H.E. No. 2013-10

Synopsis:

A Hearing Examiner of the Public Employment Relations Commission finds that the Irvington Board of Education did not violate the New Jersey Employer-Employee Relations Act by failing to select Association representative, Jerome Elson, for child study team work in the summer of 2010. The Charging Party contended that Elson was not selected because of an earlier remark that he would grieve if the Board paid a rate for the summer work that was lower than the contractual rate. The Board denied that remark was a factor in the eventual selection process. The Hearing Examiner concluded that the Board’s Director of Special Services made her selections of team members for the summer work based upon legitimate educational criteria and Elson’s grievance remark was not considered or a factor in the Director’s decision.

PERC Citation:

H.E. No. 2013-10, 39 NJPER 368 (¶123 2012)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

15.124 15.16 43.122 43.96 43.98 72.135 72.311 72.312 72.323 72.339 72.358

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	. - HE 2013 010.wpd
Appellate Division:
Supreme Court:

H.E. NO. 2013-10 1. H.E. NO. 2013-10 STATE OF NEW JERSEY BEFORE A HEARING EXAMINER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of IRVINGTON BOARD OF EDUCATION, Respondent, -and- Docket No. CO-2011-037 IRVINGTON EDUCATION ASSOCIATION, Charging Party. ____________________________________ IRVINGTON BOARD OF EDUCATION, Respondent, -and- Docket No. CO-2011-048 IRVINGTON SECURITY AND ATTENDANCE OFFICERS ASSOCIATION, Charging Party. SYNOPSIS A Hearing Examiner of the Public Employment Relations Commission finds that the Irvington Board of Education did not violate the New Jersey Employer-Employee Relations Act by failing to select Association representative, Jerome Elson, for child study team work in the summer of 2010. The Charging Party contended that Elson was not selected because of an earlier remark that he would grieve if the Board paid a rate for the summer work that was lower than the contractual rate. The Board denied that remark was a factor in the eventual selection process. The Hearing Examiner concluded that the Board = s Director of Special Services made her selections of team members for the summer work based upon legitimate educational criteria and Elson = s grievance remark was not considered or a factor in the Director = s decision. A Hearing Examiner's Report and Recommended Decision is not a final administrative determination of the Public Employment Relations Commission. The case is transferred to the Commission, which reviews the Report and Recommended Decision, any exceptions thereto filed by the parties, and the record, and issues a decision that may adopt, reject or modify the Hearing Examiner's findings of fact and/or conclusions of law. If no exceptions are filed, the recommended decision shall become a final decision unless the Chair or such other Commission designee notifies the parties within 45 days after receipt of the recommended decision that the Commission will consider the matter further. H.E. NO. 2013-10 STATE OF NEW JERSEY BEFORE A HEARING EXAMINER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of IRVINGTON BOARD OF EDUCATION, Respondent, -and- Docket No. CO-2011-037 IRVINGTON EDUCATION ASSOCIATION, Charging Party. ____________________________________ IRVINGTON BOARD OF EDUCATION, Respondent, -and- Docket No. CO-2011-048 IRVINGTON SECURITY AND ATTENDANCE OFFICERS ASSOCIATION, Charging Party. Appearances: For the Board of Education Hunt, Hamlin & Ridley, attorneys (Ronald C. Hunt, of counsel) For the Associations Oxfeld Cohen, P.C. (Nancy I. Oxfeld, of counsel, William P. Hannan, on the brief) HEARING EXAMINER = S REPORT AND RECOMMENDED DECISION On July 22 and July 28, 2010, unfair practice charges were filed with the New Jersey Public Employment Relations Commission (Commission) alleging that the Irvington Board of Education (Board) violated subsections 5.4a(1) and (3)1/ of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. (Act). The Irvington Education Association (Association or Charging Party), filed its charge in Docket No. CO-2011-037 on July 22, 2010, alleging the Board failed to hire School Psychologist, Jerome Elson for summer work in 2010 in retaliation for his exercise of protected conduct. The Irvington Security and Attendance Officers Association (ISAOA) filed its charge in Docket No. CO-2011-048 on July 28, 2010, alleging the Board failed and refused to renew the employment of James Cole in retaliation for his exercise of protected conduct. The Association seeks an order requiring the Board to pay Elson for lost wages and benefits for the summer work. The ISAOA sought an order reinstating Cole and reimbursing him for lost wages and benefits. Procedural History A Consolidated Complaint and Notice of Hearing was issued on March 28, 2011 (Exhibits C-1 and C-2).2/ On October 6, 2011, the Board, ISAOA and Cole entered into a settlement agreement resulting in the withdrawal of CO-2011-048 which I approved on October 27, 2011 (Exhibit C-3). The Board filed an Answer to the charge in CO-2011-037 on November 3, 2011 (Exhibit C-4). It admitted certain facts but denied Elson = s protected conduct was the reason he was not offered summer work in 2010. The Board asserted legitimate business reasons for not offering Elson employment that summer. Hearings were held on February 1 and May 4, 2012.3/ Both parties filed post-hearing briefs by August 21, 2012. Based upon the entire record, I make the following: Findings of Fact 1. The Board is a public employer and the Association is an employee organization within the meaning of the Act(1T14- 1T15). 