The Education Association intervened in these proceedings pursuant to N.J.A.C. 19:11-2.7, by letter dated October 26, 1983. The Education Association opposed the Shop Teachers petition and denied the allegations supporting it. The Passaic County Technical and Vocational High School Board of Education took no position with respect to the Shop Teachers Association's petition, and declined to participate in these proceedings.

It appearing that the Petition and Letter of Intervention raised substantial material facts in dispute, on December 23, 1983, the Director of Representation issued a Notice of Hearing.

On March 12, 1984, the Education Association filed a motion for Summary Judgment asserting that the facts alleged in the Petition did not establish that the existing relationship was unstable or that the Education Association failed to provide responsible representation to Shop Teachers. On April 2, 1984, the

Shop Teachers' Association filed a memorandum and affidavits opposing the motion. In a decision dated April 17, 1984, the Chairman of the Public Employment Relations Commission, pursuant to N.J.S.A. 34:13A-6(f), denied the Education Association's motion for summary judgment, concluding that there was a substantial dispute over material facts, requiring an evidentiary hearing.

An evidentiary hearing at which the parties were given an opportunity to examine and cross-examine witnesses, present relevant evidence and argue orally, was held on August 20, 1984; August 22, 1984; August 24, 1984; September 10, 1984; September 12, 1984; October 15, 1984; October 17, 1984; October 19, 1984; and October 24, 1984. On November 30, 1984, a date set for hearing, the parties engaged in settlement discussions and requested a delay in the proceedings in order to take the proposed settlement back to their respective constituents for approval. However, in January, 1985, the proposed settlement broke down and the hearing was reconvened on January 8, 1985; January 11, 1985; January 15, 1985; January 21, 1985; January 25, 1985; February 12, 1985; February 18, 1985; February 20, 1985; and March 15, 1985, whereupon the hearing was closed pending the Intervenor's obtaining certain documentation pertaining to an arbitration proceeding involving a prescription plan dispute. Ultimately, I was advised by the Intervenor of its inability to obtain the documentation it sought. By mutual consent the hearing was reconvened on July 23, 1985, in order to give the parties an opportunity to present witness testimony concerning the

issues relating to the aforementioned arbitration proceeding, after which, the record was closed.

Following two joint requests for postponement, the Shop Teachers Association filed a proposed Findings of Fact and Memorandum of Law on October 7, 1985. The Education Association filed a post-hearing brief on October 8, 1985. The parties waived reply briefs.

1. The Passaic County Technical and Vocational High School Board of Education is a public employer within the meaning of the Act, and is the employer of the employees who are the subject of this representation petition (TA 6). ^2/

1/ Because of the length of these proceedings it was necessary to be selective in the development of these factual findings. It was not possible to address every aspect of the testimony; however, I have attempted to base these findings on what I consider to be the most significant of the evidence presented, and I have also attempted to select evidence which I feel is representative of the bulk of the evidence in the record.

2/ Transcript sites are as follows: 'TA' refers to the hearing transcript dated August 20, 1984. 'TB'/August 22, 1984. 'TC'/August 24, 1984. 'TD'/September 10, 1984. 'TE'/September 12, 1984. 'TF'/October 15, 1984. 'TG'/October 17, 1984. 'TH'/October 19, 1984. 'TI'/October 24, 1984. 'TJ'/November 30, 1984. 'TK'/January 8, 1985. 'TL' Volume I of January 11, 1985. 'TM' Volume II of January 11, 1985. 'TN'/January 15, 1985. 'TO' Volume I of January 21, 1985. 'TP' Volume II of January 21, 1985. 'TQ'/January 25, 1985. 'TR' Volume I of February 12, 1985. 'TS' Volume II of February 12, 1985. 'TT'/February 18, 1985. 'TU'/February 20, 1985. 'TV'/March 15, 1985. 'TW'/July 23, 1985.

