H.E. NO. 80-4

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

CAPE MAY CITY BOARD OF EDUCATION,

Respondent,

-and-	Docket No. CO-79-58-26

CAPE MAY CITY EDUCATION ASSOCIATION,

Charging Party.

Appearances:

For the Respondent

Pachman, Aron, Till & Salsberg, Esqs.

(Martin R. Pachman, Esq., Of Counsel)

For the Charging Party

Greenberg & Mellk, Esqs.

(William S. Greenberg, Esq., Of Counsel; Ezra D.

Rosenberg, Esq., On the Brief)

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

On September 11, 1978, the Cape May City Education Association ("Association" or "Charging Party") filed an unfair practice charge with the Public Employment Relations Commission ("Commission") alleging that the Cape may City Board of Education ("Board" or "Respondent") had engaged in unfair practices within the meaning of the New Jersey Employer-Employee Relations Act ("Act"), as amended, N.J.S.A. 34:13A-1 et seq. Specifically, the Association alleges that the Board's Administrative Principal, John Demarest, on February 13 and 15, 1978, unlawfully interrogated two teachers, Susan Kornacki and Ellen Bringhurst, with regard to their Association sentiments and other alleged protected activity in the course of interviewing each of them in connection with their tenure applications for the next school year, and subsequently discriminatorily recommended denial of their tenure and non-renewal for the next school year which recommendation was affirmed by the Board in a Memorandum to the two teachers dated March 10, 1978 and later ratified on April 7, 1978 by formal notice of non-renewal following an informal hearing held before it on April 5, 1978, all allegedly in violation of N.J.S.A. 34:13A-5.4(a)(1)(2) and (3).1/ It appearing that the allegation of the charge, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued thereon on October 16, 1978. By Answer served and filed on November 3, 1978, the Respondent denied the material and conclusionary allegations of the Complaint and interposed four separate affirmative defenses, three of which were made the subject of oral motions made at the opening of hearing in this proceeding on December 5, 1978.2/

Hearings were held on December 53/ and 6, 1978, January 11, 12, March 12, 13, 14, 15, 19 and 20, 1979. Both parties were given full opportunity to examine witnesses, present evidence and to argue orally. Both parties filed post-hearing briefs, the Charging Party on may 16, 1979, the Respondent on may 29, 1979, and the Charging Party filed a supplemental letter memorandum on June 7, 1979.

Upon the entire record in the case and from my observation of the witnesses and their demeanor, I make the following:

FINDINGS OF FACT

I. The Parties

1.	The Board operates a school district located in the City of Cape may comprising grades K through 6. For some years, the Association has been the exclusive representative for collective negotiations concerning the terms and conditions of employment of the certified teachers employed by the Board. Over the years, the parties have negotiated and entered successive collective agreements covering these employees. I find and conclude that the Board is a public employer and the Association is an employee organization and majority representative of the employees in an appropriate unit, respectively, within the meaning of the Act.

II. The Unfair Practices

The Evidence

Negotiations between the Board and Association for a two year contract covering 1976-77 and 1977-78 began in Spring 1976. Agreement was reached late in January, 1977. John Demarest, Administrative Principal, testified that the lengthy negotiations affected relationships among the teachers (T. 235). Factions formed (exactly when is undetermined), one consisting of George Loper, Charles McCarty, John Mathis, Karen Ann Slack, Bringhurst and Kornacki, the first three being active members of the Association holding a variety of offices.4/

The other faction is approximated by those teachers who signed a statement of Disavowal of Involvement (CP-64), submitted to the Board in connection with Bringhurst's and Kornacki's Donaldson hearing. Two of the signers, Keela Englert and Kathleen M. Bogle, were to come up for tenure at the same time as Slack, Bringhurst and Kronacki.

Around the time agreement was reached, McCarty's teaching evaluations by Demarest became negative. The Board voted to withhold his salary increment. The Association voted 20 to 0 (with one abstention by Levin) to support McCarty's grievance on this matter (CP-82, dated 4/21/77). There was no evidence that Demarest or the Board knew who was present or how anyone voted. The vote was presented as unanimous.

