It appearing that the allegations of the charge, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on June 29, 1979. Respondent by answer filed August 9, 1979 denied each and every one of the material allegations of the Complaint, except it averred that it abolished the position of art teacher pursuant to N.J.S.A . 18A-28.9 for economic reasons, thereby terminating the employment of Camarda and pleaded as an affirmative defense that as the action complained of was taken under authority of the Education Law, jurisdiction lies with the Commissioner of Education with whom the Charging Parties have filed a Petition of Appeal challenging Respondent = s action in abolishing Camarda = s position.^3/

Hearings were held on August 30, September 18, September 24, September 25, September 28 and October 12, 1979 at which time the parties were given an opportunity to examine witnesses, present relevant evidence and to argue orally. Both parties filed post- hearing briefs, the Charging Parties on November 26, 1979 and the Respondent on November 28, 1979, and they have been duly considered.

Upon the entire record in the case and from my observation of the witnesses and their demeanor I make the following:

Negotiations between the Board and the Association were far from a successful conclusion in September 1977. Camarda testified that there were difficulties in getting the Board to negotiate (T. 26) and that a job action which took place then was designed to force the Board to the negotiating table. ^5/ During this dispute concerning the progress of negotiations, Camarda also served as A Radio Spokesperson @ for the Association. In this capacity she prepared and gave to numerous radio stations statements of the Association = s position. The Superintendent of Schools, Mr. Andrew M. Mark, acted as radio spokesperson for the Board. ^6/

Considerable time was devoted to exploring an incident between Camarda and a student, or more precisely, the reaction of the Board to a complaint by the Mulleners, the parents of the student, concerning this incident. ^7/ Despite the Principal = s resolution of the matter on January 30, 1978 to the satisfaction of the parents, the parents were invited to a special session of the Board that same evening. On January 31, 1978 the Superintendent sent Camarda a memo requesting her appearance at a Board meeting to review the incident. ^8/ No representatives for the Board at this hearing could give any explanation for this matter going before the Board after it had been resolved by the Principal.

The Board meeting was held on February 13, 1978 and resulted in a letter or reprimand being placed in Camarda = s file to remain there for one year. The entire elementary school faculty protested this action in a letter to the Board (CP-11).

That spring Camarda was warned by Tshudy that the Board was not happy with her activities on behalf of the Association (T. 52-53). ^9/ She further testified that Tshudy warned her that he had been instructed by certain Board members to observe her carefully in order to collect grounds for her dismissal. Tshudy denied that he had ever been so instructed by Board members, but he admitted discussing with Camarda certain actions on her part which were A causing some concern @ to the Board. Tshudy admitted that he was referring specifically to union activities (T. 181- 182). He described his motive in this discussion as a desire to call to Camarda = s attention potential criticism and difficulties these might cause (T. 172-173). He further testified of telling her that A it would be well for her to be a little more careful, just what position she took and how she handles it. @ (T. 188- 189). Tshudy appeared to think that his friendly intent distinguished his comments from those fairly categorized as A warnings @ about Association activities. Although Camarda did not feel threatened by Tshudy personally she did perceive his comments as a threat channeled through him from his superiors. (T. 85-86).

Linda Cain, another elementary school teacher testified that Camarda had been quite upset when she told her that Tshudy had warned her that the Board was not pleased with her and that she should A mend her ways. @ ^10/ One factor in Cain = s decision not to run for Association office was A what happened to Susan @ Camarda. Cain A felt that it would be best to keep a low profile. @ (T.147).^10a

Testimony on anti-union animus, threats and surveillance of Association members by the Board was also provided by the current and former presidents of the Association, Mr. Robert D. Dombloski and Mr. Robert Repko, respectively. Dombloski stated that he had received a warning similar to the one Camarda got from Tshudy about the antipathy her union activities were arousing. Dombloski testified that his principal, Mr. Frank Dragotta, told him that the Board had asked the principals to watch prominent Association members for opportunities to terminate them. Names specifically were Dombloski, Repko, Matla and Camarda (T. 94- 97). ^11/ One Board member, Mr. Dalio Ghetti, had, according to Dombloski, blamed the strike and ill will between the Board and Association on Camarda = s radio statements.^12/ The former Association President, Repko, gave similar testimony and corroborated Ghetti = s attitude toward Camarda = s radio statements. He further testified that he had been warned about union activity as had Camarda and Dombloski. He attributed his decision to give up the office of president of the Association to the warnings and consequent fear for his job (T. 117-119).

