H.E. NO. 79-14

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

SAYREVILLE BOARD OF EDUCATION,

Respondent,

-and-	Docket No. CO-78-27-56

SAYREVILLE EDUCATION ASSOCIATION,

Charging Party.

Appearances:

For the SAYREVILLE BOARD OF EDUCATION,

(Casper P. Boehm, Jr. Esq.)

For the SAYREVILLE EDUCATION ASSOCIATION,

Rothbard, Harris & Oxfeld, Esqs.

(Sanford R. Oxfeld, Esq.)

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the "Commission") on August 5, 1977 by the Sayreville Education Association (hereinafter the "Association" or the "Charging Party") alleging that the Sayreville 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 Board had on August 3, 1977 notified one "Kitty" Ludlow, the immediate past grievance chairman of the Association and chairman of the foreign language department, that she was being removed from her position as chairman of the foreign language department, and it was alleged further, that the said action of the Board was "solely" due to Kitty Ludlow's activities on behalf of the Association, all of the foregoing of which was alleged to be a violation of N.J.S.A. 34:13A-5.4(a)(1), (2) and (3) of the Act.1/

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 February 3, 1978. Pursuant to the Complaint and Notice of Hearing, hearings were held on April 13 and May 12, 1978 in Newark, New Jersey, at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. The Association filed a post-hearing brief on June 22, 1978 and the Board filed a post-hearing brief on July 17, 1978.

Unfair practice charges, 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 post-hearing briefs of the parties, 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 Sayreville Board of Education is a public employer within the meaning of the Act, as amended, and is subject to its provisions.

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

3. Catherine "Kitty" Ludlow was hired by the Board to teach Spanish and English in March 1962. Ms. Ludlow was certified to teach French, Spanish and English and was also certified to be a supervisor.

4. Ms. Ludlow became department chairman for foreign languages in September 1968, which department covers both the Junior and Senior High Schools.

5. The current collective negotiations agreement between the parties, effective July 1, 1976 to June 30, 1978 (J-1, provides in Schedule A-No.3" for the salary of department chairman, the additional compensation in the salary guide being determined by the number of teachers in the department.

6. As of September 1975 there were eight foreign language teachers in the Junior High School and seven foreign language teachers in the Senior High School, a total of 15 teachers, and in accordance with Schedule "A-No.3" of J-1, supra, Ms. Ludlow taught two classes and received additional compensation of

$725.00 per year.

7. The duties of department chairman include, inter alia: the evaluation of non-tenured teachers three times per year; the observation of tenured teachers two times per year; the writing of monthly reports on the activities of teachers; the ordering of supplies monthly and textbooks annually; going on trips with students; checking on substitutes; attending monthly meetings of department chairmen; attending monthly meetings with departmental teachers; and interviewing and making recommendations in connection with new-hires.

8. Ms. Ludlow joined the Association in 1962 when she was first hired and later became faculty representative. About four or five years ago she became grievance chairman ("PR&R") and remained grievance chairman through the 1976-77 school year. As grievance chairman it was her duty to process grievances through the steps of the grievance procedure under the collective negotiations agreement.

9. Ms. Ludlow could point to only one grievance where she encountered any problem with the administration in its processing. The grievance involved JoAnn Brown and arose in June 1976. Ms. Brown had received a bill for $ 22.25 from the Board for Xerox charges. Ms. Ludlow first called the Superintendent, Henry Counsman, who said that Ms. Brown was going to have to pay. Ms. Ludlow filed a grievance for Ms. Brown. The principal signed the grievance and when it reached the Superintendent, Mr. Counsman, he yelled at Ms. Ludlow and called it trickery (1Tr. 40). The Superintendent's reaction occurred on either June 26 or June 29, 1976. Mr. Counsman testified that he felt he had been set up and that Ms. Ludlow was "unprofessional" (2Tr. 76). Mr. Counsman testified that Ms. Ludlow's version of the filing and processing of the grievance was accurate in every respect (2Tr.75).

