H.E. NO. 79-23

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

HAMILTON TOWNSHIP BOARD OF EDUCATION,

RESPONDENT,

-and-	Docket No. CO-78-243-73

HAMILTON TOWNSHIP EDUCATION ASSOCIATION,

CHARGING PARTY.

Appearances:

For the RESPONDENT,

Pachman, Aron & Till, Esqs.

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

For the CHARGING PARTY,

Greenberg & Mellk, Esqs.

(Arnold M. Mellk, Esq. of Counsel)

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

On April 12, 1978, the Hamilton Township Association ("Association) filed an Unfair Practice Charge with the Public Employment Relations Commission ("Commission") alleging that the Hamilton Township Board of Education ("Board") has 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 claims the Board violated Sec. 5.4 (a)(1) and (3)1/ by placing in the file of employee Robert Holden, a grievant, a memorandum recommending that his conduct at a Superintendent level grievance meeting which warranted disciplinary action be given consideration on evaluation of his year-end overall performance rating.

It appearing that the allegations of the charge, if true, might constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on May 23, 1978. An Answer was filed on June 22, 1978, denying the Commission of the unfair practices alleged. Hearing was held on July 17, 1978. Both parties were given an opportunity to examine witnesses, to present evidence and to argue orally. Both parties filed post-
hearing briefs, the Charging Party on September 18, 1978 and the Respondent on October 11, 1978.

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

FINDINGS OF FACT

1.	The Hamilton Township Board of Education is a public employer within the meaning of the act, as amended, and is subject to its provisions.

2.	The Hamilton Township Education Association is a public employee representative within the meaning of the Act, as amended, and is subject to its provisions.

3.	At all times material to this proceeding, the Association has been the exclusive representative for collective negotiations concerning the terms and conditions of employment for all certificated full-time classroom teachers under contract, employed by the Board. A current collective negotiations agreement is effective from July 1, 1977 through June 30, 1980. Article 3 of the agreement, entitled "Grievance Procedure" defines a grievance as a claim by a teacher that he/she has suffered a loss or injury as a result of misinterpretation, misapplication or violation of this agreement, policies, or administrative decisions. It provides a three level grievance process which may be pursued by the employee alone or with the assistance of the Association, commencing with the aggrieved employee's immediate superior, and if not resolved, proceeding next to the grievant's principal or other immediate superior, and if still not resolved culminating in an appeal to the Superintendent of Schools. At the Superintendent level a meeting may be held at the grievant's request at which the Superintendent may appear by representative. The Article further provides for binding arbitration at the request of the Association if dissatisfied with the Superintendent's decision of only those grievance pertaining to a violation of the agreement, with certain additional limitations not here germaine. Article 15, "Teacher Evaluation", provides that all monitoring or observation of the work performance of a teacher shall be conducted openly and with full knowledge of the teacher and, further, that a teacher has the right to review and comment on all derogatory material prior to its placement in his/her personnel file.

4.	At the time of the hearing Robert Holden had been employed by the Board as a Health and Physical Education Teacher of 7th and 8th grade classes at the Nottingham Middle School for the last four years and was tenured under the Education Law.

5.	During the period October 31 through November 4, 1977, Holden had been absent from school due to illness. By a writing entitled "Professional Observation Record", dated November 15, 1977 and signed by his Principal, Virginia Gittelman, a copy of which he received on November 16, Holden was given an official reprimand for failing to have a written lesson plan for use in teaching his classes during his absence. His Principal noted, inter alia, that there was no written evidence of available plans for his absence and his planbook was not locatable in the building during that time. Holden was advised that any future lack of plans will result in Gittelman recommending disciplinary action. The written reprimand was placed in Holden's personnel file.

6.	Holden filed a timely grievance to the reprimand and held a first level grievance meeting or meetings with Principal Gittelman at which he had apparently2/ claimed that his wife had brought his lesson plans in to the school while he was out ill in the course of which she had been seen by two custodians employed at Nottingham Middle School, and, further, that he had called in his lesson plans for the entire week to a colleague, Physical Education teacher Peterson who had advised he transferred them to Gittelman. Gittelman denied the grievance. Holden then appealed the Principal's decision to Superintendent of Schools, Dr. Peter A. Hartman.

