H.E. NO. 80-42

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

SALEM CITY BOARD OF EDUCATION,

Respondent,

-and-	Docket No. CO-80-43-38

SALEM CITY SUPPORTIVE STAFF

ASSOCIATION, INC.,

Charging Party.

Appearances:

For the Salem City Board of Education

William C. Horner, Esq.

For the Salem City Supportive Staff Association, Inc.

Selikoff & Cohen, Esqs.

(Steven R. Cohen, Esq.)

DECISION ON MOTION TO DISMISS AND ORDER

An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the "Commission") on September 5, 19791/ by the Salem City Supportive Staff Association, Inc. (hereinafter the "Charging Party" or the "Association"), alleging that the Salem City Board of Education (hereinafter the "Respondent" or the "Board") had engaged in unfair practices within the meaning of the New Jersey Employer-
Employee Relations Act, as amended, N.J.S.A. 34:13A-1 et seq. (hereinafter the "Act"), in that the Respondent had, inter alia, on June 13, 1979 unilaterally altered the work year and work days of certain Aides in a unit including all non-confidential secretarial and clerical employees, all of which was alleged to be a violation of N.J.S.A. 34:13A-5.4(a)(1), (3) and (5) of the Act.1/a Additionally, the Charging Party alleged that the Respondent had on March 7, 1979 circulated a memo to certain employees indicating that they should not become members of the Charging Party nor authorize dues to be deducted from their pay because of the lack of similarity between their jobs and that of employees then represented by the Charging Party, which was further alleged to be a violation of N.J.S.A. 34:13A-5.4(a)(1) and (2) of the Act.2/

It appearing that the allegations of the Unfair Practice Charge, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on November 30, 1979. Pursuant to the said Notice of Hearing, hearings were held on February 20 and 21, 19803/ in Trenton, New Jersey, at which the Charging Party was given an opportunity to examine witnesses and present relevant evidence. At the conclusion of the Charging Party's case on February 21, 1980, counsel for the Respondent made an oral Motion to Dismiss and the arguments of the parties were placed upon the record (2 Tr. 102-
129). Supplemental written argument from counsel for both parties was received by March 10, 1980.3/a

An Unfair Practice Charge having been filed with the Commission, and a Motion to Dismiss having been made by the Respondent, and, after consideration of the oral and written argument of the parties, the matter of the Motion to Dismiss is appropriately before the Hearing Examiner for determination.

Upon the record to date, namely, the presentation of the Charging Party's case, the Hearing Examiner makes the following:

FINDINGS OF FACT4/

1.	The Salem City Board of Education is a public employer within the meaning of the Act, as amended, and is subject to its provisions.

2.	The Salem City Supportive Staff Association, Inc., is a public employee representative within the meaning of the Act, as amended, and is subject to its provisions.

3.	The Association's existence commenced with its incorporation in the Fall of 1978 and, at all times material hereto, it has been affiliated with the New Jersey Education Association (hereinafter "NJEA").

4.	The Respondent Board's first knowledge of the existence of the Association was by receipt of a letter dated October 25, 1978, in which the Association demanded recognition for a unit of the Board's secretarial and clerical employees. This request for recognition was granted by the Board on December 14, 1978 (J-
1).5/ Thereafter, the Board complied with all pertinent rules and regulations of the Commission with respect to validating recognition under the Act.

5.	Notwithstanding that the Charging Party's two principal witnesses6/ testified on direct examination that the Association did not on January 20, 1979 represent a majority of the Board's "non-certificated employees,"7/ the Association on that date submitted to the Board's Superintendent, Frank J. Napoli, a proposed collective negotiations agreement, Article 1 of which provided for recognition of the Association as "the bargaining agent...for non-certificated employees of the Board excluding the Secretary to the Superintendent and the Secretary to the Business Manager and custodial and transportation personnel" (J-2, p. 2).8/

6.	Booth testified on direct examination that the Superintendent was "upset" by Article 1 of J-2, supra, because of the fact that the Association "...had unilaterally...extended the groups that were to be covered" (2 Tr. 54). This position of the Superintendent is documented in letters to Booth and Battersby dated May 1, 1979 (see CP-2 and CP-5 in response to CP-4 and CP-
1).

