P.E.R.C. No. 2025-12, Saddle River B/E

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of SADDLE RIVER BOARD OF EDUCATION, Respondent, -and- Docket No. CO-2022-100 SADDLE RIVER EDUCATION ASSOCIATION, Charging Party. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission reverses a Hearing Examiner's decision, H.E. No. 2024-13, 51 NJPER 49 (¶13 2024), which granted the Board's motion for summary judgment on an unfair practice charge filed by the Association alleging that eight teachers were reassigned to new teaching positions in retaliation for the teachers' protected activity. After supplementing several of the decision's findings of fact, the Commission finds that the Association’s workplace complaints, voiced through the filing of numerous grievances, two votes of no confidence, and the reassigned teachers’ participation in a workplace investigation constituted protected activity. The Commission further finds an evidentiary hearing is necessary with regard to the Board's assertion that the reassignments were based on legitimate operational reasons and not hostility towards protected activity. ¶

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 SADDLE RIVER BOARD OF EDUCATION, Respondent, -and- Docket No. CO-2022-100 SADDLE RIVER EDUCATION ASSOCIATION, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, ¶

Cleary, Giacobbe, Alfieri, Jacobs, LLC, attorneys ¶

(Frances L. Febres, of counsel) ¶

For the Charging Party, ¶

Zazzali P.C., attorneys ¶

(Raymond M. Baldino, of counsel) ¶

DECISION ¶

This case is before the Commission on exceptions filed by the Saddle River Education Association (Association) to a Hearing Examiner’s Report and Recommended Decision on a motion for summary judgment filed by the Saddle River Board of Education (Board or District). The case involves the Association’s October 28, 2021 unfair practice charge (UPC), that was amended on March 9, 2022, alleging that the Board violated subsections 5.4a(1) and (3) of the New Jersey Employer-Employee Relations Act (Act), N.J.S.A. 34:13A-1 et seq.1/ The Association alleges that eight unit members were reassigned to new teaching positions for the 2021-22 school year in retaliation for two “Votes of No Confidence” against the District Superintendent (Superintendent), the filing of multiple grievances, and participating in a workplace investigation concerning those grievances. ¶

On November 9, 2022, the Director of Unfair Practices issued a Complaint.2/ On December 3, the Board filed an answer denying violating the Act and asserting certain affirmative defenses. On December 1, 2023, the Board filed a motion for summary judgment, pursuant to N.J.A.C. 19:14-4.8, supported by a brief, exhibits, and the certification of the Superintendent. On December 29, 2023, the Association filed opposition to the Board’s motion for summary judgment, supported by a brief, exhibits, and the certifications of the Association’s Co-Presidents. On January 12, 2024, the Board filed its reply brief. On May 8, the Hearing Examiner held oral argument on the summary judgment motion. ¶

On June 13, 2024, the Hearing Examiner issued a decision, H.E. No. 2024-13, 51 NJPER 49 (¶13 2024)(H.E. Decision), granting the Board’s motion for summary judgment. The Hearing Examiner found that the Board did not violate N.J.S.A. 34:13A-5.4a(1) and (3) when it reassigned the eight teachers for the 2021-2022 school year and changed a bereavement leave policy, requiring additional supporting documentation for leave approval. The Hearing Examiner concluded that the reassigned teachers were not engaged in protected activity because the votes of no confidence were not protected activity, but rather “personal opinions” on the Superintendent’s job performance. The Hearing Examiner further reasoned that even if the reassigned teachers were engaged in protected activity, the Board was unaware of the unit members that were engaged in the alleged protected activity. Additionally, the Hearing Examiner found that there was no evidence of hostility towards the alleged protected activity and that the Board produced evidence of a legitimate business justification for the reassignments. ¶

On July 23,2024, the Association filed a brief asserting the following exceptions to the H.E. Decision: ¶

