H.E. NO. 82-57

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

LOGAN TOWNSHIP BOARD OF EDUCATION,

Respondent,

-and-	Docket No. CI-81-21-51

SANDRA C. WALDMAN,

Charging Party.

Appearances:

For the Respondent, Raymond J. Zane, Esq.

For the Charging Party, Selikoff & Cohen, P.A.

(Steven R. Cohen, Esq.)

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

On October 29, 1980, Sandra Waldman (Charging Party) filed an Unfair Practice Charge as an individual against the Logan Township Board of Education alleging unfair practices within the meaning of the New Jersey Employer-Employee Relations Act, as amended, N.J.S.A. 34:13A-1 et seq. (the Act). It was specifically alleged that the Logan Township Board of Education (Board or Respondent) refused to grant Waldman an employment contract for the 1980-1981 school year because she engaged in protected activity on behalf of the Logan Township Teachers' Association which is violative of § 5.4(a)(1) and (3) of the Act.1/

It appearing that the allegations of the charge if true may constitute an unfair practice within the meaning of the Act, a Complaint and Notice of Hearing was issued on November 5, 1980, and hearings were conducted on February 4, February 5 and April 29, 1981. Both parties were given an opportunity to present evidence, examine and cross-examine witnesses, argue orally and present briefs.2/

Sandra Waldman was first employed by the Logan Township Board of Education in December, 1977 as a science and reading teacher for the sixth, seventh and eighth grades at the Logan Township School. When she was hired there was just one school in the district. Subsequently a second school opened in the district.

The Logan Township Education Association was the exclusive majority representative for teachers in the district. In May of 1978 Waldman was elected vice-president of the Association for the following school year. Waldman never participated in negotiations and maintained a low profile in the Association during the 1978-1979 year. Waldman was very active and visible in the Association in the following school year, that is 1979-
1980.

In April of 1980 Waldman was notified that her contract would not be renewed for the coming year.

She asked for, and received, a statement of reasons for her non-renewal. The statement listed the following reasons:

1.	Inconsistent classroom performance, in particular displaying partiality to students of superior ability.

2.	Marginal questioning and discussion skills especially in the use of non-related and graphic dialogue.

3.	Inability to use discretionary behavior in regard to students, colleagues and administration.

4.	Failure to provide and maintain an instructional program commensurate with experience and class size.

Waldman maintains that the stated reasons were pretextual and the real reason for her discharge was her activity on behalf of the Association.

She points out that her evaluations have always been positive and she received no advance warning that she might not receive a contract for the coming year.

In Waldman's first year she was evaluated three times by the then principal and chief school administrator, Edward Meglis. The three teacher evaluations show clear growth during the year. The first evaluation on December 12, 1977, shows that Waldman was unsure of herself, hesitant and seemingly not fully prepared to present her lesson. The next two evaluations, on January 12, 1978 and again on March 13, 1978, were positive. They reflect better organization and increased competence. The third evaluation, particularly, was very positive in nature.

In the following academic year Meglis left the district. In or around December 1978 the Board hired Thomas Griggs as principal and Andrew Donnelly as Superintendent of Schools.

Waldman was observed only once during the 1978-1979 school year. That evaluation was performed by Griggs in April of 1979. This evaluation was done on a form that list 22 areas of teacher performance. Each area is rated on a scale of 1 to 5: 1) excellent, 2) strong, 3) satisfactory, 4) needs improvement, 5) unsatisfactory. Griggs testified that he did not use a rating of 1) excellent. Waldman received a rating of 2) in four areas: "Demonstrates careful planning both short and long term; Motivates students by generating interest and enthusiasm among them; Demonstrates ability to establish and maintain rapport with students; and Keeps parents informed in regard to the student in his class." In all other areas Waldman received 3's (satisfactory).3/

In Waldman's final school year, 1979-1980, she was evaluated three times.

