H.E. NO. 84-52

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

RIDGEFIELD PARK BOARD OF

EDUCATION,

Respondent,

-and-	Docket No. CO-83-103-80

RIDGEFIELD PARK EDUCATION

ASSOCIATION - NJEA,

Charging Party.

Appearances:

For the Respondent

Aron & Salsberg

(Stephen R. Fogarty, of Counsel)

For the Charging Party

Vincent Giordano, UniServ Rep.

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

On October 25, 1982, the Ridgefield Park Education Association ("Association") filed an Unfair Practice Charge with the Public Employment Relations Commission ("Commission"). The Association alleged that the Ridgefield Park Board of Education ("Board") violated N.J.S.A. 34:13A-5.4(a)(1), (2) and (3) of the New Jersey Employer-Employee Relations Act,1/ when certain statements were made by the Principal of the Ridgefield Park High School, Mr. Joseph Celauro, at a meeting between himself and members of the Advisory Council, a body created by the collective negotiations contract between the Association and the Board.

It appearing that the allegations of the charge, if true, might constitute an unfair practice within the meaning of the Act, a Complaint and Notice of Hearing was issued on March 23, 1983. On April 14, 1983, the Respondent, Board, filed an answer admitting that a meeting took place between the Advisory Council and Celauro but denies that the statements made by Celauro were violative of the Act. On May 9, 1983, a hearing was held before the undersigned at which time the parties were given an opportunity to examine and cross-examine the witnesses, present evidence and argue orally. At the conclusion of the hearing, the Board moved to dismiss the count of the complaint alleging that it had violated § (a)(3) of the Act. Following arguments by the respective parties, the undersigned dismissed the § (a)(3) count of the complaint. Accordingly, that portion of the complaint will not be dealt with here. Both parties submitted post-hearing briefs which were submitted by November 28, 1983. The essential facts in this matter are not in dispute.

The Association and the Board are parties to a collective negotiations agreement, wherein, Article 29 provides that the faculty of each school building shall elect an Advisory Council which shall meet with the Building Principal at least once a month, during the school day, to review and discuss local problems and practices and to play an active role in the "revision or development of building policies."

Pursuant to this provision, the High School Principal, Joseph Celauro, met with the Association's High School Advisory Council on October 19, 1982. After some preliminary discussion, Celauro stated that he: "thought that the Advisory Council could work at a higher level, maybe act to handle some of the more important problems that were facing the district and the high school." The Principal asked the members of the Advisory Council if they, as a group, felt free to approach the Executive Committee of the Association and ask for certain accommodations which deviated from the contract which, according to Celauro, would be of benefit to both the teachers and the students. The response from two of the Advisory Committee members, Alyse Gutter and Crystalline Posze, was that they would not go to the Executive Committee of the Association for it would seem as though they were undermining the Executive Committee itself. As this conversation continued, Celauro suggested that the Advisory Council was simply giving the "union line" and that the Association Executive Board was not truly representing the faculty because the union was filing too many grievances thereby "gumming up the works" and that the union's insistence upon grieving matters on the basis of "past-practice" prevented the Board from being flexible for such flexibility may be called a past-practice in a future grievance.

Celauro singled out Alyse Gutter, Vice President of the Association, and stated that he believed she could not serve on the Advisory Council because she could not be objective. Accordingly, he called upon her to resign.

As a result of this meeting, one of the members of the Council, a teacher, Paul White, testified that he was "worried about his future in the system and felt worried about how his role in the whole thing is perceived" and further that his participation in the Advisory Council that day and the discussion that ensued could adversely affect his employment status.

The Commission has long noted the dual role of a teacher who also serves in a union capacity. There is no dispute here that the members of the Advisory Council including Gutter, were serving in such a dual capacity.

In Blackhorse Pike Regional Bd. of Ed., P.E.R.C. No. 82-19, 7 NJPER 502 (¶12223 1981) the Commission stated:

A public employer is within its rights to comment upon those activities or attitudes of an employee representative which it believes are inconsistent with good labor relations, which includes the effective delivery of governmental services, just as the employee representative has the right to criticize those actions of the employer which it believes are inconsistent with that goal. However, as we have held in the past, ...the employer must be careful to differentiate between the employee's status as the employee representative and the individual's coincidental status as an employee of that employer. See, In re Hamilton Township Board of Education, P.E.R.C. No. 79-59, 5 NJPER 115 (¶10068 1979) and In re City of Hackensack, P.E.R.C. No. 78-30, 4 NJPER 21 (¶14001 1977).

When an employee is engaged in protected activity the employee and the employer are equals advocating respective positions; one is not the subordinate of the other. If either acts in an inappropriate manner or advocates positions which the other finds irresponsible criticism may be appropriate and even legal action...may be initiated to halt or remedy the other's actions. However...where the employee's conduct as a representative is unrelated to his or her performance as an employee, the employer cannot express its dissatisfaction by exercising its power over the individual's employment.

* * *

The board may criticize employee representatives for their conduct. However, it cannot use its power as employer to convert that criticism into discipline or other adverse action against the individual as an employee when the conduct objected to is unrelated to that individual's performance as an employee. To permit this to occur would be to condone conduct by an employer which would discourage employees from engaging in organizational activity.

See also Commercial Twp. Bd. of Ed., P.E.R.C. No. 83-25, 8 NJPER 550 (¶13253 1982).

In spite of White's testimony that he somehow felt threatened by Celauro's statements, those statements were clearly made in a setting where the parties were equals. The statements made were nothing mor than Celauro's opinion and no threats were made by him. His comments calling on Gutter to resign were not an order directing her to do so. The use of the word resign here is significant, Celauro asked Gutter, of her own volition, to remove herself from the Advisory Committee. No threats were stated or implied as to the jobs held by the individual Advisory Committee members or as to any of their assignments nor was there any evidence indicating that disciplinary action was taken against them. Celauro was simply expressing his displeasure with the activities of the Association which he has a right to do.

The fact that one or more teachers may have felt threatened does not make Celauro's statements violative of the Act. The statements, within the context of how, and where, they were made, did not interfere with, restrain or coerce the exercise of protected rights, nor do they dominate or interfere with the employee organization.

Recommended Order

The Hearing Examiner recommends that the Commission ORDER that the Complaint be dismissed in its entirety.

/s/Edmund G. Gerber

Chief Hearing Examiner

DATED:	April 9, 1984

Trenton, New Jersey