2. The Board and Association are parties to a collective agreement effective from July 1, 2007 - June 30, 2009 (Exhibit J- 1). Attached to that contract was a memorandum of agreement providing the parties terms and conditions of employment for a contract covering the 2010-2011 and 2011-2012 school years. Section 25.04 of J-1 provides a rate of $37.00 per hour for certain unit members hired into summer positions for which no separate salary has been negotiated. The parties agree, however, that they negotiated a rate of 1/200th of annual salary per day for child study team members working during the summer (1T44, 1T123). 3. Jerome Elson was employed by the Board as a School Psychologist from approximately 1990 until his retirement on February 1, 2012 (1T42-1T43). He worked for the Board on a child study team during the summer months for 15 to 20 years (1T72). Elson began his union representative responsibilities for the Association in 1993 or 1994 and has continued without a break (1T62). He was involved in contract negotiations for the Association since 1994, and he has filed grievances on behalf of the Association (1T65-1T71). 4. Child study teams are comprised of a school psychologist, a social worker and an LDTC (Learning Disability Teacher Consultant). Team members work together to address the student needs in the schools to which they are assigned (1T80). During the 2009-2010 school year, Elson was a member of Child Study Team A E @ with Social Worker Erica Williams, and LDTC Kiakoma Roberts working at the middle school (Exhibit J-2). 5. The Board has a history of having child study team members work during the summer weeks to complete work that was not finished during the year. Prior to the summer of 2010, the Board had no specific procedure or criteria to determine which child study team members would work in the summer or for how long. The practice was that team members were asked if they were available to work in the summer and if funding was there all those available employees were placed on the Board agenda for approval (1T115, 1T126). In the summer of 2009, 19 or 20 team members were available and they worked from 7 to 33 days. There was no consistency with members choosing how long they would work (1T126). 6. Patricia Dowd has worked for the Board for over 32 years (1T123). She was a teacher for about four years, and a guidance counselor for about 24 years. She was an Association member for 28 years (1T145). Dowd was appointed Supervisor of Special Services in March 2008, assumed the duties of the Director of Special Services on July 1, 2009, and was appointed Director of Special Services on July 1, 2011 (1T113, 1T115). The Director of Special Services is responsible for the operation of the child study teams. Having assumed the Director = s responsibilities, Dowd, during the 2009-2010 school year, began developing procedures for her department which included the summer child study team program (1T118). By February 2010, Dowd was aware that her budget for Special Services would likely be cut going into the 2010-2011 year (which included summer 2010) and she needed to reduce her budget. The only area of her budget she felt she could reduce was the child study team summer work (1T119-1T120). Business Administrator Lamptey is Dowd = s immediate supervisor (1T121). He had told Dowd she needed to reduce the costs for the summer child study team work (1T120). Dowd and Lamptey knew that team members were entitled to 1/200th of their salary per day for summer work, but it was not unusual for the Administration to talk to the Association about making an accommodation notwithstanding what the contract provided (1T97, 1T121-1T123). Based upon the Board = s financial issues, Lamptey directed Dowd to propose to the Association that team members accept $37 per hour for their summer work. He wanted to know if the Association would be open to that option (1T121-1T123). Dowd met with Elson, the Association representative, near the end of February 2010. She explained to him that due to financial considerations Lamptey wanted to know whether the Association would agree that team members receive $37.00 per hour for summer work rather than the negotiated rate. Elson responded that it took the Association a long time to get the negotiated rate and it wouldn = t be possible to accept the lower rate. He then told Dowd that if the Board used the $37.00 rate the Association would file a grievance (1T45-1T46, 1T124, 1T146- 1T147). Elson testified that Dowd responded that if the $37.00 per hour rate was not accepted the Board may need to eliminate the summer program since the money might not be available (2T26). I credit that testimony. Dowd reported the results of that discussion to Lamptey and the Administration proposed their budget to the Board to