P.E.R.C. No. 2025-39, Morris Cty College

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of COUNTY COLLEGE OF MORRIS, Respondent/Charging Party, -and- Docket Nos. CO-2021-228 CE-2021-011 FACULTY ASSOCIATION OF COUNTY COLLEGE OF MORRIS, Charging Party/Respondent. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission remands a Hearing Examiner’s decision to the Hearing Examiner to hold a supplemental hearing and issue supplemental findings and a supplemental report reapplying the standards set forth in Bridgewater Tp., 95 N.J. 235 (1984) for determining whether an unfair practice occurred. The Hearing Examiner’s decision found that the County College of Morris (CCM) violated subsections 5.4a(1) and (3) of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. based on an unfair practice charge filed by Faculty Association of County College of Morris (Association) alleging that CCM retaliated against six unit employees for protected union activity by not reappointing them to their faculty positions for the 2021-2022 academic year. The Commission grants the CCM’s exception to the Hearing Examiner’s finding of anti-union hostility based on an incident described in a police report that occurred after the non-reappointment decisions were made. The Commission partially grants CCM’s exception concerning the negative inference the Hearing Examiner drew from CCM’s President not testifying, finding that the negative inference was appropriate but applied too broadly. The Commission finds that under these circumstances CCM should be afforded notice of the negative inference and the opportunity on remand to allow the CCM President to testify. The Commission partially grants CCM’s exceptions to the Hearing Examiner’s finding that CCM’s proffered reasons for the non-reappointments were pre-textual, finding instead that the record demonstrates both lawful motives and anti-union motives that must be weighed appropriately on remand to determine whether, based on a preponderance of the evidence on the entire record, the non-reappointments would have taken place absent the protected conduct. Finally, the Commission finds that on remand the Hearing Examiner should reevaluate the varying levels of protected activity engaged in by the different non-reappointed faculty to determine which ones may be entitled to relief. ¶

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 COUNTY COLLEGE OF MORRIS, Respondent/Charging Party, -and- Docket Nos. CO-2021-228 CE-2021-011 FACULTY ASSOCIATION OF COUNTY COLLEGE OF MORRIS, Charging Party/Respondent. ¶

AppearancesAppearances: ¶

For the Respondent/Charging Party, Cleary Giacobbe Alfieri Jacobs, LLC, attorneys (Matthew J. Giacobbe, of counsel and on the brief; Gregory J. Franklin, of counsel and on the brief); and DiFrancesco Bateman Kuzman Davis Lehrer and Flaum, P.C., attorneys (Richard P. Flaum, of counsel and on the brief) ¶

For the Charging Party/Respondent, Oxfeld Cohen, P.C., attorneys (Sanford R. Oxfeld, of counsel and on the brief; William P. Hannan, of counsel and on the brief) ¶

DECISION ¶

This case comes before the Commission by way of exceptions to a Hearing Examiner’s Report and Recommended Decision. H.E. No. 2024-3, 50 NJPER 171 (¶40 2023). On April 23, June 23, and September 20, 2021, the Faculty Association of the County College of Morris (Association) filed an unfair practice charge and amended charges against the County College of Morris (CCM) alleging that CCM violated the New Jersey Employer-Employee Relations Act (Act), N.J.S.A. 34:13A-1 et seq., specifically 5.4a(1) and (3),1/ when it non-reappointed six non-tenured faculty members, including Association officers, for the 2021- 2022 academic year in retaliation for protected union activity. ¶

On May 24, 2021, CCM filed an unfair practice charge alleging that the Association violated subsections 5.4b(2) and (3) of the Act when, following the non-reappointments, it allegedly sent CCM President a threatening e-mail, damaged his personal property, and posted lies about him on social media.2/ ¶

On December 22, 2021, the Director of Unfair Practices issued a Complaint on the Association’s charge and on CCM’s 5.4b(2)3/ charge and consolidated the cases. The Hearing Examiner held virtual hearings on: January 25 and 27, 2022; February 1, 2, 4, 9, 16, and 17, 2022; and March 1 and 11, 2022.4/ The parties submitted Stipulations of Facts in March 2022 and post-hearing briefs by July 15, 2022. On September 19, 2023, the Hearing Examiner issued H.E. No. 2024-3, which found that CCM violated subsections 5.4a(1) and (3) of the Act and that the Association did not violate subsection 5.4b(2) of the Act. ¶

