H.E. No. 82-67

Synopsis:

A Hearing Examiner recommends that the Public Employment Relations Commission find that the Respondent violated Subsections 5.4(a)(1) and (3) of the New Jersey Employer-Employee Relations Act when its superintendent on September 29, 1980 issued a letter to Darlene Collingwood, the President of the Association, threatening her with Dismissal by January 5, 1981 if improvement in her attitude, behavior and acceptance of responsibility was not evident. The Hearing Examiner found that Collingwood was being threatened with discipline for the exercise of protected activities during the Summer of 1980 in her capacity as President. Further, the Hearing Examiner found that the Respondent violated the Act by the conduct of its President as a negotiations meeting on December 11, 1980 where Collingwood was the subject of a personal attack, inter alia, that she was a "Liar" and a "troublemaker" and should have been fired a long time ago."

By way of remedy, the Hearing Examiner ordered that the Respondent remove from any files maintained for Collingswood copies of the Superintendent's letter of September 29, 1980.

A Hearing Examiner's Recommended Report and Decision is not a final administrative determination of the Public Employment Relations Commission. The case is transferred to the Commission which reviews the Recommended Report and Decision, any exceptions thereto filed by the parties, and the record, and issues a decision which may adopt, reject or modify the Hearing Examiner's findings of fact and/or conclusions of law.

PERC Citation:

H.E. No. 82-67, 8 NJPER 456 (¶13214 1982)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

72.131

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- HE 82-067.pdf
Appellate Division:
Supreme Court:

H.E. NO. 82-67 1. H.E. NO. 82-67 1. NOTICE TO EMPLOYEES PURSUANT TO AN ORDER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION AND IN ORDER TO EFFECTUATE THE POLICIES OF THE NEW JERSEY EMPLOYER-EMPLOYEE RELATIONS ACT, AS AMENDED, We hereby notify our employees that: H.E. NO. 82-67 STATE OF NEW JERSEY BEFORE A HEARING EXAMINER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of COMMERCIAL TOWNSHIP BOARD OF EDUCATION, Respondent, -and- Docket No. CO-81-271-171 COMMERCIAL TOWNSHIP SUPPORTIVE STAFF ASSOCIATION & DARLENE COLLINGWOOD, Charging Party. Appearances: For the Commercial Township Board of Education Barbour & Costa, Esqs. (John T. Barbour, Esq.) For the Charging Party Selikoff & Cohen, Esqs. (Steven R. Cohen, Esq.) HEARING EXAMINER = S RECOMMENDED REPORT AND DECISION An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the A Commission @ ) on March 30, 1981 by the Commercial Township Supportive Staff Association and Darlene Colingwood (hereinafter the A Charging Party @ or the A Association @ ) alleging that the Commercial Township Board of Education (hereinafter the A Respondent @ or the A Board @ ) had engaged in unfair practices within the meaning of the New Jersey Employer-Employee Relations Act, as amended, N.J.S.A. 34:13A-1 et seq. (hereinafter the A Act @ ), in that the Respondent sent a letter dated September 29, 1980 to Darlene Collingwood, the President of the Association, the content and tenor of which intimidated Collingwood and interfered with the exercise of rights protected by the Act, namely, carrying out the duties and responsibilities of the office of President of the Charging Party, all which was alleged to be a violation of N.J.S.A. 34:13A-5.4(a)(1) and (3) of the Act.1/ It appearing that the allegations of the Unfair Practice Charge, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on June 17, 1981. Pursuant to the Complaint and Notice of Hearing, hearings were held on October 5 and December 4, 1981 in Trenton, New Jersey, at which time the Charging Party only examined witnesses and presented relevant evidence.2/ The Respondent = s case was heard on April 1, 1982. Both parties waived oral argument and filed post-hearing briefs by June 28, 1982. An Unfair Practice Charge having been filed with the Commission, a question concerning alleged violations of the Act, as amended, exists and, after hearing, and after consideration of the post-hearing briefs of the parties, the matter is appropriately before the Commission by its designated Hearing Examiner for determination. Upon the entire record, the Hearing Examiner makes the following: FINDINGS OF FACT 1. The Commercial Township Board of Education is a public employer within the meaning of the Act, as amended, and is subject to its provisions. 