7.	On May 29, 1979 representatives of the Board met with representatives of the Association, including Battersby and Booth, and the meeting focused on the recognition clause sought by the Association (J-2, Article 1, supra). Following a Board caucus, its spokesman, Dr. James Powell, advised the Association representatives present that the Board would agree to have a neutral third party make a determination of the Association's majority status with respect to the additional non-certificated personnel whom the Association sought to represent.9/ The Association agreed to the Board's suggestion of George Hill as the neutral third party, who would certify the results to the parties. (1 Tr. 16, 17; 2 Tr. 15-20, 40-43, 59-62, 86, 87).10/

8.	After being advised of his selection (CP-6), Hill, on June 4, 1979, checked the Association's authorization cards against the Board's payroll list and made separate determinations as follows: the Association represented a majority of the supervisors of custodians, the maintenance employees, and the aides; but the Association did not represent a majority of the cafeteria personnel since no authorization cards had been submitted (1 Tr. 17-19).11/

9. It was stipulated that on June 19, 1979 the Board at a meeting with the Association refused to recognize the Association's proposed expanded unit for all "non-certificated personnel," supra, contending that it would not be an appropriate unit because of the lack of a community of interest and because it included both supervisory and non-supervisory personnel. However, the Board did propose on that date that the previously recognized unit of secretarial and clerical employees be expanded to include the aides only. The Association rejected this proposal of the Board, stating that it would acknowledge that cafeteria personnel should not be included since they had evidenced no interest in the Association. (See 1 Tr. 22-24; see also 2 Tr. 26, 72, 73).12/ Booth testified that Battersby indicated at the conclusion of the June 19, 1979 meeting that if necessary a petition for unit clarification would be filed with "PERC" (2 Tr. 74, 87-89).13/

10. It was stipulated that the Board on June 13, 1979 reduced the work year of one library aide (Frances Vanneman) from 12 months to 10 months14/ and also reduced the work day of four aides from seven to six hours per day with pro-rata reductions in compensation. These changes were to become effective with the school year commencing July 1, 1979. (1 Tr. 19-21). Battersby and Booth learned of the Board's action on June 14, 1979 and at the June 19, 1979 meeting, supra, Battersby indicated to Dr. James Powell that the Board's action of June 13th was a possible unfair practice on the ground that the Board should have discussed the changes in work year and hours with the Association (2 Tr. 23-25, 69, 70).

11. It was stipulated that on March 7, 1979 a letter on the letterhead of the Office of the Assistant Superintendent, John D. McGovern, was addressed to "Staff Members" on the subject of "Dues Deductions," and that this letter was sent only to "certain or some staff members," as is apparent from the positions hereinafter quoted (see 1 Tr. 25, 26 and J-3). The aforesaid letter provides, in pertinent part, as follows:

"...It is my understanding that the local association to which you intend to give your dues is the Salem City Supportive Staff Association. With regard to this matter, I would like to make the following points.

1.	In reviewing your job responsibilities, I do not see similarities between them and the responsibilities of the people covered by the above mentioned organization. This does not preclude, of course, your right to pay dues to this organization.

2.	The Salem City Supportive Staff Association, at this point, is the sole bargaining agent only for those people who were recognized as members of the organization by the Board of Education.

3.	The payroll department will deduct your dues, but it must be understood by you that this action in no way indicates that the Board of Education recognizes the Salem City Supportive Staff Association as your bargaining agent.

if you still wish to have your dues deducted from your pay, please fill in the appropriate place below and return the bottom portion of this memo to my office by March 14, 1979... (Emphasis supplied).

12. Charging Party witness Frances Vanneman, a library aide,15/ testified that she has been a member of the Association since October 1978 and received a copy of the McGovern letter regarding "dues deductions" on March 7, 1979. She indicated to Battersby that she was "upset" by the letter since she had already signed an "automatic payroll deduction" form and did not understand why she had to sign another form. Vanneman testified that she did not sign J-3 as requested by McGovern on the advice of Battersby and that her dues were still deducted by the Board thereafter. (See 2 Tr. 94, 95).

THE ISSUE

Has the Charging Party presented a prima facie case of violations of the Act by the Respondent Board as alleged?

