It appearing that the allegation of the charge if true might constitute an unfair practice within the meaning of the Act, a Complaint and Notice of Hearing was issued on October 1, 1976. The hearing was conducted before the undersigned on January 25, January 26 and March 7, 1977. All parties were given an opportunity to examine and cross-examine witnesses, to present evidence and to argue orally. Both parties submitted post- hearing briefs by May 17, 1977.

Upon the entire record in this proceeding, I find that the College is a public employer within the meaning of the Act and is subject to its provisions. An unfair practice charge having been filed with the Commission alleging that the College has engaged or is engaging in unfair practices within the meaning of the Act, a question concerning alleged violations of the Act exists and this matter is appropriately before the Commission for determination.

George Abel is an Associate Professor at Brookdale Community College. In 1970 he was instrumental in creating the Faculty Association of Brookdale Community College (the A Association @ ), a public employee organization and was its first president. He is currently chairman of the negotiating team.

There are three institutions in the College: The Institute of Natural and Applied Science, to which Abel belongs, the Institute of Applied Humanities, and the Institute of Human Affairs.

In compliance with the procedures established in the collective negotiations agreement, Abel submitted his name for promotion to his institute = s evaluation committee in the fall of 1976. A list of 17 persons, including Abel, who were recommended for promotion by the committee was submitted to the institute = s Dean, John Frey. Frey selected eight people from this list whom he recommended for promotion.

The 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 this 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 three types of promotions involved here: from instructor to assistant professor, from assistant professor to associate professor, and associate 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. It is noted that out of the eight promotions recommended by Frey, two were from associate to full professor. This list was then forwarded to the office of the Vice President for Academic Affairs Dr. Gallagher and from there to 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. ^2/

Frey testified that in his two years of participation in evaluation for promotion, the only recommendation that 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, no one had ever been promoted without their dean = s recommendation before.

The Charging Party also testified that in his experience only three persons besides himself were highly recommended by their respective deans for promotions but were nevertheless not promoted, and two of the three were granted sabbatical leave for the following academic year.

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 members = 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. ^4/

Abel claims that one of the motivating factors of the College = s failure to promote him to full professor was an intent to discourage the exercise of protected rights and, further, that his denial of a promotion was inherently destructive of employee rights. See In re Board of Education of the Borough of Haddonfield , P.E.R.C. No. 77-31, 3 NJPER 71 (1977). There is no evidence of any particularly antagonistic relationship between the parties either in the day-to-day interaction between the College and the Association or at the negotiation table. Nor did the Charging Party introduce any evidence of possible animus on the part of the College save two incidents. The Association was a plaintiff in litigation in which it was found that a faculty member had been wrongfully discharged by the College and its president, Donald Smith, when she exercised her First Amendment right of free speech. Endress v. Brookdale Community College, 144 N.J. Super . 109 (App. Div. 1976). Secondly, when Smith was first appointed president of the College a cocktail party was given in his honor; Abel and his wife attended. The Abels testified that when they were introduced to Smith he stated, A Oh, you = re the troublemaker I = ve heard about. @ Smith, in his testimony, acknowledged that he did know of Abel and his position in the Association prior to the party, but he stated there were so many people at the affair he can = t recall whether or not this conversation took place.

The undersigned found Abel to be a credible witness and found no reason to doubt that Smith did make the statement in question; however, no evidence was adduced as to whether or not the statement was made in the spirit of harmless banter or in earnest. One can only assume the former, given the social situation. ^5/ In any event, I cannot find that either the statement nor the lawsuit are sufficient evidence to show motivation of an intent to discriminate. For the Charging Party to prevail here it must be shown that the actions taken by the College were inherently destructive of employee rights. It is noted that when 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 proved. However, if the destructive nature of such conduct is not severe the presumption would normally be rebuttable by evidence of a legitimate and substantial business justification for said conduct. See, In the Matter of Long Branch Board of Education, P.E.R.C. No. 77-70, 3 NJPER ___ (1977); H.E. No. 77-12, 3 NJPER ___ (1977), appeal pending, Appellate Division Docket No. A-4787- 76.