3(a) The Passaic County Technical and Vocational High School was formerly based in Wayne (TA 87). While there, Shop Teachers outnumbered Academic Teachers within the Union (TA 88). After 1970, Academic Teachers began to outnumber Shop Teachers due to a change in curriculum and the admission of girls (TA 89). Throughout this time, and to the present, Shop and Academic Teachers have belonged to the same Union (TA 89). Prior to the 1980-82 contract, Academic Teachers taught five periods a day and Shop Teachers taught seven or eight periods on an alternating basis (TA 32-33). In the 1980-1982 contract negotiations, the Shop Teachers obtained a pay differential of $900 for the 1980-1981 year and $1000 for the 1981-1982 year (TA 35). The differential was granted to compensate the Shop Teachers because they had a higher course load than academic teachers (TA 32-33). The 1980-1982 term marked the first time the Shop Teachers received a differential (TA 90). Other personnel, however, with schedules similar to Shop Teachers (Guidance Counselors and Nurses) did not receive a differential (TA 92-93).

(b) In the 1981-1982 academic year, new State standards required the reduction of Shop Teacher's course loads from alternate

seven and eight period days to seven period days only (TA 44; TG 45). The Board responded to the course load reduction with a request to the Education Association to reopen negotiations on the differential issue (TA 45; TG 47). The Education Association refused the request and the Board subsequently withheld the full differential amount unilaterally (TA 47-48; TC 24-25; TG 48). The Education Association filed a grievance and the differential was reinstated in full for the duration of the 1980-1982 contract (TC 28; CP 1) ^3/.

4. Prior to the 1982-1984 negotiations, the Education Association established a bargaining committee and a bargaining team (TA 49). The committee was to formulate the teacher's proposals and objectives, and then pursue these goals at the negotiations table (TA 49-50). Membership on the committee was open to any interested Association member (TA 122). The team consisted of Joseph DiGise, an Academic Teacher; Len Cerisano, the Association President; Bob Brown, a Physical Education Teacher; Michael Adams, a Shop Teacher; and William Flynn, a Representative of the New Jersey Education Association (TA 50) There was an informal ground rule between the committee and the team that the committee was to be kept informed of negotiations developments (TB 120; TC 91-92; TF 27). On May 19,

3/ Exhibit designations are as follows; "CP" refers to Charing Party's Exhibits. "I" refers to Intervenor's Exhibits; "J" refers to Joint Exhibits; and "C" refers to Commission Exhibits.

5. The Shop Teachers differential was a major point of contention during negotiations for the 1982-84 contract (TA 61, 63; TC 101, 145). The proofs indicate that initially the Board did not favor continuation of the differential because of the reduced Shop Teacher course load, and it had regarded as unfavorable, the arbitration ruling in which the Arbitrator held that under the contract the Board was obligated to pay the Shop Teachers' differential even though their teaching load was reduced. ^4/ In

4/ It appears that the Board's position was that the Shop Teachers receipt of a $900 differential for 1980-81 was warranted by virtue of their alternating seven and eight period per day schedule; but in 1981-82, when their teaching load was reduced, the $l000 differential (see 1980-82 contract

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4/ Footnote Continued From Previous Page

(J 4)) should not have had to have been paid. This seems to have been the Board's position at the start of the 1982-84 negotiations. Because of this position the Board asserted that no differential should be paid to Shop Teachers for the 1982-84 school years. However, as negotiations progressed the Board retreated somewhat from this stance and offered a $500 differential for the second year of the 1982-84 contract only (TG 60); apparently, to compensate the Shop Teachers for teaching seven periods per day in contrast to an academic teacher's five teaching periods per day.

5/ Two transcript pages in the Volume designated TE have been numbered page 85. Hence, A and B have been used to differentiate between the two pages.

6/ Record evidence of this prescription plan dispute can be found at TW 3-13. I do not find any relationship between this dispute and funds earmarked by the Board of Education for continuation of the Shop Teachers' differential.

