H.E. NO. 87-42 1.
H.E. No. 87-42
STATE OF NEW JERSEY
BEFORE A HEARING EXAMINER OF THE
PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the Matter of
WEEHAWKEN BOARD OF EDUCATION,
Respondent,
-and- Docket No. CO-77-177-119
WEEHAWKEN EDUCATION ASSOCIATION,
LA FRONZ, et al,
Charging Party.
----------------------------------------
WEEHAWKEN BOARD OF EDUCATION,
Respondent,
-and- Docket No. CO-82-18-21
WEEHAWKEN EDUCATION ASSOCIATION,
Charging Party.
Appearances:
For the Respondent
Krieger, Ferrara, Feinsilver, Flynn & Catalina
(Brian N. Flynn, of counsel)
For the Charging Party
Bucceri & Pincus
(Sheldon H. Pincus, of counsel)
HEARING EXAMINER'S
REPORT AND RECOMMENDED DECISION
On December 28, 1976, the Weehawken Education Association (Association) and Thomas LaFronz, Arthur Kaplan, James Furno, Paul Fitzpatrick, Harry Untereiner, Robert Dermody, Robert Schmidt, Diane
Pondiscio, and Mariann Kelly filed an Unfair Practice Charge with the Public Employment Relations Commission (Commission) against the Weehawken Board of Education (Board) alleging that nine individuals were unlawfully discriminated against when some six of them, LaFronz, Kaplan, Furno, Fitzpatrick, Untereiner and Dermody, were denied contracts to teach in the 1976-77 school year, and three others, Schmidt, Pondiscio and Kelly, were transferred to different school buildings. It was alleged that these actions were taken because the teachers exercised protected rights. Additionally, two of the named teachers, Untereiner and Dermody, were denied reemployment rights, not directly because of their own exercise of protected activity, but rather because their inferior seniority status necessitated that, pursuant to N.J.S.A. 18A-1 et seq ., they be let go by the Board first in order to discharge the four teachers who engaged in protected activity within the meaning of the Act.
The Board denied these actions were taken in order to discriminate against the exercise of protected rights. It claims the teachers whose contracts were not renewed were the subject of a Reduction In Force (or RIF) motivated by economic necessity and the transfers were made in order to insure that the best teachers were where they were most needed; that is, these transfers were made for educational reasons. It appeared that the allegations of the charge, if true, might constitute an unfair practice within the meaning of the Act, and a Complaint and Notice of Hearing was issued on May 11, 1977. Hearings in this matter commenced November 15,
1977 and after some five days of hearings the parties mutually agreed to pend further hearings and defer to a companion case that was concurrently being litigated before the Commissioner of Education. That litigation was ultimately the subject of an Appellate Division Decision of June 10, 1982. The Court there held that one of the teachers named as a Charging Party, Thomas Fitzpatrick, was the subject of an improper Reduction In Force. There were teachers with less seniority in the employ of the Board that should have been let go before Fitzpatrick. It was further held, however, that the other Board actions were not in violation of the provisions of Title 18A. Before the Appellate Division rendered the decision, the Association filed a second charge on July 27, 1981 which alleges that the Board abolished the positions of Robert Schmidt, a tenured teaching staff member who was a former president of the Association, and Carol Gallagher, the Grievance Chairperson of the Association, for engaging in protected activity. These two employees lost their positions although Gallagher was offered the opportunity to work at a less than full-time per diem position. In addition, the charge makes reference to the conduct that was the subject of the original unfair practice charge. Finally, it is alleged that the Board unlawfully transferred officers of the Association. All of these acts alleged were in order to discourage the exercise of protected activity. In its answer the Board denied that the actions were taken for anti-union animus and claimed that the transfers were made for reasons of educational policy and that
the RIF was done out of economic necessity. It appearing that the allegations of the charge if true might constitute an unfair practice within the meaning of the Act a Complaint and Notice of Hearing was issued on August 10, 1981.
Subsequent to the issuance of the Complaint there were an additional 19 days of hearing beginning March 23, 1982 and running through to June 9, 1983. 1/
The Weehawken School District is composed of four schools, and has grades ranging from K through 12.
The Association, by way of proving unlawful motivation on the part of the Board, introduced evidence back to, and before, a nine day strike in February of 1973 (Charging Party's brief, p. 10). All of the individuals, except for Dermody and Untereiner, named in the first unfair practice charge were active in that strike.
