H.E. NO. 90-23

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

MT. OLIVE TOWNSHIP BOARD OF

EDUCATION,

Respondent,

-and-	Docket No. CO-H-88-12

EDUCATION ASSOCIATION OF MT. OLIVE,

Charging Party.

Appearances:

For the Respondent, Ribis, Graham, Verdon & Curtin, Esqs.

(Thomas R. Curtin, of counsel; Kathleen M. Noonan, on the brief)

For the Charging Party, Klausner, Hunter & Oxfeld, Esqs.

(Stephen B. Hunter, of counsel)

HEARING EXAMINER'S RECOMMENDED SUPPLEMENTAL

REPORT AND DECISION ON SECOND REMAND

Following the Hearing Examiner's issuance of his initial Recommended Report and Decision on December 1, 1988 (H.E. No. 89-18, 15 NJPER 38 (¶20016 1988), the Commission on April 28, 1989, remanded the matter for supplemental findings of fact and recommendations (P.E.R.C. No. 89-106, 15 NJPER 268 (¶20115 1989). The Commission explained that this was done so that the Hearing Examiner might "...make findings and recommendations..." and "...should also make any supplemental findings of fact necessary to resolve factual disputes identified in the post-hearing briefs and reiterated in the exceptions..."

On August 7, 1989, the Hearing Examiner issued his Recommended Supplemental Report and Decision on Remand (H.E. No. 90-5, 15 NJPER (¶20 1989), recommending again that the Complaint be dismissed as to the Bridgewater contention that Michael J. Ryan was transferred in May 1987 in retaliation for protected activities. Further, he concluded that the Respondent independently violated Section 5.4(a)(1) of the Act when: (1) a Board member told a Support Staff member in March 1987, that "Your Union sold you out..."; (2) the Superintendent acknowledged to Ryan in March 1987, that two Board members were "wrong" in having made statements to Support Staff members; (3) the Superintendent on May 20, 1987, stated to Ryan that he had been told by the Board to "watch you"; and (4) the Superintendent stated that Jeffrey Swanson had a "big mouth" and was "too outspoken," according to "a lot of people on the Board."

The Commission on October 30, 1989, remanded this matter for the second time (P.E.R.C. No. 90-40, 15 NJPER (¶20 1989), first noting that the Board in its exceptions to H.E. No. 90-5 stated that certain testimony relied upon by the Hearing Examiner was rebutted and that the rebuttal was not considered. The Commission therefore asked the Hearing Examiner to reexamine his finding regarding Stephens' explicit denial that he made the "told to watch you" statement (11 Tr 160, 161).1/

1/	Referring to Supplemental Finding of Fact No. 28.

The Commission also asked the Hearing Examiner to reexamine his finding that Stephens told Ryan that two Board members had been "wrong" to make certain statements to Support Staff members, in light of Stephen's denial, Licitra's conflicting testimony, and Ryan's testimony regarding staff members' reports of the alleged statements.2/

The Current Exceptions To H.E. No. 90-5.

Before proceeding to the Additional Supplemental Findings of Fact, infra, the Hearing Examiner notes that the Respondent Board has requested that the record be reopened so that each Board member involved and the Superintendent may respond to the Hearing Examiner's prior Supplemental Findings of Fact. The Hearing Examiner recommends that this request be rejected since the record is sufficient for him to comply with the instant remand.

The Respondent further contends that each of the four findings by the Hearing Examiner, supra, of an independent violation of Section 5.4(a)(1) of the Act must fall under the "residuum" rule: Application of Howard Savings Bank, 143 N.J. Super. 1, 6 (App. Div. 1976) and Weston v. State, 60 N.J. 36, 51 (1972). The Respondent also submits that the Hearing Examiner in his Supplemental Finding of Fact No. 27 stated that the record did not reflect that Superintendent Chester Stephens had contradicted the testimony of Michael J. Ryan that Board members Norma Licitra and

2/	Referring to Supplemental Finding of Fact No. 27.

