H.E. NO. 79-33

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

BOROUGH OF PINE HILL BOARD OF EDUCATION,

Respondent/Charging Party,

-and-	Docket Nos. CO-76-286-31

& CE-77-10-44

PINE HILL EDUCATION ASSOCIATION,

Charging Party/Respondent.

Appearances:

For the Respondent, Ronald N. Manos, Esq.

For the Charging Party, Joel S. Selikoff, Esq.

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

The Pine Hill Education Association (Association) filed an Unfair Practice Charge with the Public Employment Relations Commission (Commission) on April 28, 1976, claiming that Joseph Barnes, a teacher in the employ of the Board of Education of the Borough of Pine Hill (Board) was interfered with in the exercise of the rights guaranteed under the New Jersey [Public] Employer-
Employee Relations Act (Act) by being accused of promoting "factionalism" within the school system by School Superintendent Anthony Sorce and that the Board declined to renew Barnes' contract because Barnes engaged in protected activities. On June 29, 1976, the Association amended its charge claiming that on June 22nd Sorce gave a speech which interfered with, restrained or coerced Association members. On October 12, 1976, the Board filed a counter charge with the Commission claiming that the Association committed an unfair practice when it filed a charge with the Commission rather than following the grievance procedure as stated in the contract between the parties and that the Association attempted to coerce and force faculty members into retracting and repudiating their statement concerning Joseph Barnes.1/

The Director of Unfair Practices determined that these allegations if true might constitute an unfair practice and accordingly issued a Complaint and Notice of Hearing and an order consolidating these matters on October 15, 1976. Hearings were held in Trenton, New Jersey, before the undersigned on April 1, 1977, May 5, 1977, October 3, 1977, December 15, 1977, June 6, 1978, June 7, 1978,2/ and June 29, 1978.

Both parties were given ample opportunity to present evidence, examine and cross-examine witnesses, argue orally and present briefs. Both parties submitted briefs which were received by December 1, 1978.3/

Joseph Barnes was a teacher in the Pine Hill School District for the 1974-1975 and 1975-1976 school years. At the end of his second year he was notified by the Board that he would not be renewed for the following year. The Association brought this action claiming that Barnes was coerced in his activities on behalf of the Association and that Barnes' non-renewal was motivated by an intent to discourage Association activity.

Barnes' ability as a reacher was never seriously in question and until April of 1976, he received favorable evaluations.

In Barnes' first year he was on a friendly basis with the school principal, Charles Ivory, and, on occasion, they would see each other socially.

But Barnes had troubles with his fellow teachers in both of his years at the school. Barnes was one of two sixth grade teachers in the John Glenn School and during the two years he taught at the school there were two different teachers who taught the other sixth grade class. Both teachers complained to the administration about Barnes' overbearing, caustic personality. There was a third sixth grade or cooperating teacher who was only in the school for one month who will also be discussed below.

Margaret Joseph was Barnes' cooperating teacher in 1974-
1975. Joseph testified that Barnes was constantly teasing her and at times was overbearing. Many times Barnes had her in tears. She discussed her problem with Ivory and on several occasions Ivory sat down with both of them to try to work out their problems.4/ In November or December of 1974 Joseph had a confrontation with Barnes and thereafter the two of them worked well.

In September of 1975 Barnes worked with Ms. St. Maur. St. Maur taught for about one month and then resigned. Her resignation was unrelated to her relationship with Barnes. But when she left the school district the Superintendent of the School District, Sorce, talked with her and she mentioned that she felt that she did not get enough support from Barnes.5/

Cynthia Frazier replaced St. Maur for the 1975-1976 year. Frazier testified that she had a different teaching philosophy from Barnes' and she felt that Barnes did not like her. She claimed that he ridiculed her and made snide remarks about her in front of other students and teachers.6/ Frazier first mentioned her difficulties with Barnes to Ivory in March of 1976 after Barnes lectured her in the teachers lunch room on her lack of control in her classroom. Ivory told Frazier that he would speak to Barnes especially since it was interfering with her teaching. Ivory met with Barnes and told him his behavior had been uncalled for and Ivory followed up on this situation several times.