These evaluations are on forms quite different from the form used in the April 1979 evaluation. They allow for extensive comment by the evaluator and have only two entries which are designed for the evaluator to check. One is an overall evaluation of whether the lesson was satisfactory or unsatisfactory. In the other entry the evaluator can check off any of four major areas of concern: Personal Characteristics, Classroom Management, Teaching Effectiveness and Achieved Results. On all three evaluation forms Waldman was evaluated as satisfactory and none of the listed major areas of concern were checked off.

The first evaluation, dated December 14, 1979, was extremely positive in tone. Under evaluator's summary Griggs wrote a summary of her lesson that he observed. This description concludes with "Her manner of presentation was relaxed, friendly and deliberate, initiating a similar response in the students. A good rapport was established with a positive exchange of dialogue," and under Teacher Observation Summary and Conference

Comments,

You promote a positive exchange of dialogue. Your presentation style demonstrated a sophisticated ability to establish and maintain a good rapport with the student.

Student orientation to classroom routine appears well established. Congratulations on a fine job.

The second evaluation occurred on February 20, 1980. The tone of the description of the observed lesson under "Evaluation Summary" was completely neutral in tone except that a reading group's discussion was written up as a "light discussion." A bulletin board was characterized as also "attractive." Under Teacher Observation Summary and Conference Comments Griggs wrote:

It is quite apparent that you have established an excellent rapport with your high level students. Be aware of the other students' sensitivities and possible interpretation of partiality. The lesson for this group flowed smoothly, however, caution must be observed in opening discussion areas with comments such as "Godzilla in drag." The football player image served as an excellent example and may have been sufficient in itself with this group.4/ Your concern for student comfort is commendable and appreciated. Standing on the heating unit and taping the shades is not an advisable solution to that problem. As indicated previously, student orientation to classroom routine appears well established. Taking advantage of the incidental learning situation concerning pressure systems...was commendable. The bulletin boards continue to be attractive and the language arts signs above the blackboard are an interesting and functional addition.

The third observation was on March 18, 1980. The "Evaluatory Summary" of the lesson observed in this evaluation was completely neutral in tone.

Griggs' Teacher Observation Summary and Conference Comments is positive in tone.

Your use of the conjugation chart served a beneficial purpose in terms of this lesson and should have significant residual effects. It was evident that individual attention was focused on Brian's expressed confusion (once at the blackboard and at his desk). Please be careful that student responses are accurate. In Jon's efforts at the blackboard he used the third person plural (they) when third person singular (he, she, it) was required. Your discussion of regular and irregular verbs was good. Individualized assistance in regard to Ditto #76 was beneficial and certainly a positive byproduct of small class size.

Waldman became actively involved in the Association in only her final year of employment. On September 5, 1979, this activity began. Waldman and two other Association members, Kling, the Association president, and Marguerite Full, the Association secretary, met with Griggs to discuss three issues: a new requirement that teachers maintain registers, the Respondent's failure to provide proper preparation periods in the new school year, the removal of a ditto machine from the teachers' room, the Board's failure to post vacancies in accordance with contract provisions and an increase in Kling's non-teaching duties.

Before the meeting Kling requested that Waldman act as a spokesperson both for the Association and himself. Fuller took no part in the discussion and confined herself to taking minutes of the discussion.

Initially, Griggs inquired as to whether Waldman, Fuller and Kling were coming to him with individual or Association problems and whether the Association members had taken a vote to determine whether these problems should be presented to Griggs. Waldman responded to the effect that these were Association matters and the Association was not required to take these steps prior to meeting with Griggs at the first step of the grievance procedure. Griggs became increasingly hostile and resentful. Griggs himself testified that he became annoyed with Waldman.5/ Griggs referred to the Association's concerns over "minutiae" and "bullshit" and that the Association "can grieve until ying-yang." Griggs refused to discuss Kling's problem with Waldman despite Kling's request that he be represented by Waldman and despite her notification to Griggs that she was acting as Kling's Association representative. As Griggs testified, "I got upset with Mrs. Waldman because there are two incidents in there that I felt were not grievable and she's doing it to promote her own cause and own image as president...She's taken it upon herself to take things to [the] administration that other staff members knew nothing about or wanted to push. And they were not grievable...items. Not having a Xerox machine...and Mr. Kling's schedule [were] not in violation of the contract. They're not grievable items so how can she come to represent the Association on those items. That is why I was upset...."6/

