H.E. No. 84-59

Synopsis:

A Hearing Examiner recommends that the Public Employment Relations Commission find that the Respondent Board violated Subsections 5.4(a)(1), (3) and (4) of the New Jersey Employer-Employee Relations Act when on April 14, 1983 it failed to renew the contract of a school nurse, Kathryn Watford, for alleged reasons of economy. The Hearing Examiner found that the real reason for the non-renewal of Watford was her exercise of extensive protected activities on behalf of the Charging Party dating back to October 1981. It was significant that the Respondent Board has had a surplus in every one of the past ten years so that "economy" was not a sustainable reason for non-renewal of Watford for the 1983-84 school year.

The Hearing Examiner also found that the Respondent Board violated the same Subsections of the Act as to a second school nurse, Doris Dague. Dague had protested the non-renewal of Watford at several public meetings and, after seeking to communicate directly with members of the Respondent Board, Dague was admonished not to do so under threat of reprimand and was within a week or two thereafter reprimanded after speaking at a public meeting.

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

PERC Citation:

H.E. No. 84-59, 10 NJPER 326 (¶15156 1984)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

72.311 72.323 72.365

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- HE 84-059.pdf
Appellate Division:
Supreme Court:

H.E. NO. 84-59 1. H.E. NO. 84-59 1. NOTICE TO EMPLOYEES PURSUANT TO AN ORDER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION AND IN ORDER TO EFFECTUATE THE POLICIES OF THE NEW JERSEY EMPLOYER-EMPLOYEE RELATIONS ACT, AS AMENDED, We hereby notify our employees that: H.E. NO. 84-59 STATE OF NEW JERSEY BEFORE A HEARING EXAMINER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of SALEM CITY BOARD OF EDUCATION, Respondent, -and- Docket No. CO-82-242-9 SALEM TEACHERS ASSOCIATION, Charging Party. Appearances: For the Salem City Board of Education Rand & Algeier, Esqs. (Robert M. Tosti, Esq.) For the Salem Teachers Association Selikoff & Cohen Esqs., P.A. (Steven R. Cohen, Esq.) HEARING EXAMINER = S SECOND RECOMMENDED REPORT AND DECISION An Unfair Practice Charge was originally filed with the Public Employment Relations Commission (hereinafter the A Commission @ ) on March 16, 1982, and first amended on August 19, 1982, by the Salem Teachers Association (hereinafter the A Charging Party @ or the A Association @ ) alleging that the Salem City Board of Education (hereinafter the A Respondent @ or the A Board @ ) had engaged in unfair practices within the meaning of the New Jersey Employer-Employee Relations Act, as amended, N.J.S.A. 34:13A-1 et seq. (hereinafter the A Act @ ), in that the Respondent by its Superintendent threatened to caus3 a reduction in force of school nurses should a grievance be filed challenging the Superintendent = s directive of October 7, 1981, which mandated that school nurses must take lunch each day within the building to which they are assigned, and that on June 25, 1982 the Respondent by its Superintendent rejected a demand by the Charging Party to negotiate the issue of additional compensation for school nurses resulting from the Respondent = s directive of October 7, 1981, supra, all of which was alleged to be a violation of N.J.S.A. 34:13A-5.4(a)(1) and (5) of the Act.1/ It appearing that the allegations of the original Unfair Practice Charge, as amended, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on July 26, 1982. Pursuant to the Complaint and Notice of Hearing, a hearing was held on December 1, 1982 in Trenton, New Jersey at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. Oral argument was waived and the parties filed post-hearing briefs by January 24, 1983. On January 27, 1983 the instant Hearing Examiner issued his Recommended Report and Decision, H.E. No. 83-25, 9 NJPER 173, in which he concluded that the Respondent independently violated N.J.S.A. 34:13A-5.4(a)(1) by the conduct of its Superintendent in making threatening and coercive statements to two nurses, Doris Dague and Kathryn Watford regarding the filing and processing of a grievance, and further, that the Respondent violated N.J.S.A. 34:13A-5.4(a)(5) when it refused to negotiate with the Charging Party regarding the issue of additional compensation for the interruptions of school nurses in their duty-free lunch period. Thereafter the case was transferred to the Commission for review upon exceptions. However, before the Commission took any action with respect to H.E. No. 83-25, supra, the Charging Party amended its Unfair Practice Charge by the addition of Counts IV and V, which were docketed, respectively, on May 24 and June 29, 1983. The Charging Party then requested that the Commission reopen the record before the instant Hearing Examiner. This request was granted and, by letter dated August 15, 1983, the parties were so advised. The instant Hearing Examiner was directed to conduct a hearing and issue a separate report on Counts IV and V. Count IV alleges that the Respondent violated N.J.S.A. 34:13A-5.4(a)(1), (3), (4) and (5) when it failed to renew the contract of employment of school nurse Watford for the 1983-84 school year in retaliation for her having engaged in protected activities under the Act.2/ Count V alleges that the Respondent violated the Act by engaging in a series of retaliatory acts against school nurse Dague for having engaged in protected activities on behalf of the Charging Party and Watford. Pursuant to the direction of the Commission a hearing was held on October 7, 1983 in Trenton, New Jersey and thereafter additional hearings were held on November 17 and 18, 1983 and January 24, 1984 in Salem, New Jersey, at which time the parties were given an opportunity to examine witnesses, present