H. E. NO. 86-24

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

PINE HILL BOARD OF EDUCATION,

Respondent,

-and-
Docket No. CO-85-139-76

PINE HILL EDUCATION ASSOCIATION &

VANESSA CLAX

Charging Party.

Appearances:

For the Respondent

Maressa, Goldstein, Birsner, Patterson & Drinkwater, Esqs.

(Robert E. Birsner, Esq.)

For the Charging Party

Selikoff & Cohen, Esqs.

(Steven R. Cohen, Esq.)

HEARING EXAMINER'S SUPPLEMENTAL

RECOMMENDED REPORT AND DECISION ON REMAND

On May 20, 1985, the instant Hearing Examiner issued a Recommended Report and Decision (H.E. No. 85-44, 11 NJPER 400), in which he found that the Respondent violated N.J.S.A. 34:13A-5.4

(a)(1) and (3) when, on October 22, 1984, it voted to withhold the entire salary increment of Vanessa Clax for the 1985-86 school year and directed her to undergo a psychiatric evaluation. The Hearing Examiner further found that the Respondent violated N.J.S.A. 34:13A-

5.4(a)(1) and (5) when, on October 22, 1984, it circumvented the

negotiated grievance procedure in connection with the grievance filed by the Association on behalf of Vanessa Clax. No violation of N.J.S.A. 34:13A-5.4(a)(2) was found.

On June 3, 1985, the Board filed exceptions, asserting that the Hearing Examiner erred in several respects, including his refusal to read the journal entries (R-2) which precipitated the controversy or to permit testimony concerning which journal entries allegedly motivated the action of the Respondent with respect to Clax. Following receipt of a response by the Association on June 13, 1985, the Commission reviewed the entire record and on July 2, 1985, ordered the record reopened and remanded the matter to the Hearing Examiner for additional testimony and a supplemental report (P.E.R.C. No. 86-14, 11 NJPER 462).

By way of amplification on the scope of the remand, the Commission directed that the Hearing Examiner read Exhibit R-2 and take testimony concerning what portions of R-2 Clax had admitted in writing, what portions the Superintendent had discussed with the Board, and what portions the Board had found particularly objectionable. Also, the Commission requested that the Hearing Examiner in his supplemental report and decision clarify when the Superintendent decided to place the Clax matter before the Board at its October 22, 1984 meeting, i.e., reconcile the apparent inconsistency between Findings of Fact Nos. 21 and 25.1/

1/	See Supplemental Finding of Fact No. 36, infra.

Pursuant to the remand, the Hearing Examiner scheduled and held a hearing on September 6, 1985, in Trenton, New Jersey, at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. The Respondent presented Superintendent Charles M. Ivory and Board President Loraine Barnhart for further examination and rested. The Charging Party elected to present no further witnesses but did offer one additional exhibit (CP-24). Oral argument was waived and the parties filed post-hearing briefs by November 15, 1985.

The record on remand having been closed on September 6, 1985, a question concerning alleged violations of the Act, as amended, exists and, after the hearing on remand, and after consideration of the additional post-hearing briefs of the parties, the matter is appropriately before the Commission by its designated Hearing Examiner for determination.

Upon the entire record, including the record on remand, the Hearing Examiner makes the following:

SUPPLEMENTAL FINDINGS OF FACT

31.	Pursuant to the remand, the Hearing Examiner has read Exhibit R-2.2/

2/	The Commission, in its decision to remand, affirmed the Hearing Examiner's earlier ruling that R-2 was admissible for the purpose of showing what the Board's state of mind was when it disciplined Clax, but was not admissible to prove the truth of the journal entries in R-2 or that Clax had written them.

32.	Prior to the September 10, 1984 Board meeting, the Board members were given copies of the complete journal entries (R-2) and there had been several small-group meetings of Board members to discuss the contents. Ivory participated in these meetings and responded to questions from Board members regarding R-2. Generally, the Board found most offensive the comments made by Clax that specifically dealt with criticisms of students, the comments made by Clax to students regarding the personal and professional lives of staff members and the effect that Clax's comments would have on the students. (4 Tr 7).

33.	Ivory next testified to nine specific entries in R-2 which the Board found to be objectionable, beginning with page 8 and concluding with page 31 (4 Tr 8-22). No purpose would be served by setting forth the specific content of R-2 as to these nine areas of Board concern. All of these concerns were within the knowledge of the Board members prior to the Board meeting of September 10, 1984, and no other areas of concern were identified thereafter (4 Tr 25).