On December 29, 2023 (after changing counsel and being granted extensions), CCM filed exceptions to the Hearing Examiner’s report. N.J.A.C. 19:14-7.3. The Association responded on March 15. On July 29, following unsuccessful settlement negotiations between the parties, CCM requested supplemental briefing on negative inferences the Hearing Examiner drew from CCM’s President not testifying. The parties filed their supplemental briefs on August 8 and 14.5/ After briefing concluded, further settlement efforts were made with the assistance of a Commission mediator. The parties were again unable to reach a settlement. ¶

Summary of Facts ¶

We have carefully reviewed the record, including the hearing transcript and the parties’ exhibits. N.J.A.C. 19:14-7.2. The pertinent facts appear as follows. ¶

The Association represents CCM’s full-time teaching faculty. CCM and the Association are parties to a collective negotiations agreement (CNA) with a term of September 3, 2019 through September 2, 2022. (J-45). Full-time faculty members must be employed with CCM for five full years plus one day to receive tenure. (6T34; J-45). Non-tenured faculty may be non-reappointed pursuant to Article III.A of the CNA. Non-reappointments are not grievable, but faculty may request the reasons for non- reappointment from the CCM President and appear before the Board of Trustees’ Personnel Committee. (J-45). ¶

Anthony J. Iacono has been the President of CCM since September 2016. (4T61). Prior to 2021, reappointment decisions were made based on the department chair’s recommendation to the School Dean, which then went to the Vice President and President. (4T15; 8T6). There is no evidence that Iacono had ever disagreed with reappointment recommendations made through this process. (8T40-43). During the 2019-2020 and 2020-2021 academic years, the Association became more active under Association President Capozzi. (3T187). For example, as the parties were working under an expired contract, the Association informed President Iacono that they had voted to “work to our strictest contractual obligations” and the NJEA advised that they were within their contractual rights to be absent from convocation. (J-52; J-55). The Association also protested President Iacono’s Professional Day agenda, alleging that, in a departure from past practice, he excluded the Association. (J-57). The Association criticized President Iacono’s conduct during a 2020 College Council meeting, alleging that he lied about CCM’s delay in ratifying a contract. (J-54). The Association also filed a grievance in 2020 concerning its objections to a change in faculty pay cycles, which was settled after the grievance hearing. (CP-1; CP-2). ¶

On September 17, 2020, the Association requested that CCM’s Board of Trustees “seek an independent review, with full transparency” concerning ethical allegations against President Iacono prompted by an August 25, 2020 Mount Olive Chronicle article. (CP-34). The Association suggested that President Iacono may have abused the power of his office to secure preferential treatment in an incident involving the Mount Olive School District, in violation of CCM’s code of ethics. (CP-34). On November 25, 2020, CCM’s former labor counsel responded to the Association’s letter, accusing them of making “defamatory statements” about President Iacono and advising that they “may wish to forward this letter to an attorney.” (R-100). ¶

On November 19, 2020, Iacono addressed the College Council and stated that CCM was in a very solid financial position and did not anticipate staffing reductions. (C-9). In January- February 2021, President Iacono directed John Marlin (Vice President of Academic Affairs) and Patrick Enright (Vice President of Professional Studies and Applied Sciences) to conduct an analysis of faculty and enrollment data to determine if faculty numbers could be reduced. (6T18-20; 8T12-13). ¶

On March 4, 2021, Marlin and Enright created a Personnel Recommendations Chart ( “Chart” ) of each department’s “credit hour ratio” by dividing the department’s enrolled credit hours by its number of full-time faculty. (6T18-20; 8T12-15). Enright testified that CCM had been using credit hour ratios in making faculty hiring decisions since at least 2006. (7T232-236).6/ He also testified that while credit hour ratios have been relied on previously, there is now much more immediate access to data needed to calculate credit hour ratios than there had been in the past. (7T236).7/ Enright testified that they came up with a “1200 credit hour ratio” metric in 2021 based on the credit hour ratio chart (R-13) they generated that year. (7T230-232). Marlin testified that he was not aware of the 1200 credit hour ratio being utilized prior to 2021 and Enright testified that: “It wasn’t a number that had been used before.” (6T182-184; 7T231). Marlin and Enright testified that the 1200 hour credit hour ratio was not a strict rule that needed to be met by every department, but that it was an average they wanted across departments (6T182- 184; 7T231-232). ¶