Shortly after the meeting, Waldman and Fuller entered the school parking lot when they were approached by the School Superintendent Donnelly. Donnelly requested that they meet with him in his office. When they met, Donnelly stated he wasn't running a factory and made reference to how the Association was behaving like an industrial union. Donnelly did not specifically recall their conversation but he did not deny it took place. I find the testimony of Fuller is entirely credible. Fuller noted that Donnelly was upset because of the "philosophical split" concerning the function of the Association.

On the following day, September 6, Donnelly held a meeting with the executive committee of the Association which included Miriam Daly, the treasurer, as well as Waldman, Kling and Fuller.

Again, Donnelly had no specific recollection of the meeting but Fuller's notes taken at the meeting give a balanced view of this meeting and I so credit her testimony.

At the meeting Donnelly stated he wanted to find common ground so they could work together. Donnelly then mentioned that a per diem supplementary teacher, Kay Aspell, had resigned. Donnelly related how Aspell told him she was being forced to file a grievance by the Association but she believed she had nothing to file about, but someone from the NJEA said her position was illegal and Aspell was very upset. Donnelly then said, "This is undermining the staff." Waldman denied this and said she believed Aspell was upset about her assigned duties.7/

After some further conversation about informally resolving complaints, Donnelly stated that "if you get no help from Griggs then come here. I think yesterday anyone would get his back up when three Association members come in. If each matter were seen individually it would be better." Donnelly also later suggested that individuals go in to see Griggs alone to discuss matters. Fuller testified that Donnelly was upset at this meeting over the clash in "philosophies" as to the proper role of the Association. Donnelly did not believe the Association was really a union, it was a teachers association.

Donnelly and the executive committee agreed to meet on a regular basis to discuss various problems. The first of these meetings occurred on October 6. Griggs joined Donahue in meeting with the Association executive committee.

Waldman brought up two issues that were still unresolved, the ditto machine and the preparation of registers. She also brought up a new issue. Jobs were created over the summer that were not posted. Waldman claimed this was a violation of the contract.

Waldman asked Donnelly if they were going into the first step of the grievance procedure, that is, an informal hearing. Griggs asked if the Association representative had its members vote on whether to grieve these matters. Waldman replied that Griggs had no right to question her about the Association. Griggs said he would continue to ask questions. Waldman replied that she might file an unfair practice charge over this issue. Griggs responded that he would continue to ask any question that he wanted.

Subsequently the relationship between the parties deteriorated. As admitted in the Respondent's brief, "Relations between Petitioner and Respondent began deteriorating subsequent to [the] meeting which was held on September 5, 1979 between Petitioner, several faculty members and Principal Griggs. Relations between Petitioner and Respondent, as well as other faculty members, became increasingly strained that year."

Margaret Mosser testified on behalf of the Association. She served as the Superintendent's secretary from July '79 to June '80. Mosser related how, on the first day of school, apparently September 5, Griggs called Donnelly's office. Donnelly was on another call so Griggs asked Mosser to "tell Donnelly, when he gets off the phone, that I have a problem with Mrs. Waldman, he'd like to see him over in his office."

When Mosser relayed the message to Donnelly he called Waldman a witch and said, "the beginning of the school year and they already have caused trouble."

Also in September or October, after a meeting with the Association, Donnelly came into the office and appeared very upset. He said that Waldman was a vicious troublemaker, that she was trying to run a little school association like it was a big corporation union.

Further when Donnelly became annoyed with Waldman, "he would call her a troublemaker or the blond witch, never anything friendly. He always seemed very upset with Mrs. Waldman all the time." Donnelly always checked to see what time Waldman arrived or left school. Mosser also observed Donnelly going out of his way to apparently avoid speaking to Waldman on several occasions.

