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H.E. No. 76-6

Synopsis:


PERC Citation:

H.E. No. 76-6, 2 NJPER 101 (1976)

Appellate History:



Additional:



Miscellaneous:



NJPER Index:

910.20 910.20463 910.20467 505.30 520.50 520.507 710.01

Issues:

    DecisionsWordPerfectPDF
    NJ PERC:.HE 76-006.wpdHE 76-006.pdf - HE 76-006.pdf
    Appellate Division:
    Supreme Court:


    H.E. NO. 76-6 1.
    H.E. NO. 76-6
    STATE OF NEW JERSEY
    BEFORE A HEARING EXAMINER OF THE
    PUBLIC EMPLOYMENT RELATIONS COMMISSION

    In the Matter of

    COLLEGE OF MEDICINE AND DENTISTRY,
    Respondent,

    -and- Docket No. CO-76-1-28

    COUNCIL OF CHAPTERS OF THE AMERICAN ASSOCIATION
    OF THE UNIVERSITY PROFESSORS AT THE COLLEGE OF
    MEDICINE AND DENTISTRY,

    Charging Party.


    HEARING EXAMINER = S RECOMMENDED REPORT
    AND DECISION
    On July 1, 1975, an Unfair Practice Charge was filed by the Council of Chapters of the American Association of University Professors at the College of Medicine and Dentistry (AAUP) against the College of Medicine and Dentistry of New Jersey (College) claiming the College violated N.J.S.A. 34;13A-5.4(a) 3, 4 and 5 and engaged in an unfair practice by discharging Dr. Morton Berenbaum1/ because he exercised his rights guaranteed under N.J.S.A. 34:13A-1 et seq. It appearing to the Executive Director, Jeffrey B. Tener, that the allegations of the charge, if true, might constitute an unfair labor practice, a complaint and notice of hearing was issued October 28, 1975. A hearing was held on this matter pursuant to said complaint on December 2, 1975, at 1100 Raymond Boulevard, Newark, New Jersey before Edmund G. Gerber, Hearing Examiner of the Public Employment Relations Commission.
    Both parties appeared at the hearing represented by counsel and were afforded full opportunity to be heard to examine and cross-examine witnesses and to introduce relevant evidence. Briefs were submitted by both parties to the Hearing Examiner on February 6 and February 9, 1976, respectively. Upon the entire record in the proceeding the Hearing Examiner finds:
    1. The New Jersey College and Dentistry is a public employer within the meaning of the New Jersey Employer-Employee Relations Act, as amended and is subject to its provisions.
    2. The Council of Chapters of the American Association of University Professors at the College of Medicine and Dentistry is an employee representative with the meaning of the New Jersey Employer-Employee Relations Act, as amended, and is subject to its provisions.
    3. As noted, an unfair practice charge having been filed with the Commission alleging that the New Jersey College of Medicine and Dentistry has engaged in unfair practices within the meaning of the New Jersey Employer-Employee Relations Act, as amended, a question concerning an alleged violation of the Act exists and this matter is appropriately before the Commission for determination.
    Discussion
    Dr. Berenbaum received a negative evaluation in a memo from his supervisor, the Chairman of the Department of Pedodontics, Dr. Houpt in April of 1975. Dr. Houpt then placed a similar, negative memo in Dr. Berenbaum = s file. Dr. Berenbaum submitted a grievance protesting these two memos and a day later, Dr. Berenbaum was notified by Dr. Houpt that he would not be recommended for renewal in the following year. A month later Dr. Berenbaum received a letter from the Dean of the College stating that his contract would not be renewed and his employment would be terminated on July 1, 1976.
    The AAUP claims that the college violated 34:13A-5.4(a)3, 4 and 5 of the Act2/ by refusing to renew Dr. Berenbaum = s contract. The unfair practice rests on two grounds, One, Dr. Berenbaum was discriminating against because he used the grievance process3/ and two, the non-renewal did not conform to the terms of the contract.4/ This alleged action constituted a unilateral change in the terms and conditions of employment and therefore, arguable, an unfair practice.