Most departments in the Chart were below the 1200 credit hour ratio. (R-13; R-112). The Chart recommended the following faculty for non-reappointment: Capozzi, Peck, and Schmidt (English); Lauzon (Communications); Kilhaney (Biology/Chemistry); and Lesce (Languages). (R-13). Three of these six faculty were Association officers: President Capozzi; Grievance Committee Chair Peck; and Communications Committee Chair Lauzon. Five of these six faculty (all except Lesce) had engaged in varying levels of protected union activity from 2019-2021. (CP-1; CP-2; CP-4; CP-14; CP-16; R-100; R-102; J-52-57). ¶

CCM also considered the ratio of tenured to non-tenured faculty members when making its 2021 non-reappointment decisions. CCM Policy 3.4011.1 provides that the tenured/non-tenured ratio may be used for non-reappointments. (J-3). Marlin testified that he was not aware of non-reappointments being based on tenured faculty ratio concerns prior to 2021. (6T176). Marlin and Enright testified that they were concerned with tenured faculty ratios in 2021 because having too many tenured faculty in a department reduces the staffing flexibility needed to respond to declining enrollment that may result in too many faculty and under-enrolled classes. (6T33-34; 6T66-69; 7T189-191).8/ Marlin further testified that during periods of declining enrollment, it is better for CCM to have a slightly lower number of tenured faculty and slightly more non-tenured faculty.9/ (6T66). The departments that experienced non-reappointments in 2021 were all below the policy’s 70% maximum tenured faculty ratio in their departments; some departments had higher tenured faculty ratios and some had lower ratios. (J-1; J-48). ¶

On April 16, 2021, President Iacono notified the CCM community that CCM had decided to non-reappoint several faculty members for the 2021-22 academic year. (J-6). He stated: ¶

We have concluded that the highly unusual circumstances of the COVID-19 Pandemic, and the residual long-term impact on enrollment, required County College of Morris to take a closer look at the mix of tenured to non- tenured faculty. As a consequence, County College of Morris is forced to make the difficult but necessary decision to recommend that several members of the faculty not be reappointed for AY2021-2022. ¶

That same day, six faculty members received notices from Vice President for Human Resources and Labor Relations, Vivyen Ray, that their non-reappointments would be considered at the Board’s April 20 meeting. (J-7 to -12). The Association e-mailed Iacono to express its disagreement with the non-reappointments. (J-19). On April 20, 2021, CCM’s Board of Trustees non-reappointed the six notified faculty members (Capozzi, Peck, Schmidt, Lauzon, Kilhaney, and Lesce). (2T99). After the Association requested the data behind the non-reappointment decisions, Marlin e-mailed Ray and Enright on April 20, stating: “We should not get into a discussion of particular cases (i.e., well, why not that person instead of this person, etc.).” (R-14). On April 23, CCM’s former labor counsel notified the Association that the non- reappointments are non-grievable and that “further requests to meet to discuss CCM’s decision will be denied.” (J-20). ¶

On May 12, 2021, CCM’s Vice President for Business and Finance, Karen VanDerhoof, provided the non-reappointed faculty members the following reasons for non-reappointment: ¶

CCM determined not to reappoint you in order to achieve a future balance of the proportion of faculty ultimately tenured in order to maintain the flexibility of the institution to respond to the changing education needs of its students. This decision was made after a review of the College’s steadily declining enrollment, the current proportion of tenured to non-tenured faculty and low credit hours taught by faculty members in your department. ¶

[J-13 to -18.] ¶

On July 16, 2021, Iacono e-mailed a campus Update explaining that the non-reappointments were made based on “a pattern of diminished enrollment” in some academic programs. He cited a “three year trend in declining credit hours in enrolled” in English, Communications, Languages, and Biology, and “the ratio of enrolled student credit hours” in those departments being “below the typical ratio of approximately 1,200 credit hours.” (J-5). He stated that the decision “does not reflect upon the abilities or performance” of the faculty. Id. ¶