7.	A Superintendent level grievance meeting was held on March 6, 1977 in the library of the Greenwood Elementary School. Appearing for the Association and the grievant, were Holden himself, Paul Humphrey, a middle school science teacher in the District and presently Association faculty representative and grievance chairperson for Nottingham Middle School, Carol Ryan Kmiec, a six grade teacher in the District and presently grievance chairperson and Middle School representative, and Harry Donnelly, field representative for the Association's parent body, New Jersey Education Association ("NJEA"). Appearing for Superintendent Hartman and his representatives were Thomas Fitzpatrick, the Board's Director of Personnel and Lester Aron, a member of the law firm, Pachman, Aron & Till, and labor-
management consultant to the Board.

8.	The library room in which the grievance meeting was conducted is approximately 15 feet long by 12 feet wide. It contained tables which had been placed together in such a fashion s to form a horseshoe within the room made up of two sides approximately 8 feet in length and a third side approximately 12 feet long. At the long side sat Association representatives Humphrey, Donnelly and Kmiec. Along the side opposite to the Association representative across the open space formed by the horseshoe sat Board labor counsel Aron, and on opposite ends of the third, closed side of the horseshoe, close to a colleague for his respective position, approximately 8 feet apart, sat Holden and Fitzpatrick. Directly behind the Association representatives were library bookcases. There was a very narrow passing space of approximately 2 feed behind Aron on the third side, limited passing space approximately that narrow behind Holden and Fitzpatrick on the second, closed side and probably no passing space behind the Association representatives whose chairs backed up against the bookcases.

9.	The Superintendent's level grievance meeting provides an opportunity for the Superintendent or his representatives to learn the facts regarding the grievance and the Association and/or grievant's arguments in support of the grievance so that a report can be made to the Superintendent for his determination. The meeting usually includes a factual inquiry of the grievant and/or Association with respect to the matter in dispute.

10.	On this occasion Board attorney Aron made an opening statement informing the Association representatives that this was its opportunity to make a presentation of the facts and that following such presentation the Superintendent's representatives would make their factual inquiry so that they could provide a report of the facts to the Superintendent. NJEA Representative Donnelly then made an opening presentation. At its conclusion Aron asked one or two questions with respect to the grievance. At that point Personnel Director Fitzpatrick asked Holden directly if it was possible for him to verify through individuals other than himself that his lesson plans were present in the school at the time in question during his absence, as he claimed.

11.	All witnesses agree that Holden, who up to this point, had been restrained and normal in his conduct, and casual in his responses, suddenly became extremely agitated and angry. He raised his voice and stated loudly that he had told this story before and that all the people were going to lie this time. That they wouldn't tell the truth. Fitzpatrick then responded to the effect "Bob, if you're going to be emotional..." but before he could complete the sentence Holden stuck the table hard with his fist and rose while speaking in a loud tone of voice. None of the Association witnesses recalled more than one striking of the table. I credit the Respondent's witnesses, Aron and Fitzpatrick, who provided a more detailed and graphic description of the events which transpired than any of the Association witnesses, that Holden struck the table as forcefully as he could with a closed, clenched fist at least twice as he rose out of his seat and screamed or shouted that he had listened to all of this that he was going to listen to, that he had heard it all before, that it was all lies and that he did not have to listen to any more. These statements related to Holden's belief that his and his wife's creditability were being challenged with respect to his claim that his plan book had been brought in to the school during his absence.

12.	After rising, striking the table and shouting these comments, Holden remained in place for a moment, then moved his seat back and continued to shout out the same or similar statements while he moved to his left behind the closed end of the horseshoe toward Fitzpatrick, pausing momentarily and then passing behind Fitzpatrick,3/ made a right turn, passed behind Aron and continued behind the third side of the horseshoe to the corner of the room opposite to where he had been seated and stopped next to a filing cabinet.

13.	Holden is a very large man. My observation confirms that Holden appears to weigh over 200 lbs. and is at least 6 feet tall. At the meeting, he was wearing a warm-up suit, identifying him with the physical education activities he directed as teacher. According to the unrebutted testimony of Aron, as he moved toward Fitzpatrick and Aron, Holden had his fist clenched, his shoulders were hunched, his eyes were glazed, the veins in his neck were taut and straining he appeared extraordinarily agitated and angry. Fitzpatrick, in particular, perceived Holden's upset as being directed to him. Both Aron and Fitzpatrick testified that as a consequence of Holden's appearance and conduct they were personally concerned for their physical safety should they commence talking to Holden or responding to his outburst.