10. On May 24, 1976 Dr. Marie Parnell, the Assistant Superintendent in charge of instruction and the principal of the War Memorial High School, sent a memo to Ms. Ludlow setting forth Ms. Ludlow's schedule for the 1976-77 school year. (CP-1). This memo indicated that Ms. Ludlow would, as in the past, teach two periods and supervise five periods as department chairman.

11. Under date of July 16, 1976 Ms. Ludlow was informed that her schedule had been changed and that she would have six teaching periods, a planning period and lunch, the effect of which was that her supervisory periods were eliminated and she was deposed as department chairman (CP-2). This change was countermanded on August 23, 1976 and Ms. Ludlow was restored to her department chairmanship (R-1, CP-3).2/

12. Under date of May 27, 1977 Dr. Parnell sent Ms. Ludlow a notice of teaching assignment for the 1977-78 school year, indicating that she would have teaching and planning periods and no supervision, i.e., she was being deposed again as department chairman (CP-4).

13. Ms. Ludlow indicated by letter to Dr. Parnell under date of May 18, 1977 that she was agreeable to Dr. Parnell's suggestion that as department chairman she teach four classes during the 1977-78 school year instead of two as in the past (R-
2). When this matter was brought to the attention of counsel for the Board, he advised the Superintendent under date of May 26, 1977 that the matter should be negotiated with the Association (R-4). However, counsel for the Association under date of June 20, 1977 advised the Board that under the contract Ms. Ludlow was obligated only to teach two periods as department chairman and that the Association would not concur with her teaching four periods (CP-5).

14. Under date of July 29, 1977 Dr. Parnell advised Ms. Ludlow by memo of a revision in her tentative assignment for the 1977-78 school year which changed her courses but did not include supervision as department chairman, i.e., Ms. Ludlow was again deposed as department chairman for the 1977-78 school year.

15. In 1976-77 school year there were six foreign language teachers in the Junior High School and six foreign language teachers in the Senior High School. In the 1977-78 school year there were six foreign language teachers in the Junior High School and five foreign language teachers in the Senior High School. Statistically the record is not clear as to whether there was a decline in foreign language enrollment for the 1977-
78 school year as opposed to the 1976-77 school year. Dr. Parnell did testify that there was a decline but there were no figures introduced into evidence to corroborate this.

16. The Superintendent made no independent recommendation to the Board with respect to the matter of reappointment of Ms. Ludlow as department chairman for 1977-78 school year. The recommendation not to reappoint was solely that of Dr. Parnell and the Superintendent merely conveyed her recommendation to the Board.

THE ISSUE

Did the Respondent Board violate the Act when it failed to reappoint Catherine Ludlow foreign language department chairman for the 1977-78 school year?

DISCUSSION AND ANALYSIS

Position of the Parties

The Association takes note of the fact that Catherine Ludlow was grievance chairman for the Association for several years through the 1976-77 school year and that in the course of processing a grievance for JoAnn Brown in May and June of 1976 she had a serious "run in" with the Superintendent. The Association argues from this that when the Superintendent refused to recommend Ms. Ludlow's reappointment as foreign language chairman for the 1977-78 school year it was motivated in whole or on part by considerations of discriminating against Ms. Ludlow on account of her activities on behalf of the Association, citing City of Hackensack, P.E.R.C. No. 77-49, 3 NJPER 143 (1977), rev'd. on appeal, Docket No. A-2546-76 (July 31, 1978).

The Respondent Board cites N.J.S.A. 18A:28-9 of the Education Law as authority for abolishing a position for reasons of economy, or because of a reduction in the number of pupils, or of a change in the administrative or supervisory organization of the district, or for other good cause, upon compliance with the provisions of the cited section. In connection therewith, the Respondent Board cites and attaches a decision of the Commissioner of Education in a case involving Middlesex County where the Board of Education was upheld in its decision to abolish a mathematics coordinator position and reassign that individual to a classroom teaching position. The Respondent

Board contends that City of Hackensack, supra, is not apposite inasmuch as the Board was not motivated in whole or in part by discriminatory considerations when it refused to reappoint Ms. Ludlow as foreign language chairman for the 1977-78 school year.