34.	At the September 10, 1984 Board meeting, Clax submitted a written statement on the issue of R-2 to the Board (CP-24). Clax made certain admissions with respect to R-2 which were before the Board prior to the action which it took on September 10, 1984. Also, prior to Board action on September 10th, the Board had a clear impression of Ivory's position regarding R-2 and the Board viewed the contents of R-2 and Ivory's impressions in the "worst possible light" with respect to Clax (4 Tr 26). Finally,

Ivory acknowledged that Principal James H. Mundy reported to the Board at the caucus meeting on September 10th, that there seemed to be very little disruption in the school regarding the journal situation (4 Tr 31, 32; J-5).

35.	Barnhart's testimony on remand (4 Tr 36-44) added nothing to her earlier testimony and this she freely acknowledged (4 Tr 41-43).

36.	Pursuant to the remand by the Commission with respect to an apparent inconsistency between Finding of Fact No. 21 and Finding of Fact No. 25 regarding the date on which Ivory decided to place the Clax matter before the Board on October 22, 1984, the Hearing Examiner affirms Finding of Fact No. 25 as totally consistent with the record but modifies Finding of Fact No. 21 by deleting the fourth and last sentence therein and substituting the following:

Ivory decided to bring the Clax matter to the Board once again at its meeting on October 22, 1984. He acknowledged that he was aware that a grievance was being filed on behalf of Clax prior to the weekend of October 13 and October 14, 1984 when he commenced preparing a written statement in support of his decision. (3 Tr at 58, 59, 83; CP-15).

DISCUSSION AND ANALYSIS

The Respondent Violated §§(a)(1) And (3)

Of the Act When, On October 22, 1984, It

Voted To Withhold Clax's Salary Increment

For The 1985-86 School Year And Directed

Her To Undergo A Psychiatric Examination.

The Hearing Examiner, having considered Exhibit R-2, both as to the original purpose for which it was admitted and its content for the purpose of appraising the state of mind of the members of the Respondent's Board when they met on September 10, 1984, affirms his original conclusion that the Board failed to demonstrate a legitimate business justification or reason for its subsequent personnel actions as to Clax on October 22, 1984. It is recalled that the Board on September 25, 1984, rescinded its September 10th decision and withdrew the requirement that Clax submit to a psychiatric evaluation. Thus, the only disciplinary action taken against Clax as of September 25th was the placing of a reprimand in her personnel file.

Given the testimony of Ivory at the hearing on remand that the content of R-2 was viewed by Board members in the "worst possible light" prior to the Board meeting of September 10, 1984, and the Board's two-fold action on that date, as subsequently modified on September 25, 1984, there can be little doubt but that the effect of the content of R-2 was dissipating with the passage of time. Thus, the Hearing Examiner concludes that R-2 was not the objective basis upon which the Board acted when it decided on October 22, 1984 to withhold Clax's entire salary increment for the 1985-86 school year and to require once again that Clax submit to a psychiatric evaluation.

Relying upon the Findings of Fact previously made, in particular, the exercise of protected activity in the form of the Association's having filed grievances on behalf of Clax,3/ the Hearing Examiner finds and concludes that it was this grievance activity which reopened the matter of the discipline to be imposed upon Clax on October 22, 1984, where the Board reconsidered the severity of the previous discipline and took stronger action against Clax. This amounted to retaliation against the Association for pursuing grievances on behalf of Clax through the grievance procedure.

The Hearing Examiner here repeats the extensive discussion of Bridgewater Twp. v. Bridgewater Public Works Ass'n, 95 N.J. 235 (1984) in H.E. No. 85-44, 11 NJPER at 403, 404. Suffice it to say, the Charging Party continues to have satisfied the first portion of the Bridgewater test and that the Respondent continues in its failure to have demonstrated a legitimate business justification for the two-fold personnel action taken against Clax at the Board meeting of October 22, 1984. Recapitulating, R-2 clearly afforded the Board with four alternatives for action against Clax, two of which the Board imposed at its meeting on September 10, 1984. The Board on September 25th elected to affirm the letter of reprimand but rescinded the request for a psychiatric evaluation.

3/	See Findings of Fact Nos. 22, 23, 24, 25, 27; & CP-12, supra.