President Smith was the College = s only witness. In his testimony he explained how he arrived at his recommendations to the Board of the College for faculty promotions. He pointed out several factors aside from academic excellence which he considered in his recommendations: the economic necessity of limiting the total number of faculty to be recommended, the ratio of men to women, the affirmative action considerations, and the mission of the College, that is the importance of the occupational programs as compared to the traditional liberal arts and sciences. He admitted that only the question of the total number of promotions and the mission of the College were relevant to his decision about Abel. Smith testified that the occupational program was designed to prepare a person for employment at the completion of their two-year program. The liberal arts program, on the other hand, is designed, in major part, for transfer to a four-year college. Smith maintained that the occupational program of the school was equally as important as the liberal arts. He pointed out, however, that in 1975-1976 there were eight full professors at the College but none of them had full-time occupational program assignments. ^6/ He felt there should have been a balance between occupational programs and the liberal arts. Smith went on to say that Baril ^7/ had made a truly outstanding contribution to the College in his role as head of the auto-technical program. Smith cited Baril = s leadership in that program, the development of a new laboratory, his contacts with industry in obtaining equipment for the College and the general development of this program. I found this testimony of Smith = s opinion of Baril to be entirely credible. Abel points out in his brief that each of the three members of the auto- technical program received a promotion. While the Charging Party = s point is the lack of balance in Smith = s choice, it also demonstrates Smith = s genuine appreciation of this particular program. Similarly, on cross-examination, when Smith was asked how well does he know Baril, Smith mentioned that he knew him reasonably well for he was at his lab a number of times when pictures were taken or gift engines and equipment. It seems clear from his response that Smith had a genuine appreciation of Baril = s activities within the college. It is also easy to see why the dean of Baril = s and Abel = s institute did not necessarily share Smith = s opinion of Baril. None of the criteria mentioned relate to the traditional criteria of promotion within a university, that is, academic excellence and scholarship.

The undersigned is not convinced that there was a conscious decision to replace Abel with Baril. As noted above, Abel was one of only two associate professors who were highly recommended by Frey to full professorships and [although Smith would have promoted Abel to a full professorship] there was no way for Smith to know from the material submitted to him by Frey that Abel was the most deserving of all those recommended for promotion. ^8/ Smith also testified that he felt there should be some balance in the number of promotions from institute to institute. Again, this does not seem unreasonable. Therefore, in maintaining the same number of promotions to full professorship as recommended by Frey, there was in effect a 50-50 chance that Abel would lose out when Smith decided to grant Baril a promotion.

Smith also testified as to why he had a past history of always following the recommendations of his deans in the past. When he first came to the College in 1974 he arrived in the spring and was in no position to secondguess any selection of the institute deans. Similarly, in the following year he did not vary from the recommendations of his deans. It was only in his third year, the year in question, that he felt he knew the staff well enough to form his own opinions and could independently evaluate the staff. It is significant that there were three other associate professors at the College who were highly recommended for promotions by their respective deans but were not promoted this same year that Abel was not promoted. Admittedly, two of these three others were granted sabbatical by Smith, but even discounting the two who received sabbaticals there was another person besides Abel who was highly recommended for promotion to full professorship but was turned down. ^9/ The hearer cannot find that Abel = s denial of a promotion was so unique that it was inherently destructive of employee = s rights. The Charging Party brought to the attention of the Hearing Examiner the matter of Endress v. Brookdale community College, supra . In that decision the court found that Smith = s testimony was not credible. Under the New Jersey Rules of Evidence, specifically Rule 47, A a trait of character offered for the purpose of drawing inferences as to the conduct of a person on a specified occasion may be proven only by: (a) testimony in the form of opinion; (b) evidence of reputation; or (c) evidence of a conviction of a crime which tends to prove a trait. Specific instances of conduct not the subject of a conviction of a crime shall be inadmissible ...@ (emphasis supplied). Accordingly, the undersigned cannot consider the court = s finding as to Smith = s credibility since the court = s finding in the Endress case above is a specific instance of conduct.

On balance, taking into account the marked imbalance between the occupational and liberal arts branches of the College, the apparently limited number of promotions to full professor and Smith = s obvious appreciation of Baril, I find that the College has established legitimate business justification for its action in promoting Baril over Abel. Accordingly, I find that the College did not violate ' 5.4(a)(3) of the Act.

However, Article 12C of the contract between the College and the Brookdale Faculty Association provides that evaluations serve as a primary basis for promotion with the university. Smith = s testimony made it clear that he did not rely upon these evaluations as a regular or primary basis for his own evaluation. When asked on cross-examination whether he looked at the evaluations of Mr. Abel or Mr. Baril, his answer was: A I requested to see some from the personnel office. I can = t recall if I looked at Mr. Abel = s or not. @ Nor could he answer positively whether he looked at Mr. Baril = s.^10/ Accordingly, one can deduce from this testimony that Smith did not look at every individual = s evaluation yet if evaluations are in fact to be the primary basis for promotions, it would seem incumbent upon him to have in fact done so.