There was also testimony that Barnes had problems with the following teachers: Carol Adelson in the spring of 1974,7/ Ms. Aldrich,8/ Irene Donahue, Rich Williams, Nancy Moore and Daphne Sestzinger.9/10/

The Board claims that it was because of Barnes' inability to work with his fellow teachers and his overbearing attitude that he was non-renewed. School Superintendent Anthony Sorce said he wanted to let Barnes go at the end of his first year but Ivory, who gave Barnes his good evaluations, convinced him to recommend the renewal of Barnes' contract. Ivory testified that since Joseph first complained to him about Barnes he would talk to Barnes about his personality problem in dealing with other teachers and they had an agreement whereby if a problem came to Ivory's attention, he would call Barnes in and discuss the problem with him. It was not until Frazier complained about Barnes in March of 1976 that he felt he would have to recommend that Barnes not be renewed.

The Association's position is that Barnes' non-renewal was motivated at least in part by Barnes' aggressiveness on behalf of the Association.

Barnes became a member of the Association as soon as he joined the school district and was an active member in the Association although he was not an officer. For the two years Barnes was a teacher he served on the B.A.T.H. Committee, an informal committee made up of members of the Board of Education, teachers, and members of the Home School (the equivalent of the P.T.A.). In 1975 he was appointed by the Association as a member-at-large, which automatically made him a member of the executive committee. He ran for the office of building representative for 1975-1976 but was defeated.

There were two incidents, one in March of 1975, and the other in November of 1975 which Barnes was involved in that the Association claims were the reasons for Barnes' non-renewal.

The Association Executive Committee at this time was composed of 12 teachers, ten from the Bean School and two from the Glenn School. Prior to the Association election in March 1975 Barnes testified that he tried to get the teachers at the Glenn School more involved in the Association and to get them to run for various positions within the Association.

Ivory called Barnes into his office around this time and told him that he heard a rumor that Barnes was trying to split the schools and wanted to talk to him about it. Clarke, the current president of the Association, testified that the then president of the Association, Cynthia Gilford, called School Superintendent Sorce to say that Barnes was trying to split the schools and Sorce should do something about it.) The next morning Barnes, along with two other teachers, told Ivory that it was not his intent to split the schools, rather, he wanted to promote good natured competition. Sorce also met with Barnes about this incident. Sorce said he was getting "bad vibes" and wondered if he was unhappy within the district. Sorce also said that he had heard Barnes was trying to split the schools by putting one up against the other.11/ Sorce told Barnes that what transpired at their meeting was just between the two of them, and at the time Barnes believed Sorce.

Sorce testified that he believed Barnes when he said it was not his intention to split the schools and he didn't see anything wrong with Barnes trying to motivate the teachers at Glenn. Sorce became very concerned, however, when several teachers said they felt the district was being split up because of Barnes' comments.12/

The other incident concerned a proposal of the B.A.T.H. committee that the school put on a play in the evening. At the November 19, 1975 Association meeting the B.A.T.H. proposal was discussed. Most of the teachers were against it although some said they would do it. The chief negotiator of the Association Jagielski, brought up the possibility of filing a grievance if the administration decided to put the play on. At the end of the meeting Barnes summarized the alternative courses of action open to the Association -- either go directly to the administration and explain that they were against the proposal or wait until the administration took action and then file a grievance. The Association voted to wait and see what the administration did.

Ivory testified that two teachers, Barbara Jones Huffman and Kristel Renzi, came to him the following morning and told him that they were concerned that a grievance might be filed and they mentioned Barnes' name.13/

Ivory called in Barnes and asked him about the meeting. Ivory claimed he did this in accordance with their agreement to apprise Barnes of problems he had in interacting with other teachers. Barnes became so upset he cried for he could not understand why people were always blaming him for something or twisting what he said. Ivory testified he told Barnes that it was none of his business what happened at the Association meeting but he wanted Barnes to know what people said about him. Barnes went to Ivory's house that night. Ivory claimed he told Barnes that his problem with other teachers could lead to his non-
renewal. Barnes claimed that Ivory took it as a personal affront that Barnes would support a grievance. Barnes became upset and this meeting ended his friendly relationship with Ivory.

The Association President Clarke invited Sorce to a meeting of the Association Executive Committee on December 9, 1975, and they discussed Barnes being called in by Ivory to discuss what happened at the Association meeting.14/ Clarke told Sorce that what Ivory did was wrong and unlawful, and she read N.J.S.A. 34:13A-5.3 to him.15/ Barnes, Clarke, and Jagielski, all testified that after a heated discussion Sorce said he would interfere with Association matters no matter what the law said. Sorce was banging his fists and yelling. Sorce testified that he said he would interfere only if the matter concerned the actual workings of the district. He would not interfere in Association business per se.