include the 1/200th per day pay rate for team members performing summer work (1T125). On direct examination on the first day of hearing, Elson responded to the question: A was there a time in the spring of 2010 when something came to your attention about summer work and rates of pay? @ ; by explaining the conversation he had with Dowd about her request the Association consider accepting $37 per hour for the summer child study work (1T45). He did not place a date on that meeting during his direct testimony. In his rebuttal testimony on the second day of hearing, however, Elson testified that he believed that the meeting with Dowd about the $37.00 per hour request occurred on May 14, 2010 and not in February 2010 as Dowd testified (2T23-2T24). Elson said he based that testimony on emails and notes he made at the time (2T23), but no emails or notes were offered by the Association to support that assertion. Dowd had testified that the meeting about the $37 rate and Elson = s A grievance @ remark had to have been in February because department heads had to submit their proposed budget for the upcoming year in late February so they could be submitted to the County in early March (1T145-1T147). I credit Dowd = s testimony on this point and find that while Elson may have been good intentioned, he was mistaken about when he had the $37.00 discussion with Dowd. First, the Association did not present emails or notes to support Elson = s testimony. Second, CP-1, the posting for summer child study team members, while not dated, nevertheless, stated that interested candidates had to submit their written interest in the position by May 13, 2010. Since they were due by May 13, I infer CP-1 had to have been posted well before that date. The timing of CP-1 is important because in Findings of Fact 6 and 7 herein, I find that there was a sequence of events that flowed from the discussion Dowd and Elson had about the summer rate which led to the posting. That sequence of events, including CP- 1, would not make sense if Elson = s meeting with Dowd occurred on May 14, 2010. Third, later in his rebuttal testimony Elson refers to the May 14th meeting he had with child study team members many of whom complained to him that they would have been happy to take the $37 per hour rate suggested by Dowd. Elson told his team members if they were to accept $37.00 per hour he = d file a grievance anyway (2T26-2T27). I find the reason that exchange occurred between Elson and other team members on May 14, was because they had learned from Dowd = s meeting in March and from CP-1, the posting which required a response by May 13, that only 13 team members would be allowed to do child study team work in the summer of 2010. Consequently, I find that the conversation between Dowd and Elson about the summer pay rate occurred in February. 7. After meeting with Elson and aware that the Board would pay the contract rate and aware of the Board = s budget constraints, Dowd decided in late February 2010 when she prepared her budget that the child study team program for the summer 2010 would consist of four child study teams, 12 employees, plus one person for speech, a total of 13 people. She limited the number of work days to 25, but also expected employees to work all 25 days (1T126-1T127, 1T147). Dowd met with her staff in early March 2010 where the summer program was discussed. She informed team members that she was changing the methodology for the summer, limiting participation to 12 team members and one speech therapist (1T130). She advised them that there would be a posting, interested individuals had to apply and she would choose the individuals who would be recommended to the Board (1T130). Dowd also notified the team members that only those team members who committed to working all 25 days should apply (1T131). Dowd expected all the work to be completed within a five week period (1T131). At the March meeting Dowd asked her teams what work remained for the summer, she informed them the cases had to be brought into compliance, and she did not commit to selecting any particular child study team (1T24, 1T25, 1T29-1T30). Dowd told her teams that her selections would be based upon a strong work ethic, productivity, professionalism and experience (1T24, 1T31, 1T37, 1T40, 1T131). Dowd did not say anything at that meeting about keeping the regular child study teams together for the summer (1T24, 1T30). 8. After deciding to limit the number of team members selected for summer work, Dowd spoke to Alberta Sharif, the Board = s Director of Human Resources, about the procedure to use in making her selections. Sharif instructed Dowd to post the position, notify team members they had to write a letter of intent for a position, and then Dowd should select individuals she (Dowd) thought would best satisfy the job she needed completed (1T128, 1T171). Sharif did not determine the criteria for the summer work nor was she involved with who or how people were selected (1T9-1T12). She did not give Dowd any direction on who to choose (1T172). Shortly after discussing the matter with Sharif, Dowd posted the child study team work for the summer 2010 limited to 13 positions (Exhibit CP-1; 1T48, 1T129, 1T164). Seventeen team members applied for the 13 positions including Elson (Exhibit CP- 2; 1T48, 1T129). Six of the 17 applicants, including Elson, were school psychologists (CP-2). Dowd did not publicize how she was choosing the team members (1T149, 1T153). She notified team members that were not chosen in writing that her decision was due to budget constraints (1T149). In late June 2010, the Board approved 13 child study team members for summer work (Exhibit CP-3). Elson was not selected (1T48). 