    I
    Dr. Berenbaum was first employed by the New Jersey Dental School of the New Jersey College of Medicine and Dentistry on July 15, 1972. His initial appointment at the school was to the position of Assistant Professor, Department of Pedodontics, the position which he held at the time of the hearing.
    In June of 1973, one year after he begun at the College and again in June of 1974, Dr. Houpt. the Chairman of the Department of Pedondontics recommended that Dr. Berenbaum receive an increment. Dr. Houpt = s testimony was that during this time however, he discussed with Dr. Berenbaum two problem areas, one being interpersonal relationships with both faculty and students and the other, a general lack of productivity.5/ In line with his concerns, Dr. Houpt sent a memo to Dr. Berenbaum on July 29, 1974 which delineated his responsibilities and directed him to develop a program for the treatment of handicapped patients as well as other tasks. He was also asked to submit a progress report to Dr. Houpt by November 1. Pursuant to this request Dr. Berenbaum submitted a memo to Dr. Houpt dated November 19, 1974. The two then met and discussed this memo as well as Dr. Berenbaum = s progress in general.
    Following this meeting Dr. Houpt sent a Progress Review Memorandum to Dr. Berenbaum dated November 25, 1974 in which Dr. Houpt stated in part:
    A I reiterate that although you are now very much busy with many activities throughout the school, I did not consider your activities to be sufficiently broad-based to enhance your curriculum vitae for future recommendation for promotion. I strongly urge that you become involved in scholarly pursuits as mentioned above. @
    On April 7, 1975, Dr. Houpt met with Dr. Berenbaum and discussed Dr. Berenbaum = s productivity. Following this meeting Dr. Houpt sent a memorandum to Dr. Berenbaum on April 14, which reviewed these discussions. Dr. Houpt expressed his disappointment and concern about Dr. Berenbaum = s performance in several areas including his failure to develop the handicapped teaching program as per the memorandum of July, 1974. On April 15, 1975, Dr. Houpt placed a memorandum in Dr. Berenbaum = s file reiterating his [critism] criticism of Dr. Berenbaum.
    Dr. Berenbaum then moved to file a grievance over both the notice to his file of April 15 and the personal memo of April 14. The contract provides that the first step of the grievance procedure consists of an oral complaint by the grievant directly to the Department Chairman. The parties met on May 1, 1975, at this time Dr. Houpt denied the grievance and Dr. Berenbaum stated tha he would submit a formal grievance. The next day Dr. Houpt met with Dr. Berenbaum again and asked him to withdraw the grievance. Dr. Houpt stated that if he would resign, he would remove the documents from his file, but he would not remove them in any other way, shape or form. When Dr. Berenbaum stated he would not resign, Dr. Houpt replied that > since (he) did not see any hope of our disagreement being solved or remedied, that (he) planned to submit by 6/30/75 a recommendation that Dr. Berenbaum = s contract not be renewed and his employment be terminated effective July 1, 1976.6/ Subsequently, on July 1, 1975, Dr. Berenbaum received a letter from Dr. Bennett, Dean of the New Jersey State Dental School. The letter stated in part that:
    A Your department chairman has recommended and I have concurred that your contract should not be renewed beyond June 30, 1976. The memorandum is the formal notice of non- renewal as required by the College wide By- Laws, Article V, Title B, Section 3C and Article VII, Title B, Section I. @