1. The Hearing Examiner erred in denying the Association an evidentiary hearing when the Association presented strong prima facie evidence of retaliation for protected activity when the Board reassigned the eight teachers. The Hearing Examiner misapplied the summary judgment standard, failing to construe the Association’s evidence in the most favorable light with all favorable inferences, and erroneously finding disputed facts in favor of the Board. Among these facts were the Hearing Examiner’s findings that the Superintendent was unaware of the reassigned teachers who engaged in the alleged protected activity and that there was no evidence of hostility because the Board had a legitimate business justification for the reassignments. ¶

2. The Hearing Examiner’s finding that the Association and the reassigned teachers were not engaged in protected activity, specifically their participation in the vote of no confidence and workplace investigation, is not supported by the factual record or the law. ¶

The matter is now before the Commission to adopt, reject or modify the Hearing Examiner’s recommendations. See N.J.A.C. 19:14-8.1(a). We have reviewed the record, the Hearing Examiner’s Findings of Fact and conclusions of law, and the parties’ submissions. Accordingly, we adopt certain Findings of Fact (H.E. Decision at 3-7), but modify and supplement them as indicated below. The following facts are pertinent to our analysis: ¶

1. The Board and the Association are, respectively, public employer and public employee representative within the meaning of the Act. (Adopting Fact 1 of the H.E. Decision). ¶

2. The Association is the exclusive representative of all certified teaching personnel employed by the Board. (Adopting Fact 2 of the H.E. Decision). ¶

3. The parties’ July 1, 2018 through June 30, 2022 collective negotiations agreement ( “CNA” ) is applicable to the instant UPC. The parties’ successor, and current, CNA has a term of July 1, 2022 through June 30, 2026. (Fact 3 and n. 3 of the H.E. Decision). ¶

4. The Superintendent has been the Superintendent/Principal for the Wandell School and Saddle River School District since July 1, 2018. (Superintendent cert. at ¶1.) When she began her tenure, she and the Board undertook an initiative to enhance instruction and education programming at the Wandell School. (Id. at ¶2). The Superintendent assessed the state of instruction, curriculum and textbooks; she also conducted daily walkthroughs to observe instructional practices in the classroom. (Id. at ¶ ¶3 and 4.) Beginning in 2018, in order to improve instruction and bring Wandell School’s educational program into the present, a multi-phased, systematic plan was put into motion by the Superintendent and the Board. (Id. at ¶6.) Professional development plans that focused on instructional improvement have been given to teaching staff members since the 2018-2019 school year. (Id. at ¶11.) (Adopting and combining Facts 4-6 of the H.E. Decision). ¶

5. The Association certifies that it has been active in asserting workplace grievances against the Superintendent since at least March 2019 through May 2021. (Cert. of Association Co- President at ¶2.) ¶

6. At Fact 7, the H.E. Decision found: ¶

On March 20, 2019, the Association conducted a vote of no confidence concerning Dr. Cinotti. A statement regarding the vote was read into the record at the March 20, 2019 District Board of Education meeting. ¶

We modify and supplement this finding as follows: The Association certifies that on March 20, 2019 it read a “Vote of No Confidence” statement at the Board meeting, with the Superintendent present, regarding the Association’s unanimous vote that it did not support the Superintendent’s leadership. (Cert. of Association Co-President at ¶3,). The Superintendent was aware of the Association’s vote of no confidence and assisted in preparing the Board’s response to the vote of no confidence, which stated in relevant part, “We are disappointed that our union leadership has decided to personalize their labor contract dispute with the district by taking a vote of no confidence in our superintendent.” (Exhibit D to Association’s Counsel’s cert.) ¶

7. At Fact 8, the H.E. Decision found: ¶

Between September, 2020 and April, 2021, Association Co-Presidents Kilgallen and Penna filed multiple grievances against the District. ¶

We modify and supplement this finding as follows: Starting from September 2020 and through June 2021, the Association filed numerous grievances. (See Exhibit B to Association’s Counsel’s cert.) The grievances are as follows: ¶

