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 September 6, 1984. Pursuant to the Complaint and Notice of Hearing, a hearing was held on November 19, 1984 in Trenton, New Jersey, at which time the parties were given an opportunity to examine witnesses, present relevant evidence and argue orally. Both parties argued orally and waived the filing of post-hearing briefs.

An Unfair Practice Charge having been filed with the Commission, a question concerning alleged violations of the Act, as amended, exists [*6] and, after hearing, and after consideration of the oral argument of the parties the matter is appropriately before the Commission by its designated Hearing Examiner for determination.

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

3. Grades K-4 are housed in the Folwell School and grades 5-8 are housed in the Holbein School. Roberta H. Long, the putative discriminatee herein, was hired by the Board as a fifth grade teacher in the Holbein School in September 1973. In addition to teaching the fifth grade, Long has taught the fourth grade in Folwell and the seventh and eighth grades in Holbein. Long has had an extensive history of transfers between grades and the two schools, as follows: she was transferred in the 1977-78 school year from Folwell to Holbein where she taught seventh grade Social Studies; in 1981-82 she was transferred to eighth grade Social Studies, also in Holbein; in 1982-83 she was transferred [*7] to the fourth grade at Folwell; in 1983-84 she was transferred back to seventh grade Social Studies in Holbein; and in 1984-85 she was again transferred to the fourth grade, which transfer is the subject of the instant Unfair Practice Charge.

4. During the years that Long has taught at the Holbein School she has been the appointed Association Representative, sometimes known as Building Representative. She most recently served in this capacity during the 1983-84 school year. Serving with Long as Association Representative during the 1983-84 school year at Holbein were Elaine Leonardi and Marie Urso. The responsibility of an Association Representative is to meet monthly with the administration and to raise and attempt to resolve any problems, which may exist among unit members. These meetings were referred to as liaison meetings.

5. The Holbein School has Co-Principals, one being Carol Street and the other being Karen Springer.

6. At a liaison meeting on March 15, 1984, where Long brought up a certain disciplinary matter to Street and Springer, Springer's response was to the effect that they were tired of the Association telling them what to do. This was in the context of [*8] a complaint by administration that the teachers were taking them to task.

7. Thereafter, on March 26, 1984, a meeting was convened between the administration and the Association at Holbein with the following persons present: For the Association: Barbara Williams, President; Linda C. Deighan, Vice-President; and Long, Leonardi and Urso. For the Administration: John A. Mengel, Superintendent; Nick Margiotta, Assistant Superintendent; Thomas Morgan, Board Secretary; and Street and Springer. At this meeting Long read a handwritten prepared statement (CP-1), which, in summary, said that the Association had a concern regarding the relationship with the Board; that unwarranted comments were made by the administration to the teaching staff; that there should be a professional relationship between the administration and the teaching staff; that there had been criticism of the Association for bringing alleged petty matters to the liaison meetings; and that the teaching staff was not receiving proper credit. There was no testimony adduced as to what, if any, response the administration representatives made or what, if any, dialogue transpired.

8. On April 19, 1984, Springer made an observation [*9] of Long in her classroom, with which Long took issue because Springer had made "Additional Remarks" (CP-2). Long claimed that these remarks were extraneous to the observation. It was Long's contention that the purpose of the observation, and the completed form (CP-2), is to observe a particular lesson in a particular classroom at a particular time. Springer testified to the contrary, claiming that she has the authority to add additional information based on out-of-classroom observations and that she properly put this information under "Additional Remarks" on the form CP-2, namely, a negative reference to student rapport.2

9. On April 30, 1984, Superintendent Mengel sent a letter to Long advising her that she was being reassigned to the fourth grade at the Folwell School for the 1984-85 school year (CP-3). In order to satisfy the requirement for a reason for the reassignment or transfer of Long, Mengel sent her a memo on May 7, 1984, in which he stated as his reason that it would be a more appropriate assignment (CP-4).

10. Sometime at the beginning of May 1984 Long and Deighan went to Springer's office regarding the negative comments of Springer under "Additional Remarks," [*10] (CP-2), supra. Springer refused to discuss the matter with Deighan present. The meeting adjourned until 3:00 p.m. on the same day when Street was present with Springer. Deighan asserted her right to be present with Long as a representative under the Association's agreement. Springer told Long that she would not change Exhibit CP-2 and that Long had a disquieting effect on the teaching staff, and also referring to one student incident.

11. On May 11, 1984 Long and Deighan met with Superintendent Mengel regarding Long's transfer to the Folwell School in order to get his reason for the transfer first hand. Mengel said that the transfer was the "best slot" for Long considering her "strengths." According to Deighan, who the Hearing Examiner credits, Mengel then added that it was about time for management to show its strength.

12. The Charging Party adduced no evidence of anti-union animus by the administration toward representatives of the Association except for an incident involving Marilyn Pasiecznyk, who was President of the Association from 1981 through 1983. She testified that at some point during the 1982-83 school year she received a written reprimand from Springer and Street [*11] for having called a meeting of the Holbein faculty. The meeting notice, which was placed on the faculty bulletin board, stated that no administrators were to be present. The reprimand was based on the ground that there was no authority in the Association to call faculty meetings. Pasiecznyk filed a grievance, which resulted in a meeting between Mengel, Street and Springer where Mengel apologized to Pasiecznyk and removed the reprimand from her personnel file. Pasiecznyk testified that Street and Springer gave her the impression that they did not agree with Mengel.