6. Prior to the Summer of 1982, DiGise stated to the general membership that he would not continue negotiations over the summer and that talks would resume in September (TA 55; TB 123-124; TO (Vol. I) 45). However, despite these assertions DeGise and Cerisano met with Board representatives to negotiate at at least one luncheon meeting (TC 58-59; TG 69; TO (Vol. I) 45; I 15; I 16). The Education Association denied such a meeting occurred. (TL 50-5l). Although the Education Association also denied that a salary guide was finalized over the summer (TL 51; TO 75; TO 79-81), the weight of the evidence indicates that these summer negotiations produced a tentative contract and salary guide (TA 55; TB 130; TG 72; TG 175; TL 51; T0 79-81). The guide produced (J 2) was identical to the one presented to the membership in September in every respect except that the $38,000 in the tentative guide which was to be distributed to all teachers in a lump sum, was now allocated as a $38,000 increase in fringe benefits in the second year of the contract (J 2 (Exhibit D and E); TA 56-57; TA 59-60). A letter dated September 9, 1982, written by Edward O'Byrne, the Board's attorney, confirms that a tentative agreement was reached over the summer (I 4). The letter refers to such agreement and recommends language to be used to

effectuate the contract (TG 175). Another letter (I 22) from DeGise to Flynn in response to O'Byrne's letter also acknowledges that a contract was reached over the summer, despite the Education Association's denials. This letter suggested that the $38,000 not be distributed to all teachers because in DeGise's own words he stated "this will do damage" (I 4; TO 52). Apparently, as a result of this, the $38,000 was reallocated to fringe benefits in the second year of the contract (TG 181; TH 20-21). This revised contract was referred to at the Executive meeting of the Education Association on September 10, 1982 (TO 78-81; P 9). I conclude from its somewhat illogical explanation that the Education Association's real concern was that if the Shop Teachers knew that this lump sum distribution was made instead of giving them their differential, this would do damage to the Association's stability. At hearing, DeGise's explanation of what he meant by "this will do damage" lacked both credibility and logic. He stated that when he said "this will do damage" he meant he did not know where the $38,000 came from or why the Board inserted it into the guide (TO (Vol. I) 55, 91-93). I conclude from the above that the Association did not want the membership aware of the fact that meetings occurred over the summer and that the $38,000 allocated first for lump sum distribution, then health benefit increases, represented money earmarked by the Board to maintain the shop teacher differential.

7(a) As a result of the above incidents, considerable animosity developed between the Shop Teachers and the Academic

Teachers (TA 86). The Education Association made an effort to reconcile with the Shop Teachers by proposing constitutional changes (TB 65-66); ^7/ however, these negotiations broke down and no settlement was reached (TB 64,149). At the February, 1983, Education Association meeting a resolution was passed by the membership that approved the severance of the Shop Teachers from the Education Association (TB 137-139; J 2 (Exhibit G)). However, Cerisano, as Association President, objected to this resolution on the grounds that it violated the Association Constitution and/or Robert's Rules of Order (TB 80-82, 137). The vote was held despite these objections. Thereafter, a second vote was taken to resolve the contractual constitution issue raised by Cerisano by permitting the severance to take effect at the expiration of the contract (TA 83; J 2, Exhibit H). Upon cross examination, Cerisano, was unable to demonstrate how the vote violated Roberts Rules of Order as alleged (TN 18).

(b) The minutes from this meeting do not accurately chronicle this series of events (J 2 (Exhibit G and H); TB 138-140; TC 109; TH 148). Moreover, the meeting's minutes do not reflect that a second vote was taken, whereby the membership, in order to cure the alleged constitutional violation, voted to sever the shop teachers at the contract's expiration (TH 148; J 2 (Exhibit G); TC 109); and, this alleged void in the minutes was noted by the Shop

7/ See also footnote 13, infra.

8(a) On September 10, 1984, the parties requested that the hearing in this matter be adjourned in order that they could meet to attempt to settle the entire matter (TV 71-72). Leonard Basilio and Leonard Cerisano, as Presidents of their respective organizations, agreed to a series of settlement proposals on October 22, 1984 (TV 75, 104). These proposals were to be presented to union members on an "as is" basis with a recommendation of acceptance (TU 107; TV 104-105). On October 23, 1984, the Shop Teachers accepted the proposals (TU 83, 115).