2. The Commercial Township Supportive Staff Association is a public employee representative within the meaning of the Act, as amended, and is subject to its provisions. 3. Darlene Collingwood is a public employee within the meaning of the Act, as amended, and is subject to its provisions. 4. Collingwood was hired in September 1976 by the Board as a Playground Aide. She held no office in the Association until she was elected President in May 1980. 5. After Collingwood became President she served on the Association = s Negotiations Committee and, in general, discharged the duties of the office of President of the Association. 6. On July 18, 1980 Collingwood, as President, sent a letter to Michael P. Killeen, the Principal of the Port Norris Elementary School, in which she raised a series of seniority and hours problems of the Aides at the Port Norris Elementary School and at the Haleyville-Mauricetown Elementary School (CP-2). More specifically, Collingwood questioned the reduction in hours of certain Aides as being inconsistent with a resolution of the Board on April 8, 1980 (CP-3), which set forth the specific hours of named Aides. Collingwood requested the reinstitution of the position of one 4-hour Aide position and also made reference to one 4-hour Aide having lost hours plus benefits. 7. Under date of July 23, 1980 Collingwood sent to the Superintendent, Orlando R. Costello, a letter (CP-4) setting forth identically the matters contained in her letter to Killeen (CP-3, supra). 8. Under date of July 28, 1980 Costello sent a letter to Collingwood in response to CP-4, in which he stated that the reduction in Aides was because of a recent budget defeat and that contract seniority procedure had been followed (CP-5). Costello also pointed out to Collingwood that she was not following the grievance procedure inasmuch as her predecessor, Nancy Dawson, had initiated a grievance involving the same subject matter in May 1980 and had abandoned it. 9. On August 11, 1980 Collingwood wrote to Costello requesting a meeting with the Board A ...in reference to a grievance that the Supportive Staff feels still exist (sic)... @ (CP-6). 10. Under the date of August 13, 1980 Costello wrote to Collingwood denying her request for a meeting with the Board (CP- 7). He again reminded her about her failure to comply with the grievance procedure, citing the 10-working day provision for the initiation of a grievance after its alleged occurrence. 11. On August 10, 1980 Collingwood had written to Killeen raising a level one grievance regarding the position of an Aide (CP-9). Collingwood urged that due to seniority a Mrs. Bradway should receive a certain 3-hour position because she was a senior employee to a Mrs. Bellinger. 12. Under date of August 20, 1980 Killeen responded to Collingwood rejecting her contention that she had a right to raise a level one grievance at this time, in view of the prior action of Dawson in May 1980, which was abandoned (CP-8). Killeen, however, invited Collingwood to meet with him if she wished to do so. 13. On August 19, 1980 Collingwood had written to Costello regarding his denial of her request for a meeting with the Board (CP-10). Collingwood stated that she would thus have to attend a public meeting of the Board and said that A If you would like to see this matter get into the newspapers we can arrange for this to be done. @ Costello perceived this statement as a threat. The Hearing Examiner finds to the contrary. 14. Also, on August 19, 1980 Collingwood wrote to Costello pursuant to level two of the grievance procedure raising again the issue of Bradway not having been given a 3-hour Aide position based on her being senior to Bellinger (CP-11). 15. Further, on August 19, 1980 Collingwood wrote to Costello regarding pay for the Aides, citing the contract provision which requires that Aides be paid on the fifteenth and thirtieth day of each month (CP-12). 