The Respondent Board Did Not Violate

The Act When It Failed to Reappoint

Ms. Ludlow Foreign Language Chairman

for the 1977-78 School Year

The Hearing Examiner finds and concludes that the Charging Party has failed to meet its burden of proof that the Respondent Board engaged in unfair practices by "a preponderance of the evidence". N.J.A.C. 19:14-6.8. The Hearing Examiner is unwilling to find a causal connection between the activities of Ms. Ludlow as grievance chairman, particularly in connection with the JoAnn Brown grievance, and her failure to gain reappointment as foreign language chairman for the 1977-78 school year. The Hearing Examiner is pursuaded that the Board had every right under the provisions of N.J.S.A. 18A:28-9 to abolish the position of foreign language chairman for the 1977-78 school year. The Education Law clearly gives the Board wide latitude and discretion.

The Hearing Examiner finds that although Ms. Ludlow was engaged in protected activities in serving as grievance chairman, particularly in pressing the JoAnn Brown grievance, and that the Board knew of her activities as grievance chairman, nevertheless no anti-union animus against Ms. Ludlow can be imputed to the Board. The Hearing Examiner is unwilling to apply the "inherently destructive" principal to the instant case.

It is quite clear that under the decisions of Commission in City of Hackensack, supra, and Board of Education of the Borough of Haddonfield, P.E.R.C. No. 77-36, 3 NJPER 71 (1977) there has been no violation of the Act. As the Commission stated in Hackensack:

"Under the Haddonfield decision, a Section 5.4(a)(3) violation may be found if the Charging Party can prove either that anti-
union animus was one of the motivating factors for the discriminatory conduct or that the effect of the employer's actions was 'inherently destructive' of the rights guaranteed to employees by the Act. Preliminarily, the Charging Party must prove that the employee was engaged in protected activities and the employer knew or thought he knew of such activities." (3 NJPER at 144).

The Charging Party's problem in the instant case is that it has not established one iota of union animus or discriminatory motivation in connection with the Board's actions in refusing and failing to reappoint Ms. Ludlow foreign language chairman for the 1977-78 school year. The contract obligates the Board to pay the additional stipend to a department chairman, providing that there is a department chairmanship for the year in question. There is no contractual obligation under the current agreement (J-1) that there be a foreign language department chairman for each and every year of the contract. Thus, Ms. Ludlow receives her stipend only if there is a department chairmanship to which she has been reappointed. The Board decided to abolish the foreign language chairmanship for the 1977-78 school year for nondiscriminatory reasons.

The Hearing Examiner is of the view that the "inherently destructive" principle should be applied sparingly and should not be used in each and every Subsection (a)(3) case to supply the elements of a violation where anti-union animus has not independently been shown. Plainly, the Charging Party has failed in its burden of proof to establish that the conduct of the Board in the instant case was "inherently destructive" of important employee rights.

No violation of the Act by the Board having been established by the Charging Party, the Hearing Examiner must recommend dismissal of the instant charge that the employer violated Subsections (a)(1) and (3) of the Act. The Hearing Examiner also finds that there was no evidence adduced which would constitute a violation of Subsection (a)(2) of the Act. Accordingly, the Hearing Examiner must recommend dismissal of the Complaint in its entirety.

*	*	*	*

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

CONCLUSIONS OF LAW

The Respondent Board did not violate N.J.S.A. 34:13A-
5.4(a)(1), (2) and (3) when it refused to reappoint Catherine Ludlow chairman of the foreign language department for the 1977-
78 school year.

RECOMMENDED ORDER

The Respondent Board not having violated the Act, supra, it is HEREBY ORDERED that the Complaint be dismissed in its entirety.

__________________________

Alan R. Howe

Hearing Examiner

DATED: September 5, 1978

Trenton, New Jersey