H.E. NO. 79-3

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

NORTH WARREN REGIONAL BOARD OF EDUCATION,

Respondent,

-and-	Docket No. CO-76-260-91

NORTH WARREN REGIONAL EDUCATION ASSOCIATION,

Charging Party.

Appearances:

For the North Warren Regional Board of Education

Thomas Savage, Esq.

For the North Warren Regional Education Association

John Thornton, Jr., NJEA

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

The North Warren Regional Education Association ("Association") filed a series of unfair practice charges and amendments with the Public Employment Relations Commission ("Commission") alleging that the North Warren Regional Board of Education ("Board") directly and through its agents threatened and ultimately discharged Douglas Tompkins and Claire Lattoz and refused individual employees, Douglas Tompkins, Claire Lattoz, Rodney Rufe and Carol Linkiewicz, the right of representation at meetings with the principal and superintendent of the North Warren Regional High School. It was alleged that all these acts were in violation of Sections 5.4(a)(1), (2), (3), (4) and (5) of the Public Employer-Employee Relations Act ("Act").1/

The Board filed a motion to dismiss the complaint, which could not be disposed of until the first day of hearing. Accordingly, it never filed a separate answer. It is undisputed however that it denied the allegations that it committed any unfair practices.

It appearing that the allegations of the charges if true might constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on June 28, 1976, and nine days of hearings were held before the undersigned commencing September 2, 1976, and concluding March 11, 1977.2/

The undersigned will treat these allegations separately. However, the testimony of one witness, Raymond King, is common to all issues. Although he was not a party to any of the incidents which will be discussed below, he testified to the underlying animosity that existed between the Association officers and the Board's administrative staff.

King served as principal from February 1974 through June 1975. He testified that when he first came to the high school, the superintendent of schools, Mr. Kline, said King was the fifth or sixth administrator that the school had had in a five-year period. This was due to the actions of about one-half of the teachers, about ten or twelve, who were anti-administration and active in the Association. Kline related how the faculty was split in half: on one side were teachers basically new to the staff without tenure and the other side were the active members of the teachers association. According to Kline the latter group of teachers would "react in a hostile manner in an effort to get (King) out as quickly as possible." Kline felt that "they were trying to get rid of him to take control of the building as though they were the enemy, my enemy and his."3/4/

King's credibility was challenged by the respondent during cross-examination. King admitted that since he left North Warren he has come to the conclusion that Kline, in effect, double-
crossed him by not giving him (King) good recommendations and thereby preventing him from obtaining another supervisory position. I am satisfied, however, that King's testimony was credible.

The Discharge of Douglas Tompkins

Tompkins began working for the North Warren Board of Education on September 7, 1975. On April 30, 1976, he was informed that he would not be renewed the following September. During this academic year Tompkins was evaluated some four times: November 1st, March 1st, March 31st and April 14th. Tompkins claimed his first evaluation was very good. The evaluation of March 1st (Attachment 1), however, was totally negative. During the evaluation Tompkins conducted a science class by having everyone in the class compose a poster for a voluntary contest being conducted throughout the school. The principal of the high school, Ira Isajiw, conducted the evaluation. He was very critical of the conduct of the students as well as the content of the lesson. This evaluation disturbed Tompkins and pursuant to the contract,5/ Tompkins wrote a rebuttal to this evaluation and Isajiw in turn wrote the rebuttal to Tompkins' rebuttal. Tompkins refused to sign this surrebuttal and asked for a day to think it over. Tompkins testified that he contacted the Association and, upon their advice, signed the surrebuttal the following day. He added the comment, "Signature does not constitute an agreement with the contents of this rebuttal but merely acknowledges receipt of the same." One day later Isajiw met with Tompkins to discuss the rebuttal to the evaluation. Tompkins asked Isajiw if he could have a representative from the Association, Ron Ivins, at the meeting. Isajiw replied, "My business is with you, not with Ron Ivins."6/ Tompkins testified that at the meeting Isajiw stated Tompkins was "being influenced by the Association," and that "I (Tompkins) was being ill-advised by the Association and he (Isajiw) didn't think it was right for me to get involved as a first-year teacher." Tompkins also maintains that Isajiw stated that he was being stubborn because he chose to write a rebuttal and "one of the factors in rehiring teachers is whether he (Isajiw) can work with the teacher fairly and he was saying to me he hoped that I would not be stubborn." Some two weeks later, on March 31st, the Association President signed the original charge in the instant matter. Said charge was received by the Commission on April 5th. It alleged that Tompkins was threatened at this March 16th meeting by Isajiw and that "Isajiw had recommended that Tompkins not be re-employed for participating in pregrievance proceedings and for acting under the influence of members of the local Association." In fact, the Board had taken no such action at this time. Tompkins received two further evaluations, on March 30th and again on April 14th. These evaluations were characterized by Tompkins as being positive and showed signs of improvement. It was not until April 28th that Tompkins received any indication that he would not be retained.7/