On December 6, 1977, Demarest notified the Association that it would have to pay a maintenance fee if it wished to hold meetings on school property (CP-85). That same day, the Association met "on the sidewalk" some blocks from the school, and with 13 or 14 members present voted to grieve the matter. No evidence was presented that Demarest or the Board knew who was present at this meeting. Again, the vote was given to the Board as a unanimous one.

The Board voted on January 23, 1978 to cut back two programs; the library and physical education. The following date the Physical Education teacher, Loper, then Grievance Chairman, asked Bringhurst and Kornacki to make phone calls to parents to inform them of the Board meeting at which the cutbacks would be discussed.

On January 26, 1978, the Association, with 13 or 14 members voting, unanimously passed a resolution to oppose the cutbacks. The telephoning of parents to alert them to the cutbacks was discussed at this meeting. Bringhurst and Kornacki both made calls to parents about the Board's upcoming budgetary meetings. Both testified that they had no reason to think that Demarest or the Board knew that they had made such calls until each admitted it in the course of the hearing. Several angry parents attended the Board meetings (T. 657), and the library budget was subsequently restored.

The five teachers came up for tenure consideration in Spring of 1978 after almost three years of employment by the Cape May Board of Education. Demarest interviewed each of them.5/

The first to be interviewed was Bringhurst. On February 13, 1978 she had two meetings with Demarest. The morning meeting concerned the latest in a series of evaluations which all teachers underwent subsequent to classroom observations. At this meeting Demarest told Bringhurst that he wanted "to pick her brains" as to her feelings about the school. He "didn't want any more Charlie McCarty's (T. 664).6/

As in prior evaluation meetings, Demarest read Bringhurst's evaluation to her (CP-13). There is conflicting testimony as to whether he discussed his comments with a negative emphasis or whether there was any discussion at all of the written evaluation. Bringhurst was under the impression that all her evaluations were good, that Demarest was "very pleased" with her performance (T. 663).7/ In view of Demarest's admissions that he mentioned nothing negative in his tenure meeting with Bringhurst and Kornacki, despite his recognition of the importance of letting teachers know what result he contemplated, (T. 199)., I credit Bringhurst's testimony that Demarest mentioned nothing negative in the evaluation meetings beyond that which is clear on the face of the written evaluation.

One of the most serious criticisms of Bringhurst made by Demarest was her unsuitability to teaching very young children. Her evaluations mention that she is to move out of the second grade to a higher level, that she is "less effective" at this grade level (CP-12). Demarest testified that she refused to consider moving into the fifth grade if Englert did not return the following year. Bringhurst testified that the subject of Englert's position never came up either on or before February 13, 1978. I do not credit this testimony by Demarest. The fifth grade teacher, Englert, testified that there was never a real possibility of her leaving the school. The possibility of Bringhurst teaching another higher grade must have been discussed at some time, however, since it appears more than once in her evaluations. Demarest himself ultimately admitted that no offer of Englert's position was made (T. 1483).

The afternoon of this same day, Bringhurst met with Demarest to discuss her tenure. Demarest had a typed list of statements and questions before him. (CP-16, incorporated herein as Appendix "A"). He began by reading items from the list. Later in the interview Demarest asked to whom she was loyal: to the Board, to the Association, or to the administrator, i.e., to himself (T. 655). Her reply was that she was loyal to herself, to which Demarest responded that it is good to look after "number one" (T. 656).

Demarest denies questioning anyone's loyalty other than as phrased in CP-16, Item #5:

How can you be loyal to your peers when they are so split on every issue?

Testimony by Slack (T. 1362), and Englert (T. 1329)8/ belies this denial. Slack responded to Demarest's question by describing how she was loyal to all three groups. Slack did not deny her loyalty to the Association. Testimony by Board members, particularly John Carr (T. 1176, 1190) and Joan Pomykacz (T. 1221) also indicate that loyalty was questioned in the tenure interviews. Carr testified that another member of the Board, Mr. Daly, had found the "loyalty" question objectionable (T. 1190).

The Hearing Examiner finds as a fact that Bringhurst and Kornacki, as well as Slack and Englert, were asked about their loyalty to the Association as compared to their loyalty to the Board and administrator during their tenure discussions.