9. The summer of 2010 was the first year there was a limitation on the number of team members chosen for summer work. Dowd testified that if there were no budgetary constraints, everyone who applied would have been chosen for work (1T151). I credit that testimony. Because of the budgetary constraints, however, Dowd developed a selection process. Her criteria was: They had to be able to do the work that best suited the needs of the students [1T151]. Dowd began her selection process by reviewing the work that had not been completed during the year and was being carried over into the summer (1T129-1T130). Her goal was to match team members who were best acclimated for the available summer work (1T130, 1T139). She determined that the needs of the students were best served by the child study team members who worked with them (1T150-1T151). Dowd explained that productivity from the different child study teams was difficult to evaluate because each level - high school, elementary, pre-school and middle school B were very different and had different expectations (1T132). She knew that the Irvington High School Child Study Team did not finish their caseload, but she chose all three members B Donnelly, Gray and psychologist Mel Gluck - for summer work noting the reason they did not complete their caseload was: . . . not because they were not productive people, it was because the way the district was doing IEP = s at that time. [1T133] Dowd noted that Irvington High School had the highest caseload in the District and team members were trying to complete IEP = s in the spring (whereas other teams can start doing IEP = s in the fall), but they could not complete them. Dowd determined that the Irvington High School team were the most familiar with the high school students and, therefore, the best to complete that summer work (1T133). Dowd chose two members from the pre-school team B LDTC Greene and Psychologist Duncan because the District has a large number of three and four year olds that they get in the summer, and because that team was the only one trained to do the Battelle testing. The third member of that team B a social worker B had been RIFFED, so she was replaced by a social worker from another team, Sandy Ross (1T135, 1T140). Although Elson had not been on the pre-school child study team he was certified to administer the Battelle test. He was trained for it in 2007 (2T22). Much of the carry over work for the summer of 2010 was parental requests for evaluations known as A initials @ and school referrals most of which are submitted in April, May and June and cannot be completed during the regular school year. In the spring of 2010 most of that work concerned elementary students. There was only one such request each from the high school and middle school (1T136). Dowd discovered that most of the elementary work involved students from Grove and University Elementary so she hired all of Child Study Team A C @ - Rubin, Kandell and Psychologist Freedman - who were already assigned to that school and most familiar with the students there (1T137, 1T140). She also determined that a lot of the same work came from Mt. Vernon Avenue and Madison Avenue and Chancellor Avenue schools, so she hired LDTC Sass and Psychologist Morel from Mt. Vernon, and LDTC Njogare from Madison and Chancellor (1T137, 1T140-1T141). Dowd did not hire Elson, Williams or Roberts from Child Study Team A E @ who were assigned to Florence and University Middle School. She explained that Elson was on the middle school team and his caseload that year (2010) involved the vocational high school, Essex High School and Florence Avenue School (1T141). Ninety percent of Elson = s caseload in the 2009-2010 school year was out of District, meaning he serviced mostly private school students who were not in the Board = s schools (1T51). Although Dowd knew Elson had worked in other Board schools, since her time working in the Special Services Department, she has only known Elson to work as a middle school psychologist (1T142). Dowd reiterated that she picked child study team members for the summer 2010 who were most familiar with the students and/or the work that needed to be completed and that best suited the needs of the students (1T148-1T151). She testified she did not pick Elson because he could not best do the work that suited the needs of students (1T151-1T152). I credit her testimony. Based upon Dowd = s recommendation the Board on June 30, 2012 approved 13 child study team members for summer work in 2010. Elson was not included (Exhibit CP-3). 