    It is the contention of the AAUP that the non-renewal of Dr. Berenbaum was precipated by the filing of this grievance. It is argued that if the employer in any way discouraged or discouraged against a public employee who filed a grievance that employer is in violation of Subsection 3 of N.J.S.A. 34:13A-5.4(a).7/ This is not entirely accurate. The AAUP = s argument treats discouragement and discrimination as if they were two separate entities. They are not. Discouragement, as used in Subsection 3, specifically refers to the end result of the discrimination. The unfair practice is encouraging or discouraging employees in the exercise of their rights by means of discrimination. Also the Act does not bar an employer from discriminating among his employees; again, it only bars discrimination for the purpose of discouraging employees in the exercise of their rights guaranteed by this Act. The employer = s purpose, therefore, determines whether an unfair labor practice has occurred when he discriminates among his employees. In the instant case there is no specific evidence of any anti-employee association (or anti- grievance procedure) animus. However, specific evidence of intent to encourage or discourage is not an indispensable element of proof of violation of Subsection 3. An employer = s naked protestation that he did not intend to encourage or discourage cannot serve as a defense where a natural consequence of his action was such encouragement or discouragement. Under such circumstances, a presumption is raised that the intent of such actions was to discourage employees in the exercising of their rights.8/
    Dr. Berenbaum claims that there was personal differences between himself and Dr. Houpt about work loads within the department, these disagreements occurred early in 1975 and arose during departmental meetings and, it is argued, because of them, Dr. Houpt developed an antagonism towards Dr. Bernbaum. Even if these claims were true this would have no bearing here, for the discrimination involved would not go to a protected activity.9/ In any event the facts do not bear out this allegation. In November of 1974 before these disagreements took place, Dr. Houpt had warned Dr. Berenbaum that unless he increased his scholarly output (as quoted above) A he would not be recommended for promotion. @ This clearly shows that Dr. Houpt was questioning Dr. Berenbaum = s future in the instituting prior to this incident.
    The AAUP = s case must rest entirely upon the timing of the notification to Dr. Berenbaum that he would not be renewed. Assuming that Dr. Houpt = s telling Dr. Berenbaum he would not be renewed the day after he initiated the grievance process raises a presumption of discriminatory action,10/ the college has overcome the presumption.
    Dr. Houpt testified that in March, 1975, he had a meeting with the Dean of the Dental School, Dr. Bennett, to discuss the non-renewal of Dr. Berenbaum and the contractual provisions for such action were discussed. Dr. Houpt told Dean Bennett that he planned not to recommend Dr. Berenbaum for renewal. It was decided at the meeting that Dr. Berenbaum would not receive notice of non-renewal until June 30, 1975, which they believed to be the last date that notice could be given under the contract. Dr. Bennett testified that Dr. Houpt = s mind was made up about Dr. Berenbaum. At the time, Dr. Bennett counseled Dr. Houpt, however, to take no immediate action for something could happen to change his mind. It is clear that nothing happened to change Dr. Houpt = s opinion of Dr. Berenbaum, otherwise, the memoranda, over which Dr. Berenbaum grieved, would not have been issued in the first place.
    As Dr. Houpt testified, once the grievance was filed and the matter was brought to a head, he changed his mind only, as to when Dr. Berenbaum should be notified of his intention to recommend non-renewal. In light of the evidence before me concerning Dr. Berenbaum = s overall performance, I find this testimony to be credible.
    I therefore, find that Dr. Berenbaum was not discriminated against, within the meaning of the Act, for filing a grievance.
    II
    The second issue is whether the college violated the contract and thereby, committed an unfair practice by unilaterally changing the terms and conditions of employment. 11/ During the period in question the parties were governed by a collective negotiation contract, the effective dates of which were June 3, 1973 to June 30, 1975. The contract provided for the ratification of by-laws subsequent to the signing of the agreement. The by-laws were ratified on December 14, 1973.
    Title B, Article V of the by-laws provides that an Assistant Professor may be appointed for an initial term of four years. Article VII Title B provides that the term of appointments may not be extended. The service of members of the academic staff having term appointments shall cease automatically at the end of the specified term and such automatic cessation shall not be considered termination for cause. However, under Article V Title 13, when the decision is made that an employee will not be renewed, where an appointment is for longer than two year, there must be twelve months notice. Title C provides that faculty members with full academic rank may be discharged at any time for cause.
    If Article V Title B is applicable to Dr. Berenbaum the by- laws = standards for non-renewal have been met by the College. He commenced work in July, 1972, and received one year notice that his term of employment would expire in July, 1976. The AAUP claims however, that Article V Section B does not apply to Berenbaum for he was hired in 1972, prior to the implementation of the by-laws. They argue that his status is governed by a letter of understanding dated June 26, 1974 signed by Professor Fox on behalf of the College, the pertinent part of which read as follows:
    A Faculty members who as of July 1, 1974 have been employed for six years in the rank of Assistant Professor and who have not received one year notice of termination of employment as of that date shall be regarded as having tenure, @ and that the A college shall provide to all bargaining unit faculty members a letter recording: 1. The effective dates of their appointment which shall be the effective date approved by the Board of Trustees of the College. 2. Their rank on appointment. 3. The effective date of any promotions which may have occurred. 4. The effective date on which they may qualify for tenure. 5. The percentage of time for which they are employed. @