16. On September 29, 1980 Costello sent a letter to Collingwood (CP-1), which indicated a copy to A file, @ expressing great dissatisfaction as to her behavior as a school aide and giving her 90 days in which A ...to improve your attitude, behavior and acceptance of your responsibility. If substantial improvement is not evident by January 5, 1981 I will recommend your dismissal to the Commercial Township Board of Education. @ 3/ Costello then listed on two succeeding pages the specifics of his dissatisfaction with Collingwood, which the Hearing Examiner finds were substantially directed to Collingwood in her capacity as President of the Association.4/ For example, Costello cited A Harassment of members of the Board of Education and Administration. @ Collingwood acknowledged that she had spoken with two members of the Board of Education during the Summer of 1980, Noah J. Beachaump and Mary Carmichael, regarding reductions in staff contrary to seniority. Costello also stated that she failed to use the negotiated grievance procedure properly and outlined the various letters that Collingwood had sent to Killeen and to Costello in July and August (CP-2, CP-4, CP-6, CP-9, CP- 10, CP-11 and CP-12, supra). Costello further stated that Collingwood = s insubordination must cease, referring to a meeting with Barry L. Ballard, the Principal of Haleyville-Mauricetown Elementary School, on September 23, 1980 (CP-12 and CP-14). Finally, Costello remonstrated with Collingwood that she should not discuss school matters in public at a A local store. @ Collingwood acknowledged that she had spoken of dissatisfaction with the Board and Administration to a candidate for election to the Board, Guy Chamberlain, but insisted that she did not convey any confidential information. The Hearing Examiner credits Collingwood = s version. 17. On October 10, 1980 Collingwood sent a memo to Costello stating that the Association would like to commence negotiations for the 1981-82 successor agreement (CP-15). 18. On December 11, 1980, at a negotiations meeting between the parties, the President of the Board, James M. Perrelli, personally attacked Collingwood as being A ...nothing but a liar, a troublemaker... @ and A If he had his way that I would not be employed by the school system, that I would have been fired a long time ago... @ (1 Tr. 54). Arthur E. Knudsen, an N.J.E.A. Consultant, essentially confirmed that Perrelli made these statements and the Hearing Examiner so finds. In the course of Perrelli = s outburst Costello went to his desk and pulled out a copy of CP-1, supra, and threw it in front of Knudsen and requested that Knudsen read it.5/ Knudsen replied that he was familiar with the letter and subsequently objected in writing in a letter to Perrelli regarding the latter = s conduct on December 11, 1980 (CP-16). 19. Prior to the receipt of CP-1, supra, Collingwood had never been disciplined in any manner by the Board nor had any adverse material been placed in her personnel file. Further, Collingwood has not been disciplined since CP-1, supra, notwithstanding Costello = s threat therein to recommend her termination by January 5, 1981. 20. Collingwood acknowledged on cross-examination that she was not claiming that there has been any pattern of employer conduct against officers of the Association (1 Tr. 65, 66) or that other persons who negotiated or presented grievances had been disciplined (1 Tr. 93, 94). THE ISSUES 1. Did the Respondent violate Subsections (a)(1) and (3) of the Act by: (a) the issuance of Superintendent Costello = s letter to Collingwood on September 29, 1980 (CP-1); and (b) the statements of Board President Perrelli to Collingwood on December 11, 1980 at a negotiations meeting?6/ 2. Were the actions of Costello and Perrelli protected by the First Amendment to the United States Constitution? DISCUSSION AND ANALYSIS The Respondent Violated Subsections (a)(1) And (3) Of The Act By The Issuance Of Costello = s Letter To Collingwood On September 29, 1980 And Perrelli = s Statement To Collingwood At The December 11, 1980 Negotiations Meeting The Hearing Examiner is persuaded that the Charging Party has proven by a preponderance of the evidence that the Respondent violated Subsections (a)(1) and (3) of the Act by the actions of Costello and Perrelli. Additionally, as will be discussed hereinafter, the actions of Costello and Perrelli were not protected by the First Amendment to the United States Constitution. The instant Hearing Examiner, in his decision on the Respondent = s Motion to Dismiss at the conclusion of the Charging Party = s case,7/ held that Collingwood, in her capacity as President of the Association, was engaged in the exercise of protected activities during July and August 1980, and further, that this exercise was a A substantial factor @ or a A motivating factor @ in Costello = s decision to write to Collingwood on September 29, 1980 (CP-1) and in Perrelli = s outburst at the negotiations session on December 11, 1980. In other words, the Charging Party satisfied the initial burden of proof under East Orange Public Library v. Taliaferro, 180 N.J. Super. 