was not the content of Koch’s statements that precipitated the confrontation and subsequent discipline. It was Koch’s refusal to move off the topic and permit Grassi to continue her meeting that led to the confrontation and eventual discipline of Koch for that conduct. Koch’s conduct crossed the line and her speech and conduct became unprotected when Koch challenged Grassi’s authority by refusing to allow her to move on and then, thereafter, mocked her verbally in front of staff in a disrespectful manner, retorting “yes, mommy” as she was departing and telling her she would call Grassi’s supervisor. ¶

*** ¶

Accordingly, if Koch were sent to her room and reprimanded for expressing her opinion during the meeting about peer-on-peer evaluations and the collective agreement, any disciplinary or adverse personnel action flowing from these remarks would violate the Act. Koch, however, was not reprimanded for those statements, but rather for her speech/conduct, gleaned essentially from her own testimony since Grassi did not testify, that she refused to end a discussion terminated by Principal Grassi at an in-service meeting attended by the entire staff. Thus, Koch was disciplined for her challenge to Grassi’s authority, in particular by asserting after being told to move off the topic that she (Koch) thought they were having a discussion not being dictated to and also by the manner in which Koch left the meeting – e.g. stating “yes, mommy” to Grassi in an admittedly loud, sarcastic and disgusted tone of voice and informing her she would call Grassi’s superior. This conduct was unprotected. Grassi had a legitimate right to reprimand Koch for insubordination. ¶

Koch essentially turned the meeting into an adversarial confrontation. This was not a labor management negotiation, grievance meeting or investigatory interview. It was a staff meeting. Although Koch had a right individually and as a union representative to voice her opinion on a subject introduced by her principal, this was not Koch’s meeting to control. Koch was given the choice to end the discussion or leave. Koch chose not to end the discussion and, therefore, the consequence of being removed from the meeting room was foreseeable. ¶

H.E. 2013-011, 69, 73-74. ¶

However, in finding that the District independently violated N.J.S.A. 34:13A-5.4 (a)(1) with regard to the placement of Grassi’s letters in Koch’s personnel file, the Hearing Examiner found as follows: ¶

Also, portions of Grassi’s letters (CP-7 and CP-8) to Assistant Superintendent Shafer describing her version of the September 2 incident did not interfere with Koch’s protected rights. Grassi and Koch both put into writing their versions of the events. Grassi, in particular, took offense at Koch’s letter, describing Grassi as ill-informed about the collective agreement and school policy. She disagreed. ¶

However, Grassi’s other comments in both letters objected to Koch’s conduct as a union representative which was unrelated to her insubordinate behavior at the September 2 meeting. For instance, Grassi observed in the letters that Koch tries to undermine meeting agenda’s with union business, forcefully tries to impose personal opinion on other staff, usurps management prerogatives by attempting to debate non-negotiable issues such as space allocation and facility usage, suggests that staff file grievances about these issues, attacks administrative initiatives and “complain[s] we work in a dictatorship” . When Grassi commented in the same letter that Koch was an excellent teacher, it was apparent that Grassi was not criticizing Koch’s performance as an employee in these instances. ¶

H.E. 2013-011, 76 - 77 ¶

With regard to Grassi’s February 9 comment, the Hearing Examiner found that the District independently violated a(1) because Grassi’s statement linking compliance with the collective agreement and the losing of perks amounted to a threat to staff that “there would be unpleasant consequences if exercising their right to enforce the parties collective negotiations agreement.” ¶

The Association’s and the District’s Exceptions ¶

With regard to the events of September 2, the Association contends that the Hearing Examiner improperly excluded two statements as hearsay. The two statements in question were both contained in Koch’s testimony. Koch testified that Kellett told her the entire school was talking about Grassi ordering her out of the meeting and that she should write the Superintendent. Koch also testified that Shafer told her that Grassi as an educational leader should not have lost her temper and screamed at Koch, and that Grass was wrong to send Koch to her room. The Association first contends that the statements should have been included under the “vicarious admission” exception to the hearsay rule, and argues that is they were admitted, these statements would have supported an N.J.S.A. 34:13A-5.4 (a)(3) finding. Alternatively, the Association asserts that if the statements are considered hearsay, they were admittable under the residuum rule. ¶

The District takes exception to the Hearing Examiner’s finding of an a(1) violation, asserting that the Hearing Examiner failed to consider the context of the letters which rendered Grassi’s comments reasonable under the circumstances. ¶

With regard to Grassi’s February 9 statement, the District takes exception to the Hearing Examiner’s finding of an N.J.S.A. 34:13A-5.4 (a)(1) violation, asserting that the rules relating to food delivery and when teachers were permitted to leave the building were legitimate, and Grassi’s comments were made in the context of Association insistence of strict adherence to the Agreement to prevent block teacher schedules. The District also takes exception to the Hearing Examiner drawing a negative inference from Grassi not testifying, and also not drawing a negative inference from the lack of testimony of certain Association members regarding the February 9 meeting. ¶