A. September 24, 2020- The Association grieved, inter alia, that “the school environment is an unsafe and hazardous work environment, related to the Sars CoV-2 pandemic, the inability to have positive findings on the minimum standards checklists of the NJDOE Restart and Recovery Plan: The Road Back Check List for the Reopening of Schools 2020-21 and the NJEA Minimum Opening Standards....” On October 14, 2020, the Association appealed the denial of its September 24 grievance. ¶

B. November 18, 2020- The Association grieved, inter alia, “that the Superintendent has created an unprofessional and confrontational environment by conducting herself in a manner which undermines the productivity of the staff. Specifically, there is a lack of supervision and professional courtesy extended by [the Superintendent] toward the entire negotiations unit....” Part of the relief sought by the Association was to have the Board conduct an independent investigation into the grievance, produce a report of its findings, and have the Superintendent “cease her unprofessional conduct.” The Board denied this grievance. ¶

C. March 1, 2021- the Association grieved “that staff members have been subjected to artificial timelines and unwarranted requests to produce medical documentation and personal information following bereavement leave.” The Board denied this grievance. ¶

D. March 8 and 24, 2021- the Association grieved that “the first day of the 2021-2022 school year is not scheduled to be a half day. There is a clear past practice established in which teachers have had the afternoon hours to be used for classroom preparation time on the first day of school.” The Board denied these grievances. ¶

E. March 16, 2021- The Association grieved that a unit member has been subjected to an unwarranted request to produce proof of bereavement for the loss of a family member. The contract as written does not state the need for documented proof when taking bereavement days for the loss of a loved one.... “ ¶

F. March 24, 2021- the Association grieved, inter alia, “that staff members have been subjected to artificial timelines and unwarranted requests to produce medical documentation and personal information after as little as two days of illness and proof of bereavement for loss of a family member. Furthermore, staff members have received requests requiring them to release private information regarding COVID-19 related test results and other illnesses....” ¶

G. March 30, 2021- the Association grieved “that staff members have been subjected to an unwarranted request to produce medical documentation when utilizing sick leave for as little as two days of illness. This action is retaliatory, disciplinary, and intimidating in nature.” ¶

H. May 4, 2021- The Association grieved that “that staff members have been reassigned to different teaching assignments without just cause. The Association contends that the superintendent's behavior is retaliatory in nature due to an ongoing investigation regarding her unprofessional treatment of staff. The superintendent's actions have caused a chilling effect on affected members.” The Board denied this grievance. ¶

I. June 8, 2021- The Association grieved “that staff members have been reassigned to different teaching assignments without just cause” and “that the superintendent has violated the Saddle River Board of Education Policy 4113, 4214, "Assignment Transfer.” The superintendent's behavior is retaliatory in nature due to an ongoing investigation regarding her unprofessional treatment of staff.” ¶

8. At Fact 9, the H.E. Decision found: ¶

On December 23, 2020, Association counsel wrote a letter to the District reporting alleged violations of the Board’s “Non- Discrimination/Affirmative Action Policy.” Specifically, violations of COVID-19 procedure, disability discrimination laws, application of leave entitlement, staffing minimums under state law for students with disabilities, HIPPA, public record retention and race discrimination were alleged. ¶

