H.E. NO. 84-8

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

LODI BOARD OF EDUCATION,

Respondent,

-and-	Docket No. CO-83-65-59

LODI EDUCATION ASSOCIATION,

Charging Party.

Appearances:

For the Lodi Board of Education

William R. Nunno, Esq.

For the Lodi Education Association

Klausner & Hunter, Esqs.

(Stephen B. Hunter, Esq.)

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the "Commission") on September 20, 1982, and amended on January 13, 1983, by the Lodi Education Association (hereinafter the "Charging Party" or the "Association") alleging that the Lodi Board of Education (hereinafter the "Respondent" or the "Board") has 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"). The original Unfair Practice Charge contained Counts I through VII and the amended Unfair Practice Charge is denominated as Count VIII. Counts I, III, IV and V alleged violations of N.J.S.A. 34:13A-5.4(a)(1) and (5) of the Act.1/ These four Counts were deferred to arbitration by agreement of the parties. Counts II and VIII were amicably settled prior to the due date for post-hearing briefs, infra. Count VII was not pursued by the Charging Party and is deemed abandoned. This leaves Count VI alone for disposition herein, which alleges a violation of N.J.S.A. 34:13A-5.4(a)(1) and (3) of the Act.2/ Count VI may be summarized as follows: Camille Coppa, the President of the Association since 1974, was a Title I teacher for 15 years and in June 1982 she was informed by the Superintendent that she would no longer be employed as a Title I teacher because of the restructuring of the Title I program for budgetary reasons, and that, notwithstanding her request on June 29, 1982 to be assigned to a compensatory education position, Coppa was belatedly assigned to teach the fifth grade at the Columbus School in August 1982, contrary to the notification requirements in the collective negotiations agreement between the parties, and that the said involuntary transfer or assignment rendered difficult the discharge by Coppa of her duties as President of the Association and discriminated against Coppa's exercise of the rights guaranteed by the Act.

It appearing that the allegations of the Unfair Practice Charge, as amended, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on January 7, 1983. Pursuant to the Complaint and Notice of Hearing, a hearing was held on March 30, 1983 in Newark, New Jersey, at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. Oral argument was waived and the Charging Party filed a post-hearing brief by July 7, 1983. The Respondent failed to file a post-hearing brief by the due date of July 18, 1983.

An Unfair Practice Charge, as amended, having been filed with the Commission, a question concerning alleged violations of the Act, as amended, exists and, after hearing, and after consideration of the Charging Party's post-hearing brief, the matter is appropriately before the Commission by its designated Hearing Examiner for determination. Upon the entire record, the Hearing Examiner makes the following:

FINDINGS OF FACT

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

2.	The Lodi Education Association is a public employee representative within the meaning of the Act, as amended, and is subject to its provisions.

3.	The current collective negotiations agreement between the parties is effective during the term July 1, 1981 through June 30, 1983 (J-1). Article V, "Association Rights, Privileges and Responsibilities," provides that the Board agrees that the Association may install a telephone at its own expense for the use of the Association's President, and that the Association President shall be released for 30 minutes per day to conduct Association business (J-1, p. 14).

4.	Camille M. Coppa has been a classroom teacher for many years in the District and, for 15 years prior to the 1982-83 school year, Coppa was a teacher in the Title I program. Coppa has been the President of the Association since 1974 and has filed many grievances: seven from 1974-81; four in 1981-82; and 10 in 1982-83.

5.	On June 28, 1982 Coppa attended a meeting in the Superintendent's office where Josephine Facella, the Title I coordinator, was also present. The Superintendent told Coppa that the Title I program was being "cut" and that she would not be employed as a Title I teacher for the 1982-83 school year. When asked for her choice of assignment, Coppa requested the Compensatory Education Program. The Superintendent told her that there were no positions available in that program.3/ Coppa next requested an assignment to the Middle School. Nothing was resolved regarding Coppa's requested assignments at this meeting.

6.	On June 29, 1982 Coppa sent a letter to the Superintendent reiterating that her choice for assignment in 1982-83 was in the Title I program and that her second choice for assignment was in the Middle School "...providing that it will afford me the opportunity to discharge my duties as President of the...Association..." (CP-1). On the same date the Superintendent sent Coppa a memo advising her that she was assigned to the Columbus School and that the Principal, Philip Patire, would give her scheduling details at a later date (CP-2).

7.	On August 6, 1982 Counsel for the Charging Party sent a letter to the Superintendent complaining about Coppa's involuntary transfer to the Columbus School in other than a Title I position (CP-4). Counsel also complained to the Superintendent that Coppa had not received notice of her class or subject assignment in accordance with the collective negotiations agreement. When no response was received a second letter was sent on August 18, 1982 (CP-6).