13. Mengel took full responsibility for his decision to transfer Long from the Holbein School to the Folwell School for the 1984-85 school year. He testified that the decision originated with the request of the second grade teacher at Folwell, Paula Solomon, to take a sabbatical leave for the 1984-85 school year. He determined that the fourth grade teacher in Folwell, Janet Shinn, was best suited for transfer to the second grade and that this left a vacancy in the fourth grade. He testified further that Long had taught the fourth grade during the 1982-83 school year and was best suited for the transfer due to her prior [*12] experience in that grade plus the fact that she showed strengths toward young children. The Superintendent and Springer testified to several incidents involving Long and students and faculty at the Holbein School as fortifying the decision of Mengel that Long was better equipped to teach in the fourth grade at Folwell than in the seventh grade at Holbein.3 The testimony in this regard (see footnote 3, supra) clearly is not germane to the engaging by Long in activities on behalf of the Association nor does it in any way impact on Mengel's clear managerial prerogative to transfer Long for non-discriminatory reasons of educational policy. Neither Mengel nor the Association's witnesses testified as to any matter indicating that the decision to transfer was discriminatory. Indeed, Mengel testified affirmatively that at liaison meetings Long fulfilled her role extremely well and always spoke effectively on behalf of the teaching staff.

This test involves the following requisites in assessing employer motivation: (1) the 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); (2) once this is established the employer has the burden of demonstrating by a preponderance of the evidence that the same decision would have been made even in the absence of protected activity.

It must first be noted that a public employer, here the Board, has a non-negotiable managerial prerogative to transfer an employee: Ridgefield Park Education Association v. Ridgefield Board [*14] of Education, 78 N.J. 144 (1978). Thus, absent any discriminatory intent or motivation on the part of the public employer, it has an unfettered right to transfer an employee from one position to another or from one location to another.

The facts in Bridgewater involved, inter alia, a transfer, which the Commission held to have been discriminatory and in retaliation against Anthony Longo because of his exercise of activities protected by the Act. This was affirmed by the Appellate Division and at the Supreme Court level the so-called Bridgewater test supra, was enunciated. The Supreme Court in Bridgewater stated that, "Mere presence of anti-union animus is not enough. The employee must establish that the anti-union animus was a motivating force or a substantial reason for the employer's action..." (95 N.J. at 242).

The Charging Party's problem in the case at bar is that it has not established by a preponderance of the evidence that there was any anti-union animus manifested by the Board toward the Association. The only proof that even remotely resembles animus is found in Finding of Fact No. 12, supra, where Pasiecznyk was reprimanded during the 1982-83 school year. This [*15] event is too remote in time to have any evidentiary impact on the transfer of Long in April or May 1984. Plainly, there was no proof whatsoever of any anti-union animus having been manifested by the administration toward Long. It is noted that, contrary to the allegations in the Charge, the Charging Party adduced no evidence that Long filed any grievances, let alone "numerous" grievances. Given this lack of proof of anti-union animus there is no way in which the Hearing Examiner can conclude that the activity of Long as an Association Representative at the Holbein School over several years supports an inference that her activity was a "motivating factor" or a "substantial factor" in the Superintendent's decision to transfer Long to the fourth grade at the Folwell School for the 1984-85 School year.

Even if the Hearing Examiner was to assume arguendo that the Association and Long had met the first part of the Bridgewater test, the Board has met its burden of proving by a preponderance of the evidence that the transfer would have occurred even in the absence of any protected activity by Long on behalf of the Association. In other words, the Hearing Examiner concludes that the Board [*16] has demonstrated that it had a legitimate business justification in transferring Long, who had been transferred previously on many occasions. Superintendent Mengel testified credibly as to why the transfer occurred, namely, that the second grade teacher, Solomon, was granted a sabbatical and that he determined that the fourth grade teacher should be transferred to the second grade, thereupon creating a vacancy in the fourth grade. The Superintendent testified credibly that he considered Long's having previously taught the fourth grade at Folwell and, since she was eminently qualified, she was the logical person to transfer.5

The Charging Party having failed to satisfy the requisites of the Bridgewater test, supra, the Hearing Examiner must recommend dismissal of the Complaint.

1. These Subsections prohibit public employer, their representatives or agents from: "(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 or condition of employment to encourage or discourage employees in the exercise of the rights guaranteed to them by this Act."

2. The Charging Party introduced a series of observations of Long by several Principals covering the period 1977-1982, in each of which the observers stated that Long had "excellent," "good" or "positive" pupil rapport (CP-5, CP-6, CP-7, CP-8 and CP-9). According to Long, CP-2, supra contained the first reference to a negative relationship with students. However, Springer had also included on CP-2 the statement that Long's "Rapport was good during lesson." Additionally, Springer gave Long a "satisfactory" Annual Performance Report on June 11, 1984 (CP-10).

3. This testimony related to Long's occasional problem with students and teaching staff. It centered around an incident with a music teacher in the [*18] Fall of 1983, Robert Bell, a bilingual teacher, Carmen Colon, in early 1983-84 and two students during 1983-84, one involving the refusal to remove a hat and another involving a student having left the auditorium.

4. See Bridgewater Township v. Bridgewater Public Works Association, 95 N.J. 235 (1984).

5. The Hearing Examiner has not attached any significant weight to Long's alleged problems with students and faculty at the Holbein School during the 1983-84 school year. See footnote 3, supra.