10. Dowd did not publicize how she chose the team members for the summer work. Thus, before she testified at this hearing Elson would not have known he was not selected for that work because he did not work at Irvington High School, the pre-school or an elementary school (1T152-1T153). After Elson was notified of Dowd = s decision they discussed the matter. Elson asked why he wasn = t chosen. He told Dowd he had more experience than anyone else in the Department, he had worked on every child study team and could do any job and said he could do a better job than certain other psychologists he specifically named (1T49, 1T153). Elson raised the names of other team members who he thought were not productive, and he explained why he needed to earn the money (1T153-1T154). Elson remarked that he felt that his conversation with Dowd about the payment rate for the summer work was related to her decision denying him the work (1T48-1T49). Dowd denied their conversation about the rate of pay for the summer had any affect on her selection of child study team member for the summer work. She said she focused on the needs for the summer (1T143, 1T144). She began explaining to Elson that he wasn = t chosen for any of the Irvington High School work because she felt that work belonged to the regular High School Child Study Team and she wanted them to complete that work (1T149, 1T154). Dowd did not have the opportunity to explain to Elson why he was not selected for the other teams because he raised the names of other psychologists and personal reasons for wanting the summer work which prevented her from continuing (1T154). 11. Dowd had worked with Elson several times in her role as Supervisor of Special Services and thought they had a collegial4/ relationship (1T143). Elson has come to her on a number of matters they either resolved or attempted to resolve. They have discussed potential grievances with a goal towards their resolution (1T143-1T144). Dowd testified: . . . it = s a relationship where he does let me know what the union expectations are, but there = s no malice there. We = re both doing our jobs. [1T145] Dowd testified she held no animosity toward Elson because he was a union member or for any reason, and she emphatically denied that the summer work salary issue had any affect on who she selected for the summer work in 2010 (1T144-1T145). I credit Dowd = s testimony. ANALYSIS The issue in this case is why was Elson not chosen for child study team work in the summer of 2010? Was it because, as Elson testified, he threatened to file a grievance if the Board implemented a $37.00 per hour rate for such work, or was it because he was not the best choice for the 13 available positions as Dowd testified based upon the criteria she set? Those questions obviously present a conflict between Elson = s and Dowd = s testimony. But I do not believe this is a case about their credibility. I find that both testified honestly. Elson believes he was not chosen because of his grievance remark and I doubt a discussion of any of the evidence will change his mind. Dowd testified at length about why she selected each of the 13 team members for summer work which was a logical explanation for her selections. Rather than a case about who is telling the truth, this case is fact intensive. It is about what the weight of the evidence supports, and not a comment about Elson = s or Dowd = s credibility. In focusing on the above issue it is also important to remember what this case is not about. It is not about Elson = s qualifications for the summer work. He was qualified. Dowd said she would have provided summer work to all team members that applied if the Board = s budget would allow. The focus, instead, must be on what a review of all the evidence supports and which team members could best fulfill the needs Dowd identified given the budget constraints. In Bridgewater Tp. v. Bridgewater Public Works Assn., 95 N.J. 235 (1984), the New Jersey Supreme Court set forth the standard for determining whether an employer's action violates 5.4a(3) of the Act. Under Bridgewater, no violation will be found unless the Charging Party has proven, 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 an illegal motive has been proven and if the employer has not presented any evidence of a motive not illegal under our Act, or if its explanation has been rejected as pretextual, there is sufficient basis for finding a violation without further analysis. Sometimes, however, the record demonstrates that both motives unlawful under our Act and other motives contributed to a personnel action. In these dual motive cases, the employer will not have violated the Act if it can prove, by a preponderance of the evidence on the entire record, that the adverse action would have taken place absent the protected conduct. Id. at 242. This affirmative defense, however, need not be considered unless the Charging Party has proved, on the record as a whole, that union animus was a motivating or substantial reason for the personnel action. Conflicting proofs concerning the employer = s motives are for the hearing examiner and Commission to resolve. The decision on whether a Charging Party has proved hostility in such cases is based upon consideration of all the evidence, including that offered by the employer, as well as the credibility determinations and inferences drawn by the hearing examiner. Rutgers Medical School, P.E.R.C. No. 87-87, 13 NJPER 115, 116 ( & 18050 1987). The