8.	On August 23, 1982 Patire called Coppa and offered her a position in the fourth, fifth or sixth grades. Coppa told Patire that she would not take any grade that necessitated the "bumping" of another teacher. Patire said that he would call her after speaking with the Superintendent. The following day, August 24th, Coppa called Patire and left a message on his tape that she would take the fourth or fifth grade. Patire never called her again prior to the opening of school, and on September 7, 1982 Patire informed Coppa that she had been assigned to the fifth grade. See R-1.

9.	In the 1981-82 school year Coppa was a Title I teacher at the Columbus School where she was able to use the Association telephone and had 30 uninterrupted minutes per day, which commenced at 2:30 p.m., to conduct Association business as provided for in Article V of J-1, supra. Coppa could also leave the building when necessary.

10.	In the 1982-83 school year where Coppa teaches the fifth grade at the Columbus School the matter of released time for Association business has changed as follows: the Principal has scheduled her released time from 8:45 a.m. to 9:00 a.m. and 3:05 p.m. to 3:20 p.m. on Mondays through Thursdays, and from 11:25 a.m. to 11:55 a.m. on Fridays.

11.	By practice teachers are to be available for tutorial from 3:05 p.m. to 3:20 p.m. Coppa testified without contradiction that this tutorial responsibility between 3:05 p.m. to 3:20 p.m. interferes with the conduct of Association business during that portion of her release time. There has been no interference in the 15 minutes of released time in the morning since another teacher has been assigned to "cover" her classroom.

THE ISSUE

Did the Respondent violate Subsections (a)(1) and (3) of the Act by transferring Camille M. Coppa from the Title I program to the fifth grade in the Columbus School for the 1982-83 school year in retaliation for Coppa's exercise of protected activities and for the purpose of interfering with her duties as President of the Association?

DISCUSSION AND ANALYSIS

The Respondent Did Not Violate Subsections

(a)(1) And (3) Of The Act When It Transferred

Camille M. Coppa From The Title I Program To

The Fifth Grade In The Columbus School Since

The Decision To Transfer Was Not In Retaliation

For The Exercise of Protected Activities

Camille M. Coppa has been the President of the Association since 1974 and has been the President of the Association since 1974 and has filed numerous grievances since that date. Coppa learned that the Title I program was being "cut," and that she would not be employed as a Title I teacher for the 1982-83 school year, at a meeting in the Superintendent's office on June 28, 1982. Coppa first sought assignment to the Compensatory Education Program, and when told that that was not available, she next requested assignment to the Middle School. The decision of the Superintendent, made the following day, June 29th, was to assign her to the Columbus School. Coppa stated in a memo to the Superintendent on June 29, 1982 that her second choice for assignment was the Middle School, providing that it would afford her the opportunity to discharge her duties as President of the Association (CP-1). The ultimate decision of the Principal of the Columbus School was to assign her to the fifth grade and she has been so assigned during the 1982-83 school year.

The collective negotiations agreement provides in Article V that the Association may install a telephone at its own expense for use by the Association President, and that the President shall be released for 30 minutes per day to conduct Association business. In the 1981-82 school year, when Coppa was Title I teacher, she was able to use the Association telephone and had 30 uninterrupted minutes per day to conduct Association business, commencing at 2:30 p.m. Coppa could also leave the building when necessary. In the 1982-83 school year the Principal of the Columbus School scheduled Coppa for release for Association business from 8:45 a.m. to 9:00 a.m. and from 3:05 p.m. to 3:20 p.m. on Mondays through Thursdays and from 11:25 a.m. to 11:55 a.m. on Fridays. Coppa testified without contradiction that a tutorial responsibility between 3:05 p.m. and 3:20 p.m. interfered with the conduct of Association business during that portion of her released time. There has been no interference in the 15 minutes of released time in the morning since another teacher has been assigned to "cover" her classroom.

Based on the foregoing facts, the Charging Party contends that the Respondent has violated the Act by its assignment of Coppa to the fifth grade in the Columbus School during the 1982-
83 school year, and by altering the times during the day when Coppa can conduct Association business in her capacity as President. The Hearing Examiner is not persuaded that the Charging Party has proven by a preponderance of the evidence that the Respondent has violated the Act by its conduct herein.

For the Charging Party to prevail, in what appears clearly to be a case of "dual motive," the Charging Party must meet the "causation" test enunciated by the National Labor Relations Board in Wright Line, Inc., 251 NLRB 1083, 105 LRRM 1169 (1980), which has recently been adopted by the United States Supreme Court in NLRB v. Transportation Management Corp., __ U.S. ___, 113 LRRM 2857 (June 15, 1983).4/ In Wright Line the NLRB adopted the analysis of the United States Supreme Court in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977), which involves the following requisites in assessing employer motivation: (1) the General Counsel (Charging Party) must make a prima facie showing sufficient to support an inference that protected activity was a "substantial" or a "motivating" factor in the employer's decision to discipline (here transfer); and (2) once this is established, the employer has the burden of demonstrating that the same disciplinary action (transfer) would have taken place even in the absence of protected activity.

