H.E. NO. 77-15

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

BROOKDALE COMMUNITY COLLEGE,

Respondent,

-and-	Docket No. CI-76-29-39

GEORGE J. ABEL,

Charging Party.

Appearances:

For the Brookdale Community College

Murray, Meagher & Granello, Esq.

(Robert J. Hrebek, on the Brief)

For George J. Abel

Sterns, Greenberg, Herbert & Weinroth

(Michael J. Herbert, on the Brief)

HEARING EXAMINER'S DECISION

ON MOTION TO DISMISS

Pursuant to a Complaint and Notice of Hearing issued by the Public Employment Relations Commission (Commission) on October 1, 1976, hearings were held on January 25 and 26, 1977, before the undersigned Hearing Examiner. At the close of the second day of hearing the Charging Party announced that he had presented his entire case. The next day for the hearing was set down for March 8, 1977. On February 13, 1977, the Respondent filed a motion to dismiss, alleging the Charging Party failed to make out a cause of action under N.J.S.A. 34:13A-5.4(a)(1) and (3).1/ A supporting brief was submitted and the Charging Party filed a reply brief on February 24, 1977.

Although the Administrative Procedures act as well as the Commission Rule 19:14-6.6 stated that the rules of court are not controlling in this type of proceeding, it is useful, nevertheless, to look to the rules for guidance in setting the standards to be used in disposing of the instant motion. New Jersey Civil Practice Rule 4:37-2 provides:

(b) At Trial--Generally. After the plaintiff has completed the presentation of his evidence on all matters...he shall so announce to the court, and thereupon the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action or any claim against him on the ground that upon the facts and upon the law the plaintiff has shown no right to relief. Whether the action is tried with or without a jury, such motion shall be denied if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor.

The State Supreme Court interpreted this rule in Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969). They held that the judicial function at this stage of the proceedings "is quite a mechanical one. 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."

The evidence will, therefore, be reviewed in accordance with Dolson, supra. It should be noted that the college raised factual arguments in its brief which may ultimately have merit. However, here, all factual issues have been resolved in favor of the Charging Party.

At the hearing the Charging Party, George Abel, introduced evidence substantiating the basic factual allegation of his charge as incorporated in the Complaint.

George Abel is an Associate Professor at Brookdale College. Approximately five years ago he was instrumental in creating the Faculty Association of Brookdale College, a public employee organization, and was its first president. He is currently chairman of the Negotiating Team.

On November 19, 1975, Abel was recommended for promotion by the Institute Evaluation Committee.2/ A list containing the names of 17 persons who were recommended for promotion by the committee was submitted to the dean of the Institute, John Frey. In turn Dean Frey recommended eight people from the list for promotion.

These eight persons were placed on a list and ranked in order from the most deserving to the least deserving. Frey testified that although Abel was ranked fourth on the list, Abel was the most deserving of all those listed for promotion. This apparent discrepancy is related to Frey's view of promotions. There are two types of promotions involved here. One is from instructor to assistant professor and the other is from assistant professor to full professor. Frey believes that promotion from instructor to assistant professor is more urgent from a financial and career standpoint. Hence, all of those in such a position should be promoted first. Frey noted that Abel was ranked forst of the four individuals recommended for promotion from associate professor to full professor. This list was then forwarded to the office of the President of the College. All of those persons recommended by Frey were promoted with the exception of Abel. Instead, another associate professor from Frey's Institute, Roland Baril, was promoted to full professor. Baril's name, however, did not appear on Frey's list of those recommended for promotion.

Frey testified that in his two years of participating in the evaluation for promotion, the only recommendation which he had made during this period of time which was not accepted by the administration was his recommendation of Abel. Further, in this same period, no faculty member had ever been promoted who had not first been recommended by his or her Dean with the exception of Roland Baril. Abel testified that in all his years at the college this had never happened before.

Evidence that Abel has had uniformly high evaluations was presented and Ron Kudile, chairman of Abel's learning center,3/ testified that Abel was the most deserving of the various candidates who had applied for promotion within the Learning Center.

The Collective Negotiations Contract between the parties was submitted into evidence. This contract provides that the systematic evaluation conducted by faculty member's learning center chairmen and deans will be the primary instrument or tool for purposes of promotion. However, no one ever contacted Frey as to why his recommendation of Abel was not followed, or why another employee who was not recommended for promotion was in fact promoted.

No reason was given to Abel as to why his application was denied other than a form letter sent to all unsuccessful candidates which stated, in effect, that the financial resources of the school are limited.

When the current President of the college first met Abel at a cocktail party the President stated, "Oh, you are the troublemaker I have heard about."