We modify and supplement this finding as follows: On December 23, 2020, the Association wrote a letter to the Board demanding it investigate the Superintendent’s unprofessional conduct and renewing the issues raised in the Association’s 2020 grievances. In the letter the Association alleges, inter alia, that “[the Superintendent] has retaliated against members who have voiced complaints or engaged in union activity in various ways such as thereafter changing their schedules or duties in an undesirable manner. The timing of such retaliation ensuing immediately after the protected activity demonstrates a clear pattern of retribution/union-busting rather than mere coincidence and ‘managerial discretion’ .” In addition to the contractual and workplace issues previously raised in its 2020 grievances, the Association’s letter also alleged violations of State and federal law, including violations of COVID-19 procedures, disability discrimination laws, application of leave entitlement laws such as the Families First Coronavirus Response Act ( “FFCRA” ) and Emergency Family and Medical Leave Act ( “EFMLA” ), staffing minimums under State law for students with disabilities, the Health Insurance Portability and Accountability Act of 1996 ( “HIPAA” ), public record retention requirements, and alleged race discrimination. (See Exhibit G to Association’s Counsel’s cert.) ¶

9. At Fact 11, the H.E. Decision found, in pertinent part: ¶

On January 20, 2021, the Association conducted and approved a second vote of no confidence against the Superintendent. The vote [was] read into the record by the Association Co-President at a contemporaneous Board of Education meeting...The statement goes on to criticize the District’s response to the COVID-19 pandemic.... ¶

We modify and supplement this finding as follows: The Association Co-President certifies that on January 20, 2021 she read into the record a second “Vote of No Confidence” statement at the Board meeting that same day with the Superintendent present. She certifies that it was a unanimous vote of the Association members expressing a lack of support for the Superintendent. (Cert. of Association Co-President at ¶4, Exhibit A). The Vote of No Confidence stated the following, in pertinent part: ¶

Recently, we filed a grievance with the Board of Education asking you to investigate the unprofessional conduct of [the Superintendent]. As you are aware, an investigation will be commenced and we are supplying information in this regard including many witnesses and examples of such misconduct. The association would also like the board to expand their investigation outside of SREA members and speak to our non-association staff members as well. We feel it would give the board the bigger picture of what it’s like coming to work at Wandell School. ¶

Over the past several weeks, we have had several association meetings discussing our work climate. During the last meeting, the association took a vote of no confidence in [the Superintendent], which was approved by the membership. Sad to say, we feel we had no other choice. ¶

Over the course of the last several years, SREA members have been subjected to unprofessional conduct towards them. We have been subjected to policies that are unfair and enforced unprofessionally and have been provided with inaccurate information and met with arbitrary obstacles regarding our legal rights to protected family leave and other benefits. We recognize that a leader needs to be strong, but also has the ability to be fair and respectful. That has not been the experience of members of the SREA as well as other non-SREA staff members. Our staff has been subject to an extremely stressful and unproductive work environment over the course of the last several years. ¶

* * * ¶

It has always been our intention to assure that our students and staff have a safe and healthy environment to work and learn in. At times, we had to fight very hard for those safety measures and training efforts to be put in place and followed through with. Our concerns come from being treated with disrespect regarding requests for accommodations due to necessary medical and family conditions... We continue to have those concerns and as I have stated at every board meeting since March, we truly appreciate the support of the board with regard to the safety of our students, staff, and their families. (Emphasis added.) ¶

10. At Fact 12, the H.E. Decision found: ¶

Shortly after the second vote of no confidence, the District modified its bereavement leave policy to require documentation from the requesting unit employee that had never previously been required. A grievance was filed with respect to this issue. ¶

We modify and supplement this finding as follows: The Association Co-President certifies that following her reading of the Vote of No Confidence statement at the January 20, 2021 Board Meeting, the Superintendent began a new policy of not permitting bereavement leave under the CNA without documentation. This new documentation requirement was applied to an Association member’s bereavement leave request on March 9, 2021. The Association member was the former Association President who participated in the unanimous 2019 Vote of No Confidence against the Superintendent. The March 16, 2021 grievance, supra, concerned this incident. (See Cert. of Association Co-President at ¶5 and Exhibit H to Association’s Counsel’s Cert.) ¶