The Association does not claim that Tompkins was active in the Association prior to the above incident. Rather, they claim the Board non-renewed Tompkins because he filed the rebuttal pursuant to his rights under the contract and sought representation from the Association. They also argue that the Board retaliated against Tompkins because he was party to the original charge.8/ Isajiw, who was the Board's only witness, claimed that Tompkins was not threatened at the March 16th meeting. He testified that he never made any reference to the Association at this meeting. Isajiw does admit stating, however, that he told Tompkins "Don't you know that defending a weak position can only make you weaker?" When Isajiw testified as to these threats he was restless, tapped his hands, rocked in his seat, furrowed his brow and in general was hesitant in his speech. On the basis of his demeanor as well as the totality of the evidence (particularly King's testimony9/), the undersigned finds Isajiw did threaten Tompkins in violation of Section 5.4(a)(1) of the Act.

The question to be resolved, however, is whether Tompkins' attempt to exercise his rights under the contract and his involvement with the Association was one of the factors in Tompkins' non-renewal. It cannot be denied that Tompkins had problems as a teacher. In no way can the evaluation of March 14th be attributed to anti-union motivation. Tompkins also had a history of poor discipline. Isajiw testified that Tompkins had the worst discipline problem in the entire school: "His discipline, control of students and supervision of classroom was poor and totally unacceptable"10/ and it was for this reason, claimed Isajiw, that he recommended that Tompkins not be renewed. Isajiw related how he had at least five or six formal meetings with Tompkins on his discipline problem, four of which occurred prior to March 16th.11/ Other teachers, who were named by Isajiw, complained of the noise from Tompkins' room. Tompkins himself admitted to sending some 42 students to the principal's office for discipline problems. The average number of pupils sent to the office during the year by other teachers was 12. Tompkins further admitted that Mr. Poppachia, the head of discipline for the school, as well as Isajiw, complained to Tompkins that on many occasions he should have taken action with these pupils on his own rather than having reported them to the office.12/ Tompkins admitted that he had discipline problems and further that he did have extensive conferences with Isajiw during the course of the year concerning discipline. Isajiw characterized Tompkins' first evaluation as acceptable although it was not introduced into evidence. But he never did testify as to the content of the last two evaluations either on direct or cross-
examination, nor did either party introduce them into evidence. Tompkins only said the last two evaluations were "positive and showed improvement," and it is impossible to draw any conclusion as to whether these evaluations acknowledged Tompkins' discipline problem, or whether he had overcome it.

Certainly the timing of the incidents involved here are questionable. Threats were made on March 16th. On March 31st the Charging Party brought the instant action and on April 28th the Board voted to non-renew Tompkins on the basis of recommendations of Kline, who, in turn, forwarded the recommendations of Isajiw to the Board.

As expressed in In re Hackensack, P.E.R.C. No. 77-19, 3 NJPER 143 (1977), appeal pending, Appellate Division, Docket No. A-2546-76, and In re Haddonfield, P.E.R.C. No. 77-36, 3 NJPER 71 (1977), a violation of N.J.S.A. 34:13A-5.4(a)(3) will be found when animus based on employer knowledge of protected activity is one of the motivating factors for an employer's action that is detrimental to an employee's term and condition of employment.