Carol Gallagher was the secretary of the Association at the time of the strike, picketed during the strike and was named in the restraining order that was issued in the Chancery Divison of Superior Court. Carol Roming picketed at the High School and Webster School. Picketers were observed by a member of the school
1/ The dates of the hearing were March 23, 24, 25, 26, 29, 30 and 31, April 1, 2, October 1, November 8, 9, 10, 17, December 15, 17, 1982, February 22, May 4 and June, 9, 1983. At which time all parties were given an opportunity to examine and cross-examine witnesses and present evidence and argue orally. Briefs in this matter were received in December 1983.
administration Mr. Stein, at the high school. During the strike, Association members went door-to-door distributing leaflets prepared by the Executive Committee and members of the Association. Sonia Pendergass attended meetings, distributed materials and made telephone calls while on strike. James Furno picketed, distributed leaflets and made telephone calls in support of the strike and was a member of the committee in charge of organizing strike activities. Paul Fitzpatrick participated in the strike by picketing and Diane Pondiscio was on the Association's Negotiating Committee at the time of the strike. She picketed at the schools and distributed literature in town. 2/ Other pickets included Thomas LaFronz who picketed at the High School and organized the non-tenured teachers and Art Kaplan and Robert Schmidt. The Association's position that it struck because the Board of School Estimate had cut approximately $400,000 from the school budget for the following year (Charging Party's brief p. 11). During the collective negotiations during the 1972-73 school year, the Board stated that the staff would be reduced by approximately 6 teachers because of alleged declining enrollments. In fact, the Board terminated 18 teachers. Of these 18, 16 had participated in the strike.
2/ Pondiscio testified that she also picketed at the home of Dr. Onorevole. It is noted however that Onorevole did not become Superintendent until August 1974 and had no experience in Weehawkin prior to that time (Trans. of November 15, 1977 p. 36). At the time of the strike, the Superintendent was A. Wallace Gendron
During, and following, the strike the then Superintendent of schools, A. Wallace Gendron had lists prepared detailing the employment histories and strike activities of all teachers in the school district. The following year Warren Buehler served as acting Superintendent of schools and in August of 1974 Dr. Richard Onorevole was appointed Superintendent of Schools and some 22 teachers were RIFed for the 1974-75 school year.
During this school year, James Furno was Chairman of the Association's Action Committee. In April of 1975 a meeting was conducted with Superintendent Onorevole and Furno as well as a number of teachers. Furno stated that "the Association had a vote of no confidence in his (Onorevole) administration of the school system." The meeting then broke up. Teachers began leaving the meeting and Onorevole dismissed them.
In May of 1975, Furno attended a meeting of the Board of Education. Furno, in the open meeting, asked Onorevole how a thorough and efficient education could be provided when Onorevole had acted arbitrarily in reducing the teaching force and transferring other teachers and further he had lost the confidence of the faculty and the support of the community. On the following day, Superintendent Onorevole stated that Furno shouted at Onorevole in public twice and if he shouted at him again, he would have to do something about it. 3/
3/ Tr. April 1, 1982 pp. 8 & 9.
La Fronz became President of the Association the following year, 1975-76, and in April 1976 the Board announced that the six teachers would not be renewed the following school year. Although La Fronz was one of the teachers who was not renewed he continued to serve as Association President. Kaplan, Untereiner, Fitzpatrick 4/ , Furno and Dermody were also denied contracts for the new school year. In addition, Schmidt, Pondiscio and Kelly were transferred to different schools. LaFronz testified that he was told by his Principal that Warren Buehler sent a message that LaFronz should watch himself because Onorevole "was out to get him." Further, LaFronz testified that Board member, Stanley Iacono told LaFronz that the reason for his termination was because of union activities.
As a result of the announced staff reduction of April 1976, the Association began a non-cooperation policy whereby Association members refused to volunteer for various extra-curricular assignments. For example, Schmidt had been a baseball coach and color guard advisor for the previous two years. However, in the fall of 1976, he refused to volunteer for such duty.
In February 1977, Schmidt prepared a document entitled "Speaking the Truth About Our Schools." This document referred to a no confidence vote taken by the Association which was critical of the Superintendent's annual report.
4/ Fitzpatrick was subsequently reinstated pursuant to his case before the Commissioner of Education. Fitzpatrick et al. v. Weehawken, supra.