11. At Fact 13, the H.E. Decision found: ¶

In January 2021, the Board requested that the Association identify specific individuals who were complainants with respect to its alleged violations of the Board’s “Non- Discrimination/Affirmative Action Policy.” In February 2021, the complainants were identified and most of the interviews were conducted in April 2021. Dr. Cinotti was also interviewed as part of the investigation, although it is unclear when she was interviewed. ¶

We modify and supplement this finding as follows: In January 2021, in response to the Association’s December 23, 2020 letter complaining of the Superintendent’s unprofessional conduct and various workplace issues, the Board requested that the Association identify specific employees who were the complainants in order to conduct a proper investigation. In February 2021, the Association identified the complainants. In its April 9, 2021 letter, the District asserted its need to interview the complainant teachers despite concerns raised by the Association that the interviewees feared retaliation from the Superintendent. In that same letter, the District’s counsel responded to the Association’s retaliation concerns stating, “...you are aware that the subjects of those investigations [the Superintendent] are entitled to know the identity of their accusers. Therefore, if your clients are concerned about other employees learning of their participation, let me assure you and them that I will not be disclosing your clients' identities to others unnecessarily... I hope then that your clients feel better knowing that [the Superintendent] will not be involved with their interviews.” (emphasis added). Most of the interviews were conducted in April 2021, and the Superintendent was also interviewed as part of the investigation, although it is unclear when she was interviewed. (See Exhibit G to Association’s Counsel’s Cert.) ¶

12. At Fact 14, the H.E. Decision found: ¶

On April 20, 2021, Dr. Cinotti called a staff meeting to meet individually with teachers and announced the reassignment of eight (8) unit members to new teaching assignments for the 2021-2022 school year, effective on September 1, 2021. On April 28, 2021, the District approved the reassignments. Each reassigned teacher was interviewed as part of the aforementioned workplace investigation. Six (6) of the reassigned teachers were identified as complainants and two (2) of the reassigned teachers were identified as witnesses with respect to the workplace investigation. There was seventeen (17) individual staff members listed as complainants with respect to the workplace investigation. ¶

We modify and supplement this finding as follows: After the majority of interviews in the workplace investigation had been conducted, on April 20, 2021, the Superintendent called a staff meeting to meet individually with teachers, and announced the reassignment of 8 out of 20 faculty members, consisting of every full-time teacher. Each reassigned teacher was interviewed as part of the aforementioned workplace investigation. Six (6) of the reassigned teachers were identified as complainants and two (2) of the reassigned teachers were identified as witnesses. (Exhibits B and L to Association’s Counsel’s Cert.) The Association Co-President certifies that, in her over 30-year tenure as a teacher, the District has never reassigned so many teachers, virtually the entire full time staff. She certifies that unusual nature of those transfers combined with the lack of any genuine investigation led the Association to grieve the reassignments in May 2021 and to file the instant UPC. (Cert. of Association Co-President at ¶8). ¶

13. At Fact 15, the H.E. Decision found: ¶

Neither of the Association Co-Presidents were reassigned for the 2021-2022 school year. ¶

We modify and supplement this finding as follows: The Superintendent certifies that neither of the Association Co- Presidents were part of the Spring 2021 reassignments. The Association member who was the subject of the grievance concerning the change to the bereavement leave approval policy was not part of the Spring 2021 reassignments. She further certifies that none of the Board’s teaching staff were reduced in compensation, reduced in hours, moved out of their employment contracted position, received a summative evaluation rating of partially effective or ineffective, suspended, received any verbal or written discipline, had their increment withheld and/or were terminated. (Cert. of Superintendent at ¶ ¶17-20). ¶

14. In preparation for filing the instant UPC, the Association Co-President certifies that she solicited, via her October 12, 2021 email to the Association, “any information to recount how you were told about your teaching assignment transfer, any conversations that took place regarding the transfer, and share any emails you may have received or sent to administration regarding this matter.” Three of the complainants involved in the workplace investigation who were reassigned responded to her email. For example, one of the email responses stated in pertinent part, “I met with the administration the next morning. [The Superintendent] told me my placement. I told her I thought it was retaliatory. She was very offended and explained my skill set would be utilized better in the classroom....” (Association Co-President’s December 27,2023 cert. with Exhibits.)3/ ¶