Maurice J. Geiger were "wrong" having made direct statements to members of the Support Staff. Additionally, the Respondent contends that in Supplemental Finding of Fact No. 28, the Hearing Examiner failed to consider the entire testimony of Stephens in his rebuttal of the testimony of Ryan and Ann St. Ledger that Stephens made the "told to watch you" statement.

The Charging Party in its exceptions to H.E. No. 90-5 obviously agrees with the findings of independent violations of Section 5.4(a)(1) of the Act as set forth above, but then argues that on the basis of these "(a)(1)" violations a violation of Section 5.4(a)(3) of the Act should be found.

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Based upon the Exceptions filed by the parties to H.E. No. 90-5, and responding to the instant remand by the Commission, the Hearing Examiner makes the following:

ADDITIONAL SUPPLEMENTAL FINDINGS OF FACT3/

35.	Although not requested to do so on remand, the Hearing Examiner, responding to an exception of the Board that Supplemental Finding of Fact No. 26 violates the "residuum" rule in that it is based solely upon the testimony of Ryan without independent corroboration, the Hearing Examiner rescinds the prior finding that

3/	Necessarily, the findings of fact set forth in H.E. No. 89-18 and H.E. No. 90-5, supra, are incorporated by reference. For convenient reference, the Paragraph Nos. in these "Additional Supplemental Finding is" shall follow numerically the Paragraph Nos. in the Supplemental Findings of Fact set forth in H.E. No. 90-5.

Geiger stated to Support Staff member Betty Nagle, sometime prior to March 17, 1987, that "Your Union sold you out..." (1 Tr 81, 82), there being no independent competent evidence that this statement was made.

36.	In Supplemental Finding of Fact No. 27, the Hearing Examiner credited the testimony of Ryan that in March 1987, at a workshop, Ryan encountered Stephens during "a break" and raised the issue of Board members allegedly having made certain statements to Support Staff members (1 Tr 97-99). However, the Hearing Examiner failed to consider the testimony of Stephens, which contradicted Ryan as to this incident (11 Tr 105, 106). Upon a rereading of the testimony of Ryan and the rebutting testimony of Stephens, and after appraising again the respective demeanors of the two witnesses on this issue, the Hearing Examiner credits again the testimony of Ryan for the following reasons: Ryan has portrayed a detailed and credible scenario of the circumstances in which his conversation with Stephens occurred plus the fact that the conversation described by Ryan strikes this Hearing Examiner as completely plausible (1 Tr 98, 99); whereas the denial of Stephens that he said, "Yes, I know, that was wrong for them to do that. I don't know why they would have done that, etc." (1 Tr 98) is couched in terms of his inability to recall rather than specifically to deny that the quoted conversation by Ryan ever occurred (11 Tr 105). Further, although Stephens did make an emphatic denial as to whether Licitra and Geiger ever stated that the Union had failed to "act efficiently for

their membership" this was not responsive to the phrasing of the testimony of Ryan as to what Stephens said on that occasion (11 Tr 105). Further, Stephens' denial that he ever told Ryan that he had been "critical" of those two Board members is likewise not directly responsive to the testimony of Ryan that Stephens said that "...I know, that was wrong for them to do that. I don't know why they would have done that..." (1 Tr 98). Thus, the Hearing Examiner finds herein that the explicit testimony of Ryan as to what Stephens said at the workshop in March 1987 is credited while the less than responsive denials of Stephens are not credited.4/ The Hearing Examiner perceives nothing inconsistent in his having credited Ryan's testimony as to Stephens' statement that it was "wrong" for the two Board members, Licitra and Geiger, to have made statements to Support Staff members vis-a-vis Licitra's credited testimony, contradicting Ryan, that she had not told Melinda Marquis, a teacher's aide, that the Association was predominantly a teachers' union and that it did not care about Support Staff salary increases or working conditions [9 Tr 103-106; Finding of Fact No. 7m].5/

4/	Ryan does not appear to have been cross-examined as to his testimony on this issue although Stephens was cross-examined in general terms (13 Tr 84-86).