During the tenure interview, Demarest took out his operations manual, turned to Bringhurst's class list and asked her how the parents of certain students had been contacted about the Board meetings concerning the library and physical education cutbacks.9/ Bringhurst told him that the names he referred to were all Coast Guard families and that they had probably called each other. Bringhurst denied making any such calls (T. 673). She testified that she lied about her telephoning the parents out of fear engendered by the "loyalty" question (T. 667).

Demarest denies questioning how parents were contacted about the Board meetings. He testified that the appearance of angry parents at the Board meetings was the subject of a casual comment on his part which received a response denying calls to the parents. He could not remember when and to whom he made the remark and who so responded.10/ Slack testified that there was a discussion of "feedback" from the community on the cutbacks. She did not recall any question specifically on phone calls to parents. Demarest did not indicate to Bringhurst that he disbelieved her answers to the loyalty question or to the question of how parents knew about the Board meetings. Bringhurst testified that she had no reason to think that Demarest knew that she had lied about calling parents (T. 673), nor did she think that he knew that Slack had not made any calls (T. 679). She was also unaware of whether Demarest knew how she voted on McCarty's grievance (T. 676). At no time did Demarest indicate to Bringhurst that he would make an unfavorable decision on tenure.

On February 15, 1978, Kornacki had her tenure meeting with Demarest. In the course of the meeting, Demarest asked substantially the same "loyalty" question that he had asked of Bringhurst. When Kornacki was unable to respond promptly, he illustrated the question with his tri-colored operations manual: one color represented the Board rules, one the Union rules, and one the administration rules. He asked to which color she was loyal (T. 733). Kornacki's reply was that she was loyal to her friends, Bringhurst and Slack, both of whom taught in the primary grades with her.11/ Kornacki testified that Demarest told her some teachers could be trusted and some could not (T. 733). He then opened his operations manual to Kornacki's class list and pointed to certain names (see. f.n. 9, supra) asking how these parents had heard of the Board meetings on the budget. Kornacki reminded him that one of the parents had been substitute teaching the day the announcement of the meetings was put in the front office and that this woman had probably gotten the information at that time. Demarest then asked about the other parents who had attended the Board meetings. Specifically, he asked if Kornacki had called them and told them of the budget cuts to be discussed. Kornacki denied making the phone calls because she was afraid that the truth would create problems with her tenure (t. 746).

Demarest denied asking Kornacki the "loyalty" question and the questions about calling parents for the budget meetings.12/ At no time during this interview did Demarest indicate that Kornacki might not receive a favorable recommendation for tenure (T. 1451).

After each interview with the five teachers considered for tenure, Demarest took notes. He had these notes with him two weeks later at a crucial March 2 Board meeting when he referred to these notes or read them during his presentation to the Board on his recommendations for tenure. He subsequently disposed of the notes despite the likelihood of further proceedings after the Board voted against tenuring Bringhurst and Kornacki.13/

The evening of March 2, the full Board met instead of the Personnel Committee. The Board moved immediately into closed session for Demarest's presentation on recommendations for tenure.

Demarest rated the five teachers on a 1 to 10 scale for four qualities prescribed by Board Policy 5005. The ratings were:

Efficiency	4	6	6	5	9

Health	9	9	9	8	9

Cooperation	9	5	9	5	9

Conduct	9	4	9	4	9

Bogle	Bringhurst Englert Kornacki Slack

Total	31 24 33	22 36

He had never used such a scale to rate teachers before. He averred that it was intended to clarify matters for the lay members of the Board. The categories, however, were never clearly defined or differentiated. In response to questioning about Bogle's low efficiency rating, Demarest testified that efficiency was rated in different contexts depending on the duties of the teacher. He admitted that no provision was made for brining the different contexts to the attention of the Board (T. 142-143). "Cooperation", he testified, referred mainly to the carrying out of administrative regulation and Board policy. Demarest illustrated Kornacki's failure to cooperate by describing her refusal to fill out the papers necessary to refer a child to the Study Team14/; her failure to send a written notice to Demarest when she put children out of her classroom for disciplinary reasons15/; her failure to bring children's deficiencies to the attention of parents16/; her failure to clear up problems with other teachers17/; and her failure to clean up after the animals in her classroom.18/