evidence and argue orally. Oral argument was waived and the parties filed post-hearing briefs by May 15, 1984. The Unfair Practice Charge, as now amended by Counts IV and V, having been filed with the Commission, a question concerning alleged violations of the Act, as amended, exists and, after further hearings, and after consideration of the second round of post-hearing briefs of the parties, the matter is appropriately before the Commission by its designated Hearing Examiner for determination. Upon the entire record, the Hearing Examiner makes the following: ADDITIONAL FINDINGS OF FACT3/ 13. Kathryn Watford has, at all times material hereto, been a non-tenured school nurse at the John Fenwick School where Francis C. Ponti has been the Principal. Also, at all times material hereto, there have been three school nurses in the District. Watford is junior in seniority among the three nurses. 14. Watford has engaged in protected activities under the Act as follows: Watford assisted the Association in processing two grievances relating to the duty-free lunch period of the school nurses, one relating to the nurses = right to leave their school building during the lunch period and the other relating to compensation for interruptions to the nurses = lunch when remaining in the school building (2 Tr. 22, 23);4/ Watford testified as a witness for the Association on December 1, 1982; and finally, Watford filed an affidavit with the Commission (CP- 3) in support of the Association = s position respecting the Petition for Scope of Negotiations Determination filed by the Board regarding the school nurses = right to leave the school building during the lunch period (2 Tr. 23-25; P.E.R.C. No. 82- 115, 8 NJPER 355). See also, Findings of Fact Nos. 7-9 in H.E. No. 83-25, supra. The Respondent obviously knew of Watford = s exercise of protected activities as heretofore set forth. 15. Under date of April 29, 1983 Watford was sent a letter by the Board Secretary, David H. Call, which stated that at a regular meeting of the Board on April 14, 1983 it voted not to offer Watford a contract for the 1983-84 school year (CP-4).5/ Call then stated that, A This action was taken since the Board of Education has eliminated this position for the 1983-84 school year for reasons of economy... @ (Emphasis supplied). 16. Joseph LaCavera, III, the District = s physician, who had been solicited by the Board to provide an affidavit in the A Scope @ proceeding to the effect that nurses = services were essential to the well-being of pupils (CP-9), sent a letter to the Board Secretary, after the Board = s decision not to renew Watford, protesting A nurse rationing @ and indicating that he might have to reconsider his A own position as school physician @ (CP-10). Dr. Lacavera testified that he felt that the Board was contradicting itself, in that one year they were asking him to state that it was vitally important for nurses not to leave the building for a lunch period, and then, a year or two later the Board was ready to eliminate a nurse completely and leave one of the buildings without a nurse (3 Tr. 56). 17. Superintendent Napoli at the first hearing on December 1, 1982 testified consistent with the position of the Board in the A Scope @ proceeding, supra, that he did not feel that because of declining enrollment there was a need to share professional nurses in each building, leaving the remaining buildings unattended (1 Tr. 41). Napoli also testified on the same date that in the event of a reduction-in-force the reductions of particular individuals or positions are recommended by the principal; he reiterated this several times (1 Tr. 46, 47, 51). 18. The Principals of the various schools in the District are solicited by the Superintendent regarding staffing needs for the following school year. This process begins in January or February of the prior school year (4 Tr. 125). The Principal of the Salem Middle School, Sherwood Brown, attended an executive session of the Board on January 25, 1983 where Ponti was also present (R-6; 4 Tr. 127). The subject of sharing a nurse was discussed, the result of which would have been to gain an additional classroom teacher. Brown said that he was in favor of gaining an additional classroom teacher (4 Tr. 129, 130).6/ 19. The Principals and the Superintendent met again on staffing needs for the 1983-84 school year on February 3 (R-7) and on April 5, 1983 (R-8). At the April 5th meeting, which was with the Board, both Ponti and Brown were asked if they had their choice between hiring additional classroom teachers and reducing other staff positions, such as an elementary nurse, what would the choice be: both indicated that their choice would be for classroom teachers (R-8; 3 Tr. 64; 4 Tr. 139). Notwithstanding, Ponti, on the same date, April 5th, submitted to Napoli a written proposal regarding staff recommendations for 1983-84, which included keeping Watford as a school nurse (CP-12). Further, Ponti testified credibly that he never recommended the elimination of Watford = s position as a school nurse at the John Fenwick school (3 Tr. 61, 62). 