15. We add the following findings: Exhibit B to the Association Co-President’s December 27, 2023 certification indicates the following reassignment of teachers who were either a complainant or witness in the workplace investigation: ¶

• from Second Grade to First Grade. ¶

• from Kindergarten to pre-k. ¶

• from 2nd Grade to Special Education. ¶

• from pre-k to the 5th grade. ¶

The Association alleges that each of the teachers was assigned to a different grade level that, although within their certification, was completely foreign to their past experience belying the Superintendent’s justification that the teachers were a good fit for the new assignment. ¶

16. At Fact 17, the H.E. Decision found: ¶

[The Superintendent] certified that the reassignment of teachers for the 2021-2022 school year was part of an educational programming and instructional overhaul initiated by the her and the Board. ¶

We modify and supplement this finding as follows: The Superintendent certifies that the reassignment of teachers for the 2021-2022 school year was part of the educational programming and instructional overhaul initiated by her and the Board. (Superintendent cert. at ¶27.) The Superintendent’s June 2, 2021 letter to the Association denying its grievance of the reassignments states, in pertinent part: ¶

I am denying this grievance because the complained-of conduct is an exercise of managerial prerogative and not subject to the grievance procedure...As I explained during our May 19, 2021 in-person hearing, the teaching reassignments were a byproduct of necessary changes to the master schedule implemented by the Administrative team. All reassigned teachers were assigned to duties within their qualifications and licensure, and their compensation, workload, and other terms and conditions of employment remain the same. The teaching reassignments were not the product of retaliation. In fact, during our May 19, 2021 in- person hearing, the Association did not once bring up or discuss the issue of retaliation alleged in the initial grievance complaint. For these reasons, I am denying the grievance. ¶

[See Exhibit B to Association Counsel’s cert.] ¶

17. At Fact 18, the H.E. Decision found: ¶

The Board’s workplace investigation conclude[d] in December 2021 and a report was issued. ¶

We modify and supplement this finding as follows: After the filing of the instant UPC on October 28, 2021, the Board concluded its workplace investigation and issued a report on December 9, 2021. (See Exhibit L to Association Counsel’s cert.) The report investigated the allegations of discrimination, harassment, and retaliation raised by several Association members against the Superintendent. While the report mainly focuses on the alleged violations of several State and federal laws, it also references the workplace issues raised in the Association’s December 23, 2020 letter that were also the subject of various grievances. For example, some of the workplace issues referenced in the report are that the Superintendent “Threatened to discipline teachers who did not remain within 6 feet of students at all times while simultaneously requiring in-person, proper instruction.” ; “Used full-time teachers as substitutes.” ; “Made social distancing more difficult due to being short-staffed.” ; “Created a retaliatory environment that made teachers fearful to come forward and push the issue further.” The report includes a section regarding how the allegations may have violated our Act, finding, “As such, any allegations of unfair practice claims, such as alleged union animus or interference, is outside the scope of the Board’s obligation to investigate and outside of this investigation.” The report concluded that “[t]he predominate complaint against the Superintendent appears to be with her rapport and interactions with the staff, along with her operational decisions with which they disagree.” The Board Counsel’s December 9, 2021 letter summarizes the report’s findings, “After a thorough investigation, review of the evidence and application of the applicable legal standards, none of the complainants' allegations nor the evidence obtained, could support a claim of unlawful discrimination, harassment or retaliation.” ¶

STANDARD OF REVIEW ¶

The standard we apply in reviewing a Hearing Examiner’s decision and recommended order is set forth in part in N.J.S.A. 52:14B-10(c). In the context of a motion for summary judgment, the relevant part of the statute provides: ¶