Mosser also had a conversation with Griggs around Christmas. Griggs replied that, "if Sandy (Waldman) kept her mouth shut and didn't make so many waves at school, she'd be okay."

The Board's witnesses deny that the decision not to renew Waldman was based upon her exercising of protected rights. Donahue testified that it was Griggs who conducted Waldman's evaluations and he and the Board both relied on Griggs' opinion when it was recommended that Waldman not be renewed.

Griggs' testimony as to the reasons for the discharge were less than convincing. At one point he testified that Waldman's discharge was not based upon the evaluations but he also stated that Waldman's performance during her evaluations was poor. When asked why the evaluations did not reflect this, Griggs responded that employees respond better to positive criticism. Griggs testified that in the conferences which followed the evaluations he would review her weak areas. When pressed as to why there was no significant criticism on the evaluation, Griggs stated in effect that Mrs. Waldman would bridle at any negative criticism and the only way to direct her was through praise. Griggs admitted that he never told Waldman that she was in danger of losing her position.

I cannot accept Griggs' testimony on face value. It is not credible that Griggs would be willing to criticize Waldman to her face in a conference but not in a written evaluation. Further, once Griggs saw that she did not respond to positive reinforcement through good evaluations he never attempted to motivate through negative evaluations. There was nothing in the record to support the allegations in the Statement of Reasons as to Waldman's poor teaching ability.

I am satisfied that Griggs' motivation to recommend that the Board not renew Waldman was not based on her lack of teaching ability.

Griggs also testified that he felt that Waldman favored the brightest children in her class and belittled the less talented children. As an example he cited there was one child, T.N., who was sent to the principal's office by Waldman for disciplinary reasons. When Griggs talked to T.N. he accused Waldman of calling him "Dirt Farmer Joe and beaver-teeth." T.N. lived on a farm and had to do farm chores in the morning before school.

Waldman claimed that on a rainy day a number of boys came into her room with muddy feet. She asked all of them if they were dirt farmer Joes. She denied she called T.N. beaver teeth. T.N. was offered an opportunity to follow up on these charges by asking other children to verify his allegations but he had never done so.

Two parents did testify at the hearing concerning their belief that Mrs. Waldman was a poor teacher.

One of the parents had a daughter who was not a good student. Her daughter was upset with Mrs. Waldman. But the child was involved in several incidents. She was searched for cigarettes by Waldman. Waldman told the parent that some boys called her a name with obscene references, and it is not possible to accept this parent's testimony at face value.

The other parent had a child who had a problem with Mrs. Waldman. The child liked her but the child was annoyed with Waldman because of an incident which occurred after Waldman received notice that Griggs would recommend that she not be renewed. This second parent was inconsistent and unresponsive to the questioning on both direct and cross-examination. One could never be sure she understood the questions put to her. Very little weight can be given to her testimony.

There was testimony from Griggs and other teachers about Waldman's personality, that it was overbearing.

Waldman did admit that in an argument with Griggs she stated, "You're so full of shit your eyes are brown." This statement came after Griggs had used similar language in conversations with Waldman, see above. Also Griggs once told the Association officers that "if anything bothers you come to me and say, Tom, this sucks."

There were a number of teachers who testified at the hearing about Waldman. There was a split in the faculty that followed two parallel lines. There were the teachers of the early grades and the teachers of the upper grades, including Waldman. The teachers in the upper grades also held the leadership positions in the Association.

Vivian Schoeder, a kindergarten teacher who was a witness for the Board testified:

A.	Well, we had a very peaceful school there initially. Things went rather well between the Board and staff members. And when emergencies came up where we maybe had to cover an early class or something, we just did it and there was never any hassle over it.

Well, then when Sandy came she made people aware that this was a breach of contract and she was very knowledgeable about the contract and things and we were stupid. We really were not knowledgeable. So we were many times aware that we had things to be disgruntled over, just figured it was part of the job. That's what caused the problems.