The actual decision not to renew Tompkins rested with the Board. There is no evidence that they had improper motives. Two Board members, Sal Simonetti and Ann Schmidt, testified. They denied the Board ever discussed or considered Tompkins' protected activity in their determinations. Both were called as Association witnesses and no effort was made to impeach their testimony.13/ Nevertheless, if Isajiw's and, therefore, Kline's recommendation to the Board was tainted, then it would follow that the Board's action was tainted. See, In re State of New Jersey and Council of New Jersey State College Locals, NJSFT-
AFT/AFL-CIO, P.E.R.C. No. 78-55, 4 NJPER ___ (1978).

Although there was no testimony as to what was discussed by the Board about Tompkins, the undersigned is satisfied that Tompkins' discipline problem was legitimate and severe. It is apparent that Isajiw and, therefore, Kline could make their recommendation not to renew Tompkins to the Board independent of any union animus, particularly when Tompkins' limited involvement in the exercise of protected rights is balanced against his obviously questionable record as a teacher. The undersigned cannot say that, either in whole or part, Tompkins was non-
renewed in order to discourage union activity nor was his discharge motivated in whole or part by union animus. See In the Matter of Neptune Water Meter Co. v. NLRB, ___ F.2d ___, 94 LRRM 2513 (CA4, 1977), where a Federal Circuit Court of Appeals which basically follows the NLRB's one of the factors test (which was adopted by the Commission in Haddonfield, supra) stated that "if the employee has behaved badly it won't help him (her) to adhere to the union and his employer's anti-union animus is not of controlling importance." Accordingly it will be recommended to the Commission that the portion of the charge alleging Tompkins' non-renewal was violative of Section (a)(3) of the Act be dismissed.

Discharge of Claire Lattoz

Claire Lattoz began work for the Board in January of 1976 as an agriculture and science teacher. Lattoz testified that, when she began work on the 5th, Isajiw conducted an orientation meeting with her. He stated that there were certain members in the faculty that are against the administration and that she should "go in with an open mind, choose carefully those people whom I want to associate with."14/

Lattoz was first evaluated on January 21st and received the report the following day. Neither party chose to introduce this evaluation into evidence nor was there any testimony as to the contents of said evaluation.

On March 25th a controversy arose between Ms. Lattoz, a second teacher or Rodney Rufe, and Mr. Isajiw. Two of Lattoz's agricultural courses were held in Room C-38, the agricultural room, which has facilities suitable to conduct such a class, e.g. a sink and storage closets. Lattoz also taught one agricultural class in D-27, a room normally used for English classes. Lattoz wanted to do some work with tomato plants with a class that normally met in D-27 and wanted to use the facilities of Room C-
38. There was a scheduling conflict, however, for Rufe was scheduled to conduct an arts and crafts class in C-38 during the same period. Lattoz asked Rufe if it would be all right if they shared the classroom for this one period so she could conduct her demonstration in C-38. Rufe said he would agree if she could get permission to do so. Lattoz called the school office and spoke to Isajiw's secretary, Mrs. Brockmann, and told her she was about to share the room with Rufe. Brockmann said all right and Rufe and Lattoz proceeded to share Room C-38 and conduct their classes together. At this time Isajiw had a visitor to the school and was conducting him on a tour. They stopped at Lattoz's regularly scheduled classroom so the visitor could see an agricultural class in progress. Naturally when they got there, there was no one to be seen. Isajiw then went to C-38 and found Lattoz teaching her class together with Rufe and his class. Isajiw and the visitor stayed in the classroom for about five minutes. After the class was over, Isajiw called Rufe and Lattoz into his office to discuss this change in classroom assignment. Isajiw testified that "he was at a loss to understand why the change occurred and why it occurred without his knowledge."15/ Isajiw testified that neither Rufe nor Lattoz requested representation at this meeting nor did he perceive this as a disciplinary meeting. Isajiw claimed his purpose for calling the meeting was to clarify the situation and correct any misunderstanding that the two teachers might have had about changing rooms. Lattoz claimed Isajiw started yelling during the meeting that Rufe and Lattoz were disobeying the rules, for he was not notified of the room change. Lattoz responded that she had asked members of the faculty what the procedures were for bringing one class to another class. They told her that all she had to do was call the office and tell them where she was going. She stated if she knew about other rules she would have done what they required. During the meeting Isajiw's secretary called him and informed him that Mrs. Kole, the president of the Association, wanted to see him. He indicated he was in the middle of a conference, to which the secretary indicated that is what Kole wanted to see him about. Isajiw refused to allow her into the room.16/ Isajiw testified that he did not know Lattoz was a member of the Association at the time of the meeting. It should not be forgotten however that Kole attempted to represent Lattoz at this meeting.