The head of the agency, upon a review of the record submitted by the [hearing examiner], shall adopt, reject or modify the recommended report and decision . . . after receipt of such recommendations. In reviewing the decision . . ., the agency head may reject or modify findings of fact, conclusions of law or interpretations of agency policy in the decision, but shall state clearly the reasons for doing so. . . . In rejecting or modifying any findings of fact, the agency head shall state with particularity the reasons for rejecting the findings and shall make new or modified findings supported by sufficient, competent, and credible evidence in the record. ¶

Summary judgment will be granted if there are no material facts in dispute and the movant is entitled to relief as a matter of law. Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 540 (1995); Judson v. Peoples Bank & Trust Co., 17 N.J. 67, 73-75 (1954). N.J.A.C. 19:14-4.8(e) provides: ¶

If it appears from the pleadings, together with the briefs, affidavits and other documents filed that there exists no genuine issue of material fact and that the movant or cross-movant is entitled to its requested relief as a matter of law, the motion or cross-motion for summary judgment may be granted and the requested relief may be ordered. ¶

In determining whether there exists a “genuine issue” of material fact that precludes summary judgment, we must “consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational fact finder to resolve the alleged disputed issue in favor of the non-moving party.” Brill, 142 N.J. at 540. We “must grant all the favorable inferences to the non-movant.” Id. at 536. The summary judgment procedure is not to be used as a substitute for a plenary trial. Baer v. Sorbello, 177 N.J. Super. 183 (App. Div. 1981), certif. denied, 87 N.J. 388 (1981). ¶

ANALYSIS ¶

Public employers are prohibited from “[i]nterfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this Act.” N.J.S.A. 34:13A-5.4a(1). This provision will be violated derivatively when an employer violates another unfair practice provision. Lakehurst Bd. of Ed., P.E.R.C. No. 2004-74, 30 NJPER 186 (¶69 2004). N.J.S.A. 34:13A- 5.4a(3) prohibits public employers, their representatives, or agents, from: “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.” ¶

Allegations of anti-union discrimination under N.J.S.A. 34:13A-5.4a(3) are governed by In re Bridgewater Tp., 95 N.J. 235, 240-246 (1984). Bridgewater established that the charging party must prove, 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. Id. at 241. 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. ¶

Summary judgment is not appropriate for 5.4a(3) allegations of retaliation based on hostility to protected union activity when there is a disputed material fact concerning the subjective issue of the employer’s motivation. State of N.J. (Judiciary), P.E.R.C. No. 2014-84, 41 NJPER 43 (¶11 2014) (although employer proved contractual right to implement Team Leader removals, summary judgment denied on 5.4a(3) allegation of retaliation for protected activity); State of New Jersey, P.E.R.C. No. 2006-11, 31 NJPER 276 (¶109 2005) (whether protected activity was a substantial motivating factor in the adverse action, and whether it would have occurred anyway based on performance, “are factual questions that are generally not appropriate for summary judgment” ). ¶

Protected activity under the Act may include individual conduct – such as complaints, arguments, objections, letters or similar activity - related to enforcing a collective negotiations agreement or preserving working conditions of employees represented by a union. N.J. Turnpike Auth., P.E.R.C. No. 2022-38, 48 NJPER 393 (¶90 2022); State of New Jersey, P.E.R.C. No. 2006-11, 31 NJPER 276 (¶109 2005); and No. Brunswick Tp. Bd. of Ed., P.E.R.C. No. 79-14, 4 NJPER 451 (¶4205 1978), aff’d, NJPER Supp.2d 63 (¶45 App. Div. 1979). ¶

We disagree with the H.E. Decision’s finding that the eight reassigned teachers were not engaged in protected activity. We find that the Association’s workplace complaints, voiced through the filing of numerous grievances, the two votes of no confidence, and the reassigned teachers’ participation in the workplace investigation constituted protected activity. These actions by the Association comprised its cumulative concerns and efforts over the working conditions of its members. Further, the January 2021 Vote of No Confidence was not mere personal griping by the Association, but restated numerous workplace issues that were the subject of the various grievances filed by the Association throughout 2020 and 2021.4/ ¶