5/	The Commission, in its instant remand, requested the Hearing Examiner to reexamine his finding regarding the testimony of Ryan, Stephens and "Licitra's conflicting testimony..." The Hearing Examiner finds no conflict in the testimony of Licitra, he having originally credited her testimony, supra,

Footnote Continued on Next Page

Therefore, the Hearing Examiner reconfirms his earlier findings in Supplemental Finding of Fact No. 27 as clarified herein.

37.	Regarding the "watch you" testimony of Ryan, St. Ledger and Stephens, the Hearing Examiner, has, in response to the remand, reexamined the testimony set forth in Supplemental Finding of Fact No. 28 and his conclusion that Stephens' testimony failed to rebut the explicit testimony of Ryan and St. Ledger. The Respondent's Exceptions and the remand indicate to the Hearing Examiner that he omitted to consider the "explicit denial" of Stephens regarding the "watch you" statement when he testified that he "never said that" and "That is a crying lie..." (11 Tr 161). The Hearing Examiner finds as a fact that Stephens' "...crying lie..." response to Ryan's explicit testimony that Stephens said, "I have been told to watch you by the Board of Education, I have to watch you..." (3 Tr 59), corroborated by St. Ledger (4 Tr 111), adds nothing more than an emotional dimension to the equation of Stephens' denial and does not constitute a credibly sufficient denial of the more plausible testimony of Ryan and St. Ledger. Accordingly, based upon the respective demeanors of Ryan, St. Ledger and Stephens on this issue, the Hearing Examiner restates his

5/	Footnote Continued From Previous Page

with respect to what she told Marquis, coupled with the fact that when Marquis asked Licitra for assistance regarding placement on the salary guide, Licitra advised her to see first her Building Principal and then, if necessary, to contact Ryan [see Finding of Fact No. 7m, supra].

earlier finding that Stephens did not credibly rebut the testimony of Ryan and St. Ledger on the "watch you" issue and, therefore, Supplemental Finding of Fact No. 28 is reconfirmed.

38.	The Hearing Examiner clarifies sua sponte the import of his earlier Supplemental Finding of Fact No. 29 with respect to Louis J. Palazzi, Jr., in that any conclusion of law recommending that the Respondent Board independently violated Section 5.4(a)(1) of the Act as to Palazzi must fall and is rescinded since the facts as found as to Palazzi are time-barred under Section 5.4(c) of the Act, the events having occurred more than six months prior to the filing of the original Unfair Practice Charge herein. However, the testimony of Palazzi with respect to Jeffrey Swanson may be considered as "background" under Local Lodge No. 1424, IAM v. NLRB (Bryan Mfg. Co.), 362 U.S. 411, 45 LRRM 3212 (1960) and, therefore, Supplemental Finding of Fact No. 30 is reconfirmed together with the background facts as found in Supplemental Finding of Fact No. 29.

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ADDITIONAL SUPPLEMENTAL DISCUSSION AND ANALYSIS

The Respondent Did Not Violate Section 5.4(a)(3)

Of The Act Upon The Record On Second Remand.

Nothing in the above Additional Supplemental Findings of Fact has changed this Hearing Examiner's conclusion that the Respondent did not violate Section 5.4(a)(3) of the Act under the Bridgewater analysis when the Board voted 8-0 on May 18, 1987 to transfer Ryan from the High School to the Upper L. This reaffirmation is based upon prior discussion (see H.E. No. 90-5, pp. 10, 11) with the caveat that:

1.	The Hearing Examiner has herein rescinded Supplemental Finding of Fact No. 26 so that there is not in this case at present the prior finding (Supplemental Finding of Fact No. 26), i.e., the testimony of Ryan that Board member Geiger told Support Staff member Nagle that "Your Union sold you out..." and, thus, at this juncture, Geiger's vote on May 18th was not tainted.

2.	Stephens' "watch you" statement was never placed in a viable context from which a reasonable inference could be drawn that the Board's vote of 8-0 on May 18, 1987 to transfer Ryan was tainted by Stephens' revelation of May 20th, two days after the date to transfer.

The Respondent Independently Violated Section

5.4(a)(1) Of The Act Upon The Record On Second Remand.