(b) Cerisano, however, did not endorse the proposals as agreed (TV 105, 116). In fact, he took measures which appear to have been intended to insure their rejection (TV 78, 117). He did this by advising his Executive Committee not to endorse the proposals, and by abstaining from the membership vote (TQ 26, 60-63; TV 80, 116). As a result, the Executive Committee did not endorse the proposals to the membership (TQ 26; TT 81-82), and Cerisano did not go on the record as having voted against the proposals. Cerisano also mischaracterized the proposals to the Association, stating that they were "P.E.R.C. proposals" rather than proposals negotiated between Basillio and himself (TU 19, 22, 29, 107, 124; P

19; I 27). Cerisano stated that he decided not to recommend the proposals as originally agreed because he changed his mind about the first two proposals, and felt that the Shop Teachers had violated the tenth proposal (TV 78-79). ^8/ In the absence of an offer of proof from the Shop Teachers Association rejecting Cerisano's allegation with respect to the tenth proposal (TV 78), I do not discredit his testimony in this regard; however, under all the circumstances here, including his stated rejection of numbers one and two after agreeing to recommend them, and in light of my findings that the Cerisano testimony is not credible in many other respects, I reject the Education Association's proffer in this area as well, and I find that the Education Association, by way of its leadership, endeavored to insure, in a clandestine manner, that the settlement proposals not be ratified.

9(a) Ultimately the Association held three votes on whether to accept the proposals (TK 10-15; TU 29). The first vote resulted in the rejection of the proposals (TU 6-7). A motion was made by Michael McCormick, a Physical Education teacher, and passed by the membership, that provided that the Education Association

8/ I believe it improper to inquire into the substance of settlement discussions and proposals; hence, I shall not discuss the tenth proposal. However, I believe that procedurally, the series of events which occurred during the pendency of the parties' settlement discussions, are germane to the issues raised by this severance petition, and are admissible during the course of this investigatory proceeding (See pages 16-19, infra).

(b) Finally, on December 7, 1984, a third vote was conducted (TU 97; 151). No formal meeting was held and no presentation was made to the membership (TQ 26). The vote was by secret ballot; and, the proposals were defeated. ^10/

9/ This instance of multiple votes and the Executive Committee's eventual declaratory action nullifying the vote is comparable to the severance vote taken by the entire membership in which they voted twice to permit the Shop Teachers to sever themselves from the group; but, which vote the Executive Committee subsequently invalidated (P 11; TB 137-140).

10/ The record does not appear to contain any direct evidence of this; however, it is clear from the entire proceedings that the proposals were ultimately defeated in the third vote, and this fact is not in dispute.

Federal Rule of Evidence 408, provides in pertinent part:

Evidence of conduct or statements made in compromise negotiations is ... not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations . This rule also does not require exclusion when the evidence is offered for another purpose, such as providing bias or prejudice of a witness, negativing a contention of undue delay, or providing an effort to obstruct a criminal investigation or prosecution. [Emphasis added].

In Langland v. Vanderbilt University , 36 FEP 200, 219 (M.D. Tenn. 1984), the Court held that evidence of non-compliance with a conciliation agreement was admissible on the issue of discriminatory intent in a later Title VII action.

The Court in Winfield v. St. Joe Paper Co. , 20 FEP 1094 (N.D. Fla. 1977), recognized another exception. The Court held that the EEOC privilege against discovery of information obtained "during" or "as a part of" conciliation attempts did not apply to discussions prior or subsequent to the conciliation effort. Id. at l095. Winfield involved Sec. 706(a) of the Civil Rights Act, rather than FRE 408. Here, the evidence admitted occurred subsequent to the settlement negotiations; and, thus, did not directly impact upon them.