Analysis ¶

We reject the Association’s exceptions regarding the events of September 2 and its assertion that consideration of Kellett’s and Shafer’s alleged statements would have supported a finding of an N.J.S.A. 34:13A-5.4 a(3) violation. The Hearing Examiner found that whether or not Kellett made the statement is immaterial. We agree and reach the same conclusion with regard to Shafer’s statement, and find that even if both statements were considered by the Hearing Examiner, there would have been no difference in the ultimate result that there was not an N.J.S.A. 34:13A-5.4 a(3) violation. The seminal case in determining whether there has been a violation of a(3) is In re Tp. of Bridgewater, 95 N.J. 235 (1984). Bridgewater sets forth that 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. The Hearing Examiner, based mainly on her assessment of Koch’s own credibility, found that the confrontation between Grassi and Koch was not sparked by the content of Koch’s statements about peer-on-peer review, but rather by Koch’s refusal to move off the topic and let Grassi continue her meeting. The Hearing Examiner found that Koch’s conduct crossed the line and her speech and conduct became unprotected when Koch challenged Grassi’s authority by refusing to allow her to move on and then, thereafter, mocked her verbally in front of staff and in a disrespectful manner, retorting “yes, mommy” as she was departing and telling Koch she would call Grassi’s supervisor. Contrast with Garfield, P.E.R.C. No. 2013-88, 40 NJPER 54 (¶20 2013), app. pending (finding that the Chief of Police pressuring the PBA Vice President to leave a labor-management meeting and threatening the security of his job if he did not leave was a violation of N.J.S.A. 34:13A-5.4 a (1)). We 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. N.J.S.A. 52:14B-10(c). There is no basis in the record to reject the Hearing Examiner’s findings in this regard. ¶

An employer independently violates subsection 5.4a(1), if its action tends to interfere with an employee’s statutory rights and lacks a legitimate and substantial business justification. Orange Bd. of Ed., P.E.R.C. No. 94-124, 20 NJPER 287 (¶25146 1994); Mine Hill Tp., P.E.R.C. No. 86-145, 12 NJPER 526 (¶17197 1986); New Jersey Sports and Exposition Auth., P.E.R.C. No. 80-73, 5 NJPER 550 (¶10285 1979); Gorman, Basic Text on Labor Law, at 132-134 (1976). Proof of actual interference, intimidation, restraint, coercion or motive is unnecessary. The tendency to interfere is sufficient. Mine Hill Tp. We agree with the Hearing Examiner that certain of Grassi’s comments in those letters go beyond commenting about Koch’s asserted insubordination and crossed over into commenting about Koch’s protected conduct. In the September 16, 2010 letter written by Grassi to Koch, Grassi commented that Koch: ¶

1) attempts to undermine meeting agendas by inserting union business into the discussion; ¶

2) consistently attacks administrative initiatives and complaining we work in a dictatorship; ¶

3) forcefully tries to impose personal opinion on other staff members, especially new staff and those who are reluctant to speak out on their own behalf; ¶

4) consistently tries to usurp management prerogatives by attempting to debate non-negotiable issues (such as space allocation & facility usage). ¶

In the September 27, 2010 letter to Shafer from Grassi, Grassi commented that Koch stated that employees “should put in a grievance because the teachers room was too small not all staff can fit.” We find that Grassi’s comments about Koch’s protected activity may not, standing alone, constitute an unfair practice. However, the fact that the letters containing comments regarding Koch’s protected activity were placed in Koch’s personnel file indicates that the Board considered Koch’s activities on behalf of the Association to be relevant to her conduct as a teacher, and may be used in evaluating her teaching performance. This action by the Board interfered with Koch’s statutory rights to represent Association members. Black Horse Pike, P.E.R.C. No. 82-19, 7 NJPER 502 (¶12223 1981). ¶

W e reject the Hearing Examiner’s finding that Grassi’s February 9, 2011 statement resulted in a violation of N.J.S.A. 34:13A-5.4 a(1). Public employers and majority representatives may always expect compliance with collective negotiations agreements, and we do not find that the timing of Grassi’s statement escalates her statement into a threat. If there is history of a past practice allowing a more generous benefit than that provided by the contract, it is lawful for an employer to resort back to the more restrictive terms of the collective negotiations agreement, as long as the employer’s action is not taken for retaliatory reasons. Hunterdon Cty. v. CWA, 116 N.J. 322 (1989). With regard to the alleged “perk” of being able to leave the building, Grassi stated she would enforce the clear terms of the Agreement which permits teachers to leave the building during lunch period only. The Hearing Examiner found that there was a past practice which permitted teachers to leave the building during prep periods. We do not find that the record supports that there was a clear past practice that allowed the teachers to leave the building outside the limitations set by the Agreement. Koch’s actual testimony on this issue was as follows: ¶