Respondent = s witnesses denied all allegations of anti-union animus (with the exception of what may be inferred from Tshudy = s testimony, who was called by both parties as a witness). Mark testified that Association activities, particularly the radio announcements, were never discussed by the Board. Board President Barbara Johnson stated that she was out of town at the time of the radio broadcasts and never heard Camarda = s statements. Ainsworth Scott, a Board member alleged to be antagonistic toward Camarda, denied all statements attributed to him. ^13/

Negotiations between the Charging Parties and Respondent were underway in the summer of 1978 for the 1978-79 school year. Camarda was on the negotiating team and in September of 1978 she again acted as Radio Spokesperson for the Association. Camarda related that the Association was again having difficulties in getting the Board to the negotiating table (T. 53). This time a strike was called and the teachers refused to meet their initial classes.

In October of 1978 budget planning for 1979-80 began. The initial budget was $144,000 over that permitted by the State for the District, including the A CAP @ increase over the previous year = s budget (T. 228). On April 5, 1979, the administration met with the entire elementary and high school faculty to announce that the Board was going to make a reduction in force (RIF) and was considering the elimination of several programs including elementary art, vocal music in the high school and such supplemental or extra curricular positions as the gifted and talented program. Earlier on that day, the Superintendent informed both Camarda and the vocal music teacher of what was to be announced at this meeting.

Respondent = s consistent rationale for its decision to eliminate the art program in the elementary level was its belief that the regular classroom teachers would provide some art experience for children in these lower grades. Other alternatives such as combining two first grade classes were deemed to be more destructive of the basic instructional program and were rejected. (T. 177). ^14/

Warnings about Association Activism

In its brief, Respondent asserts that the testimony presented by Charging Parties remains unproven and unverified. Admittedly, Respondent = s witnesses contradicted the testimony of Charging Parties witnesses by their flat denials of, e.g., having asked the principals to collect data which would serve as grounds for dismissal for certain Association activists, having abolished the teacher Camarda but not the art program, and having knowledge of Camarda = s activities on behalf of the Association. This however does not preclude a finding that Charging Parties = witnesses were generally more credible than those of Respondent = s, or that the corroboration of items by Charging Parties = witnesses particularly of the warnings concerning Association activity, was more convincing than the series of denials by witnesses for Respondent. In particular, I discredit Mark = s testimony that the radio announcements by Camarda were never discussed by the Board. When a strike is imminent and the Board, through Mark responds the Board must have been aware of the content of the statements and in some manner settled upon a proper response. Whether each and every Board member heard the statements and whether the discussion took place informally is of little relevance. Neither can I credit Board President Johnson = s and member Scott = s testimony that they did not know that Camarda was a Vice President of the Association and a member of the Public Relations Committee, since lists of the officers and committee memberships were always given to the Board.

The Charging Parties have made a convincing showing of anti- union animus on the part of the Board. This animus was directed against Camarda and others for their activities on behalf of the Association. In addition to corroboration by members of the Association, the testimony of Tshudy was particularly significant as constituting an admission against the interest of himself and the Board, despite his denial that the Board directed him to collect damning information on Camarda and other activists. The warnings which he and the high school principal gave the Association activists, however friendly the intent, had the effect of halting the elementary teachers = participation in the Association (T. 94-95). The actions of Respondent through its agents in warning Camarda and other Association members that their union activities were endangering their job security are in violation of N.J.S.A. 34:13A-5.4(a)(1).