20. There was a spate of testimony and documentary evidence offered by the parties on the issue of the financial condition of the Board at the time of its decision to RIF Watford on April 14, 1983. Suffice it to find as follows: a. The Board has enjoyed a surplus in its funds for at least 10 years (R-12). Over the past five to ten years, programs that the Board has deemed important have been funded through the use of surplus funds (4 Tr. 141). Historically, the Board of School Estimate, comprised of the Mayor and two City Council members of Salem, and two members of the Respondent Board, has by a vote of 3-2 compelled the Board to utilize its surplus to fund a portion of its budget and the Board has done so (3 Tr. 9, 10). b. Under date of May 16, 1983, after conducting a hearing, Commission Fact Finder Lawrence I. Hamner issued a report in which he observed that the existence of a A healthy surplus appears the rule in Salem rather than the exception, amounting to slightly less than $2.5 million, if anticipations have been properly projected...The Tax Rate...dropped by 11 cents per $100.00 A.V. for 1983-84, something that should not have been done if the District was in truly financial straights (sic)... @ (CP-7, p. 5). c. Richard Stoner, a member of the Board of School Estimate for the past six years, acknowledged that since he had been on the A Board @ the Respondent Board = s annual budget request had always been reduced by the Board of School Estimate due to the Respondent Board = s existing surplus and in an effort to keep the local tax rate down (5 Tr. 29, 30). The Respondent Board = s 1983-84 budget was reduced $177,000 (3 Tr. 21, 22), which was less than the prior year (R-12). 21. Respondent Board member Robert Johnson testified that economy was A never a factor @ in the Board = s decision to RIF Watford on April 14, 1983 (4 Tr. 166, 167). He testified further that his decision was that the District could A get by with two nurses @ and that he was influenced by Ponti = s and Brown = s preference for a classroom teacher (4 Tr. 162-64). 22. Over the past five years the Board has eliminated approximately 50 members of its teaching staff, including five- nurse-teachers, two of the latter having left voluntarily (R-11; 5 Tr. 30-32). 23. Doris Dague has been a school nurse at the Salem High School for approximately 4 years and is District Chairperson of School Health Services. Dague was a witness for the Charging Party at the December 1, 1982 hearing in this proceeding and filed an affidavit in support of the Charging Party = s position in the A Scope @ proceeding (CP-14). 24. Dague first learned of the Board = s decision to RIF Watford on April 30, 1983. Dague did not take any action on behalf of Watford until May 12, 1983 when she attended a public meeting of the Board and A made a public speech. @ (4 Tr. 6). Dague = s speech lasted three-five minutes, during which she stressed the necessity of having a nurse in each school building and, in pointing out that two nurses could not monitor contagious illness, made reference to a number of contagious diseases: chicken pox, measles, lice, impetigo, hepatitis and herpes (4 Tr. 7). 25. On May 13, 1983 Dague received a telephone call from Superintendent Napoli, who took exception to her remarks concerning contagious diseases in the Salem schools and asked for a report by May 20th for the next Board meeting, documenting all cases of contagious illnesses in the Salem schools. Such a report had never before been requested (4 Tr. 8). Dague protested to Napoli that contagious diseases or illnesses were not the thrust of her speech, stating that the purpose was the need for a school nurse in every school. 26. Also on the same date, May 13, 1983, Napoli sent a joint memo to Dague and to Norman K. Wilson, the Principal of the High School, taking written exception to Dague = s speech of May 12th, and confirming his direction to Dague to prepare a written report by May 20, 1983 (CP-15). Napoli = s memo concluded by stating that if the documentation does not justify Dague = s speech A concerning outbreaks, then it appears that Mrs. Dague may have used poor judgment in presenting erroneous information to the public. @ Dague made a written response to this memo on May 23, 1983 (CP-16). 27. Dague complied with Napoli = s request for a contagion report to the Board on May 23, 1983 (CP-17). Napoli never contacted Dague to discuss the contents of this report (4 Tr. 14). 28. Dague heard nothing further from Napoli or anyone in administration until she went a letter to Napoli, Principal Wilson and all Board members urging a A re-evaluation of the School Nurse reduction-in-force decision for the 1983-84 school year. @ (CP-18). This letter was sent on June 1, 1983 by regular mail to members of the Board and by intra-school mail to Napoli and Wilson. 29. On June 2, 1983 Dague received a telephone call from Napoli, who directed Dague to write to the administrators of all of the schools in Salem County to find out how they were fulfilling the State mandate with shared nurses. Dague had never been requested to do this previously. 30. On June 3, 1983 Dague was given one hour of notice that she was to meet with Napoli at 12:30 p.m. that day. Dague inquired of Principal Wilson = s secretary regarding the purpose of the meeting and was told that it was to review the documentation for her contagion report. However, when Dague arrived at the meeting she was told that she did not have to bring any documentation with her. At the meeting Dague was confronted by Napoli, Wilson and the Board President, Barbara Wright. Dague had no advance notice that Wright would be present. It was uniformly agreed upon by the witnesses that the meeting lasted ninety (90) minutes. The thrust of the meeting was the anger of Napoli and Wright over Dague = s having written her June 1st letter to Napoli and the members of the Board of Education (CP-18). Dague was instructed never again to communicate directly with the members of the Board of Education except through the A chain of command @ (4 Tr. 22). Dague was told that if she continued to communicate with Board members or to speak out at any public meetings she would receive a reprimand (4 Tr. 23). 31. After remaining silent at the Salem City Council meeting on June 6, 1983 and at a Board meeting on June 8, 1983, Dague spoke out publicly at a rally in support of Watford on June 11, 1983, indicating that she was A going to stand up and be counted that day @ (4 Tr. 70). 