When the Board reconsidered its earlier actions on October 22, 1984, it is clear that it was the Clax grievance of October 18, 1984 which had triggered reconsideration since Clax had engaged in no repetition of the objectionable conduct represented by R-2 since September 10th. The Hearing Examiner reiterates the reasoning set forth in connection with business justification at 11 NJPER 404, in particular, the fact that the Board on October 22nd imposed a penalty never adopted by the Board previously, the withholding of the increment, and that the attorney for the Respondent had on September 10, 1984, indicated to the Board that the withholding of Clax's increment would be "questionable." As noted by the Hearing Examiner previously, if the withholding of an increment was "questionable" in the opinion of the Board's attorney on September 10th, it strains credulity as to how it could have been less than questionable on October 22, 1984. Yet, the Board elected to proceed with that option and reinstate the requirement of a psychiatric evaluation.

The Hearing Examiner discounts outside pressure, which had occurred between the Board's meeting of September 25th and October 22nd, as the motivating factor in the Board's action of October 22, 1984. The Hearing Examiner is of the firm view that the Board did not capitulate to outside pressure in reaching its two-fold decision to discipline Clax on October 22nd but rather was motivated by the Clax grievance having re-opened the whole matter as Ivory and Barnhardt indicated (Finding of Fact No. 23, supra).

Thus, there appears to the Hearing Examiner to have been no legitimate basis for the re-opening of the Clax matter other than to punish her for having filed a grievance through the Association. The Respondent Board has failed to demonstrate by a preponderence of the evidence that it had a legitimate business justification for the actions that it took against Clax on October 22, 1984, and, thus, it violated §§ (a)(1) and (3) of the Act under the Bridgewater test and analysis supra.

The Respondent Board Violated

§§ (a)(1) and (5) Of The Act When,

On October 22, 1984, It Circumvented

The Negotiated Grievance Procedure

In Connection With The Clax Grievance.

The Hearing Examiner here affirms his findings and conclusions with respect to the violations by the Respondent of §§ (a)(1) and (5) of the Act when the Board circumvented the negotiated grievance procedure in connection with the Clax grievance on October 22, 1984: ll NJPER at 405.

*	* * *

Upon the foregoing, and 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:l3A-5.4 (a)(1) and (3) when, on October 22, 1984, it voted to withhold the entire salary increment of Vanessa Clax for the 1985-1986 school

year and directed her to undergo a psychiatric examination.

2. The Respondent Board violated N.J.S.A. 34:l3A-5.4 (a)(1) and (5) when, on October 22, 1984, it circumvented the negotiated grievance procedure in connection with the grievance filed by the Association on behalf of Vanessa Clax.

3. The Respondent Board did not violate N.J.S.A. 34:l3A-5.4(a)(2) by its conduct herein.

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 voting to withhold the entire salary increment of Vanessa Clax for the l985-86 school year and directing her to undergo a psychiatric evaluation and, additionally, circumventing the negotiated grievance procedure in connection with the grievance filed by the Association on behalf of Vanessa Clax.

2. Discriminating in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage employees in the excercise of the rights guaranteed to them by the Act, particularly, by voting to withhold the entire salary increment of Vanessa Clax for the l985-86 school year and directing her to undergo a psychiatric evaluation.

3. Refusing to negotiate in good faith with the Association by circumventing the negotiated grievance procedure in connection with the grievance filed by the Association on behalf of Vanessa Clax.

B. That the Respondent Board take the following affirmative action:

1. Forthwith restore the salary increment of Vanessa Clax for the 1985-86 school year and make her whole for the loss of earnings incurred to date with interest at the rate of 12% per annum on the monies calculated to be due.

2. Forthwith rescind the directive that Vanessa Clax undergo a psychiatric evaluation.

3. Post in all places where notices to employees are customarily posted, copies of the attached Notice marked as Appendix "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 for at least sixty (60) consecutive days. Reasonable steps shall be taken to ensure that such notices are not altered, defaced or covered by other materials.

4. Notify the Chairman of the Commission within twenty (20) days of receipt what steps the Respondent Board has taken to comply herewith.

C. That the allegations that the Respondent Board violated N.J.S.A. 34:l3A-5.4(a)(2) be dismissed in their entirety.

Alan R. Howe

Hearing Examiner

Dated: December 4, 1985

Trenton, New Jersey