Lattoz had her second evaluation on April 15th by Mr. Kline. The oral discussion of this evaluation did not occur for another ten days. At this discussion Lattoz was asked to sign her written evaluation but she became upset. She felt that Kline's characterization that students seemed to be disinterested was untrue (this evaluation is Attachment 2). Lattoz refused to sign the evaluation and she sought the advice of the Association, specifically John Thornton. At the second meeting Lattoz agreed to sign the evaluation and submitted a rebuttal to the evaluation. Apparently at the same second meeting Lattoz asked Kline if she could have a copy of the evaluation in question. Kline initially resisted, stating that she already had copies of the observation report but finally gave her a copy. He also told Lattoz that she was strange and crazy. At this time Lattoz brought Mrs. Kole with her and asked Kline to allow her to act as her representative. It is noted that the second meeting took place on April 29th, three days after the Board decided to non-
renew Lattoz.17/ Lattoz had a third evaluation, but like the first it was never introduced into evidence.

Lattoz had at least one other disagreement with Isajiw and Kline which was unrelated to either the Association or protected rights under the Act, i.e. a student of Lattoz's went to Isajiw to complaint that the students weren't being allowed to go on a field trip. Isajiw called Lattoz into his office and accused her of instilling rebellion in her students. (Lattoz had earlier asked permission from Isajiw to go on this same field trip, but this request was denied.)

Lattoz testified she was never told that she would not be renewed for the following year until she read of the Board's formal action in a local newspaper. Just before she read this article Isajiw had told her she was doing a fine job and was boasting to a visitor how well the agricultural program was going.

It is noted that Lattoz never filed a grievance nor did she have her Association dues deducted from her pay check. Aside from Kole's attempt to represent her, Lattoz's only other protected activity was her participation in the filing of the April 4th charge. No evidence was introduced that the Board itself was consciously acting with the intent to discriminate against Lattoz. Lattoz herself stated that she does not believe that her involvement with the Association was the sole cause of the non-renewal. In her words, "It may have been one of the reasons but not the only."

Nevertheless, since the Association was able to prove that Kline had a strong union animus, a presumption has been raised by the Association that one of the motivating factors in Lattoz's non-renewal was her engaging in protected activities.

Lattoz testified that after she received notice that she would not be renewed she started to look for another position. She went for an interview in the Lopatcong Township school district with the principal of the high school, Mr. Drago. At the conclusion of this interview Drago stated he would recommend to the school board that she be hired as an instructor in agriculture. Lattoz then stated that she worked at North Warren and explained her situation there. Drago then responded that he would have to do some thinking before he recommended Lattoz to his board. Lattoz never did get the job. Lattoz contacted her college adviser, Dr. William Smith of Cook College. She explained her situation to him. According to Lattoz, Smith spoke to Drago about the job. Drago in turn told Smith that he had spoken to Kline and Kline said Lattoz was a militant.18/ Admittedly this statement standing by itself is ambiguous. Lattoz was involved in disputes with Isajiw and Kline on issues in matters not necessarily involving rights protected under the Act.

However, Isajiw testified as to two reasons for recommending the non-renewal of Lattoz. These reasons are unrelated to what Kline told Drago. One reason was that she refused to improve herself as a result of suggestions,19/ and the other was she had a "laissez-faire type of discipline."20/ In explaining what was meant by the latter criticisms Isajiw stated they did not have to do with noise or disruption, rather "her lack of discipline or inability to affect students in a positive way to permit those activities which had been performed in the classroom."21/ In explaining the former reason, Isajiw did not imply that she was disrespectful, rather she just did not respond to suggestions.