    The AAUP maintains that only the provisions of this letter are controlling on Dr. Berenbaum. The by-laws are not specifically retroactive, and do not apply to any faculty members hired prior to their enactment. The only document which speaks to faculty in this situation is this letter and because Dr. Fox = s letter refers to the original date of hire and the date of tenure only, all the members of this class must have a term of employment form the date of hire to the date of tenure or seven years.
    I find the AAUP = s argument here strained at best. The letter makes no specific mention of length of appointment for current non-tenured faculty member nor can this be easily inferred. Dr. Fox12/ maintains that there never was an understanding by the parties to the negotiations to this effect, nor was this position even expressed by the AAUP at the time of the negotiations. The letter was written in accordance to an agreement to notify all faculty members of their date of tenure only.13/
    If the rights of non-tenured faculty were compromised by the by-laws then the AAUP argument might be more persuasive. It is noted however that prior to the by-laws all faculty were hired without any term and the by-laws certainly grant non-tenured faculty greater rights than they had before. I therefore find, in accordance with the plain and clear meaning of both Dr. Fox = s letter and the by-laws, that Dr. Berenbaum = s term of employment is governed by the by-laws. Accordingly, I find that the non- renewal of Dr. Berenbaum was in accordance with the existing contractual agreement; there was no unilateral change in working conditions, and hence, no unfair practice.
    I have found that the non-renewal was not doe to discourage protected rights and, since the contract does not require that the college show cause for non-renewal, I cannot go behind the decision and question the standards used by Dr. Houpt. In the private sector the standard for discharge of an unfair labor practice case under the National Labor Relations Act is that an employee A may be discharged for a good reason, a poor reason, or no reason at all so long as the terms of the statute are not violated NLRB v. Condenser Corp. CA.3, 1942 10 LRRM 483.14/ The AAUP introduced a number of documents which were laudatory to Dr. Berenbaum as to both his abilities and performance. In deciding this case I have considered them for the purpose of the credibility of Dr. Houpt only. I cannot consider them to question the soundness of Dr. Houpt = s decision.
    ORDER
    Accordingly, for the reasons set forth, the charge in this matter is dismissed in its entirety.