As set forth in our modification and supplementation of the facts, supra, the reassigned teachers (eight out of 20 in the Association) participated as either complainants or witnesses in the workplace investigation concerning the Superintendent allegedly creating a hostile and unsafe work environment. A genuine dispute of material fact exists over whether the Superintendent knew that the eight reassigned teachers participated in the votes of no confidence and the workplace investigation. There is temporal proximity between the reassigned teachers’ participation in the workplace investigation and their reassignment. Given that temporal proximity, determining whether there is a causal connection between these events requires an evidentiary hearing where witness credibility can be assessed. ¶

We also disagree with the H.E. Decision’s findings that the Board has proven the reassignments were based on legitimate operational reasons and not hostility towards protected activity. While the Board certifies that the reassignments were part of a curriculum overhaul initiated by the Superintendent in 2018, the credibility of that assertion should be subject to cross examination at an evidentiary hearing. The Superintendent’s certification does not explain how the reassignments effectuated or advanced the curriculum overhaul. Further, the documented rationale for the reassignments provided in the Superintendent’s June 2, 2021 response to the reassignment grievance does not refer to the curriculum overhaul, but rather, mentions managerial prerogative and “necessary changes to the master schedule.” Moreover, the Association, through the Association’s Co- President’s December 27, 2023 certification, proffers potential witnesses that contravene the Superintendent’s operational justification for the reassignments. ¶

For the foregoing reasons, we reverse the H.E. Decision granting the Board’s summary judgment motion. This matter presents issues of disputed material facts that cannot be resolved through summary judgment and require credibility determinations by a hearing examiner. The parties are left to their proofs and affirmative defenses at a hearing. ¶

OrderORDER ¶

The Hearing Examiner’s Decision, H.E. No. 2024-13, 51 NJPER 49 (¶13 2024), is reversed and remanded for a hearing in accordance with this decision. ¶

BY ORDER OF THE COMMISSION ¶

Chair Hennessy-Shotter, Commissioners Ford, Kushnir, and Papero voted in favor of this decision. None opposed. Commissioners Eaton and Higgins were not present. ¶

ISSUED: September 26, 2024 ¶

Trenton, New Jersey ¶

Note1/ These provisions prohibit public employers, their representatives or agents from: “(1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act” ; “(3) Discriminating in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage employees in the exercise of the rights guaranteed to them by this act.” ¶

2/ Initially, a partial refusal to issue a compliant was issued with respect to the Association’s (a)(3) allegations. That decision was reversed by the Chair of the Commission and a Complaint was issued. ¶

3/ In its January 12, 2024 reply brief, the District disputed the content and admissibility of the Association’s Co- President’s December 27, 2023 certification. We do not here rule on its admissibility or the veracity of its contents. ¶

4/ Contrary to the H.E. Decision, we do not find this case is akin to State of New Jersey (Office of the Public Defender) and Rau, P.E.R.C. No. 86-67, 12 NJPER 12 (¶17003 1985), recon. den., P.E.R.C. No. 86-93, 12 NJPER 199 (¶17076 1986), aff’d (App. Div. 1987)(finding that an individual employee’s complaints did not involve terms and conditions of employment, but rather, her personal opinions about how her section should be organized and the practice of law conducted.) Instead, we find the protected activity alleged in this case is more similar to that found in Saddle Brook Bd. of Ed., P.E.R.C. No. 2012-2, 38 NJPER 125 (¶32 2011)(adopting a Hearing Examiner’s decision finding that the Board violated 5.4a(3) and derivatively (1) by transferring two special education teachers in retaliation for raising various complaints against the Director of Special Services at two Board meetings.) ¶