On April 18, 2021, Iacono contacted the Mount Olive Police Department to report suspected vandalism to the tires of a cart in his back yard. (CP-6). Iacono told the police he was the CCM President, that he had recently laid off six employees, that he believed the Association slashed the tires, and that Lauzon lives in town. Id. Iacono said he would get CCM “to produce contact information for Mr. Lauzon as well as the four union presidents” and CCM provided information for Capozzi, Peck, Lauzon, Schmidt, and Kilhaney to the police. Id. The police questioned Capozzi, Peck, Kilhaney, and Lauzon, who all denied involvement. Id. The police noted that the tires did not appear to be punctured and none of the Association members were charged.10/ ¶

Arguments ¶

CCM asserts that its non-reappointments were not based on hostility to protected activity, but on credit hour ratios, tenured to non-tenured faculty ratios, and declining enrollment. It argues these are legitimate and substantial business reasons and not pretexts. CCM excepts to the Hearing Examiner’s finding of anti-union animus based on Iacono filing the April 2021 police report. CCM argues that the Hearing Examiner improperly believed that non-reappointments should be connected to financial hardship. CCM asserts that the Hearing Examiner improperly drew adverse inferences from President Iacono not testifying. CCM argues that the Association should have requested an adverse inference during the hearing so that CCM could either produce Iacono or argue that his testimony is not necessary. CCM also excepts to Finding of Fact 39 for citing the CNA article for reductions in force instead of non-reappointments (Article III). ¶

The Association asserts that the Hearing Examiner applied the proper analysis to conclude that the non-reappointments were retaliation for protected activity and that CCM’s proffered reasons for the non-reappointments were pretextual. The Association asserts that the Hearing Examiner properly made adverse inferences based on President Iacono not testifying. It argues that it was not required to request an adverse inference and that even without such inference, the Hearing Examiner’s conclusions were supported by the evidence on record. ¶

Standard of Review ¶

This matter is now before the Commission to adopt, reject or modify the Hearing Examiner’s report and recommended decision. N.J.A.C. 19:14-8.1(a). In analyzing CCM’s exceptions, we are constrained by the standards of review set forth in N.J.S.A. 52:14B-10(c). We may not reject or modify any findings of fact as to issues of lay witness credibility unless we first determine from our review of the record that the findings are arbitrary, capricious, or unreasonable or are not supported by sufficient, competent, and credible evidence. See New Jersey Div. of Youth and Family Services v. D.M.B., 375 N.J. Super. 141, 144 (App. Div. 2005) (deference due factfinder’s “feel of the case” based on seeing and hearing witnesses); Cavalieri v. PERS Bd. of Trustees, 368 N.J. Super. 527, 537 (App. Div. 2004). It is for the trier of fact to evaluate and weigh contradictory testimony. Absent compelling contrary evidence, we will not substitute our reading of the transcripts for a Hearing Examiner’s first-hand observations and judgments. See, e.g., Monroe Tp. Bd. of Fire Com’ rs, P.E.R.C. No. 2015-14, 41 NJPER 156 (¶54 2014), aff’d, 443 N.J. Super. 158 (App. Div. 2015), certif. den., 226 N.J. 213 (2016). We note that the Hearing Examiner did not make any explicit credibility determinations. ¶

Legal Standards ¶

N.J.S.A. 34:13A-5.4a(3) prohibits a public employer from retaliating against employees for exercising their right to engage in protected union activity. In re Tp. of Bridgewater, 95 N.J. 235 (1984), the Supreme Court articulated the standards for determining whether personnel actions are motivated by discrimination against the exercise of protected activities in violation of subsection 5.4a(3) of the Act. A 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 personnel action. This may be done by direct 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. ¶

In the absence of direct evidence of anti-union hostility, the “timing and context” of an adverse personnel action may provide “sufficient circumstantial evidence from which an inference may be drawn that union animus was a substantial or motivating factor.” Camden Free Public Library, H.E. No. 97-32, 23 NJPER 382 (¶28173 1997), adopted, P.E.R.C. No. 98-69, 24 NJPER 12 (¶29008 1997); Downe Tp. Bd. of Ed., P.E.R.C. No. 86-66, 12 NJPER 3 (¶17002 1985); Bridgewater; and Belleville Bd. of Ed., 455 N.J. Super. 387 (App. Div. 2018) ( “PERC was entitled to focus on the timing of the disciplinary charges to infer the Board’s retaliatory motive” ). “Timing is an important factor in assessing motivation and understanding the context of events.” Warren Hills Reg. Bd. of Ed., P.E.R.C. No. 2005-26, 30 NJPER 439, 442 (¶145 2004), aff’d (App. Div. 2005), certif. den., 186 N.J. 609 (2006). An inference of anti-union hostility may also be established if “the personnel action is unanticipated and takes place at a time or in a manner inconsistent with the ordinary course of business.” Newark Housing Auth., P.E.R.C. No. 2014-70, 40 NJPER 509 (¶163 2014); Essex Cty., P.E.R.C. No. 88-75, 14 NJPER 185 (¶19071 1988). ¶