A third "other purpose" exception was found in E.E.O.C. V. King's Daughter Hospital , 12 FEP 484 (S.D. Miss. 1976). The Court in Kings held that evidence of negotiations was admissible where the evidence was offered to prove that settlement negotiations occurred. The Court held "[We] hereby overrule the EEOC's objection to this affidavit [regarding negotiations] since it relates not to

the content of the settlement negotiations but to the existence of such negotiations, which is an entirely legitimate subject of inquiry for this Court." Id. at 487. This decision supports the general proposition that recognition of "other purpose" exceptions under FRE 408 is a proper exercise of judicial discretion.

In Drukker Communication v. NLRB, 1116 LRRM 2077 (D.C. Cir. 1983) the Court held an NLRB rule against testimony by Board officers inapplicable based upon equity considerations alone. Drukker involved a dispute over what the parties to a settlement intended by the use of a certain term. The only parties with first hand knowledge of this intent were the two attorneys and a Board Officer. The NLRB quashed a subpeona ordering the officer to testify about the term based upon the policy of FRE 408 and, a desire to avoid Board entanglement in labor disputes. The employer requesting the officer's testimony challenged the Board's action. The Court held for the employer based upon several considerations that outweighed the policy goals of the Board. Id. at 2081-2082. Some of these considerations are relevant to the present case.

1. In Drukker , the issue on which the testimony was sought was central to the case. Here, testimony concerning the Association President's breach of the settlement agreement is of substantial importance to a determination of whether the bargaining unit is unstable.

2. The issue in Drukker was quite specific. Here, it is merely directed at whether the Association president did or did not

breach the settlement agreement. The terms of the settlement agreement are not in issue.

3. The moving parties' version of the events, which were allegedly sustained here, and by the Court in Drukker , is highly plausable. The shop teachers' position in this matter is also highly probable. They contend that the Association President breached the agreement. The evidence showed that the Association generally followed the President and the Executive Committee's recommendation. The President agreed to recommend the settlement; however, the membership rejected the settlement. Without evidence concerning the circumstances of this rejection, the shop teachers cannot show the Association President's continuing bad faith.

4. The evidence that the moving parties sought to introduce was of a unique value with regard to the issue here. In Drukker only three parties were privy to the negotiations, two interested attorneys and a Board officer. Although the present situation is not directly analagous, the two are similar in that the shop teachers have no other means to prove that the Education Association President acted in bad faith and breached the agreement, than through testimony about circumstances subsequent to the parties' settlement negotiations.

Finally, although the Petitioner placed the parties' settlement proposals on the record without objection from the Intervenor (see TK 3-9), in my decision on the motion to permit the additional evidence, I limited my affirmative ruling to

non-substantive aspects of the settlement ratification procedure, and I declined to consider any substantive evidence of the parties settlement proposals in this recommended decision.

Petitioners second assertion is that the Education Association has failed to provide responsible representation to Shop Teachers. This is, by far, the more difficult question to resolve.

Generally, and without exception in the absence of extraordinary circumstances, the Commission's policy has been to favor broadly-based units of employees sharing an adequate community of interest. In re County of Somerset, D.R. No. 78-42, 4 NJPER 198 ( & 4099 1978). In re Jefferson Tp. Bd. of Ed. , P.E.R.C. No. 61 (1971), the Commission established a standard for severance of employees from an appropriate collective negotiations unit. The Commission stated:

The question is a policy one: Assuming without deciding that a community of interest exists for the unit sought, should that consideration prevail and be permitted to disturb the existing relationship in the absence of a showing that such relationship is unstable or that the incumbent organization has not provided responsible representation. We think not. To hold otherwise would leave every unit open to redefinition simply on a showing that one sub-category of employees enjoyed a community of interest among themselves. Such course would predictably lead to continuous agitation and uncertainty, would run counter to the statutory objective and would, for that matter, ignore that the existing relationship may also demonstrate its own community of interest.

In re West Milford Bd. of Ed. , P.E.R.C. No. 56 (1971), the Commission explained:

The measure of fair representation is ultimately found at the negotiating table, in the administration of the negotiated agreement and in the processing of grievances.