The Respondent raises four legal arguments in support of its motion to dismiss in its brief: 1) Abel offered no proof that the school or its President acted in a discriminatory manner; 2) the college's right to select candidates for promotion is not a term and condition of employment; 3) Abel could offer no proof that the school or its President were motivated in any way to discourage him in the exercise of this protected right; 4) Abel could offer no proof that the actions of the school or its Presidents had or could have had the effect of discouraging him or others from the exercise or protected rights. These arguments shall be considered in order.

1.	Abel offered no proof that the school or its President acted in a discriminatory manner - This argument is pure semantics. As stated in In re College of Medicine and Dentistry, P.E.R.C. No. 76-46, 2 NJPER 219 (1976). "The Act does not bar an employer from discriminating among his employees; it only bars discrimination for the purpose of discouraging employees in the exercise of their rights guaranteed by the Act." The very nature of choosing which employees are to be promoted is, in effect, discriminating among them and the decision of the school not to select Abel is, by definition, an act of discrimination. The real question is, whether the discrimination was done "to encourage or discourage employees in the exercise of the rights guaranteed them by this Act."

2.	The college's right to select candidates for promotion is not a term and condition of employment - The moving party here argues that Subsection (a)(3) of the Act applies only where a discriminatory act affects a term and condition of employment. It is argued, promotions are not a term and condition of employment. Rather, only the procedures for promotion are terms and conditions of employment. Here, since the contractual procedures for promotion were complied with, the Charging Party has no cause of action. In support of this argument the Respondent cites Board of Ed. of North Bergen v. North Bergen Federation of Teachers, 141 N.J. Super. 97 (App. Div. 1976). The court there held that promotions were a matter of basic educational policy and therefore not negotiable and not a term and condition of employment. In reaching this decision they referred to a series of cases emanating from the Dunellen Trilogy, 64 N.J. 1, et seq. where the court applied a balancing test weighing an employee's right for negotiations against a school's duty to exercise and implement basic educational policy.

Standing by itself, a promotion to a higher position within the same unit brings with it a raise in pay as well as an increase in job-related responsibilities (and stature) and all of these things are terms and conditions of employment. The importance of the educational policies in a decision to promote outweigh an employee's right to negotiations and therefore promotions are not negotiable and not terms and conditions of employment. It is implicit in the Charging Party's allegations that the school's actions were not based upon an educational policy, but rather upon an intent to discourage the exercise of protected rights. When an employer ceases to act for reasons of educational policy, the balance shifts and the employees' rights must become preeminent. As the court stated in North Bergen, supra, "Arbitrary action on the part of the [employer] which bear no reasonable relationship to educational goals...cannot and will not be tolerated." Accordingly, if Abel was in fact denied a promotion in order to discourage the exercise of employee protected rights, and (a)(3) violation has occurred.4/

3.	Abel could offer no proof that the school or its President were motivated in any way to discourage him from the exercise of his protected right - Assuming arguendo that the College President's statement to Abel that he was "the troublemaker he has heard about," is not a scintilla of evidence of motivation, such a failure to adduce evidence of motivation is not necessarily grounds for dismissal. The Commission has, in In re Haddonfield Bd. of Educ., P.E.R.C. No. 77-36, 2 NJPER ___, created a twofold test for discrimination cases. This test holds that an employer's conduct would be a violation of the Act even if it was in part motivated by an intent to discourage the exercise of protected rights. Further, if said conduct is inherently destructive of employee rights, the existence of such motivation as one of the factors in the employer's decision may be presumed and need not be proven (emphasis supplied). In In re N.J. College of Medicine and Dentistry, P.E.R.C. No. 76-46, 2 NJPER 219 (1976), the Commission ruled that such a presumption would normally be rebuttable by evidence of legitimate and substantial business justification for the employers' conduct.

4.	George Abel could offer no proof that the actions of Brookdale Community College or its President had or could have had the effect of discouraging him or others from the exercise of protected rights.

In the instant matter, granting every favorable inference to the Charging Party, the denial of a promotion to Abel could be considered inherently destructive of employee rights. Abel's fellow employee could logically conclude that he was denied a promotion because of his Faculty Association activities. Such a conclusion could certainly discourage employees from exercising their protected rights of participation in the Faculty Association out of fear that they too would be denied a promotion.

Accordingly, for the reasons set forth above, it is hereby ruled that the Respondent's motion to dismiss is denied.

______________________

Edmund G. Gerber

Hearing Examiner

Dated:	Trenton, New Jersey

March 2, 1977