Applying these standards, the Hearing Examiner held that CCM violated the Act by retaliating against the Association for engaging in protected activity when it non-reappointed certain Association members. (H.E. at 61-62). The Hearing Examiner found that CCM’s reasons for the non-reappointments were pretextual because CCM applied a new reappointment process following the Association’s protected activity, because the metrics CCM used did not explain all of the non-reappointments, and because negative inferences could be drawn from President Iacono not testifying regarding his motivations for directing and implementing the new reappointment process (H.E. at 51-62). ¶

Analysis of CCM’s Exceptions ¶

Citing to incorrect CNA article: ¶

Initially, we find that the Hearing Examiner’s failure to properly cite Article III of the CNA in her decision had no bearing on her decision because this case does not involve a contractual interpretation of the parties’ non-reappointment clause. Whether non-reappointments are arbitrable has no impact on an unfair practice charge alleging that non-reappointments were motivated by anti-union hostility in violation of the Act. ¶

Hostility based on April 2021 police report: ¶

We next consider CCM’s exception to the Hearing Examiner’s inference of CCM’s hostility towards the Association based on President Iacono’s statements to the Mount Olive police on April 18, 2021. (H.E. at 52-56). The Hearing Examiner emphasized the significance of the police report and Iacono’s accusations against the non-reappointed Association members in her finding of anti-union hostility. (H.E. at 52-55). She also found the April 23, 2021 counsel’s letter to be “extremely problematic” for denying that Iacono identified the Association members to the police in contradiction to the police report. (H.E. at 55). ¶

We concur with the Hearing Examiner’s concern with the April 23, 2021 letter because the record demonstrates that it contradicted the police report. While that letter asserts false facts, it does not demonstrate that the non-reappointment decisions were pervaded by anti-union animus standing alone. Iacono’s belief that the Association members may have vandalized his yard cart in retaliation for the non-reappointments does not prove that the non-reappointments were impacted by anti-union animus; it occurred after the fact. Rather than infer that Iacono was hostile to the Association members when he provided the police with their names, it’s plausible that Iacono immediately thought of them because of their recent non- reappointments, which they vehemently opposed. ¶

Therefore, we grant CCM’s exception to the finding of hostility based on the police report incident. Because the Hearing Examiner relied on this incident that occurred after the non-reappointments were announced as an “extreme example of CCM’s hostility towards the Association’s protected activities,” it is difficult to discern whether she would have otherwise found that the record sufficiently demonstrated anti-union animus. (H.E. at 52). Accordingly, we remand the Hearing Examiner’s report for consideration of the Bridgewater 5.4a(3) analysis in accordance with this decision. ¶

Negative inferences from President Iacono not testifying: ¶

Next, we consider CCM’s exception to the negative inferences the Hearing Examiner made based on CCM’s decision not to have President Iacono testify. Regarding multiple incidents of alleged hostility towards the Association’s protected activities, the Hearing Examiner found: ¶

Notably, CCM did not call Iacono as a witness during the hearing, despite the fact that he could have provided crucial testimony regarding why CCM took the above actions regarding Professional Day, division lunch meetings, contract negotiations, and the February 27 College Council meeting. . . . In the absence of Iacono’s testimony, I draw a negative inference from the factual question arising from these actions by CCM, and infer that these actions demonstrated hostility towards the Association’s protected activities. ¶

[H.E. at 51-52.] ¶

The Hearing Examiner drew a negative inference from President Iacono not testifying concerning why CCM applied its tenured faculty ratio and 1200 credit hour metric for the first time in April 2021 and how application of those metrics led to the particular departments and faculty members being selected for non-reappointment. (H.E. at 57-59). She stated: ¶

Again, the ratio of tenured to non-tenured faculty, the need for flexibility, the 1200 credit hour ratio, and why each were used for the first time to justify the six Association non-renewals were all important issues for Iacono to address, but he did not testify. Accordingly, I draw a negative inference. See Clawans, supra, 38 N.J. at 171. ¶