In In re County of Camden, D.R. No. 81-3, 6 NJPER 415 ( & 11209 1980), the Director of Representation affirmed the hearing officer's recommendation by severing a group of registered nurses from an existing county-wide unit. The facts in Camden established

An organization which fails to advise employees that formal grievances, wherein requests have been made for binding arbitration, will not be submitted to arbitration and fails to advise employees of the reasons for its refusing to submit grievances to arbitration is acting in an arbitrary manner and is not affording responsible representation. Considering that one of the grievances was presented by the chief negotiator for the RPNU and the rejection of the further processing of the grievance occurred at the same time the parties were engaged in difficult negotiations, lead the undersigned to the reasonable presumption that the individual was being targeted for invidious representation because of the active disagreement that ensued between Council l0 and the RPNU. This circumstance is evidence of the degree of instability in the relationship existing between the RPNU, Council l0 and the County. [6 NJPER at 417].

With regard to the issue of inadequate representation of this subgroup, the Director held:

...Council l0 did not provide responsible representation when it changed the agreement reached between RPNU and the County without advising the RPNU of the changes and without responding to the RPNU's request to meet with Council l0. The fact that the County and RPNU

representatives later suceeded in resolving the dispute in the absence of Council l0 participation reflects as well upon the instability of a relationship which includes Council l0, the RPNU and the County. [6 NJPER at 417].

Here, the argument in favor of severance is not as strong as in Camden , supra . There is no evidence of the Education Association's failure to adequately process grievances from Shop Teachers, and the Shop Teacher's manner of initial inclusion in this unit is not in question. However, based on its decision to take no position with regard to the issues presented by this matter, the employer has in effect, consented to a separate unit of shop teachers in the event such is determined to be appropriate. Moreover, the facts of this case bear similarity to the facts in Camden, supra , with regard to the issue of the Education Association's representation of Shop Teachers, both at the negotiations table and, to a lesser extent, during the course of its administration of the parties negotiated agreement. See, In re West Milford Bd. of Ed., supra . On the issue of the Shop Teachers' differential, the facts show a clear pattern of actions by the Education Association leadership to divert the $38,000 sum offered by the Board to continue the Shop Teachers' differential to other uses, and to conceal this from the Shop Teachers. ^11/ Granted, in

11/ The record also establishes, to the Education Association's credit, that it actively pursued a grievance through arbitration to restore the differential to the Shop Teachers during the term of the 1980-82 contract; however, the

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The record also contains several incidences where the Education Association acted arbitrarily and also frequently in a clandestine manner, to further its own purposes to the detriment of the Shop Teachers, and to deny to the Shop Teachers and in some instances to its entire membership, with the intention of limiting the shop teachers' options, the right to take concerted action to

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petitioner's primary allegations in this matter deal instead with the events occurring following that period and revolving around the negotiations for the 1982-84 contract.

12/ Compare, In re Newark Building Trades Council, D.U.P. No. 82-34, 8 NJPER 333 (& 13151 1982), where the Director of Unfair Practices held in a duty of fair representation context, that an employee organization's internal procedures are not a proper subject of inquiry in an unfair practice setting in the absence of a claim that the employee organization acted arbitrarily, capriciously or in bad faith. See also, In re New Jersey Turnpike Authority, P.E.R.C. No. 80-35, 5 NJPER 412 (& 10215 1979), in which the Commission in a duty of fair representation case, in an unfair practice context, held that absent a claim of interference with protected activities, it is necessary to allege arbitrary, discriminatory or bad faith conduct on the part of the employee organization.

13/ See Geiger testimony (TT 28-29) in which he stated he made attempts to resolve the serious differences between the shop and academic teachers through changes in the internal structure of the unit.

14/ I note that the Education Association's leadership, which has been instrumental in discriminating against the Shop Teachers, has changed since the time of the hearings in this matter. Based upon this change, I am hopeful that the prospective treatment of Shop Teachers within the Education Association's unit will improve.

Marc F. Stuart
Hearing Officer

DATED: May 14, 1986
Trenton, New Jersey