On April 8, 1976, Barnes received an evaluation from Ivory which stated Ivory recommended that he would not be renewed for the following year and on April 30 the Board followed Ivory's recommendations and sent Barnes a letter stating that he would not be renewed for the following year.

On April 28 the Association filed its original charge in this matter claiming that the Board's decision not to renew Barnes was motivated by anti-union animus and that Sorce interfered with Barnes by accusing him of promoting factionalism due to his activities at the December 9 meeting.

On June 22 at the final faculty meeting of the year Sorce addressed the entire faculty. He indicated that there were problems that year that had divided the staff, the teachers and the administration. He also made references back to the meeting of December 9. Sorce stated that an unfair practice charge was filed because he tried to stop a split in the schools and that "If you are unwilling to reverse the deterioration in this district, then you should leave."

Barnes, Clarke and Association member Karen Vitola testified that there was a fear within the Association that if matters were discussed it would get back to the administration. Clarke also said there was a general fear the administration would reprimand teachers for making statements at Association meetings. She also said this fear had existed since the 1973-1974 year.

Jagielski said the relationship between the Association and the Board had deteriorated over the last couple of years, but the precipiating factor was the filing of the unfair labor practice. Carney testified that 14-16 members (out of 46) resigned from the Association at the end of the 1975-1976 school year. Frazier, who no longer teaches in the district but is a member of her local education association, claimed that a lot of people dropped out of the Association because they were upset by the leadership and didn't feel they were being properly represented.16/

Joseph felt that Barnes' fear or belief that he had been terminated because of his Association activities was not realistic, for the administration had never interfered and she didn't think it would do so.

In the summer of 1976, 13 out of the 14 members of the Association Executive Committee were involuntarily transferred to another grade level; no one else was involuntarily transferred. Sorce said there was a need for the transfers, and the Board had a right to do it.17/ A written grievance concerning the transfers was filed on September 3, 1976. The grievance was settled at the Board level and additional language concerning transfers was put into the next contract.18/

ANALYSIS

The incident of March 1975 when Barnes was first accused of splitting the schools has to be discounted. The president of the Association complained to Sorce about Barnes and her complaints as expressed to Sorce had nothing to do with protected activities. Under the circumstances there was nothing improper in Sorce's trying to ascertain for himself what was happening.

The second incident, where Ivory questioned Barnes about discussing a grievance at an Association meeting, raises serious questions. However Ivory's version of what happened at the meeting is at odds with Barnes' and since Barnes and Ivory had an agreement whereby Ivory would let Barnes know when he heard complaints about him, if Ivory's version of the meeting was accurate then there would be nothing unlawful about the meeting.

Further, I find that, in general, Ivory was a credible witness. To this end his evaluations of Barnes bolsters his testimony for Ivory gave Barnes a positive evaluation on March 10, 1976, well after all Barnes' Association activity took place. This is in accord with Ivory's contention that he decided not to recommend that Barnes' contract be renewed only after Frazier complained to him about Barnes, which was about two weeks after the March 10 evaluation. After that, on April 8, two weeks after Barnes' run in with Frazier, Ivory wrote up the evaluation wherein he recommended that Barnes not be renewed because of Barnes' "inability to develop positive interpersonal relationships." I find the Association did not prove Barnes' version of the conversation with Ivory by a preponderance of the evidence.

Sorce was accused of 1) acting discriminatorily against Barnes in an attempt to discourage Association activity and 2) coercing and interfering with the Association and its members on December 9, 1975, and again on June 22, 1976. The collective testimony of the Association witnesses concerning the December 9 meeting was consistent and persuasive, particularly in light of the slight difference between the Association witnesses' and Sorce's version of what was said. Accordingly, I find that Sorce did say that he would interfere with Association activities. This statement constitutes an independent §5.4(a)(1) violation for it tended to interfere with the exercise of protected rights. Admittedly Sorce was invited to attend this meeting, he was responding to Association questions and the meeting was heated. Nevertheless, such a statement is, on its face, a threat to interfere with protected rights and would tend to restrain the exercise of said rights.