[H.E. at 59.] ¶

The Hearing Examiner also drew negative inferences from Iacono not testifying regarding CCM’s explanations for the non- reappointments and about why he stated in November 19, 2020 that CCM did not anticipate a need to reduce staffing but then in 2021 stated that non-reappointments were needed due to declining enrollment. (H.E. at 56-57). She found: “If Iacono had testified, he could have addressed the issue of why CCM’s cited reasons evolved over time, and he could have addressed each of the cited reasons substantively.” (H.E. at 56). ¶

The Commission and its Hearing Examiners have often drawn adverse or negative inferences from a witness’ decision not to testify at a hearing in accordance with State v. Clawans, 38 N.J. 162, 170 (1962) and State v. Hill, 199 N.J. 545 (2009).11/ In Clawans, the Supreme Court stated, in pertinent part: ¶

Generally, failure of a party to produce before a trial tribunal proof which, it appears, would serve to elucidate the facts in issue, raises a natural inference that the party so failing fears exposure of those facts would be unfavorable to him. 2 Wigmore, Evidence, § 285 (3d ed. 1940). . . . For an inference to be drawn from the nonproduction of a witness it must appear that the person was within the power of the party to produce and that his testimony would have been superior to that already utilized in respect to the fact to be proved. ¶

[Clawans, 38 N.J. at 170-171.] ¶

See also State v. Hill, 199 N.J. 545 (2009) (adverse inference jury charge appropriate if the judge finds that “the testimony of the uncalled witness will elucidate relevant and critical facts in issue” and that “such testimony appears to be superior to that already utilized in respect to the fact to be proven.” ) ¶

CCM asserts that Iacono’s testimony would not have been superior to that of Marlin and Enright who created the Chart and worked with Iacono in analyzing data to determine the non- reappointments. CCM argues that the Association was required to request an adverse inference before the close of the hearing in order to allow CCM to either call Iacono to testify or assert that his testimony would not be superior to that of other witnesses. The Association argues that, because Iacono directed the 2021 non-reappointment process and worked with Marlin and Enright on the reappointment Chart, his knowledge of the reasons for why a different process was used, why certain metrics were applied, and why certain departments and faculty members were chosen for non-reappointment is superior to Marlin’s and Enright’s testimony. The Association asserts there is no judicial authority requiring that the Commission only draw negative inferences if requested by the opposing party before the close of a hearing. ¶

We find that the Hearing Examiner’s application of negative inferences from President Iacono not testifying was overly broad and significantly impacted her overall inferences of anti-union hostility underlying her conclusion that CCM’s 2021 non- reappointment decisions were illegally motivated. First, we decline to find that a negative inference should be found concerning President Iacono’s allegedly conflicting statements between November 2020 and April/July 2021 concerning whether there was a need to reduce staff. We find that Iacono’s November 19, 2020 statement about not anticipating staff reductions based on financial condition did not necessarily conflict with his determination months later that staff reductions should be made based on declining enrollment; therefore, we draw no negative inference from Iacono not testifying on that issue. (H.E. at 57). ¶

Next, we decline to find that a negative inference should be found regarding CCM’s allegedly “evolving” reasons for the 2021 non-reappointments. (H.E. at 56, 62). The themes of declining enrollment and the mix of tenured to non-tenured faculty were consistent from President Iacono’s April 16, 2021 message about the impending non-reappointments, to VanderHoof’s May 12, 2021 message, and finally to President Iacono’s July 16, 2021 Update about the non-reappointments. Although low credit hours and/or the 1200 credit hour ratio metric were not mentioned until the May 12 and July 16 statements, the issue of credit hours taught per faculty member is inherently related to a department’s enrollment. We find that, although the specific terminology and level of detail regarding the reasons for non-reappointment were not the same in every CCM communication, the general themes were consistent and related. Thus, we draw no negative inference from President Iacono not testifying concerning the differences in CCM’s statements of the reasons for the non-reappointments. ¶