32. Under date of June 15, 1983 Dague received a copy of a joint memo from Napoli to herself, Wilson and Wright, which set forth as its subject A Minutes of Meeting Held on June 3, 1983 @ (CP-19). Paragraph four of the June 15th memo recounted the warning that she was not to make any public statements concerning confidential school information or submit in writing to the Board any comments without sending it to the Principal and Superintendent = s Office. Dague testified without contradiction that she did not recall anything having been said regarding confidential materials and was only admonished regarding school business. Dague added that she had never made statements in public regarding confidential information (4 Tr. 27). Paragraph 9 of Exhibit CP-19 stated A A copy of these minutes shall be placed in Mrs. Dague = s file @ (Emphasis supplied). Dague testified that she considered these A minutes @ as a reprimand because they were being placed in her file, which had never been done before (4 Tr. 26, 27). THE ISSUES 1. Was the Respondent Board discriminatorily motivated in violation of Subsections (a)(1), (3) and (4) of the Act when it decided on April 14, 1983 not to offer Kathryn Watford a contract for the 1983-84 school year? 2. Was the Respondent Board discriminatorily motivated in violation of Subsections (a)(1), (3) and (4) of the Act by its actions and conduct with respect to Doris Dague on and after April 30, 1983? DISCUSSION AND ANALYSIS The Respondent Board was Discriminatorily Motivated When It Decided Not To Offer Watford A Contract For The 1983-84 School Year And, Thus, Did Violate The Act It will be recalled that the Hearing Examiner has found that the Respondent independently violated Subsection (a)(1) of the Act by the conduct of Superintendent Napoli in October 1981 when, in the presence of Watford and Ponti, he threatened to A fire @ or A cut @ a nurse if a grievance was filed and processed regarding the nurses = duty-free lunch situation. Watford assisted in the processing of two grievances relating to the nurses = duty-free lunch in late 1981. Watford also testified as a witness for the Charging Party on December 1, 1982 in this proceeding and filed an affidavit in support of the Charging Party = s position in the A Scope @ proceeding instituted by the Respondent. The Hearing Examiner is persuaded that the foregoing protected activities engaged in by Watford contributed to or formed the basis for the Respondent = s decision on April 14, 1983 not to renew Watford = s contract for the 1983-84 school year. The reasons for this conclusion by the Hearing Examiner will be apparent hereinafter. In Bridgewater Township v. Bridgewater Public Works Association, 95 N.J. 235 (1984), the New Jersey Supreme Court approved the use by the Commission and the Appellate Division of Wright Line, Inc., 251 NLRB 1083, 105 LRRM 1169 (1980).7/ In Wright Line, the NLRB adopted the analysis of the United States Supreme Court in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977), which involves the following requisites in assessing employer motivation: (1) the Charging Party must make a prima facie showing sufficient to support an inference that protected activity was a A substantial @ or a A motivating @ factor in the employer = s decision to discipline (here not renewing Watford = s contract); and once this is established the employer has the burden of demonstrating that the same action would have taken place even in the absence of protected activity. The New Jersey Supreme Court in Bridgewater, supra, described the burden placed upon the employer as having to A ... = go forward and establish by a preponderance of the evidence = that the action occurred for legitimate business reasons and not in retaliation for protected activity... @ Clearly, the Charging Party has established a prima facie showing sufficient to support an inference that protected activity was a A substantial @ or a A motivating @ factor in the Respondent Board = s decision on April 14, 1983 not to offer Watford a contract for the 1983-84 school year. The critical inquiry is whether or not the Respondent has met its burden of establishing by a preponderance of the evidence that its decision not to renew Watford would have occurred even in the absence of Watford = s having engaged in protected activities on behalf of the Charging Party. The Respondent = s dilemma in establishing a legitimate business justification for its action in not renewing Watford = s contract on April 14, 1983 stems from the following: the testimony of Napoli on December 1, 1982 that he saw no need to share professional nurses in each building, notwithstanding declining enrollment; the position of the Respondent in the A Scope @ proceeding that its nurses were required to be in the building at all times in order to serve the well-being of the pupils; the April 29, 1983 letter to Watford, stating that she was not being offered a contract for the 1983-84 school year A for reasons of economy; @ and the testimony of Board member Robert Johnson that economy was A never a factor @ in the Board = s decision to RIF Watford on April 14, 1983. The Hearing Examiner can only resolve this dilemma by concluding that the Respondent Board was discriminatorily motivated against Watford for the exercise by her of the protected activities set forth above, and that the Board retaliated against Watford when it decided not to renew her contract on April 14, 1983. The Hearing Examiner is convinced that Napoli as Superintendent was the moving force in bringing about the Board = s decision of April 14, 1983. Napoli = s discriminatory motivation originated in or around mid-October 1981 when he stated on different occasions to Dague, Watford and Ponti that he was going to A fire @ or A cut @ a nurse if a grievance or grievances regarding the duty-free lunch of the school nurses was filed and pursued. Significantly, Napoli was not called as a witness by the Respondent in the hearings on remand and the Hearing Examiner is justified in concluding that any testimony by Napoli on behalf of the Board would have been unfavorable to it: Duration Corp. v. Republic Stuyvesant Corp. et al., 95 N.J. Super. 