    _______________________________
    Edmund G. Gerber
    Hearing Examiner

    DATED: Trenton, New Jersey
    April 20, 1976

    1/ Dr. Berenbaum = s name also appears in the record as Berebaum.
      2/ N.J.S.A. 34:13A-5.4(A) 3,4 and 5 are as follows:
    Employers, their representatives or agents are prohibited from:
    (3) Discriminating in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage employees in the exercise of the rights guaranteed to them by this act.
    (4) Discharging or otherwise discriminating against any employee because he has signed or filed an affidavit, petition or complaint or given any information or testimony under this act.
    (5) Refusing to negotiate in good faith with a majority representative of employees in an appropriate unit concerning terms and conditions of employment of employees int hat unit, or refusing to process grievances presented by the majority representative.
      3/ In their briefs the AAUP contends that the A College violated Section A3 in discriminating against Dr. Berenbaum because he exercised the right of filing a grievance, as guaranteed to him by the New Jersey Employer-Employee Relations Law; and Section A4, in discharging him for filing a petition or complaint in the nature of a grievance, pursuant to collective negotiations contracts, negotiated under the terms of the Act, and Section A5 by the College = s refusal to process Dr. Berenbaum = s grievance by firing him after he had initiated such a grievance. Each of these three sections are interrelated but the AAUP principally contends that the college violated Section A3 of the Act. @
      4/ This issue was not raised in the original charge filed by the petitioner. It was raised at the hearing however, without objection by counsel for the College and it has been litigated before me. See New Jersey Court rules 4;9-2 Amendment to Conform to the Evidence and Board of Englewood Public Schools and Englewood Administrators = Association CO- 76-31-21. See also f.n. 11, below.
      5/ Dr. Houpt testified that he had discussions with members of the staff and student body about Dr. Berenbaum = s performance. Dr. Berenbaum admits that meetings occurred between himself and Dr. Houpt, but claims, A He never specifically [critized] criticized what I did. @ Page 19 Line 9 of the transcript on p. 20.
      6/ Memorandum from Dr. Berenbaum to Dr. Houpt dated May 2, 1975.
      7/ Pursuant to N.J.S.A. 34:13A-5.3 which stated in part: Public employers shall negotiate written policies setting forth grievance procedures by means of which their employees or representative of employees may appeal the interpretation, application or violation of policies, agreement, and administrative decisions affecting them.
      8/ See Radio Officer Union v. NLRB 317 U.S. 17. 33 LRRM 2417(1971) which deals with similar language in the National Labor Relation Act; Lullo v International Association of Fire Fighters 55 N.J. 409 (1970) in which the N.J. Supreme Court advised PERC to look to the NLRB Law for guidance.
      9/ No claim was made nor evidence introduced that the disagreement itself concerned a protected activity within the meaning of the Act.
      10/ The Commission has not enunciated a test or standards for discrimination. It is not necessary to do so here.
      11/ N.J.S.A. 34:13A-5.3 provides in part: A proposed new rules or modification of existing rules governing working conditions shall be negotiated with the majority representative before they are established. @ The question here is whether a contract violation is also a per se violation of this provision of the Act and therefore, 5.4 1(a)1. See In the Matter of Town of Orangetown and Town of Orangetown, Unit Rockland and County Chapter Civil Service Employees Association, Inc. 8 PERB 3042. In light of the facts of this case, it is not necessary to rule on this question here.
      12/ This evidence is by way of affidavit. At the hearing the parties entered into a stipulation allowing for the submission of affidavits concerning Dr. Fox = s letter to the Hearing Examiner after the close of hearing.
      13/ Pursuant to this agreement the notification to Dr. Berenbaum reads as follows:
    A The records of the College of Medicine and Dentistry of New Jersey/New Jersey Dental School indicate your faculty appointment as an Assistant Professor of Pedodontics was effective July 15, 1972. The percentage of time of your appointment is 100%.

    Assuming your continuous employment at the College of Medicine and Dentistry of New Jersey/New Jersey Dental School, you will be eligible for tenure on July 1, 1979 providing that you are promoted to Associate Professor on this date. In your case, the review for granting of tenure will occur and be communicated to you before July 1, 1978. You will also be eligible for tenure if you are promoted to Associate Professor prior to this date.

    We shall continue to count on you to make a significant contribution to the School and College during the years ahead. Please accept my best wishes for continued growth and happiness in all your academic endeavors. @
          14/ Another court put it A the question is not whether the discharges were merited or unmerited, just or unjust, nor whether as disciplinary measures they were mild or drastic. These matters to be determined by management. The NLRB = s sole duty is to determine whether the discharge were to discourage or encourage union membership or a reprisal for entering in protected activities @ (NLRB v. Montgomery Ward) (CA 8 1946) 19 LRRM 2490.
    ***** End of HE 76-6 *****