However, we concur with the Hearing Examiner that President Iacono could have provided crucial testimony concerning his interactions with the Association from 2019-2021. Additionally, he could have substantively addressed CCM’s reasons for applying certain metrics for reappointments and for non-reappointing certain professors. (H.E. at 51-57). As the record demonstrates that Iacono directed the non-reappointment process in 2021 and was involved in the development of the Chart and choosing which professors to non-reappoint, we find that Iacono could provide superior testimony to that of Enright and Marlin concerning the reasons for using a different non-reappointment process in 2021 and non-reappointing certain faculty. Consistent with Clawans and Hill, it was appropriate for the Hearing Examiner to draw a negative inference from President Iacono not testifying on these issues because such testimony would “elucidate relevant and critical facts in issue” and “be superior to that already utilized in respect to the fact to be proven.” ¶

However, we find that notice should have been provided on this record so that CCM had the opportunity to produce President Iacono as a witness given the significant impact the negative inference had on the Hearing Examiner’s findings and legal conclusions.12/ Accordingly, on remand, the Hearing Examiner is directed to reopen the hearing to allow CCM to call President Iacono to testify. See, e.g., Hunterdon Cty., P.E.R.C. No. 87-35, 12 NJPER 768 (¶17293 1986) (remanded to give employer opportunity to present evidence to establish that adverse action occurred for legitimate reasons); Essex Cty., P.E.R.C. No. 81-80, 7 NJPER 39 (¶12017 1980) (remanded for additional testimony); Pine Hill Bd. of Ed., P.E.R.C. No. 86-14, 11 NJPER 462 (¶16165 1985) (remanded for additional testimony relevant to employer’s motivations). If CCM still chooses not to produce President Iacono, the Hearing Examiner may draw negative inferences concerning the relevant issues as outlined above. ¶

Exceptions to the Hearing Examiner’s finding that CCM’s proffered reasons for the non-reappointments were pretextual: ¶

The Hearing Examiner’s rejection of CCM’s reasons for the non-reappointments as pretextual under the Bridgewater analysis was largely predicated on the multiple negative inferences she drew, many of which we determined above should not have been dispositive alone. (H.E. at 56-62). Because of these negative inferences, she did not consider whether CCM’s proffered reasons for the non-reappointments were lawful motives to consider alongside the unlawful motives she inferred from the timing and nature of the non-reappointments. Bridgewater at 242. Upon review of the record, we are satisfied that declining enrollment, credit hours taught per faculty, and the tenured to non-tenured faculty ratio in each department are legitimate concerns that present lawful motives for CCM’s 2021 non-reappointments. Therefore, on remand, the Hearing Examiner is to conduct the Bridgewater 5.4a(3) analysis while weighing the legal reasons provided for the non-reappointments. See, e.g., Gloucester Cty. V/T Sch. Dist. Bd. of Ed., P.E.R.C. No. 89-125, 15 NJPER 333 (¶20148 1989) (remanded to Hearing Examiner to reconsider hostility to protected activity findings and non-illegal reasons for non-renewal); Newark Housing Authority, P.E.R.C. No. 97-109, 23 NJPER 205 (¶28099 1997) (remanded to Hearing Examiner to revisit evidence of timing of adverse employment action and level of protected activity). ¶

Questions still remain, however, about whether CCM’s application of these otherwise lawful motives to its non- reappointment decisions in 2021 would have occurred in the absence of hostility to protected activity, and whether the metrics were applied in bad faith to target certain Association members for their protected union activity. Therefore, following the addition of President Iacono’s testimony to the record (or any appropriate negative inferences drawn from his failure to testify), any unlawful anti-union motives found by the Hearing Examiner must be considered along with CCM’s lawful motives. See, e.g., Warren Cty., P.E.R.C. No. 96-41, 22 NJPER 26 (¶27012 1995) (remanded to Hearing Examiner for Bridgewater analysis of whether protected activity was a substantial or motivating factor in the termination and whether termination would have occurred anyway even absent the employee’s protected activity). Per Bridgewater, CCM will not be found to have violated the Act if it can prove, by a preponderance of the evidence on the entire record, that the non-reappointments would have taken place absent the protected conduct. Bridgewater at 242. ¶

Levels of protected activity of non-reappointed faculty: ¶

Finally, on remand we direct the Hearing Examiner to reassess the varying levels of protected activity among the non- reappointed faculty and how that impacts the Bridgewater analysis for determination of unfair practice liability and, ultimately, which faculty may be entitled to affirmative relief. The Hearing Examiner recognized: “With regard to individual affirmative relief, the six Association officers and members are not all similarly situated.” (H.E. at 64). After summarizing the protected activity of the non-reappointed faculty, she determined that the record strongly supported affirmative relief for four of them, but that “Kilhaney and Lesce present more nuanced sets of circumstances” and that Lesce in particular “presents materially different circumstances.” (H.E. at 65-66). ¶