DISCUSSION AND ANALYSIS

The Applicable Standard on a Motion To Dismiss

The Commission in New Jersey Turnpike Authority, et al.,16/ amplified upon the standard that it had enunciated in Township of North Bergen,17/ with respect to the applicable standard on a Motion to Dismiss made at the conclusion of the charging party's case. The Commission there restated that it utilizes the standard set forth by the New Jersey Supreme Court in Dolson v. Anastasia, 55 N.J. 2 (1969). The Commission observed that:

"...Therein the Court declared that when ruling on a motion for involuntary dismissal (at the close of the plaintiff's case) the trial court 'is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the party opposing the motion' (emphasis added). Unlike a number of other jurisdictions, New Jersey courts have consistently held that before a motion for involuntary dismissal will be granted the moving party must demonstrate that not even a scintilla of evidence exists to support the plaintiff's case. Thus, while the process does not involve the actual weighing of evidence...some consideration of the worth of the evidence presented may be necessary. This is particularly true in the administrative context where evidence, which would ordinarily be ruled inadmissible by a trial court may, under In re Application of Howard Savings Bank, 143 N.J. Super. 1 (App. Div. 1976), be allowed in at an administrative hearing..." (5 NJPER at 198)18/ (Emphasis supplied).

Having set forth the applicable standard on a Motion to Dismiss, the Hearing Examiner now turns to consideration of the evidence stipulated to and presented by the Charging Party with respect to the Respondent's alleged violations of the Act.

Respondent's Motion To Dismiss Count One

Of The Unfair Practice Charge Is Granted

The gravamen of Count One of the Association's charge is that on June 13, 1979 the Respondent Board, without notice to the Association, unilaterally reduced the work year and work day of five of its aides, which action occurred after the Association had requested recognition as the majority representative for a unit including all aides, and after the Respondent had agreed to a neutral third party verifying the Association's majority status. The foregoing was alleged to be a violation of Subsections (a)(1), (3) and (5) of the Act. (See C-1).

The Hearing Examiner finds and concludes that the Respondent, under the above enunciated standard, has demonstrated "...that not even a scintilla of evidence exists to support..." the Charging Party's case under Count One.

As the above Findings of Fact make clear, the Association had not as of June 13, 1979 been validly recognized by the Board as the exclusive majority representative for the aides in an appropriate unit as provided for in the rules of the Commission: N.J.A.C. 19:11-3.1(a) and (b). It is first noted that, in conformity with the Commission rules, the Board granted recognition to the Association as exclusive representative for the Board's secretarial and clerical employees on December 14, 1978 (Finding of Fact No. 4, supra). Following this grant of recognition by the Board, the Association, beginning on January 20, 1979, attempted to expand its unit to include all "non-
certificated personnel," including the aides, notwithstanding that the Association's majority status was not established until June 4, 1979 when George Hill made a "card check," which determined, inter alia, that the Association represented a majority of the aides (Findings of Fact Nos. 5-8, supra).

Even if the Hearing Examiner was convinced the Charging Party's evidence that the Board had on May 29, 1979 agreed to recognize the Association following Hill's card check and certification (see footnote 10, supra), the record is devoid of any evidence whatsoever that a valid recognition of the Association had been effectuated with respect to the aides prior to June 13, 1979. In fact, the Association did not learn of Hill's certification of the aides' majority status until June 19, 1979 (footnote 11, supra).

At the meeting of the parties on June 19, 1979, the Board, after initially refusing to recognize the Association's proposed expanded unit for all "non-certificated personnel" on the ground that it would not be an appropriate unit,19/ did propose to include the aides in the previously recognized unit of secretarial and clerical employees.20/ Further, following the Association's rejection of the Board's proposal to include the aides in the previously recognized secretarial and clerical unit, Battersby indicated that, if necessary, a petition for unit clarification would be filed with "PERC" (Finding of Fact No. 9, supra).

The Respondent, both at the hearing and in its letter memorandum of March 4, 1980, has cited the Commission's decision in Manalapan-Englishtown Regional Board of Education, P.E.R.C. No. 78-24, 3 NJPER 380 (1977) while the Charging Party has cited decisions of the Federal courts and the National Labor Relations Board in the private sector in its letter memorandum of March 7, 1980 (pp. 2, 3). The Hearing Examiner concludes that the Charging Party's reference to private sector cases is inapposite due to the significant difference in the manner in which valid recognition is effectuated under the National Labor Relations Act and the manner in which such recognition is effectuated under our Act and Rules, supra.

Even assuming arguendo that the parties' meeting of June 19, 1979 occurred prior to June 13, 1979, the date on which the Board unilaterally changed the work year and work day of certain of its aides, the Hearing Examiner's conclusion herein would not change inasmuch as the Commission made clear in Manalapan-Englishtown, supra, that:

"...A public employer is only required to negotiate with a majority representative of employees in an appropriate unit and...if there is a dispute regarding the appropriateness of a unit, there are procedures available to a party seeking to add employees to an existing unit..." (3 NJPER at 382)

(Emphasis by the Commission).