527, 531 (App. Div. 1967), certif. den. 50 N.J. 404 (1967). The Hearing Examiner rejects as implausible any contention that it was the principals who brought about the decision to RIF a nurse and continue on a shared basis with two nurses. In so concluding, the Hearing Examiner recognizes that there was considerable testimony regarding the role of the principals in shaping staff recommendations for the ensuing school year. If this was the only testimony in this proceeding, the Hearing Examiner might have concluded that it was the school principals who were responsible for the RIP of a nurse. However, the Superintendent is deeply enmeshed in the meetings with the principals and recommendations to the Board. Thus, the Hearing Examiner attaches no legal significance in this proceeding to the statements by Principals Brown and Ponti that if they had to make a choice it would be in favor of a classroom teacher over a school nurse. The question arises, how did the two Principals come to be put in a position of having to make a choice given the Board = s surplus in every one of the past 10 years? It is at this point that the testimony of Board member Johnson comes into play, in particular, his statement that economy was A never a factor @ in the Board = s decision to RIF Watford. If economy wasn = t a factor, notwithstanding that Watford was so told in her termination letter (CP-4), then what was the factor in the Board = s decision to RIF? To the instant Hearing Examiner there is only one answer, and that is the discriminatory motivation of Napoli towards Watford, which tainted the deliberations of the Board leading up to its decision on April 14, 1983. In recent years the Board had always found a way to retain programs in which it was interested, drawing upon surplus when necessary. Plainly, the retention of one nurse, Watford, whose salary was not disclosed during the hearings, was within the wherewithal of the Board for the 1983-84 school year. Thus, the Hearing Examiner concludes that the Board has failed to prove that its failure to renew Watford = s contract would have taken place even in the absence of her protected activity. Because of the Hearing Examiner = s finding and conclusion that the Board through its Superintendent was discriminatorily motivated toward Watford, it necessarily follows that the Board = s decision of April 14, 1983 was not in furtherance of a valid educational policy.8/ Therefore, the cases cited by the Respondent to the effect that the trier of fact cannot substitute his judgment for that of the Board, and that decisions of the Board made within its authority are entitled to a presumption of correctness, do not apply. In concluding on this point, the Hearing Examiner finds that the Respondent Board violated Subsections (a)(1), (3) and (4) of the Act when on April 14, 1983 it failed to renew the contract of Kathryn Watford for the 1983-84 school year. The Respondent Board Was Discriminatorily Motivated In Its Actions And Conduct Regarding Doris Dague On And After April 30, 1983 And, Thus, Violated The Act In reaching his conclusion that the Respondent Board violated the Act by its actions and conduct toward Dague, the Hearing Examiner relies upon two Commission decisions, affirmed by the Appellate Division, namely: City of Hackensack, P.E.R.C. No. 78-71, 4 NJPER 190 (1978), aff = d. App. Div. Docket No. A- 3562-77 (1979) and Commercial Township Board of Education, P.E.R.C. No. 83-25, 8 NJPER 550, 552 (1982), aff = d. App. Div. Docket No. A-1642-82T2 (1983). See also, Township of West Windsor v. P.E.R.C. and PBA Local 130, 78 N.J. 98, 110-112 (1978); Winston v. Bd. of Ed. of So. Plainfield, 125 N.J. Super. 131, 144 (App. Div. 1973), aff = d. 64 N.J. 582 (1974), Anderson v. Central Point School District No. 6, 554 F.Supp. 600 (D. Ore. 1982) and Laurel Springs Bd. of Ed., P.E.R.C. No. 78-4, 3 NJPER 228 (1977). Dague was a witness in this proceeding at the hearing on December 1, 1982 and filed an affidavit in support of the Charging Party = s position in the A Scope @ proceeding (CP-14). After learning on April 30, 1983 of the Board = s decision to RIF Watford, Dague made a public speech at a public meeting on May 12, 1983, during which she stressed the necessity of having a nurse in each school. In pointing out that two nurses could not monitor contagious illnesses, Dague made reference to a number of contagious diseases, including herpes. Although this latter part of her speech occupied about 30 seconds, the Superintendent, other members of administration and the Board took exception to her remarks concerning contagious diseases. The Superintendent asked for a report for the next Board meeting. (See Findings of Fact Nos. 24, 25 and 26). On May 13, 1983 Superintendent Napoli sent a joint memo to Dague and her Principal, Norman K. Wilson, taking written exception to Dague = s speech of May 12th. This memo concluded with a statement that if the documentation does not justify Dague = s speech concerning outbreaks then it appears that she may have used poor judgment in presenting erroneous information to the public. Dague thereafter complied with Napoli = s request for a contagion report to the Board but Napoli never contacted her to discuss the content of her report. In fact, Dague heard nothing from Napoli or anyone else in administration until she sent a letter to Napoli, Principal Wilson and all Board members on June 1, 1983 urging a re-evaluation of the school nurse reduction decision for the 1983-84 school year (CP-18). This triggered a telephone call from Napoli on June 2nd, who directed Dague to write to the