155 (App. Div. 1981), which adopted the analysis of the United States Supreme Court in Mount Healthy City School District v. Doyle, 429 U.S. 274 (1977) and the National Labor Relations Board = s decision adopting Mt. Healthy in Wright Line, Inc., 251 NLRB No. 150, 105 LRRM 1169 (1980). The Hearing Examiner = s conclusion that the Charging Party met the East Orange test is confirmed herein. Thus, the Hearing Examiner = s attention now turns to whether or not the Respondent has established by a preponderance of the evidence that CP-1 would have been written by Costello on September 29, 1980 and that Perrelli would have made the same statements to Collingwood on December 11, 1980 A ...even in the absence of the protected conduct... @ (429 U.S. at 287). Put another way, has the Respondent established by a preponderance of the evidence that it had a legitimate business justification for the actions of Costello and Perrelli? First, the Hearing Examiner notes that the timing of CP-1 is suspect if, in fact, Costello was remonstrating with Collingwood regarding her performance as a school aide. Collingwood had been employed by the District for four years without incident. The contents of CP-1 concerned events involving Collingwood during the months of July and August 1980 when Collingwood was not engaged in the performance of her duties as a school aide. Finally, it is noted that CP-1 was issued after the lapse of approximately 18 or 19 working days in the 1980-81 school year. Costello, although somewhat evasive, did acknowledge on cross-examination that Collingwood = s correspondence with Killeen and Costello during July and August 1980 was in her capacity as President of the Association, and that the correspondence from Collingwood did not raise personal concerns (3 Tr. 49-63). The Hearing Examiner rejects Costello = s contention that underlying Collingwood = s July and August letters was her dissatisfaction with a transfer from one school to another in the District (3 Tr. 49, 50). The Hearing Examiner has previously rejected Costello = s contention that Collingwood = s letter of August 19, 1980 (CP-10) was a A threat @ to the Administration (Finding of Fact No. 13, supra). Quite aside from how the contents of CP-10 are construed, Costello acknowledged that this letter had nothing to do with Collingwood = s behavior as a school aide nor did it involve any personal concerns of Collingwood (3 Tr. 74, 75). Item 5 of CP-1 alleges that Collingwood continually attempted to find situations that could be turned into controversy. The gravamen of this paragraph of CP-1 is that Collingwood created dissatisfaction among the other school aides regarding salaries and thereafter filed complaints, grievances, etc. Quite aside from the fact that the Hearing Examiner has previously found that this subject involved the exercise of protected activity, the Hearing Examiner now notes that Costello = s personal knowledge of Collingwood = s discussion with other school aides regarding salaries is somewhat lacking. Costello testified that he was not privy to any conversations between Collingwood and other school aides regarding salaries (3 Tr. 85). He could only state that A ...cases were got to me where people were just dissatisfied, primarily the ones Mrs. Collingwood was talking to... @ (3 Tr. 86). Regarding Item 6, Collingwood = s alleged discussing of school matters in public at a local store, the Hearing Examiner has previously found that Collingwood = s discussion with a candidate for election to the Board did not involve the conveying of confidential information, and that it was arguably protected by the Commission = s decisions in City of Hackensack, P.E.R.C. No. 78-71, 4 NJPER 190 (1978) and Laurel Springs Board of Education, P.E.R.C. No. 78-4, 3 NJPER 228 (1977). Based on the foregoing, the Hearing Examiner finds and concludes that the issuance of CP-1 by Costello was in reality directed at Collingwood in her capacity as President of the Association in a deliberate attempt to curtail activities undertaken by her on behalf of the members of the collective negotiations unit. Costello = s statement advising that he would recommend her dismissal A if improvement was not evident by