Unlike his testimony about Tompkins, however, there is no way to corroborate Isajiw's claim either by written evaluations or evidence of any special meetings. As Isajiw testified, where there was a serious problem with a teacher he would write a memo and give it to the teacher but none were written to Lattoz. Isajiw's characterization of Lattoz's discipline problem lacks the ring of truth. He almost seems to be saying that she had no problem but he didn't like her style. This must be coupled with Isajiw's poor credibility as discussed above. The undersigned cannot accept Isajiw's testimony as to the reasons for his, or Kline's, recommendation to the Board. Finally the divergent opinions of Kline and Isajiw as to the reason for Lattoz's non-
renewal create additional doubt in the undersigned's mind. The Hearing Examiner is admittedly relying on Lattoz's second-hand statement of what Kline told Drago - but this statement stands unrebutted since Kline chose not to testify. Accordingly the Board's evidence was insufficient to overcome the presumptions raised by the Association.

Although Lattoz may have created problems for the administration in ways not protected by the Act and might even have been a marginal teacher, the undersigned does not believe that Kline's and Isajiw's mutual recommendation to the Board not to renew Lattoz was based solely on education policy. Rather, their respective opinions were colored by their contact with her vis-a-vis her exercise of her protected rights and their own anti-employee association bias. It follows that the Board's decision, since it relied on the recommendations of Kline and Isajiw, was tainted. Therefore a discriminatory motive did play a part in the non-renewal of Lattoz and the Board violated Section 5.4(a)(1), (3) and (4) of the Act when it did not renew Lattoz's contract for the following year. And, accordingly, the undersigned will recommend to the Commission that they order the Board to reinstate Lattoz and pay her the monies she should have earned from September 1976 to the time of compliance if she were not discriminatorily discharges less all monies actually earned by Lattoz from September 1976 to the time of compliance.22/

The Right of Representation at Meetings

There were three times when the right of representation was at issue: the two meetings mentioned above, specifically Tompkins' meeting with Isajiw concerning the rebuttal to the evaluation and Lattoz's and Rufe's meeting with Isajiw concerning room assignments. The third was testified to by Carol Linkiewicz, chairman of the grievance committee.23/ She claimed there were two occasions when she was denied representation - once was in June of 1974 and once was in April of 1976. The 1974 incident clearly falls outside the six-month limitation imposed by the Act24/ and will not be considered by the undersigned. That leaves only the April 1976 meeting. At that time, Linkiewicz had a scheduled meeting with Isajiw to discuss and file grievances. She was accompanied by another Association member, Robert Smith.

Before the meeting began Isajiw said he wanted to see Linkiewicz about a matter concerning her classroom procedure.25/ Linkiewicz asked if Smith could sit in on the meeting but Isajiw refused. This meeting lasted about ten minutes. When they began discussing the grievances Smith was allowed into the meeting.

The Commission found in In the Matter of Dover Township, P.E.R.C. No. 77-43, 3 NJPER 81 (July 13, 1977), an individual had the right to be represented by the majority representative in the processing of a grievance, although the contracted grievance procedure was silent as to such a right. Also, in NLRB v. Weingarten, 420 U.S. 251, 88 LRRM 2689 (1975), the U.S. Supreme Court stated that the language of §7 of the National Labor Relations Act (employees have the right to engage in "concerted activities for...mutual protection") grants to employees the right to have their own union representative present at an employer's investigatory interview as a witness when an employee might reasonably believe that such an interview could result in disciplinary action against him (or her). If however the employer refuses to allow a representative at such a meeting, the employee has a right not to attend such a meeting.

While the Act does not contain identical language, Section 5.3 of the Act does provide in part that "a majority representative of public employees in an appropriate unit shall be entitled to act for...and shall be responsible for representing the interests of all such employees." If one may interpret this language in the broad manner that the Appellate Division interpreted the grievance procedure language of this same statute in Red Bank Education Assn. v. Red Bank High Board of Education, 151 N.J.S. 435 App. Div. (1977), cert. granted ___ N.J. ___, it would certainly seem that the Act grants the same right of representation the supreme Court found in Weingarten, supra.26/

In the case of the meeting with Linkiewicz no such right was violated. As stated above Isajiw only wanted to speak to her concerning classroom procedures. Nothing substantive was involved at the meeting; there was no hint that any type of discipline was involved in the meeting and, indeed, none was. Accordingly, Isajiw was not compelled to permit a representative at his meeting with Linkiewicz.

An investigatory interview did take place, however, when Isajiw called Lattoz and Rufe into his office after he discovered them sharing the same room.