Based upon the Wright Line - Mt. Healthy analysis, supra, the Hearing Examiner finds and concludes that the Charging Party has failed to demonstrate that the Respondent violated Subsection (a)(3), and derivatively Subsection (a)(1), of the Act. Leaving aside the question of whether or not the Respondent has met its burden of demonstrating that the transfer of Coppa would have taken place even in the absence of her protected activities, namely, the filing of grievances and the conduct of Association business as President, the Hearing Examiner concludes that the Charging Party has failed to make a prima facie showing sufficient to support an inference that protected activity was a "substantial" or a "motivating" factor in the Board's decision to transfer Coppa to the fifth grade in the Columbus School.

It is true that since Coppa became President of the Association in 1974 she has filed a number of grievances against the Board, including ten in and around October 1982. There was no evidence, however, or any indication of anti-union animus toward Coppa by representatives of the Board, including the Superintendent, as a result of grievance and Association activity by Coppa. There was no testimony as to statements made by the Superintendent or the Principal of the Columbus School regarding Coppa's activities. The Hearing Examiner is asked to infer solely from the filing of grievances that the Board and the Superintendent were illegally motivated in the decision to transfer Coppa from Title I, which was being restructured due to budgetary reasons, to the fifth grade in the Columbus School.

The Hearing Examiner notes that the exercise of protected activities by an Association President and the proof of animus was of considerably greater magnitude in West Paterson Board of Education, P.E.R.C. No. 83-22, 8 NJPER 545 (1982), affm'g. H.E. No. 82-65, 8 NJPER 451 (1982) than in the case at bar. Nevertheless, the instant Hearing Examiner concluded in West Paterson that the exercise of protected activities was not a "substantial" or a "motivating" factor in the decision of the superintendent to transfer the association president from one school to another and that the proof of animus was deficient. The Hearing Examiner then went on to assume arguendo that even if the Charging Party had proved that the association president activities were a "substantial" or a "motivating" factor in the Board's decision to transfer, the Board had established a legitimate business justification for its action and demonstrated that the transfer would have taken place even in the absence of the President's exercise of protected activities.

In the instant case the decision of the Superintendent to transfer Coppa arose not from an educational decision that Coppa would be better in one school and grade than another, but because the Title I program was being restructured to eliminate full-time teachers. Thus, Coppa was without a position in the Title I program and had to be placed somewhere. There was no evidence adduced that the Board had other than a legitimate educational reason for placing Coppa in the fifth grade in the Columbus School for the 1982-83 school year. Coppa herself offered to take the fourth and fifth grades in the Columbus School as of August 24, 1982. The Hearing Examiner can make no finding other than that the Principal of the Columbus School acceded to one of Coppa's suggestions when he informed Coppa on September 7, 1982 that she had been assigned to the fifth grade.

The Hearing Examiner also cites, in support of his decision herein, the Commission decisions in Laurel Springs Board of Education, P.E.R.C. No. 78-4, 3 NJPER 228 (1977) and Board of Education of the Vocational Schools in Essex County, P.E.R.C. No. 82-32, 7 NJPER 585 (1981).

Further, the Charging Party argues that the Board has violated the Act by the way in which Article V of the collective negotiations agreement has been applied by the Principal of the Columbus School during the 1982-83 school year. As noted above, the time during the day when Coppa can conduct Association business has altered in the current year (see Findings of Fact Nos. 15 & 16, supra). The Principal of the Columbus School would appear to have good reason for his scheduling of released time, which has not materially interfered with the conduct of Association business by Coppa. Coppa has released time each day from 8:45 a.m. to 9:00 a.m., the only problem being the 3:05 p.m. to 3:20 p.m. released time and the alleged tutorial interference Mondays through Thursdays, which the Hearing Examiner concludes is de minimis. Coppa is receiving the 30 minutes per day under the agreement. The Hearing Examiner can draw no conclusion vis-
a-vis a violation of the Act from the fact that Coppa's released time for union business has been altered from that of the prior school year. The arguments of the Charging Party to the contrary are rejected.

Accordingly, the Hearing Examiner will recommend dismissal of the allegations that the Respondent violated Subsections (a)(1) and (3) of the Act by its conduct with respect to the transfer of Coppa to the fifth grade in the Columbus School for the 1982-83 school year and her schedule for released time for Association business at the school.

* * *

Upon the entire record in this case, the Hearing Examiner makes the following:

CONCLUSION OF LAW

The Respondent Board did not violate N.J.S.A. 34:13A-
5.4(a)(1) and (3) by its transfer of Camille M. Coppa from the Title I program to the fifth grade in the Columbus School for the 1982-83 school year.

RECOMMENDED ORDER

The Hearing Examiner recommends that the Commission ORDER that the Complaint be dismissed in its entirety.

/s/Alan R. Howe

Hearing Examiner

DATED:	July 26, 1983

Trenton, New Jersey