January 5, 1981... @ constituted a threat of future discipline, which constituted a violation of Subsections (a)(1) and/or (a)(3) of the Act under the Commission = s decisions in the City of Hackensack, supra, and Hamilton Township Board of Education, P.E.R.C. No. 79-59, 5 NJPER 115 (1979) and Trenton Board of Education, P.E.R.C. No. 80-130, 6 NJPER 216 (1980). The Hearing Examiner next takes up the conduct of Perrelli at the December 11, 1980 negotiations meeting (see Finding of Fact No. 18, supra). Perrelli was not called as a witness and, thus, the Hearing Examiner necessarily credits the testimony of Collingwood and Knudsen as to what Perrelli said regarding her being A liar, a troublemaker @ and that if Perrelli had his way she would have been A fired a long time ago. @ Added to Perrelli = s outburst is the fact that Costello produced a copy of CP-1 from his desk and threw it in front of Knudsen. As previously found by the Hearing Examiner Perrelli = s conduct went far beyond mere A offensive speech @ under Hamilton Township, supra, inasmuch as Collingwood = s employment status was being severely threatened. This would necessarily have a chilling effect on the role that Collingwood could be expected to play in collective negotiations. Finally, the Hearing Examiner herein considers whether or not there is any distinction to be made in this case between Costello = s having put a copy of CP-1 in Collingwood = s A grievance file @ rather than in her A personnel file. @ It is first noted that the Respondent never established as part of its case any meaningful distinction between Collingwood = s personnel file and the so-called grievance file. Leaving aside the Charging Party = s contention that the contents were shifted back and forth between the two files, Costello did admit that the two files were interchangeable (3 Tr. 98). If that is the case then it appears to the Hearing Examiner that any attempted differentiation between the two files is a distinction without meaning. According to Costello there was nothing in the grievance file except a copy of CP-1. Thus, since there was no legitimate A grievance @ pending, the contents of the so-called grievance file are suspect. Having concluded that there exists no legitimate distinction between Collingwood = s personnel file and the so-called grievance file, the Hearing Examiner is persuaded that the placing of CP-1 in the A grievance file @ constituted a violation of the Act under the Commission = s decision in Black Horse Pike Regional Board of Education, P.E.R.C. No. 82-19, 7 NJPER 502 (1981). Accordingly, the Hearing Examiner will recommend an appropriate remedy for the Respondent = s violation of Subsections (a)(1) and (3) of the Act regarding the issuance of CP-1 by Costello on September 29, 1980 at the placing of a copy in Collingwood = s so-called A grievance file. @ The Respondent = s Defense That The Actions Of Costello And Perrelli Are Protected By The First Amendment To The United States Constitution Is Rejected The Hearing Examiner here refers to the discussion and analysis in his Decision on Respondent = s Motion to Dismiss at the conclusion of the Charging Party = s case: H.E. No. 82-28, 8 NJPER 143, 148 (1982). Suffice it to say that public employees should be free from threats of reprisal made by public employers under the guise of A free speech. @ See NLRB v. Gissel Packing Co., 395 U.S. 575, 71 LRRM 2481, 2497 (1969) and Giboney v. Empire Storage & Ice Co., 336 U.S. 409, 502, 23 LRRM 2505 (1949). * * * Upon the foregoing, and upon the entire record in this case, the Hearing Examiner makes the following: CONCLUSION OF LAW The Respondent Board violated N.J.S.A. 34:13A-5.4(a)(1) and (3) by Superintendent Costello = s issuance of CP-1 on September 29, 1980 to Darlene Collingwood, the President of the Association, and by placing it in her A file, @ and further, by Board President Perrelli = s outburst to Collingwood at the negotiations meeting on December 11, 1980. RECOMMENDED ORDER The Hearing Examiner recommends that the Commission ORDER: A. That the Respondent Board cease and desist from: 1. Interfering with, restraining or coercing its employees in the exercise of the rights guaranteed to them by the Act, particularly, by issuing letters containing threats of future discipline to employees for the exercise of protected activity, such as that engaged in by Darlene Collingwood, or by the making of threatening statements to representatives of the Association at collective negotiations sessions. 