14.	During Holden's outburst no one in the room spoke. This pause continued for 45 seconds to a minute in length. Among other statements which Holden shouted and yelled out during this period were ones to the effect that he told his story and the plans were delivered and he did not care what we did to him. We could fire him and what he was doing now he believed would also be held against him. After Holden completed his walk around half the room behind the Superintendent's representatives and came to the filing cabinet he continued to appear to be extremely distressed, was breathing heavily and appeared to be unable to contain himself in one position as he continued to pace back and forth at the end of the room next to the filing cabinet.

15.	After the lengthy pause and movements around the room, Donnelly commenced a discussion of the issues for a short period of time. Neither Aron or Fitzpatrick engaged in further questioning of Holden although Fitzpatrick had only asked one question which immediately preceded the outburst and he had been prepared to engage in further questioning of the grievant. Both sides made closing remarks and the grievance meeting concluded.

16.	As the participants were leaving the room or had already emerged from the library, Donnelly, in response to a comment by Fitzpatrick that he did not like Holden's attitude, stated that it had been perfectly legitimate and was part of the therapeutic effect of the grievance procedure, and, in a comment to Holden, advised him that he should have no worries about the consequence of his behavior.

17.	Neither the Association nor the grievant requested a further convening of the Superintendent's level grievance procedure and no attempt was made by either party to reconvene. Following the March 6 hearing, the Superintendent's representatives met with the Superintendent and reported on the merits of the grievance and on Holden's conduct during the grievance meeting. By memorandum dated March 13, 1978, Superintendent Hartman informed Holden that, after reviewing and evaluating the positions of the parties with his designee following the Superintendent's level hearing, he found that the observation record on Holden's failure to have lesson plans in his classroom was appropriate and he, therefore, denied the grievance.

18.	By a separate memorandum dated March 14, 1978 from Fitzpatrick to Holden regarding the subject of unprofessional conduct, Fitzpatrick initially noted that the memorandum was to be filed for the record and then cited Holden's unprofessional conduct on March 6, 1978 in the Greenwood School Library as being totally unacceptable behavior for a teacher of this school district. The memorandum went on to state, "Your sudden and violent interruption of my effort as the designee of the Superintendent to learn your position in the incident being heard, forced me to refrain from further participation in the hearing under fear that you might become more emotional". The memorandum continued with Fitzpatrick's recommendation that the incident be given consideration when Holden's overall performance rating for the 1978 school year is being completed since some disciplinary action is warranted for this outburst against an administrator.

19.	After its denial by the Superintendent, the Association withdrew the grievance and did not submit it to arbitration. NJEA Representative Donnelly explained the reason as having nothing to do with the merits but rather the result of a failure to make application for arbitration within the time limit specified in the agreement.

20.	To date, the memorandum of reprimand, although placed in Holden's personnel file, has not been utilized by the Board pending the unfair practice litigation. The Board's normal practice is not to make use of grievance related conduct in evaluating staff.

ISSUES

1.	Whether Respondent's written reprimand of employee Holden constitutes an act of interference with, restraint or coercion of the exercise by Holden of rights guaranteed to him by the Act, in violation of N.J.S.A. 34:13A-5.4(a)(1).

2.	Whether the reprimand constitutes an act of discrimination against Holden in regard to his tenure of employment or any term or condition of employment, to discourage employees in the exercise of the rights guaranteed to them by the Act, in violation of N.J.S.A. 34:13A-5.4(a)(3).4/

In resolving both issues a threshold issue must of necessity be resolved regarding the nature of the conduct in which Holden engaged during the Superintendent level grievance hearing, to wit:

3.	Whether the conduct in which Holden engaged during the course of the grievance meeting was an exercise of he rights guaranteed to employees by the Act.

With respect to the second issue concerning the alleged violation of subd.(a)(3), a separate subsidiary is presented, namely,

4.	Whether the letter of reprimand to Holden placed in his file constitutes a change in his tenure, term or condition of employment, which, if discriminatorily made or inherently destructive of Holden's protected rights, would violate subd. (a)(3).