Demarest was also concerned with Kornacki's high pitched voice, apparently a loud one. He made note of it on several of her evaluations. Perhaps the most serious complaint against Kornacki, and it is supported by one evaluation, is that her students' SRA test scores were not up to their abilities.19/ Still, in his final evaluation of her (CP-28), Demarest attributes improvement in housekeeping, voice control, and is optimistic about the academic success of her students.20/

Demarest's illustrations of Bringhurst's uncooperativeness were that she "dumped" problem students to Bogle's class on a regular basis21/; that she refused to consider leaving the second grade to teach the fifth grade22/; and that she was a poor speller.23/ In earlier testimony, Demarest also charged Bringhurst with giving erroneous information to parents24/ and having difficulties with other teachers,25/ including "emotional problems."

Demarest described "conduct" as a manifestation of cooperation. He drew no further distinction between the two. At one point he stated that "conduct" includes achievement of students (T. 469). The only frame of reference discussed in this record concerning student achievement was the SRA test scores. Both Bringhurst and Kornacki received identical low ratings for "cooperation" and "conduct" despite the fact that Bringhurst's students' scores were fine and Kornacki's were considered unsatisfactory.

Bogle was presented as a model of cooperation and conduct, yet she accepted the students whom Demarest alleged should not have been in her class. She was the only teacher whose "emotional problems" were corroborated by Board members' testimony. It was said that she "loved the children too much" and she felt ostracized by her peers. Demarest made clear to the Board that Bogle's problems were improving, despite the low rating in efficiency he felt compelled to give her.26/

Various Board members testified as to their responses and reactions to Demarest's presentation on March 2. Board member John Carr testified that divided loyalties were discussed at the March 2 meeting. He stated that the issue was irrelevant to him. He had decided to vote according to Demarest's recommendations without even hearing them, believing that the Principal should be able to choose teachers as he sees fit.

Carr also testified that one Board member, a Mr. Daly, had objected to the loyalty question, asserting that it was improper to consider in the tenure context.

Joan Pomykacz also testified that tripartite-loyalty was discussed at the March 2 meeting. The issue was not important to her. She had heard from Mrs. Blomkvest that Bringhurst had trouble with small children (T. 1205) and she weighed this in registering her negative vote.27/

Mildred Blomkvest corroborated the consideration of Slack's loyalty (T. 1269). She testified that Slack's teaching was thought to be excellent (T. 1292) and that Kornacki's teaching was considered somewhat deficient in that her students were not up to their abilities (T. 1291).

Anita de Satnick, another member of the Board during this period, planned to vote against Bringhurst's and Kornacki's tenure based solely on her reading of the teacher evaluations. Her concerns were that Bringhurst was not suited to teaching young children and that Kornacki kept a messy classroom.

Neither Bringhurst or Kornacki knew that Demarest would not recommend their tenure until March 2, when all five teachers received a form letter information them of the Principal's recommendation as to tenure. Bringhurst and Kornacki first brought the substance of their tenure interviews to the attention of George Loper, one of the "active" association officers, at this time.

At a public meeting on March 9, 1978, the Board voted to confirm the "straw vote" taken at the March 2 meeting. This vote granted tenure to Slack, Bogle and Englert and denied tenure to Bringhurst and Kornacki.

At this meeting Loper was the only teacher to speak on behalf of Bringhurst and Kornacki. He did not mention the questioning of their loyalties on their Association activities as a factor in the denial of tenure.28/

In mid-March, the Association met with 14 members present and voted to support Loper, McCarty, Bringhurst and Kornacki. The result of this vote was not made known to the Board (T. 998).

On April 5th the Board reaffirmed its denial of tenure to Bringhurst and Kornacki, after a Donaldson presentation by both teachers. According to Loper's uncontested recollection, the Board had received at the beginning of the meeting29/ a "Statement of Disavowal of Involvement" signed by either teacher (CP-64). Among those signing were Englert and Bogle. Slack did not sign this document. It contained a brief statement that the undersigned disclaimed any representations by any person or group of involvement in the "personnel matter" before the Board, i.e., the reconsideration of the tenure decisions on Bringhurst and Kornacki.