Schmidt served as Association President in 1977-78 and 1978-79. Schmidt received a letter from the Superintendent which criticized Schmidt for leaving his class to handle a grievance; also Schmidt's evaluation by Onorevole for 1979-80 was critical of Schmidt's missing voluntary department meetings while he performed other voluntary duties.
Carol Gallagher, was secretary of the Association at the time of the 1973 strike and was named in the restraining order that was issued. In April of 1978, she reviewed her personnel file. It contained several documents concerning her activities in the 1973 strike. Gallagher asked the Superintendent's secretary to have copies of these documents made. These documents, however, disappeared. They were either misplaced or destroyed and naturally Gallagher never received copies.
Moreover, Mary Blum, Onorevole's secretary recalls seeing newspaper articles about the 1973 strike in some of the teacher's files.
The Association also points out that Gallagher became chairman of the Association's grievance committee in 1976. Gallagher testified that Onorevole objected to the manner in which Gallagher addressed him in a letter concerning Association activity and inquired as to why Gallagher does not use "Dear Dr. Onorevole" in the greeting of correspondence.
Gallagher's school principal in 1977, Peter Oliveri, wanted her requests to leave the building early put in writing, for both
his own and Gallagher's protection, since she was an officer of the Association.
Gallagher also pointed out that, on several occasions, Onorevole kept her waiting to have grievance meetings. She had a difficult time in getting permission to leave school early for physical therapy after an automobile accident in 1979 and Gallagher related how in the spring of 1981, Onorevole became upset when she would not allow him to attend Association meetings.
In September of 1980, the Weehawken Education Association again engaged in a strike against the Board. The strike lasted for eleven days.
Carol Gallagher engaged in picketing during this strike. She picketed in front of the High School. Carol Roming picketed at Webster School and organized meetings.
Linda Jo Pupuro did not engage in picketing. She, however, did report to work and kept in contact by phone with the Association relative to the strike. Carol Molnar, Jill Leone, Aurora Hoover, Carol Gertenbach, Irene Shoenberger, Rosemary Baldassari, Sonia Pendergass and Patricia Allegretta all engaged in picketing at the schools as well as the homes and places of employment of the School Board members.
During the course of the 1980 strike, Aurora Hoover spoke to Board Member Atallo. She testified that Atallo said that people were going to suffer because of the strike and something might happen to those who were involved. During this conversation, Atallo
stated that the worst thing that could happen to her was that she would be transferred to the basement of the Roosevelt School. In fact, she was transferred there the following year. Atallo admits speaking to Hoover by phone, but he denied making this statement.
At the Board meeting of August 26, 1981, the president of the Board, Pizzuto, stated that the hiring of new teachers from outside the District was union-busting tactics by the Board. Board member Olveson concurred in this opinion. Olveson further testified that, at a caucus on the same day, Board member Atallo brought up Greive's union affiliation and indicated that the personnel committee could not recommend reemployment for anyone who had demonstrated a militant attitude or participated in the strike. Although Atallo testified that he "did not clearly recall" 5/ making this statement, given Atallo's equivocation, I must credit Olveson's testimony. Moreover, having found Atallo was less then totally credible in one aspect of his testimony, I find this determination calls into question the credibility of the balance of his testimony. Accordingly, I resolve the conflict in testimony concerning the conversation between Hoover and Atallo by crediting Hoover and find that Atallo did state people were going to suffer because of the strike.
In March of 1981, the Board notified Schmidt that he would not be rehired for 1981-82. In June of 1981, Gallagher received a
5/ Tr. May 4, 1983, p. 91.
written notice of termination. She also was offered a part-time job. Also, Jill Reone, Aurora Hoover, Carol Gertenbach, Rosemary Baldassari, Irene Schoenberg and Patricia Allegretta were transferred.
In Tp. of Bridgewater, 95 N.J . 235 (1984), the N.J. Supreme Court established the test for establishing whether an unfair practice has been committed in ' (a)(3) cases where an employer's motivation is at issue. First the Association must establish that protected activity was "a substantial, i.e., a motivating factor in the employer's disputed action. Once this is accomplished, the burden shifts to the employer to go forward and establish by a preponderance of the evidence that the action occurred for legitimate business reasons and not in retaliation for the protected activity." (at p. 244)
The facts shown and arguments made by the Association rely heavily on the premise that participation in the two strikes constitute this protected activity.