Q. What had been the practice before this change? ¶

A. The contract states that you can only leave the building on your 40-minute duty- free lunch. However, because our school is in the middle of downtown, the practice has been that we can run to the coffee shop to get a cup of coffee. Usually, one person would go and get for anyone that wanted. Some people just took it upon themselves to go. ¶

I normally, if I left the building to do something like that would state to her is it okay, I’m going to run out for coffee. ¶

It was never denied. We were allowed to do that. One of the coffee shops does deliver. So the practice was always that staff had things delivered on their prep or on their lunch. ¶

[2T17-18] ¶

We also note that the Association never grieved this issue, which lends further support that there was not a clear past practice in this regard. Nonetheless, the Hearing Examiner found that there was no evidence in the record that Grassi took any action in limiting teachers’ ability to leave the building. With regard to the food delivery issue, a legitimate and substantial business justification, mainly security concerns, support the statement made by Grassi on February 9. The security concerns are evidenced by Grassi’s subsequent conversations with Rojas and the subsequent clarification/change in policy. Therefore, we find that Grassi’s comment did not result in a N.J.S.A. 34:13A- 5.4 (a)(1) violation. In light of this finding, we need not consider the other grounds for the District’s exceptions on this issue. ¶

OrderORDER ¶

It is hereby ORDERED that: ¶

A. Respondent District cease and desist from: ¶

1. Interfering with, restraining or coercing employees in the exercise of rights guaranteed to them by the Act, particularly when, in two letters placed in Koch’s personnel file, Principal Grassi included criticisms of Koch’s conduct as a union representative unrelated to her insubordinate conduct at the September 2 in-service meeting. ¶

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

1. Cease and desist from including criticisms of Koch’s conduct as a union representative unrelated to her insubordinate conduct at the September 2 in-service meeting in two letters placed in Koch’s personnel file and redact all criticisms unrelated to Koch’s conduct at the September 2 meeting. ¶

2. Post in all places where notices to employees are customarily posted, copies of the attached notice marked as appendix “A” . Copies of such notice on forms to be provided by the Commission shall be posted immediately upon receipt thereof, and, after being signed by the Respondent’s authorized representative, shall be maintained by it for at least sixty (60) consecutive days. Reasonable steps shall be taken to ensure that such notices are not altered, defaced or covered by other materials. ¶

3. Notify the Chair within twenty (20) days of receipt what steps the Respondent has taken to comply herewith. ¶

C. That the remaining allegations in the Complaint be dismissed. ¶

BY ORDER OF THE COMMISSION ¶

Chair Hatfield, Commissioners Bonanni, Boudreau, Eskilson, Jones and Wall voted in favor of this decision. None opposed. Commissioner Voos was not present. ¶

ISSUED: September 26, 2013 ¶

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 rights guaranteed to them by the Act, particularly when, in two letters placed in Koch’s personnel file, Principal Grassi included criticisms of Koch’s conduct as a union representative unrelated to her insubordinate conduct at the September 2, 2010 in-service meeting. ¶

WE WILL cease and desist from including criticisms of Koch’s conduct as a union representative unrelated to her insubordinate conduct at the September 2, 2010 in-service meeting in two letters placed in Koch’s personnel file and redact all criticisms unrelated to Koch’s conduct at the meeting. ¶

Docket No. CO-2011-283 PATERSON STATE-OPERATED SCHOOL DISTRICT (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" ¶

d:\percdocs\notice 10/93 ¶

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. . . (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/ As detailed on pages 34- 35, we disagree that Koch’s testimony proves that a past practice existed with regard to teachers leaving the building other than as allowed by the Agreement. ¶

3/ Koch’s letter does not recount that as she was leaving the meeting, she turned to Grassi stating “Yes, Mommy” . The hearing Examiner credited Koch’s testimony in this regard and infer that she purposely left this detail out of her recounting to Shafer because it did not reflect positively on Koch. ¶

4/ As examples of Grassi’s expression of anger, Koch testified that since 1995, in her interactions with Grassi, she (Grassi) will often yell, “it is just her way” . Koch recalled one incident in 2008 where Grassi yelled at her in the hallway because Koch had not covered her word wall. In another instance, Koch recalls Grassi yelling at her while apologizing for not getting back to Koch with her room assignment. Later that same day, Grassi confronted Koch to instruct her that Koch should have read the morning minutes to find out where she was supposed to teach. The latter discussion took place in front of a student. Also that day, Koch went into Grassi’s office and told her not to confront her in the hall and in front of students. Koch felt that the hallway or public confrontations violated Article 4:7 regarding public criticism of the parties collective agreement. ¶

5/ According to Koch, on September 7, 2010, Kathy Kellett, the former principal of HARP, poked her head into Koch’s room (room 359/360) and stated to Koch, that the whole District was talking about “it” and advised Koch to write the superintendent. Koch explained that she had already written Shafer (1T93-1T94). Kellett did not testify nor did any other witness to corroborate Koch’s testimony. The testimony is hearsay and, therefore, I do not find it as fact. However, whether or not Kellett made this statement to Koch is immaterial. ¶