At a Board meeting on April 13, Levin and Bogle read into the minutes the contents of the "Statement of Disavowal".

Bringhurst and Kornacki complete their teaching duties for the 1977-78 school year, and having been denied tenure, have not been employed thereafter by the Respondent.

Conclusions

The Independent (a)(1) Violation

Demarest's denial that he questioned Bringhurst and Kornacki about their loyalty to the Association during an interview affecting his recommendations for tenure must be discounted. Both Bringhurst's and Kornacki's testimony on this point was specific and credible in comparison to Demarest's assertion that he discussed only the items on his list. Slack's testimony, that she was asked specifically about her loyalty to the Association as compared to the Board and to Demarest, provides additional corroboration to support the complainants' testimony and the charge of interference on this matter. Furthermore, Board members corroborated Demarest's discussion of divided loyalties at the March 2 meeting when he made his tenure recommendations. As lay persons, the Board members were generally not focused on the issue of loyalty to the Association. The subject could only come up at Demarest's initiation.

Only in very limited circumstances may an employer or its representative legitimately question an employee about her union.30/ Inquires directed at loyalty to the Association, particularly in a tenure interview, fall well outside this limited category. It is hard to imagine an interrogation more clearly violative of N.J.S.A. 34:13A-5.4(a)(1) than Demarest's conduct in the tenure interviews.

In general, Kornacki was an especially credible witness. Her responses were always direct, concise yet detailed. I credit her version of the portion of the tenure interview in which Demarest asked how certain parents had found out about the Board meetings on the program cutbacks.

For reasons cited in footnote 10, supra, I do not credit Demarest's testimony that casual remark by him about angry parents at the Board meetings elicited a denial of notifying parents from some unspecified teacher. I do not believe that he meant the comment, "Boy they were angry," to be a positive one, that it was "fine" for the parents to be angry so far as he was concerned (T. 1489). I find, therefore, that Demarest questioned both Bringhurst and Kornacki about whether they or anyone else had notified parents about the cutbacks and relevant Board meetings.

Demarest's inquires into how parents had been notified of the Board meetings on cutbacks, immediately after probing into loyalty to the Association, caused Bringhurst and Kornacki to become defensive about their action and concerned that the truth would affect their tenure. In another context, such inquiries might not violate N.J.S.A. 34:13A-5.4(a)(1). The Association did not require teachers to notify parents. The evidence suggests that Bringhurst and Kornacki may have made the calls as a personal matter in response to a request made by Loper as a teacher and a friend rather than as a representative of the Association. Nevertheless, in the context of a tenure interview, juxtaposed with the loyalty question, Demarest's inquiries are part of a "course of conduct" violative of N.J.S.A. 34:13A-
5.4(a)(1).31/

Whether the complainants at the time they made the calls were engaged in protective activity, and whether or not Demarest thought any Association activity was involved, his inquiries in the context of the tenure interviews clearly had a chilling and coercive effect.32/

The (a)(3) Violation

Weighing a charge of employer discriminatory conduct in In re Board of Education of the Borough of Haddonfield, P.E.R.C. No. 77-36, 3 NJPER 31 (1977) the Commission set out a two-fold standard:

"...A violation of N.J.S.A. 34:13A-5.4(a)(3) should be found if it is determined that a public employer's discriminatory acts were motivated in whole or in part by a desire to encourage or discourage an employee in the exercise of rights guaranteed by the Act or had the effect of so encouraging or discouraging employees in the exercise of those rights.

Application of this two-fold standard will normally involve a preliminary showing by the Charging party of two essential elements. There must be proof that the employee was exercising the rights guaranteed to him by the Act, or that the employer believed said employee was exercising such rights, and proof that the public employer had knowledge, either actual or implied, of such activity...the two-fold test upholds the employer's legitimate prerogative to discharge, suspend or refuse to promote employees for reasons unrelated to union activities. The employer may take such action for any cause or no cause at all as long as it is not retaliatory. It is the Charging Party that must prove its case by a preponderance of the evidence."