Harassment

Respondent asserts that Camarda = s A coffee klatch @ activities and the A Mullener @ incident concern unprotected activities unrelated to the Association. Since the record on the coffee klatches is insufficient, no findings of violation based on such conduct are warranted. ^15/ However, the Mullener incident is fully detailed in this record. It is true that facially the matter concerned grading procedures unrelated to union activity. This is not the point of Charging Parties argument. Camarda, Dombloski and Repko all testified to being warned that the Board would try to collect grounds for their dismissal. Obviously these grounds could not concern union activity. The Mullener incident supports the assertions of these Association members. Witnesses for Respondent were given every opportunity to explain why this matter came before the Board and why Camarda received a letter of reprimand when the issue had already been resolved to everyone = s satisfaction. No explanation was forthcoming. Significantly although Camarda = s policy was not unusual, the Board did not promulgate a new policy on grading for unsigned student work. Since Respondent has not justified this unusual occurrence on grounds of educational policy, this harassment constitutes a form of interference, coercion and restraint in violation of N.J.S.A. 34:13A-5.4(a)(1).^16/ See New Jersey Sports Expo., P.E.R.C. No. 80-73, n. #1.

II. Discriminatory Discharge

The standard for determining a violation of N.J.S.A . 34:13A- 5.4(a)(3) is most often quoted from In re Haddonfield , P.E.R.C. No. 77-36, 3 NJPER 71 (1977).^17/ The warnings, harassment and surveillance imposed upon Camarda as alleged and supported in this record create a prima facie showing that her discharge constitutes and (a)(3) violation. Charging Parties do not appear to recognize that this is not the end of the matter, since they have failed to address Respondent = s financial justification for the discharge in their brief. Once a prima facie case is established, the burden of proof shifts to Respondent to demonstrate that the discharge was impelled by legitimate reasons. ^18/ This Respondent has demonstrated without serious challenge by Charging Parties. At hearing Charging Parties appeared to dispute the necessity of the budget cuts implemented by the Board. Charging Parties did not assert that other alternatives in budget cuts were more logical and has been passed over in order to eliminate Camarda. Charging Parties initially pointed to the recent expenditure, estimated by Camarda to be between $80,000 and $100,000 for a new art facility to show, presumably that there was no budget crisis, and that the art program had never been on any potential cut list. Charging Parties then attempted to show that various A savings @ created by, e.g., the change from a full-time position to a part-time or the substitution of a new employee for an employee who salary was scheduled for increase, were sufficient to cover the continuation of Camarda = s salary. Testimony on the financial aspects of personnel changes by Roland T. Gibbs, the Board Secretary, effectively rebutted this by pointing out the additional expenditures to which these savings had already been applied. Gibbs testified that the Board had to borrow $50,000 to finish the 1978-79 year (T. 339). Charging Parties then asserted that the financial crisis had been brought about by the Board itself the previous year when it did not spend the full amount permitted it, thus creating a less than maximum monetary base from which the current year = s budget plus CAP would be figured. Charging Parties apparently would have the inference drawn that the Board created this financial crisis and ultimately forced itself to go into debt for the purpose of manufacturing a legitimate reason to eliminate the art program for elementary students and thereby eliminate Camarda. This is rather far fetched. Charging Parties have put forward nothing in this record to tie the decision not to spend to A CAP @ limits in the 1977-78 year to union animus, or to animus directed to Camarda. Charging Parties presented no testimony rebutting the financial situation as presented by Gibbs and Mark nor were they successful in refuting Gibbs = testimony on cross examination. Charging Parties have not attacked the financial data in any way in their brief; they merely describe the testimony on the economic crisis faced by the Board as a A Rationalization. @ This is insufficient to show that the Board = s financial difficulties were merely pretextual. The Board in such a situation is within its rights in abolishing a position. In re East Orange Board of Education , P.E.R.C. No. 79-62. Charging Parties have not argued discriminatory selection when a RIF is necessary. Even had they so argued, such selection is extremely difficult to prove in the case of a specialty teacher. ^19/ Respondent consistently explained why it chose to eliminate the art program. Its financial and education rationale was persuasive. Even resolving Scott = s ambiguous reference to Camarda = s A personality @ problem in favor of Charging Parties, this is insufficient to overcome the business justification for her discharge presented by Respondent. Charging Parties have thus failed to show either that the financial crisis did not exist or that the Board chose to eliminate Camarda = s position for reasons concerning union activity rather than for the educational considerations presented by the Board. Accordingly, no discrimination in violation of N.J.S.A . 34:13A-5.4(a)(3) can be found and I will recommend dismissal of that allegation.