The other statement, the speech of June 22, was made two months after the Board had taken action against Barnes. Sorce stated in his speech that the staff had been divided and an unfair practice charge had been filed because he tried to stop a split in the schools. If teachers were unwilling to reverse the deterioration in the district then they should leave. This statement is ambiguous as it relates to what actions Sorce took to "stop a split in the schools." Does it refer to Sorce accusing Barnes to factionalism or Sorce recommending to the Board that Barnes be non-renewed because he engaged in protected activities? Although there is no overt threat or promise of future action in Sorce's statement, there is an anti-Association feeling to the speech. Specifically there is a shift in the meaning of "splitting the schools." Instead of the Glenn School versus the Bean School, the term signifies the aggressive militant element against the pro-administration conservative element of the Association. The speeches' anti-Association feeling, combined with the ambiguities as to whether or not Sorce discharged Barnes because of his Association activities creates an overall chilling effect that would tend to interfere with the exercise of protected rights and I find that Sorce did violate §5.4(a)(1) both on December 9, 1975, and June 22, 1976.19/

Both of these statements are evidentiary of anti-union animus, as was the mass transfer of Association members in the summer of 1976 (although the weight to be given to the June 22nd speech is troublesome in light of its ambiguity). But the existence of anti-union animus does not automatically prove the non-renewal was motivated by said animus. Neptune Water Meter Co. v. N.L.R.B., 551 F.2d 568, 94 LRRM 2413 (CA4, 1977). The testimony of animus must be weighed against all the other evidence in this case.

What is revealing in this regard is the testimony of Jagielski.

Jagielski has been the chief negotiator for the Association for seven years and has served as president and building representative in the Association. It was Jagielski not Barnes who suggested the possibility of filing the grievance concerning the production of a play in the evening at the Association meeting of November 22nd. But Jagielski testified that Sorce has never spoken to him or interfered in any way with his participation in the Association. Also, Jagielski testified that the relationship between the Association and the Board started to deteriorate only after the instant action was brought.

Also countervailing the evidence of animus is the relatively slight Association activities of Barnes, his significant interpersonal problems, his good evaluation received after his Association activity and the timing of the notification of non-
renewal.

On balance, the evidence that supports the Board's position that Barnes was non-renewed because of his personality problem is legitimate and substantial and was corroborated by the timing of events. To prevail the Association has to prove their case by a preponderance of the evidence and the evidence of Sorce's animus is not sufficient here to meet this burden.

Accordingly, I find that the Association has not proved by a preponderance of the evidence that one of the motivating factors in the non-renewal of Joseph Barnes was an intent to discourage the exercise of protected activity20/ and will recommend to the Commission that although they find the Board violated §5.4(a)(1), they dismiss the portion of the Complaint that alleges the Board violated §5.4(a)(3).

The Board Charges

The Board claimed that the Association and Barnes, by their failure to utilize the grievance procedure set forth in the 1975-
1976 agreement between the parties, pursuant to §5.3 of the Act, violated §5.4(b)(5) of the Act. The Commission has previously held in In re New Brunswick Board of Education, P.E.R.C. No. 78-
47, 4 NJPER 84 (¶4040 1978) that the language of 5.3 expressly refers to statutes other than the New Jersey [Public] Employer-
Employee Relations Act and filing a charge with the Commission rather than filing a grievance pursuant to a contract is not violative of the Act.

The Board's other allegation was the Association attempted to coerce and force faculty members into retracting and repudiating their statements concerning Barnes. No evidence was introduced to support this charge, except that Joseph testified that the Association contacted her and asked if she would speak to their attorney. In no sense does such activity constitute coercion and I will recommend that the complaints relating to the Board's charges be dismissed in their entirety.

For the reasons set forth above, it is hereby recommended to the Commission that they issue the following Order.

RECOMMENDED ORDER

1.	That Anthony Sorce, Superintendent of Schools, cease and desist from making speeches or other statements which tend to interfere with, restrain, or coerce employees of the Borough of Pine Hill School District in regard to the exercise of their rights guaranteed to them by this Act.

2.	Take the following affirmative actions:

a)	Post and attached notice.

3.	Dismiss those allegations which claim that the Board violated §5.4(a)(3) when it failed to renew Joseph Barnes and

dismiss those allegations of the Board claiming the Association violated §5.4(b)(1) and (5) in their entirety.

________________________

Edmund G. Gerber

Hearing Examiner

DATED:	Trenton, New Jersey

February 23, 1979