The reasons given by Demarest for not recommending tenure for Bringhurst and Kornacki are often flimsy and inconsistent.33/ He did not bring problems he perceived in their performance to their attention and his evaluations of them are often misleadingly good, if indeed he did not mean them to be so. After deciding to refuse to recommend them, it was questionable at best to have a tenure meeting with them and probe into factionalism in the school while avoiding all clues as to his decision. If the "problem" at the school was not one of union activities, but of failure to open communication, as Demarest described it, his conduct, as displayed in the tenure interviews, was designed to aggravate rather than mitigate it. There was no credible testimony that factionalism was central to Bringhurst's or Kornacki's unsatisfactory performance. Demarest claimed that they did not cooperate with other teachers, but his was refuted by the testimony of three teachers, as well as the denials by Bringhurst and Kornacki.

His explanation of how he rated the teachers and what the categories mean is shot with contradictions. Bringhurst and Kornacki lost points for the same "faults" in three different categories. Bogle' faults were confined to one category. The suspicion could arise that "cooperation and conduct" about an "emotional" problem of Bringhurst, but this was uncorroborated. If factionalism affected a teacher's performance it was Bogle's performance that suffered.34/

There is no evidence however that Demarest's actions were motivated by anti-union animus rather than some other equally unjustifiable but for our purposes irrelevant personal dislike.35/ Contrary to the Charging Party's assertion, Demarest's inability to present coherent reasons for his failure to recommend tenure is not conclusive evidence of an unfair practice. The complainants by their own testimony admitted that Demarest might not know how they voted on any Association matters or whether they had made calls to the parents. They testified that they had no reason to think Demarest knew that Slack did not make calls to parents.

Generalized, anti-union animus may be inferred from the "loyalty" question that Demarest asked in his tenure interview. It is significant, however, that Demarest questioned the loyalty of Slack and Englert as well as Bringhurst and Kornacki. One cannot further infer that the animus was directed to Bringhurst and Kornacki from the "loyalty" questioning.36/ In view of Slack's admission of her loyalty to the Association, and the absence of any similar admissions by Bringhurst and Kornacki in their interviews,37/ it cannot be found that Demarest's generalized animus focused on Bringhurst and Kornacki after his tenure interviews with them.

The Charging party makes much in its post-hearing brief of animus alleged against McCarty and Loper. It asserts that the animus against these two Association activists is so great that one may infer animus directed at anyone even "aligned" with them, though not active in the Association. There are two problems with this argument.

One is that the record contains no evidence of animus directed at McCarty and Loper. It is clear that Demarest is concerned that McCarty was granted tenure by the Board after Demarest failed to recommend him. One may infer animosity toward McCarty from the record, but not animus38/ The subsequent litigation of McCarty's evaluation is a separate proceeding39/ and not incorporated in this record although there is reference to the Association's 20 to 0 vote to support McCarty's grievance. This could not distinguish Bringhurst and Kornacki as especially pro-union in sentiment.

Loper's case originally filed as a separate unfair practice charge was consolidated with the instant case and subsequently severed at the parties' stipulation.40/ A motion by the Charging Party to reconsolidate was denied.41/ Thus, any argument that the Charging party might urge to bolster its contention that the consequences of animus directed at McCarty and Loper affected Bringhurst and Kornacki, remains unsupported in this record.

A second problem with the Charging Party's argument, never addressed in its brief, is Demarest's recommendation of Slack for tenure. The record is clear that Slack was recognized as a supporter of Loper, McCarty and the Association. The Board members were aware of Slack's loyalty to the Association (T. 1234, 1269). If mere alignment with the Loper-McCarty group were enough to focus animus on Bringhurst and Kornacki, then Demarest would not logically have given his highest rating for tenure to Slack.