ANALYSIS

Turning first to a discussion of the allegation of discrimination in regard to Holden's tenure, term or condition of employment, I conclude, as a preliminary matter, that with regard to Issue No. 4, the letter of reprimand was an act by the Board which has affected Holden's tenure of employment and thus, if discriminatorily motivated (or if inherently destructive of Holden's protected rights),5/would constitute a violation of subd. (a)(3). While Fitzpatrick testified that the reprimand has not been utilized by the Board in evaluating Holden's work performance or in determining his personnel rating since its placement in his personnel file, and also noted that grievances are not usually used in evaluating staff, the Director of Personnel also noted that the Respondent was holding the reprimand in abeyance pending the outcome of this litigation. Thus, the Board has not abandoned its future use. The letter of reprimand itself cites Holden's unprofessional conduct on March 6, 1978 as being unacceptable behavior and recommends consideration of the incident in Holden's overall performance rating "since some disciplinary action is warranted for this outburst against an administrator." The Board's brief argues that if permitted to be retained in Holden's file, it is hoped the letter will deter further abusive and unprofessional conduct by Holden or other employees in similar situations. Thus, the reprimand is both a citation for improper conduct as well as a threat of future discipline and, as such, is an actionable change in Holden's tenure or condition of employment. See City of Hackensack, P.E.R.C. No. 78-71; Laurel Springs Board of Education, P.E.R.C. No. 78-4.

As to the issue of violation of subd. (a)(3) itself, Issue No. 2, I recommend that this allegation be dismissed by the Commission even with consideration of whether or not Holden's conduct was protected under the Act. Assuming, arguendo, that Holden engaged in protected conduct during his outburst, the record does not contain any evidence that the Board, acting through Fitzpatrick or Aron, was discriminatorily motivated in issuing and placing in his personnel file the memorandum of reprimand. I find fully applicable here the Commission's conclusion appearing at page 9 of its Decision and order In The Matter of the City of Hackensack, P.E.R.C. No. 78-74:

"Our decision is really a conclusion that the Union has failed to meet its burden of proof. The stand developed by this Commission in an alleged a(3) violation necessitates that the charging party established that the employer's conduct was motivated in whole or in part by a desire to encourage or discourage the exercise of rights under the Act. The Union has not established the employer's motivation. In some limited circumstances, the natural consequence of the employer's action may be sufficient to infer the unlawful intent of the employer. However, here we cannot conclude that the evidence establishes that the City has been selective in its application of Special Order No. 25....."

[Citations omitted].

The record contains no evidence that the Superintendent's representatives at the grievance meeting were acting in any manner other than in good faith. It was only Holden's unexpected and unanticipated outburst which cut short the meeting. None of the statements made by Fitzpatrick or Aron at the meeting evidence any discriminatory attitude toward Holden because of his having grieved or having sought the Superintendent level meeting. The Superintendent designees' full participation in the meeting and concern for obtaining the Association's position and the facts concerning the grievance clearly negate any basis for inferring a discriminatory motive to them. Consequently, regardless of the characterization of Holden's conduct as protected or unprotected, I will recommend dismissal of the subd. a(3) allegation.

The subd. a(1) allegation presents a completely separate question. Here, good faith is no defense. Rather, "it is the tendency of an employer's conduct to interfere with those employee rights protected by (a)(1), rather than his motives, that is controlling."6/ Accordingly, whether or not Holden's outburst exceeded the bounds of protected conduct, Issue No. 3, becomes central to a determination of the allegation of a(1) violation.

The rights guaranteed by the Act are defined in N.J.S.A. 34:13A-5.3 in the following words:

"Except as hereinafter provided, public employees shall have, and shall be protected in the exercise of the right, freely and without fear of penalty or reprisal, to form, join and assist any employee organization or to refrain from any such activity;"

It is clear that Holden's role as grievant and his presence and participation in the March 6, 1978 grievance meeting was activity protected by the Act. N.J.S.A. 34:13A-5.3 and Township of West Windsor v. Public Employment Relations Commission and P.B.A. Local 130 N.J. , 4 NJPER 359 (para. 4166)(Supt. Ct., 1978). However, "...any employee may not act with impunty even though he is engaged in protective activity. An employee's rights under the Act must be balanced against the employer's right to maintain order in its operations by punishing acts of insubordination [Crown Central Petroleum Corp. v. NLRB, 430 F.2d 724, 74 LRRM 2855 (7th Cir. 1965); Boaz Spinning Co. v. NLRB, 395 F.2d 513, 68 LRRM 2393 (5th Cir. 1968).] In drawing the line between these conflicting rights, each case must be determined on its particular facts."7/