Association has clearly satisfied the first two Bridgewater standards, Elson was engaging in protected conduct when he made a grievance remark, and the Board B through Dowd B was aware of that conduct. The focus of this case, therefore, is on whether Dowd was hostile to Elson for making the grievance remark. That is, whether Dowd refused to select Elson for the summer work because he threatened a grievance? I hold the evidence does not support such a finding. The Association relied upon Warren Hills Reg. Bd. Ed., P.E.R.C. No. 2005-26, 30 NJPER 439 ( & 145 2004), affirmed App. Div. 32 NJPER 8 ( & 2 2006), to support Elson = s contention that he was discriminated against because of his exercise of protected conduct. In Warren Hills, the Commission found that the superintendent threatened to terminate its bus drivers and privatize their work on or about the day the drivers voted to be represented. The board in that case approved the superintendent = s recommendation to privatize. The Commission found the board violated the Act and ordered the board to offer reinstatement and back pay. The reason the Association here relied upon Warren Hills was because of the timing of the superintendent = s threat to privatize in relationship to the election. The Association contends the timing here B the time between Elson = s grievance remark and Dowd = s decision not to hire him for summer work B supports a finding that Elson was discriminated against - denied summer work - because he threatened to file a grievance. Timing is one of the more significant factors in assessing motivation and from which hostility or animus may be inferred. Downe Tp. Bd. Ed., P.E.R.C. No. 86-66, 12 NJPER 3 ( & 17002 1985). But, it must still be viewed in context with all the evidence. The evidence here shows that the Board was anticipating budget constraints for the upcoming 2010-2011 school year which included the 2010 summer program affecting child study team members. Lamptey apparently knew the Board could not afford to pay the 1/200th contractual rate to the same number of team members who performed the work in 2009. He, therefore, asked Dowd to ask the Association if they would accept the $37.00 per hour rate which would save the Board money. The Board knew the contractual rate was 1/200th, but sought the Association = s consent to use the lower rate. How best to find out what the Association was willing to do but to ask one of its representatives? Consequently, Dowd asked Elson if the Association would agree to the $37 rate. There is no evidence that Dowd = s request was made in a threatening manner or with threatening words or was accompanied by a threat to deny Elson summer work. Similarly, there is no evidence that Dowd even suggested the Board would consider or was considering unilaterally implementing the $37.00 rate. Dowd = s mere request that the Association consider the lower rate did not violate the Act. Nor did Dowd = s remark that the Board might discontinue the summer work violate the Act because the Board had the right to make that decision based upon budgetary reasons. If there was a threat at all in the Dowd-Elson exchange over the summer rate it came from Elson. He threatened to file a grievance. I am not suggesting that threat was unlawful, in fact, the Association had the right to file a grievance if the Board implemented the $37.00 rate. What is odd here, however, is that Elson made that threat without any indication from Dowd that the Board would even have considered unilaterally changing their negotiated rate. The record is devoid of any negative reaction from Dowd when Elson refused to agree to the lower rate. Dowd simply informed Lamptey that the Association would not agree to a lower rate, and they then proceeded to develop a plan to continue the summer work at the negotiated rate. Nothing Dowd said or did in her discussions with Elson or Lamptey suggest she was even upset with Elson = s grievance remark or his refusal to accept the lower summer rate. There is simply no evidence that Dowd said anything to anybody or exhibited any conduct that would support a finding of hostility. The evidence proceeds to show that the Board, through Dowd, adjusted the program, limiting the number of team members, in order to employ most of the applicants, who were to be paid the negotiated rate, but at a total the Board projected it could afford. Given the Board = s budget concerns that was not evidence of hostility, it was evidence of a sound business decision that also honored the parties collective agreement. The Association = s primary attack on the selection process Dowd used to pick the team members for summer work - or rather her alleged deliberate failure to pick Elson - was that Elson was the most experienced psychologist, he had worked in every section throughout his career and he completed work faster than other psychologists. There is no evidence suggesting Dowd or the Board refuted that point. Dowd explained, however, her selection process was based upon her belief that the child study team members who were most familiar with the students and/or the work that needed to be completed were the best suited for the positions. The Association produced no evidence to refute that point. Since 