In conclusion, with respect to Count One, the Charging Party has failed to adduce a scintilla of evidence that the Respondent violated Subsection (a)(5) of the Act by its conduct on June 13, 1979, supra. The Charging Party does not urge an independent violation of Subsection (a)(1) of the Act, hence, any violation by the Respondent would have to be derivative. Finally, the Charging Party does not contend that any evidence was adduced, which would support a Subsection (a)(3) violation of the Act.21/ Thus, the Respondent's Motion to Dismiss Count One is granted.

The Respondent's Motion To Dismiss Count Two

Of The Unfair Practice Charge Is Granted

The thrust of Count Two is that the Respondent independently violated Subsection (a)(1) of the Act by virtue of the John D. McGovern letter of March 7, 1979 regarding "dues deductions," the Charging Party alleging in connection therewith that the effect of the letter was to interfere with, restrain and coerce the aides in their right to join the Association and authorize dues to be deducted from their pay (See C-1). It is further alleged that Subsection (a)(2) of the Act was also violated by the McGovern letter, in that the letter on its fact constitutes domination or interference with "the formation, existence of administration of any employee organization."

The Hearing Examiner must again determine whether or not the Respondent has met the burden of demonstrating "...that not even a scintilla of evidence exists to support..." the Charging Party's case under Count Two.

The Hearing Examiner first considers whether or not the Charging Party's evidence establishes a prima facie independent violation of Subsection (a)(1) of the Act. The most recent restatement of the Commission's standard for such a violation is found in New Jersey Sports and Exposition Authority, P.E.R.C. No. 80-73, 5 NJPER 550 (1979) where the Commission said in footnote 1 therein:

"...It shall be an unfair practice for an employer to engage in activities which, regardless of the absence of direct proof of anti-union bias, tend to interfere with, restrain or to coerce an employee in the exercise of rights guaranteed by the Act, provided that the actions taken lack of legitimate and substantial business justification..." (5 NJPER at 551) (Emphasis supplied).

An examination of the March 7, 1979 McGovern letter22/ discloses that the Respondent initially stated its opinion that there was a lack of similarity in job responsibilities between the recipients of the letter, such as Frances Vanneman, whom at that point were not part of a unit represented by the Association and recognized by the Board,23/ and those "people covered by" the Association. The letter stressed the right of the recipients to pay dues to the Association and that the payroll department would deduct such dues. Finally, the letter made clear the Board's position that, as of that date, deduction of dues "...in no way indicates that the Board...recognizes the...Association as your bargaining agent..." It is also noted that, notwithstanding Vanneman's failure to sign J-3, as requested, her dues were still deducted by the Board thereafter (Finding of Fact No. 12, supra).

The Hearing Examiner is fully satisfied that the McGovern letter on its face discloses a "legitimate and substantial business justification" on the part of the Respondent in communicating truthfully with those of its employees, who were not then represented by the Association in a recognized appropriate unit, regarding "dues deductions." Also, the letter in no way tended to interfere with, restrain or coerce the employee recipients in the exercise of the rights guaranteed to them by the Act, i.e., joining the Association or authorizing dues deductions. Any doubt regarding the dues deduction aspect was vitiated by the Respondent's subsequent deduction of Vanneman's dues without her signing J-3 as requested.

The Hearing Examiner concludes finally that J-3 could not reasonably be construed as constituting domination or interference with the formation, existence or administration of the Association under Subsection (a)(2) of the Act. As noted previously, the letter made truthful representations with respect to the representative status of the Association as of March 7, 1979. It also clearly stated the right of the employee to pay dues to the Association and stated that the payroll department would deduct dues, which it did without receipt of an additional signed authorization in the case of Vanneman, supra.

Thus, the Charging Party having failed to adduce a scintilla of evidence that the Respondent violated Subsections (a)(1) and (2) of the Act, the Respondent's Motion to Dismiss Count Two is granted.

* * * *

Based upon all of the foregoing, the Hearing Examiner makes the following:

CONCLUSIONS OF LAW

The Charging Party having failed to present a prima facie case of violations by the Respondent Board of N.J.S.A. 34:13A-
5.4(a)(1), (2), (3) and (5), the Respondent's Motion to Dismiss is granted in all respects.

ORDER

It is hereby ORDERED that the Complaint be dismissed in its entirety.

______________________

Alan R. Howe

Hearing Examiner

DATED:	April 25, 1980

Trenton, New Jersey