The Commission has long held that evaluation procedures, where they do not abrogate the major educational policy decisions of an educational institution, relate to the terms and conditions of employment of its employees and they are therefore terms and conditions of employment. See In the Matter of Ridgefield Park Board of Education , P.E.R.C. No. 77-71, 3 NJPER ___ (1977). In the instant matter the failure of President Smith to follow the negotiated terms of the collective negotiations agreement concerning procedures for promotions is in effect a failure to follow the negotiated rules governing working conditions and is accordingly a unilateral alteration of the rules and as such interferes with the rights of said faculty members guaranteed by ' 5.4(a)(1) of the Act. See Piscataway Township Board of Education, P.E.R.C. No. 77-54, 2 NJPER 162 (197 ); H.E. No. 77- 77, 2 NJPER 347 (197 ). The undersigned, accordingly, finds that Smith = s failure to evaluate Abel constitutes a violation of the Act. As noted above, the undersigned is satisfied that Smith acted in good faith and although Smith did admit that Abel would qualify for a promotion but for the factors he named, it is clear that the promotional guidelines in the contract would leave room for Smith to weigh his guidelines in such a promotion process. The language of the contract states that evaluations serve the primary basis but not the sole basis. Nonetheless, the undersigned will recommend to the Commission that they order the College and Dr. Smith to re-evaluate Abel in accordance with the terms of the contract and, further, it is recommended that Dean Frey and Chairperson Kudile play an active consultive role in such an evaluation. It is further recommended that if the College finds that Abel should be promoted that such promotion should be retroactive to the beginning of the 1976-1977 academic year. Accordingly, for the reasons stated above it is hereby recommended that the Commission issue the following ORDER:

The Brookdale Community College shall

1. Cease and desist from

(a) Interfering with employees in the exercise of the rights guaranteed to them by the New Jersey Employer-Employee Relations Act, specifically by failing to follow the negotiated procedures for evaluations in the collective negotiations contract.

2. Re-evaluate George Abel in conformation with the collectively negotiated procedures in the contract between the parties in effect for the 1975-1976 academic year. During this evaluation Dean John Frey and Chairman Ron Kudile shall play an active consultative role. The results of such evaluation shall be retroactive to the commencement of the 1976-1977 academic year.

3. Post the attached Notice.

_____________________________
Edmund G. Gerber

Hearing Examiner

DATED: Trenton, New Jersey
January 27, 1978
1/ It is specifically alleged that the College violated N.J.S.A . 34:13A-5.4(a)(1) and (3). These subsections provide that an employer, its representatives or agents are prohibited from: A (1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this Act. (3) Discriminating in regard to hire or tenure of employment or any term and condition of employment to encourage or discourage employees in the exercise of the rights guaranteed to them by this Act. @
2/ The record is somewhat unclear as to whether Baril = s name was left off Frey = s list due to inadvertence or whether Frey knowingly did not recommend Baril. The undersigned is satisfied that Baril was knowingly not recommended. The confusion arose because Frey sent two lists on one letter to the administration -- his own list of those recommended for promotion and the Evaluation Committee = s list of 17 names. Frey inadvertently left Baril = s name off the latter list of 17 names.
3/ Each institute within the College is divided into learning centers. The learning centers are more or less equivalent to departments in other institutions.
4/ The Charging Party grieved this matter using the grievance procedure of the contract and claimed he continually asked for the reason for the denial of his promotion but was never given any explanation other than the letter until the time of the hearing.
5/ It should not be forgotten that the Charging Party has a burden of establishing every allegation of his charge.
6/ Two or three of the eight professors did teach some occupational students.
7/ Who the Charging Party says replaced Abel.
8/ Vol. III, transcript, pp. 50-51.
9/ The undersigned does not know the total number of associate professors who were highly recommended for promotion from the other two institutes, so it is difficult to draw any conclusions as to the entire size of the pool of associate professors who were highly recommended; but if the general pattern of having only two associates from each institute highly recommended for promotion holds, this pool could not have been very large and the total number of highly recommended associates must be very small. Admittedly, the undersigned is indulging in hypotheticals but again the burden of proof is upon the Charging Party to prove every allegation of his charge.
10/ Tr. III, p. 65, lines 9 to 19.