The record does not reveal that Demarest questioned anyone other than Bringhurst and Kornacki about how the parents were made aware of the cutbacks and the Board meetings at which they would be considered. This could give rise to the suspicion that Demarest had focused on the two teachers and attributed to them activity on behalf of the Association. "It is not sufficient that the proof be based on suspicion or surmise."42/ The Charging Party insists that Demarest knew who made the phone calls to parents because he had a general knowledge of factions at the school (C.P. Brief, p. 78) leaning, at least impliedly, on the so-called "small plant" doctrine. Even were this analysis to explore the "small plant" implication, it is still necessary for the activities in question to have been "carried on in such a manner or at such time that in the normal course of events, Respondent must have been aware of them."43/ The record herein is devoid of even circumstantial evidence on Demarest's knowledge of Bringhurst's and Kornacki's actions. Beyond admitting the possibility that Demarest suspected the two of notifying parents of the Board meetings, one would have to put aside other possibilities (e.g. that his purpose was to find out who called the parents, not to get Bringhurst and Kornacki to make an admission) and create a string of inferences to reach the conclusion that Demarest failed to recommend their tenure in retaliation for their support of the Association. First, one would have to infer that Demarest did not accept the reasonable possibility that no teachers called the parents, as Bringhurst and Kornacki suggested to him in their answers to his inquiries. Secondly, one must then infer that Demarest did not believe their specific denials of personally contacting parents on this matter. Finally, one would have to infer from these inferences that Demarest acted on this suspicion in refusing to recommend them for tenure. The evidence on the record will not support such a finding, derived from a series of inferences. There was no showing of knowledge on the part of Demarest that Bringhurst and Kornacki contacted parents about the Board meetings.

The Charging Party has thus failed to prove by a preponderance of the evidence that Bringhurst's and Kornacki's support of the Association played a part in the denial of their tenure and I will recommend dismissal of these allegations.44/

Having found that the Board has engaged in a certain unfair practice I shall recommend it to cease and desist therefrom and to take certain affirmative action necessary to remedy and remove the effects of the unfair practice and to effectuate the policies of the Act. Affirmatively, I shall recommend that the Respondent post an appropriate notice to the employees in the form annexed hereto.

Upon the basis of the foregoing evidence, including findings of fact and the entire record in this case, I make the following recommended:

CONCLUSIONS OF LAW

1.	By interrogating Bringhurst, Kornacki, Slack and Englert about their loyalty to the Association during their respective tenure interviews, and by questioning the former two about the mobilization of parents in opposition to cutbacks during these same interviews, the Respondent, on February 13 and February 15, 1978 engaged in a course of conduct constituting an unfair practice within the meaning of N.J.S.A. 34:13A-5.4(a(1).

2.	Respondent by its denial of tenure of Ellen Bringhurst an Susan Kornacki, has not engaged in unfair practices within the meaning of N.J.S.A. 34:13A-5.4(a)(1) and (3).

3.	Respondent has not engaged in unfair practices within the meaning of N.J.S.A. 34:13A-5.4(a)(2).

RECOMMENDED ORDER

Respondent, its officers, agents, successors or assigns shall:

1.	Cease and desist from interfering with, restraining or coercing any employees in the exercise of the rights guaranteed them by the New Jersey Employer-Employee Relations Act; (a) by interrogating employees as to their loyalty to the Association; (b) by interrogating any employee in a tenure interview as to his or her actions and the actions of other employees taken to influence public and parent sentiment in opposition to proposals made by Respondent affecting programs and employees.

2.	Take the following affirmative action which is deemed necessary to effectuate the policies of the Act.

(a)	Post at its central offices in the School District of Cape May City, New Jersey, copies of the attached notice marked "Appendix B". Copies of said notice on forms to be provided by the Commission, shall, after being duly signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof, and maintained by it for a period of at least sixty (60) consecutive days thereafter in conspicuous places including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by said Respondent to ensure that such notices are not altered, defaced or covered by any other material.

(b)	Notify the Chairman, in writing, within twenty (20) days of receipt of the Order of the steps the said Respondent has taken to comply herewith.

3.	IT IS FURTHER ORDERED that the particular sections of the Complaint which allege that the Cape May City Board of Education engaged in violations arising under N.J.S.A. 34:13a-
5.4(a)(1) and (3) with regard to the denial of tenure of Ellen Bringhurst and Susan Kornacki and violations arising under N.J.S.A. 34:13A-5.4(a)(2) be dismissed in their entirety.

Robert T. Snyder

Hearing Examiner

DATED: Newark, New Jersey

July 31, 1979