administrators of all of the schools in Salem County to find out how they were fulfilling the State mandate with shared nurses. Dague had never been requested to do this previously (see Finding of Fact No. 29, supra). On June 3, 1983 Dague was summoned to a meeting where she was confronted by Napoli, Wilson and the Board President, Barbara Wright. This meeting lasted about 90 minutes and the thrust of it was the anger of Napoli and Wright over Dague = s having written her June 1, 1983 letter to Napoli and the members of the Board of Education (CP-18). Dague was instructed never again to communicate directly with members of the Board except through the A chain of command. @ Dague was told that if she continued to communicate with Board members or to speak out at any public meeting she would receive a reprimand. (See Finding of Fact No. 30, supra). As a direct result of the June 3rd meeting, supra, Dague remained silent at a City Council meeting on June 6, 1983 and at a Board meeting on June 8th. However, deciding to A stand up and be counted, @ Dague spoke out publicly at a rally in support of Watford on June 11, 1983. Coincidentally, on June 15, 1983, Dague received a copy of a joint memo to herself, Wilson and Wright from Napoli, which purported to be A minutes @ of the meeting of June 3, 1983 (CP-19). The last paragraph of these A minutes @ stated: A A copy of these minutes shall be placed in Mrs. Dague = s file @ (CP-19, para. 9). Dague testified credibly, and the Hearing Examiner finds, that when these A minutes @ were placed in her file the action constituted a reprimand. Dague clearly has met the first portion of the Bridgewater- Wright Line test by having made a prima facie showing sufficient to support an inference that her protected activities were a A substantial @ or a A motivating @ factor in the Board = s decision to reprimand her by the Superintendent having placed the A minutes @ in her file (see Finding of Fact No. 32, supra). Her protected activities, gleaned from the foregoing, are summarized as follows: Dague = s testimony at the hearing on December 1, 1982 in this matter; her affidavit in the A Scope @ proceeding; Dague = s speech of May 12, 1983 stressing the necessity of having a nurse in each school, notwithstanding the contagious disease portion, which is made at the end thereof; Dague = s June 1, 1983 letter to the administration and all Board members urging a re-evaluation of the school nurse reduction decision; and her public speech at a rally for Watford on June 11, 1983. Both City of Hackensack and Commercial Township, supra, deal with the issue of a public employee departing from the A chain of command @ in communicating with the public employer. The Hearing Examiner has credited Dague = s testimony that she was told at the meeting on June 3rd that she would be reprimanded if she communicated with members of the Board. This is clearly forbidden by the Commission = s decision in City of Hackensack, supra, where it was held that a presentation to an elected official concerning terms and conditions of employment is a protected activity and that requiring an employee, under threat of discipline, to follow the chain of command A ...constitutes, in effect, a prior restraint on free speech... @ (4 NJPER at 191).9/ The instant Hearing Examiner cited Hackensack in his several decisions, which were affirmed by the Commission in Commercial Township, supra. Laurel Springs was also cited in Commercial Township for the proposition that a public employee has the right to speak to the Board at a public meeting. The specific facts in Commercial Township were that a public employee discussed general school concerns, not involving confidential information, with a candidate for election to the school board. The Hearing Examiner found that this was protected and was affirmed by the Commission. The Court in West Windsor, supra, has made it clear that under Article I, para. 18 of the New Jersey Constitution a public employee is granted the right not only to present grievances but to seek to influence governmental decision-making in the same manner as all other citizens. This right of public employees to participate in decisions affecting their employment is not enjoyed by employees in the private sector. (See 78 N.J. at 111). The foregoing authorities make clear that every aspect of the enumerated activities of Dague between December 1, 1982 and June 11, 1983 were protected either under the Act or the Constitution or both. The Hearing Examiner rejects as inapplicable the Respondent = s citation of Black Horse Pike Regional Board of Education, P.E.R.C. No. 82-19, 7 NJPER 502 (1981) inasmuch as this Hearing Examiner is persuaded that Dague = s performance as a public employee cannot be separated from her conduct as a public employee speaking out on behalf of Watford and the reduction in the number of school nurses for the 1983-84 school year. The Respondent = s emphasis on the term A herpes @ in Dague = s public speech of May 12, 1983 is to take an isolated incident out of context and use it as an instrument to discipline her and to restrain her freedom of communication and speech. The Hearing Examiner does not accept the contention that Dague = s statement regarding contagious diseases was false or that it amounted to yelling A fire @ in a crowded theater: Schenck v. United States, 249 U.S. 47 (1919). The Hearing Examiner now turns to the second part of the Bridgewater test, namely, whether the Respondent has established by a preponderance of the evidence that Dague would have been reprimanded even in the absence of her protected activities. Dague was in A hot water @ with the Superintendent on May 13, 1983, following her public speech of May 12th. Dague had spoken at the public meeting for three-five minutes, during which she stressed the necessity of having a nurse in each