There clearly was hostility between the Association and the Board that carried over from the strikes. Such hostility was a substantial or motivating factor in both of the Boards' mass transfers and non-renewals.
This is not to say that there was no evidence of Association activity other than striking and much of this activity is arguably protected by the Act. What stands out are the two confrontations Furno had with Onorevole in the spring of 1975 one
year before the first round of lay offs and transfers. While it is not entirely clear that Furno's comments at the Board meeting are protected by the Act, 6/ assuming without deciding that they are protected, the threats made by Onorevole were qualified ("if he shouts at me again"). Moreover, this conduct occurred one year before Furno's non-renewal and Furno was one of ten people who were non-renewed or transferred. Further, the Association introduced evidence demonstrating that the Board and its Superintendent kept records and reports of the strike. The maintenance of records about the strike demonstrates the Board's memory and state of mind about the strike.
I do not believe that these particular events or any of the other activities of the Association's members and officers who carried out Association business (i.e., processing of grievances and arbitration, etc.) can be carved out of the whole and, on their own, be found to be substantial or motivating factors in the Board action in the spring of 1976. Rather, the Association here has shown that the strikes and its related activity establish the substantial motivating factors.
6/ Salem City Board of Education, P.E.R.C. No. 84-153, 10 NJPER 439 ( & 15196 1984); City of East Orange , P.E.R.C. No. 84-70, 10 NJPER 28 ( & 15017 1983); Commercial Township Board of Education, H.E. No. 82-67, 8 NJPER 456 (& 13214 1982); East Orange Public Library , App. Div. Docket No. A-1725-79, 7 NJPER 415 ( & 12182 App. Div. 1981); Hamilton Tp. Bd. of Ed., P.E.R.C. No. 79-59, 5 NJPER 115 ( & 10068 1979); City of Hackensack , H.E. No. 78-23, 4 NJPER 4046 (1978); Laurel Springs , P.E.R.C. No. 78-4, 3 NJPER 228 (1977); Pietruni v. Board of Education of Brick Township, 128 N.J. Super 149 (App. Div. 1974), cert. denied 65 N.J. 573, U.S. cert. denied 419 U.S. 1975).
However, the N.J. Supreme Court has held that it is illegal by common law rule in New Jersey for public employees to strike. See, Board of Education, Borough of Union Beach v. New Jersey Education Association , 53 N.J. 29 (1968).
In Union Beach , the Court upheld the Union Beach Board of Education when it failed to re-employ three non-tenured teachers who engaged in a coercive work stoppage. See also, Lullo v. International Association of FireFighters , 55 N.J. 409, 439 (1970) and Fair Lawn Education Association , 63, N.J. 112, 116 (1973).
Subsequent to the enactment of ' 5.4(a)(3) in Chapter 123 of the Laws of 1974 (as well as Chapter 85 of the Laws of 1977 which enacted interest arbitration for police and fire personnel), the New Jersey Supreme Court again stated that "public employees have never possessed a right, constitutional or otherwise to strike or engage in work stoppages". N.J. State PBA Local 29 v. Town of Irvington, 80 N.J . 271, 288 (1979).
The Commission specifically followed the holding of Union Beach in Sayreville Bd. of Ed., P.E.R.C. No. 86-120, 12 NJPER 375 ( & 17145 1985).
Since public employees have no right to strike, the Association has failed to satisfy the first step of Bridgewater and prove that the exercise of protected activity was a substantial motivating factor for the non-renewal and transfers of 1976.
The evidence is far stronger than the non-renewals and transfers of 1981 were motivated by the 1980 strike. The
Association proved that subsequent to the 1975 lay-offs, Association officers Schmidt and Gallagher were very active and openly opposed Superintendent Onorevole's actions. However, there was no move by the Board against them until after the strike, and the Association adduced testimony which clearly demonstrates that the Board's action in the spring of 1981 in transferring and RIFing Association members was substantially motivated by their participation in the strike, witness the testimony concerning the statements of Board member Atallo in June of 1981. Once again the Association has failed to satisfy the first step of the Bridgewater test.
The Association has failed to establish that the Weehawken Board of Education was substantially motivated by the exercise of protected rights in either of the Complaints that are the subject in this decision.
Accordingly, it is recommended that the Commission dismiss the two Complaints in their entirety.
Edmund G. Gerber
Hearing Examiner
Dated: January 22, 1987
Trenton, New Jersey ***** End of HE 87-42 ***** |