The Association in its brief cites a number of federal cases in which various instances of employee misconduct in the course of otherwise protected activity did not serve to remove from them the protection of the federal Labor Management Relations Act. (LMRA), 29 U.S.C. Sect. 141 et seq.8/

My reading of these and other cases, convinces me that in evaluating Holden's conduct, certain factors must be weighed and taken into account. On the one hand, and as pointed out by the Association in its brief, the courts have recognized that the nature of the protected activity involved is of central importance in resolving the issue. Grievance proceedings, in particular, warrant special consideration because of the fundamental role they play in the day-to-day collective negotiations process.9/ A measure of some latitude must be provided for the free exchange of views, even those which may be accompanied by profanity or even accusations of improper conduct against the employer.10/

On the other hand, the Courts have also considered significant whether the conduct complained of was related to the employee's protected activity,11/ whether the conduct occurred under extreme provocation12/ and whether the conduct was so egregious as to be considered indefensible.13/

While Holden's conduct took place during a Superintendent's level grievance meeting dealing with his grievance against prior employer reprimand, I conclude that his conduct was not directly related to the grievance meeting and his comments were not pertinent to the discussion of the grievance then taking place. His outburst was nonresponsive to the Personnel Director's inquiry. Holden's comments, which at times appeared to be almost incoherent, seemed to assume a position on the part of the Superintendent's representatives which was not borne out by the facts. At the precise point at which the Personnel Director was seeking specific information which could have led to further inquiry, perhaps even independent corroboration for Holden's position that the lesson plans had been delivered to the school in his absence, Holden engaged in a diatribe having no foundation in the concrete dialogue which was then developing. Holden had no right to assume that the Superintendent would not carefully consider his contentions, and the objective reality at the time was that his representatives were taking care to develop all the facts.

Further, Holden's conduct was not provoked by any improper conduct on the part of the Superintendent's representatives. The record established that the questions being asked were relevant to the inquiry and they were being phrased in a normal conversational tone. Holden and his colleagues were being treated as equals in a level of the grievance process for which all participants had set a side time to attend. Holden's conduct had the effect of abruptly termination the meeting. The Board's side never completed its inquiry and the Association and Holden acquiesced in its termination by presenting a short summation and not seeking a reconvening to permit a full questioning of Holden.14/

Finally, Holden's conduct was intimidating and abusive.15/ During his outbursts and movements about the room no one spoke on either side. I conclude that the Superintendent's representatives, particularly Personnel Director Fitzpatrick, reasonably believed that by virtue of Holden's behavior, physical bearing and invective, Holden's conduct was directed at them as the visible agents of Board authority responsible for reporting to the Superintendent on Holden's grievance which warranted their reaction that further comment by them could result in an escalation of the disruption physically involving themselves.16/ Thus, I find that Fitzpatrick's comments made in the March 14, 1978 memorandum of reprimand addressed to Holden that "Your sudden and violent interruption of my effort...to learn your position...forced me to refrain from further participation in the hearing under fear that you might become more emotional" were well founded. Holden's outburst was also made in the presence of two other teachers and challenged the Board's basic and legitimate interest in maintaining proper decorum and discipline in the educational process, particularly that segment of the process related to processing of grievances by its teaching staff.

For all the foregoing reasons I conclude that Holden's conduct commencing when he exploded at the initiation of the Respondent's inquiry of him, exceeded the bounds of activity protected by the Act. Given all the circumstances previously described in the fact section and now commented upon, I cannot recommend to the Commission that it approve, by finding protected, conduct and behavior which has so frustrated the grievance process and undermined the Board's standards for the maintenance of discipline among its employees.17/ Consequently, the Respondent was free to memorialize a record of Holden's behavior and to utilize the record in consideration of Holden's overall performance rating.

Upon the foregoing and upon the entire record in this case the Hearing examiner makes the following recommended:

CONCLUSIONS OF LAW

The Respondent did not violate N.J.S.A. 34:13A-5.4(a)(1) and (3) by placing in the file of grievant Robert Holden a memorandum of reprimand for improper conduct in which he engaged during a Superintendent's level grievance meeting.

RECOMMENDED ORDER

The Hamilton Township Board of Education not having violated the Act, it is HEREBY ORDERED that the complaint be dismissed in its entirety.

Robert T. Snyder

Hearing Examiner

DATED:	Newark, New Jersey

October 31, 1978