school building and that two nurses could not monitor contagious illnesses. The Superintendent, and ultimately others in administration and on the Board, seized on her reference to A herpes, @ following which she was asked to prepare a report for the Board and to attend a meeting on June 3, 1983. While there may have been a legitimate business justification in the Superintendent = s requesting Dague to submit a report on contagious illnesses in the Salem schools, it is noted that Napoli never contacted Dague to discuss the contents of the requested report. This raises the question as to whether or not this was a good faith request on the part of Napoli, or whether it was merely a harassing tactic in retaliation against Dague = s public speech of May 12, 1983. The Hearing Examiner concludes from Napoli = s failure to contact Dague and discuss the report with her that his motive was to retaliate against Dague for her May 12th public speech. After Dague had heard nothing from Napoli or anyone in administration by June 1, 1983 she sent a letter to Napoli, her Principal and all Board members urging a re-evaluation of the school nurse reduction-in-force decision. Napoli = s response on June 2nd was to direct her to write to the administrators in all of the schools in Salem County to find out how they were fulfilling the State mandate with shared nurses. Such a request had never been made previously. There is nothing in the record to indicate any follow-up by Napoli on this request, which indicates to the Hearing Examiner that it was another instance of harassment of Dague by Napoli for the exercise of her protected activities. The Hearing Examiner concludes that there was no legitimate business justification established for the request by Napoli of Dague on June 2, 1983, supra. Next for consideration is the 90-minute meeting of June 3, 1983, which was convened by Napoli and attended by Wilson, Wright and Dague. Notwithstanding that the Respondent attaches no significance to the length of the meeting, the Hearing Examiner is not so inclined. Principal Wilson could not recall a meeting of this nature lasting so long (4 Tr. 105, 106). The Hearing Examiner has previously found as a fact that the thrust of the meeting was the anger of Napoli and Wright over Dague = s having written her June 1st letter to Napoli and the members of the Board of Education (see Finding of Fact No. 30, supra). The Hearing Examiner has credited Dague = s testimony that she was instructed never again to communicate directly with members of the Board of Education except through the A chain of command. @ Also, Dague testified credibly that she was told that if she continued to communicate with members of the Board or to speak out at public meetings she would be reprimanded. Based on these findings and the foregoing authorities, supra, the Hearing Examiner concludes that the June 3rd meeting, given particularly its extended duration, was disciplinary in nature and was intended to restrain Dague from undertaking legitimate communication with the Board and to suppress any efforts by her to speak out at public meetings. Plainly, this was not the exercise by the Board of a legitimate personnel action. Finally, immediately following Dague = s speaking out on behalf of Watford at a public rally on June 11, 1983, the Superintendent belatedly generated A minutes @ of the June 3, 1983 meeting and provided expressly in writing that a copy of the minutes was to be placed in Dague = s file (see Findings of Fact Nos. 31 & 32, supra). These A minutes @ constitute the threatened reprimand, which was made by Respondent = s personnel at the meeting on June 3, 1983. Clearly, no legitimate business justification existed for this action of Superintendent Napoli. It is significant to note that immediately following the June 3rd meeting Dague elected to remain silent at two meetings on June 6 and June 8, 1983 in stark contrast to her modus operandi beginning on May 12, 1983. Thus, the Hearing Examiner rejects any contention by the Respondent that it established by a preponderance of the evidence that its actions on and after May 12, 1983 would have taken place even in the absence of Dague = s protected activities. For all of the foregoing reasons the Hearing Examiner finds and concludes that the Respondent Board violated Subsections (a)(1), (3) and (4) of the Act. THE REMEDY There being no issue of the reinstatement of Watford or back pay herein involved, the Hearing Examiner will recommend a cease and desist order with proper posting. The Charging Party = s request for the extraordinary remedy requiring that Superintendent Napoli be compelled to read the cease and desist order to all members of the collective negotiations unit is denied. This is not a J.P. Stevens situation where egregious violations of the National Labor Relations Act had occurred over many years. Also, the Hearing Examiner does not find and conclude that the Respondent = s defense to the charges of unfair practices was frivolous and made in bad faith. Accordingly, the Charging Party = s request for attorneys fees and costs related to the litigation is denied. Cf. Tiidee Products, Inc., 194 NLRB No. 103, 79 LRRM 1175 (1972). * * * Upon the entire record in this case, the Hearing Examiner makes the following: CONCLUSIONS OF LAW 1. The Respondent Board violated N.J.S.A. 34:13A- 5.4(a)(1), (3) and (4) when it decided on April 14, 1983 not to offer Kathryn Watford a contract for the 1983-84 school year. 2. The Respondent Board violated N.J.S.A. 34:13A- 5.4(a)(1), (3) and (4) by its actions and conduct with respect to Doris Dague on and after April 30, 1983. RECOMMENDED ORDER The Hearing Examiner recommends that the Commission ORDER: A. That the Respondent Board cease and desist from: 1. Interfering with, restraining or coercing its employees in the exercise of the rights guaranteed to them by the Act, particularly, by refusing to offer Kathryn Watford a contract for the 1983-84 school year and by its actions and conduct with respect to Doris Dague on and after April 30, 1983. 