The Hearing Examiner determined that Kilhaney’s level of protected activity was sufficient to entitle her to relief, but that Lesce was not involved in any protected activity and thus she was not entitled to relief. Id. We concur with the determination that Lesce was not entitled to relief. However, the Hearing Examiner’s review of Kilhaney’s protected activity acknowledged only a “singular instance of Association activity” in February 2020 when she brought an Association representative to a meeting with CCM administration. (H.E. at 65). Furthermore, it was President Iacono’s identification of Kilhaney in the April 2021 police report as one of the non-reappointed faculty that prompted the Hearing Examiner’s finding that “Kilhaney’s activity clearly caught Iacono’s attention” and that she merited individual affirmative relief. (H.E. at 66). As we discussed earlier, on remand the Bridgewater analysis must be conducted weighing the police report incident against CCM’s business justifications. The Hearing Examiner must then reassess the levels of protected activity and any findings of hostility accordingly. ¶

OrderORDER ¶

The matter is remanded to the Hearing Examiner for further proceedings consistent with this opinion, including a supplemental hearing, supplemental findings, and a supplemental report reapplying the standards set forth in Bridgewater Tp., 95 N.J. 235 (1984) for determining whether an unfair practice occurred. ¶

BY ORDER OF THE COMMISSION ¶

Chair Hennessy-Shotter, Commissioners Eaton, Higgins, Kushnir and Papero voted in favor of this decision. None opposed. Commissioner Ford recused himself. ¶

ISSUED: April 24, 2025 ¶

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;” and “(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/ CCM applied for interim relief with its charge, which a Commission Designee denied on May 26, 2021. I.R. No. 2021- 29, 48 NJPER 61 (¶16 2021). On September 30, 2021, the Commission denied CCM’s motion for reconsideration. P.E.R.C. No. 2022-11, 48 NJPER 143 (¶37 2021). ¶

3/ This provision prohibits employee organizations, their representatives or agents from: “(2) Interfering with, restraining or coercing a public employer in the selection of his representative for the purposes of negotiations or the adjustment of grievances.” ¶

4/ Commission exhibits are marked “C-” while Joint, Charging Party and Respondent exhibits are marked “J-” , “CP-” , and “R-” , respectively. Transcripts are referred to as “T” , preceded by a number signifying the corresponding day of hearing, followed by the page number. ¶

5/ CCM requested oral argument. We deny the request for oral argument given that the parties have fully briefed the issues raised. ¶

6/ This testimony was not included in the Hearing Examiner’s report. ¶

7/ This testimony was not included in the Hearing Examiner’s report. ¶

8/ This testimony was not included in the Hearing Examiner’s report. ¶

9/ This testimony was not included in the Hearing Examiner’s report. ¶

10/ On April 23, 2021, CCM’s former labor counsel sent a letter to the Association regarding its complaints about members being contacted by the Mount Olive police. In contradiction to the police report, he claimed that “President Iacono did not identify anyone as the possible perpetrator.” (J-20). ¶

11/ See, e.g., West Paterson Bd. of Ed., P.E.R.C. No. 2010-2, 35 NJPER 273 (¶95 2009); Hudson Cty., P.E.R.C. No. 2012-49, 38 NJPER 332 (¶112 2012); Shore Reg. Bd. of Ed., P.E.R.C. No. 2008-1, 33 NJPER 201 (¶71 2007); Town of Secaucus, P.E.R.C. No. 2004-3, 29 NJPER 370 (¶115 2003); and City of East Orange, P.E.R.C. No. 2020-36, 46 NJPER 318 (¶78 2020). ¶

12/ Although we find that providing notice is the best practice under these circumstances, we disagree with CCM that the Hearing Examiner was required to provide prior notice of a negative inference, as the court cases cited for such a procedure involved jury charges and not administrative hearings. See Clawans, 38 N.J. at 172; and Hill, 199 N.J. at 560-561. Additionally, CCM cited one Civil Service Commission decision requiring prior notice, but that decision is not binding on this Commission. ¶