90% of Elson = s work was with out-of-District students, he obviously had less contact, knowledge of and familiarity with the particular students who were the subject of the summer work. Dowd = s detailed explanation on how she chose each team member for the summer stayed focused on business/educational concerns and was absent any hint of hostility toward Elson. Consistent with Dowd = s explanation was that none of the members on Elson = s regular child study team, Team A E @ , were chosen for summer work presumably because none of them had appreciable contact with Irvington High School students, pre-school students or elementary students that were the primary focus of the summer work. This case is, thus, distinguishable from Warren Hills. Here, there was no threat by the Employer (Dowd); and the Board (Dowd) presented a logical and sustainable educational explanation for the selections she made and for why she did not include Elson or other Team A E @ members. In Warren Hills, the Board did not demonstrate a legitimate business justification for its actions. Additionally, here the Association did not dispute the budgetary concerns raised by the Board; the type of work that was available for the summer, i.e., high school, pre-school and elementary school work; and, that Elson = s work involved 90% out- of-District students. Dowd = s remark to team members in March 2010 that her selections would be based upon a strong work ethic, productivity, professionalism and experience did not limit her ability to adjust and refine her eventual criteria for selecting the team members. Dowd did not drop those attributes from consideration, but she refined and narrowed her criteria to be the people who best suited the needs of the students which in her estimation were the people who had the most contact with the affected students during the year. While Elson apparently met the initial and more general attributes Dowd mentioned at the March meeting, he did not meet the more specific attributes Dowd sought at selection time. Elson had little to no contact with the affected students during the year. There is no evidence to suggest that Dowd = s final specific criteria - a more personal involvement and connection with the affected students - was inappropriate, a sham or educationally unsound. While the cost factor - which selected team members would cost the Board less money - was noted by Dowd in responding to interrogatories but not mentioned in her testimony, the Association did not produce evidence about how different selections might cost the Board more or less for the summer work. There was no evidence that Dowd = s selections were based on cost. Had Dowd testified that cost was a criteria - and to whatever extent she considered it in her selection process - one could infer such a criteria was an exercise of the Board = s legitimate business considerations. Finally, Dowd testified about her A collegial @ relationship with Elson and about how they have worked together in the past. I did not detect any cynicism or negativity toward Elson in her testimony and have no basis to conclude that she had any animus or hostility toward him because of his exercise of protected conduct. I found her selection process and her selections were based upon what she thought best suited the needs of the students. The Association did not demonstrate that the needs of the students could best be achieved by different selections. Consequently, I conclude that Elson = s grievance remarks were not a factor in Dowd = s selection of team members for the 2010 summer work. Accordingly, based upon the above findings and analysis, I make the following: Conclusions of Law The Irvington Board of Education did not violate Section 5.4a(1) or (3) of the Act by not selecting Jerome Elson for child study team work in the summer of 2010. Recommendation I recommend that the Commission ORDER that the Complaint be dismissed. _____________________________ Perry O. Lehrer Hearing Examiner DATED: October 25, 2012 Trenton, New Jersey Pursuant to N.J.A.C. 19:14-7.1, this case is deemed transferred to the Commission. Exceptions to this report and recommended decision may be filed with the Commission in accordance with N.J.A.C. 19:14-7.3. If no exceptions are filed, this recommended decision will become a final decision unless the Chairman or such other Commission designee notifies the parties within 45 days after receipt of the recommended decision that the Commission will consider the matter further. N.J.A.C. 19:14- 8.1(b). Any exceptions are due by November 5, 2012. 1/ These provisions prohibit public employers, their representatives or agents from: A (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/ The following exhibit designations apply: A C @ is for Commission documents, A CP @ is for charging party exhibits, A R @ is for respondent documents and A J @ is for evidence jointly submitted by the parties. 3/ The transcripts will be referred to as 1T or 2T, respectively, with the page number following A T @ . 4/ The precise statement in the transcript attributed to Dowd is A . . . I thought we = ve had a colloquial relationship. @ (1T143). I interpret the statement to mean a A collegial @ relationship. ***** End of HE 2013-010 *****