A public employer independently violates §5.4(a) of the Act if its action tends to interfere with an employee's statutory rights and lacks a legitimate and substantial business justification: Jackson Tp., P.E.R.C. No. 88-124, 14 NJPER 405 (¶19160 1988), adopting H.E. No. 88-49, 14 NJPER 293, 303 (¶19109 1988); UMDNJ--Rutgers Medical School, P.E.R.C. No. 87-87, 13 NJPER 115 (¶18050 1987); Mine Hill Tp., P.E.R.C. No. 86-145, 12 NJPER 526

(¶17197 1986); N.J. Sports and Exposition Auth., P.E.R.C. No. 80-73, 5 NJPER 550 (¶10285 1979); Gorman, Basic Text on Labor Law, at 132-34 (1976). Also, the Charging Party need not prove an illegal motive in order to establish this independent violation of §5.4(a)(1) of the Act: Morris, The Developing Labor Law, at 75-78 (2d ed. 1983).

It is clear to the Hearing Examiner upon the instant remand that the Respondent has still independently violated Subsection (a)(1) of the Act by the conduct of its agents in several instances. For example, the Hearing Examiner finds and concludes that the acknowledgment by Stephens to Ryan, at a workshop in March 1987, that Licitra and Geiger were "wrong" in having made statements to Support Staff directly imputes the illegal conduct of Licitra and Geiger to the Board as its agents. [See Additional Supplemental Finding of Fact No. 36, supra.]

Further, the Hearing Examiner finds and concludes that the Respondent independently violated Section 5.4(a)(1) of the Act when Stephens stated to Ryan, on May 20, 1987, that he had been told by the Board to "watch you." The findings of fact in this regard are fully set forth in Supplemental Finding of Fact No. 28 and Additional Supplemental Finding of Fact No. 37, supra, and need not be repeated herein.

The Hearing Examiner finally finds and again concludes sua sponte that Stephens violated the Act as an agent of the Board by his statement to Swanson, supported by Palazzi,6/ that Swanson had a "big mouth" and was "too outspoken for the Union..." Stephens specifically attributed these characterizations of Swanson to "...a lot of people on the Board..."

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6/	See Bryan Mfg. Co., supra.

Based upon the entire record on the second remand in this proceeding and the Additional Supplemental Findings of Fact made above, and all prior consistent Findings of Fact, the Hearing Examiner now makes the following:

ADDITIONAL SUPPLEMENTAL CONCLUSIONS OF LAW

1.	The Respondent Board did not violate N.J.S.A. 34:13A-5.4(a)(3), nor derivatively, N.J.S.A. 34:13A-5.4(a)(1), when it involuntarily transferred Michael J. Ryan from the High School to the Upper Elementary School on May 18, 1987, notwithstanding that Ryan, as the Association President, had engaged in extensive protected activities and had a confrontational relationship with the Superintendent, Chester Stephens.

2.	The Respondent did, however, independently violate N.J.S.A. 34:13A-5.4(a)(1) by certain conduct of its agents and representatives; i.e.: (a) Stephens in March 1987 acknowledged that Board members Licitra and Geiger were "wrong" in having made statements to Support Staff members; (b) Stephens' "watch you" statement on May 20, 1987; and (c) Stephens' statement to Swanson in January 1987 that a lot of people on the Board thought that Swanson had a "big mouth" and was "too outspoken for the Union."

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 directing that the Superintendent refrain from stating to Michael J. Ryan that he had been told to "watch" him on and after May 20, 1987; and, further, by directing that the Superintendent refrain from making statements to Jeffrey Swanson to the effect that he had a "big mouth" and was "too outspoken for the Union..."

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

1.	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 by it 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.

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

C.	That the allegations that the Respondent violated N.J.S.A. 34:13A-5.4(a)(3) be dismissed in their entirety.

Alan R. Howe

Hearing Examiner

DATED: November 9, 1989

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 directing that the Superintendent refrain from stating to Michael J. Ryan that he had been told to "watch" him on and after May 20, 1987; and, further, by directing that the Superintendent refrain from making statements to Jeffrey Swanson to the effect that he had a "big mouth" and was "too outspoken for the Union..."