2. 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 the Act, particularly, by issuing letters containing threats of future discipline to employees for the exercise of protected activity, such as that engaged in by Darlene Collingwood, or by the making of threatening statements to representatives of the Association at collective negotiations sessions. B. That the Respondent Board take the following affirmative action: 1. Forthwith remove from any file maintained for Darlene Collingwood any copy or copies of CP-1, the letter from Superintendent Costello to Darlene Collingwood dated September 29, 1980. 2. Post in all places where notices to employees are customarily posted, copies of the attached notice marked as Appendix A A. @ Copies of such notice, on forms to be provided by the Commission, shall be posted immediately upon receipt thereof and, after being signed by the Respondent = s authorized representative, shall be maintained by it for a period of at least sixty (60) consecutive days thereafter. Reasonable steps shall be taken by the Respondent Board to insure that such notices are not altered, defaced or covered by other materials. 3. Notify the Chairman of the Commission within twenty (20) days of receipt what steps the Respondent Board has taken to comply herewith. /s/Alan R. Howe Hearing Examiner DATED: June 30, 1982 Trenton, New Jersey WE WILL NOT interfere with, restrain or coerce our employees in the exercise of the rights guaranteed to them by the Act, particularly, by issuing letters containing threats of future discipline to employees for the exercise of protected activity, such as that engaged in by Darlene Collingwood, or by the making of threatening statements to representatives of the Association at collective negotiations sessions. WE WILL NOT discriminate 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 the Act, particularly, by issuing letters containing threats of future discipline to employees for the exercise of protected activity, such as that engaged in by Darlene Collingwood, or by the making of threatening statements to representatives of the Association at collective negotiations sessions. WE WILL forthwith remove from any file maintained for Darlene Collingwood any copy or copies of CP-1, the letter from Superintendent Costello to Darlene Collingwood dated September 29, 1980. 1/ These Subsections 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/ A Motion to Dismiss by the Respondent was denied on November 6, 1981 after consideration of briefs filed by the parties: H.E. No. 82-16, 7 NJPER 664. A second Motion to Dismiss by the Respondent was made on December 4, 1981. It was denied on January 28, 1982 after consideration of the briefs filed by the parties: H.E. No. 82-28, 8 NJPER 143. 3/ The Hearing Examiner must credit Costello = s testimony that CP-1 was never placed in Collingwood = s personnel file. Rather, as Costello testified, it was placed in a Collingwood A Grievance File @ and it was to remain there until Costello determined what would happen by January 5, 1981. Whether any distinction should be made between placing CP-1 in Collingwood = s A personnel file @ or A Grievance File @ vis-a-vis a violation of the Act will be considered infra. 4/ Costello = s responses to the contents of CP-1 will be discussed infra. 5/ Costello testified that Perrelli told him to go to his desk. The Hearing Examiner credits Knudsen = s testimony that Costello did so on his own initiative. 6/ Although the Unfair Practice Charge does not specifically allege a violation of the Act by Perrelli = s conduct on December 11, 1980, it was fully litigated and the Respondent has defended as to Perrelli in an earlier brief and at the hearing. See Multi-Medical Convalescent & Nursing Center of Towson, 225 NLRB 429, 93 LRRM 1170 (1976) and Englewood Bd. of Ed., P.E.R.C. No. 76-18, 2 NJPER 53 (1976), aff = g H.E. No. 76-2. 7/ H.E. No. 82-28, 8 NJPER 143 (1/28/82). Docket No. Commercial Township Board of Education (Public Employer) Date: By: This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced or covered by any other material. If employees have any question concerning this Notice or compliance with its provisions, they may communicate directly with the Public Employment Relations Commission, 495 West State Street, PO Box 429, Trenton, NJ 08625-0429 (609) 984-7372 APPENDIX A A @ ***** End of HE 82-67 *****