It was reasonable for Lattoz and Rufe to believe that disciplinary action might be taken against them. As discussed earlier, it was the president of the Association, Kole, who requested to be present, rather than either Rufe or Lattoz. Nevertheless as their designated representative she had the right to make this request. Isajiw's refusal to allow her presence constituted a violation of Section 5.4(a)(1). It must be emphasized that had Isajiw allowed Kole's presence at the interview Kole would have no right to actively participate, her sole role would have been as an observer. Further, Isajiw was not compelled to allow Kole's presence, but once he denied her presence, he had the obligation of stating to Rufe and Lattoz that they were no longer compelled to remain at the interview if they so chose.

The third incident occurred when Isajiw asked Tompkins to meet with him concerning Tompkins' rebuttal. Tompkins brought a representative with him, but Isajiw would not let this representative attend the meeting. As stated above, this meeting was the culmination of a series of events growing out of Tompkins' bad evaluation. The undersigned does not believe that there is any right of representation at an evaluation meeting. Admittedly an employee's job may be at stake if an employee's evaluations are bad; nevertheless, such evaluations are part of the basic educational process. N.J.S.A. 18A:27-3.1 provides that non-tenured teachers shall be evaluated three times during the year and "Each evaluation shall be followed by a conference between that teaching staff member and his or her supervisor. The purpose of this procedure is for recommendations as to re-
employment," etc. As long as evaluation procedures are not used to infringe upon protected rights under the Act there can be no right of representation at such a meeting.27/

However, such was not the case at this meeting. As has been previously established, Isajiw threatened Tompkins not to get involved in the Association. Unquestionably such conduct has no relation to educational policy. As stated in Board of Education of North Bergen v. North Bergen Federation of Teachers, 141 N.J. Super. 97 (App. Div. 1976), "Arbitrary action on the part of the (employer) which bear no reasonable relationship to educational goals...cannot and will not be tolerated." The nature of these threats create an atmosphere where the protected interests of Tompkins and the entire negotiations unit are at stake. The presence of a representative would ensure and protect those threatened rights. Had his meeting with Tompkins concerned only the evaluation process, then there would have been no right to representation. Once Isajiw went beyond the evaluation process, Tompkins had the right to have a representative present or to call a halt to the meeting and Isajiw's refusal to allow a representative to be present was a violation of Tompkins' right under the Act.

Accordingly, the undersigned will recommend to the Commission that they find that the Board through its agent, Ira Isajiw, violated Section 5.4(a)(1) of the Act when Isajiw refused to allow Rodney Rufe, Claire Lattoz and Douglas Tompkins representation at the two meetings discussed above.

No evidence was introduced at the hearing concerning the alleged violations of §§5.4(a)(2) or (5). Accordingly it is hereby recommended that the allegations concerning the violation of these two subsections be dismissed.

RECOMMENDED ORDER

It is recommended that the Commission order the Respondent, its officers and agents to

1.	Cease and desist from:

a.	threatening its employees with reprisals during evaluation meetings if they exercise their rights guaranteed to them under this Act;

b.	failing to renew the contracts of any of its employees in order to discourage employees from filing a charge or otherwise exercising rights guaranteed by this Act;

c.	interfering with the rights of its employees by denying to them their right to have an employee representative of their own choosing at investigatory hearings.

2.	Take the following affirmative action which is necessary to effectuate the policies of the Act:

a.	Offer to Claire Lattoz a teaching position at the salary level under the current contract consistent with the level she would be at had she not had her contract non-renewed in April of 1976.

b.	Reimburse Claire Lattoz monies she should have earned from September 1976 to the time of compliance if she were not discriminatorily discharged, less all monies actually earned by Lattoz during this same period of time.

c.	Post in a prominent place at the North Warren Regional High school copies of the attached notice, Attachment 3. Copies of said notice, on forms provided by the Commission shall, after being signed by the Respondent's representative, be posted for a period of at least sixty (60) consecutive days thereafter. Reasonable steps shall be taken by the Respondent to ensure that such notices are not altered, defaced or covered by any other material.

3.	It is further recommended to the Commission that the portion of the Complaint alleging a violation of N.J.S.A. 34:13A-5.4(a)(2) and (5) be dismissed.

____________________________

Edmund G. Gerber

Hearing Examiner

DATED:	July 14, 1978

Trenton, New Jersey