2. Discriminating in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage employees in the exercise of the rights guaranteed to them by the Act, particularly, by refusing to offer Kathryn Watford a contract for the 1983-84 school year and by its actions and conduct with respect to Doris Dague on and after April 30, 1983. 3. Discriminating against any employee because he or she has signed or filed an affidavit, petition or complaint or given any information or testimony under the Act. B. That the Respondent Board take the following affirmative action: 1. Forthwith remove from the personnel file of Doris Dague the document entitled A Minutes Of Meeting On June 3, 1983. @ 2. Post in all places where notices to employees are customarily posted, copies of the attached notice marked as Appendix A A. @ Copies of such notice, on forms to be provided by the Commission, shall be posted immediately upon receipt thereof, and after being signed by the Respondent = s authorized representative, shall be maintained by it for at least sixty (60) consecutive days. Reasonable steps shall be taken by the Respondent Board to insure that such notices are not altered, defaced or covered by other materials. 3. Notify the Chairman of the Commission within twenty (20) days) of receipt what steps the Respondent Board has taken to comply herewith. /s/Alan R. Howe Hearing Examiner DATED: May 25, 1984 Trenton, New Jersey WE WILL NOT interfere with, restrain or coerce our employees in the exercise of the rights guaranteed to them by the Act, particularly, by refusing to offer Kathryn Watford a contract for the 1983-84 school year and by our actions and conduct with respect to Doris Dague on and after April 30, 1983. WE WILL NOT discriminate in regard to hire or tenure of employment of any term or condition of employment to encourage or discourage our employees in the exercise of the rights guaranteed to them by the Act, particularly, by refusing to offer Kathryn Watford a contract for the 1983-84 school year and by our actions and conduct with respect to Doris Dague on and after April 30, 1983. WE WILL NOT discriminate against any employee because he or she has signed or filed an affidavit, petition or complaint or given any information or testimony under the Act. WE WILL forthwith remove from the personnel file of Doris Dague a document entitled A Minutes of June 3, 1983 Meeting. @ 1/ These Subsections prohibit public employers, their representatives or agents from: A (1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this Act. (5) Refusing to negotiate in good faith with a majority representative of employees in an appropriate unit concerning terms and conditions of employment of employees in that unit, or refusing to process grievances presented by the majority representative. @ 2/ These additional Subsections prohibit public employers, their representatives or agents from: A (3) Discriminating in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage employees in the exercise of the rights guaranteed to them by this Act. (4) Discharging or otherwise discriminating against any employee because he has signed or filed an affidavit, petition or complaint or given any information or testimony under this Act. @ 3/ The Hearing Examiner here incorporates by reference and confirms his original Findings of Fact Nos. 1-12, inclusive, and finds further, commencing with paragraph no. 13, infra. 4/ The transcript references begin with the first day of hearing on December 1, 1982 ( A 1 Tr. @ ) and continue sequentially through the final day of hearing on January 24, 1984 ( A 5 Tr. @ ). 5/ The Hearing Examiner is making no findings regarding events which occurred after the Board = s decision on April 14, 1983 to RIF Watford. Any illegality in the Board = s action on that date would not be affected by post-April 14th events. It is noted that due to a myriad of circumstances and events after April 14th, involving staff, administration, public officials and the public, the Board decided to rescind the RIF of Watford and she has continued to work as a school nurse at the Fenwick School during the 1983-84 school year. Thus, there is no element of reinstatement or back pay involved in the instant proceeding. 6/ Brown also testified that he and Superintendent Napoli spoke of the possibility of eliminating a nurse as early as December 1982, after the first day of hearing in this matter (4 Tr. 146, 147). 7/ The Appellate Division adopted the Wright Line analysis in A dual motive @ cases in East Orange Public Library v. Taliaferro, 180 N.J. Super. 155 (1981), which the Commission has followed in cases beginning with Madison Board of Education, P.E.R.C. No. 82-46, 7 NJPER 669 (1981). The United States Supreme Court adopted Wright Line in NLRB v. Transportation Management Corop., ___ U.S. ___, 118 LRRM 2857 (1983). 8/ In Bridgewater, supra, dissenting Justice O = Hern noted that: A PERC correctly concluded that agency review of an exercise of managerial discretion is permitted to determine whether the employment decision has been illegally motivated. @ (95 N.J. at 251). 9/ See Anderson, supra, where the discipline of a teacher for writing to the school board was overturned. Docket No. Salem City Board of Education (Public Employer) Date: By: This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced or covered by any other material. If employees have any question concerning this Notice or compliance with its provisions, they may communicate directly with the Public Employment Relations Commission, 495 West State Street, PO Box 429, Trenton, NJ 08625-0429 (609) 984-7372 APPENDIX A A @ ***** End of HE 84-59 *****