Waldman & Griggs had a run-in in front of the full faculty concerning the reading program. The disagreement culminated with Mrs. Waldman pointedly asked Griggs to come into her room and teach a lesson. A publisher's representative was present at the meeting and a number of teachers, but not all, had felt that Waldman's actions were unprofessional.

There also was an incident that was not part of the record, yet, seemed to affect the relationship of Griggs and Waldman, but to what extent cannot be determined. Griggs suspended Waldman for three days, but the Board of Education reversed the suspension and further expunged all references to this incident from her record.

On balance, it is apparent that Waldman is an aggressive, outspoken individual who may have, on occasion, exceeded the bounds of professionalism. However the actions involved have to be seen in light of a very poor relationship with Griggs and Donnelly, the root cause of which is activity protected by the Act. The protections of the Act are not necessarily lost by the use of profanity. Rather, that profanity has to be viewed within the totality of the parties' conduct. See City of Hackensack, P.E.R.C. No. 78-30, 4 NJPER 21 (¶4011 1977).

The Commission has adopted the National Labor Relations Board test for determining unlawful motivation in A-3 cases enunciated in Wright Line, 251 NLRB No. 150, 105 LRRM 1169 (1980).

The charging party must first make a prima facie showing sufficient to support the inference that the protected conduct was a "motivating factor" in the employer's decision. Once this is established the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of protected conduct.

See, In the Matter of Madison Borough, P.E.R.C. No. 82-46, 8 NJPER ___ (1981); In re Borough of Stone Harbor, P.E.R.C. No. 82-
96, 8 NJPER ___ (1982); In re East Orange Public Library and Constance Taliaferro, 180 N.J. Super. 155, 163 (1981).

In the instant case the Board did demonstrate that Waldman has shortcomings but it did not demonstrate that Waldman would have been non-renewed in the absence of her protected activities. And I recommend that the Commission find that the Logan Township Board of Education did violate §5.4(a)(1) and (3) when it failed to renew Sandra Logan's employment contract.

Therefore, by way of remedy, I hereby recommend that the Commission order that Waldman be offered reinstatement as a teacher. However this reinstatement should not grant tenure to Waldman. Her final year as a non-tenured teacher should be repeated so that her teaching performance should be reevaluated by the Board free of the taint of unlawful motivation.8/ See Danvers School Comm. v. Tyman, 94 LRRM 3182 (Mass., 1977); Dennis Yarmouth Sch. Comm. v. Teachers, 94 LRRM 3187 (Mass., 1977); W. Bridgewater School Comm. v. Teachers, 94 LRRM 3189 (Mass., 1977); Bd. of Ed., Bellmore Merrick Central High School District v. Bellmore Merrick Teachers, 39 N.Y. 2d 167, 92 LRRM 2244 (1976); Bd. of Ed. of Chautaugua Central School District v. Chautaugua Central School Teachers, 41 A.D. 2d 47 (1973).

It is further ordered that Waldman receive back pay from the time of her severance from the Logan Township Board of Education to the time of the Board's offer of reinstatement, less any monies she earned during that same time period.

It is further ordered that the Logan Township Board of Education post at all places where notices to employees are customarily posted, copies of the notice marked Appendix "A." Copies of such notice, on forms to be provided by the Commission, shall be posted immediately upon the receipt thereof, and, after being signed by the Respondent's authorized representative, shall be maintained by it for a period of sixty (60) consecutive days. Reasonable steps shall be taken by the Respondent to ensure that such notices are not altered, defaced or covered by other material.

It is further ordered that the Respondent notify the Chairman of the Commission within twenty (20) days of receipt what steps it has taken to comply herewith.

/s/Edmund G. Gerber

Hearing Examiner

DATED:	June 8, 1982

Trenton, New Jersey

WE WILL NOT discriminate against Sandra Waldman for her exercising protected rights.

WE WILL offer her reinstatement as a teacher in the Logan Township School District. This reinstatement will not grant tenure to Sandra Waldman.

WE WILL reevaluate her teaching performance free of any unlawful motivations.

WE WILL further grant Waldman back pay from the time of her severance less any monies she had earned during that same time period.