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

5.4(a)(1) by engaging in a course of conduct including warnings and threats of termination, and harassment of employees by fulfilling a warning of closely observing work performance in order to create a record warranting termination, tending to interfere with, restrain and coerce employees in the exercise of rights guaranteed by the Act and which have had the intended effect of discouraging employees in the exercise of those rights.

2. The Respondent Board has not violated N.J.S.A. 34:13A-

5.4(a)(3) by abolishing the position of art teacher, Susan Camarda.

1. Cease and desist from:

(a) Interfering with, restraining or coercing Susan Camarda or other employees in the exercise of the rights guaranteed to them by the Act by threatening them with reprisals for activities undertaken on behalf of the Association, including holding Association office.

(b) Discouraging their employees in the exercise of

the rights guaranteed to them by this Act by harassing or surveilling for the purpose of collecting rounds for their dismissal in retaliation for their Association activities or sympathies.

2. Take the following affirmative action necessary to

effectuate the policies of the Act.

(a) Expunge from employee Susan Camarda = s personnel

file, if not already done so, a letter or written warning for her exercise of disciplinary authority in the classroom designed to harass and intimidate her from assisting the Association and engaging in lawful Association activities.

(b) Place employee Susan Camarda, whose position of

art teacher was abolished at the conclusion of the 1978-79 school year, upon a preferred eligible list for reemployment whenever the first vacancy occurs for teacher of art, the position for which she is qualified, and reemploy Camarda upon such vacancy, giving full recognition to previous years of service, in accordance with the provisions of N.J.S.A . 18A:28-12 and without loss of benefits or privileges previously employed.

(c) Post immediately in plain sight at the

administrative offices of the Belvidere Board of Education and at each school building with the Belvidere School District, copies of the attached notice marked A Appendix A. @ Copies of said notice on forms to be provided by the Commission shall, after being duly signed by Respondent Board = s representative be posted by Respondent immediately upon receipt thereof, and maintained by them for a period of at least sixty 960) consecutive days thereafter in conspicuous places including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced or covered by any other material.

(d) Mail a copy of the attached notice marked

A Appendix A @ , duly signed by Respondent Board = s representative, to each employee in the negotiating unit represented by the Association. Mailing shall be by regular mail to the resident address of each employee as appears on the files of the Respondent.

(e) Notify the Chairman of the Commission, in writing,

within twenty (20) days of receipt of the Commission = s Order, what steps the said Respondent has taken to comply herewith.

IT IS FURTHER ORDERED that the section of the Complaint alleging that the Belvidere Board of Education has engaged in violation arising under N.J.S.A. 34:13A-5.4(a)(3) with regard to its abolishing Susan Camarda = s position as art teacher in the elementary school be dismissed in its entirety.

Robert T. Snyder

Hearing Examiner

DATED: January 28, 1980

1/ The Charging Parties identified Tshundy and other agents who were alleged to have acted on behalf of the Board in a list of particulars to the Complaint forwarded Respondent by letter dated July 16, 1979 after request had been made by Respondent counsel by letter dated July 3, 1979.
2/ These subsections prohibit public employers, their representatives or agents 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 or condition of employment to encourage or discourage employees in the exercise of the rights guaranteed to them by this Act. @
3/ At the pre-hearing conference counsel advised the Hearing Examiner that a companion proceeding was indeed pending before the Commissioner of Education but that no conference or hearings had yet been held. As of the date of issuance of this report, I have been further advised by counsel that hearing in that proceeding before an Administrative Law Judge has been scheduled to commence sometime in February 1980. Neither party has introduced any evidence with respect to this related proceeding and Respondent did not press this defense at the hearing and has not briefed it in his post-hearing memorandum.
4/ Camarda testified that she had attended four such Coffee Klatches. Principal Tshundy testified that he and Superintendent Mark knew that Camarda and other teachers were involved in these community activities.
5/ By Job Action Camarda referred to the teachers concerted refusal to come to school for the first of September meetings before classes began.
6/ Respondent in brief asserts that these statements were not the least bit inflammatory and were unlikely to engender retaliation. Among the radio statements placed in the record are several charging Respondent with not negotiating in good faith (CP-1, 2 and 3) and one, CP-12, accusing Respondent of constant delays and refusal to meet with the Association, impliedly placing responsibility for the strike on Respondent. This is sufficient to infer that the radio statements augmented the friction between Respondent and the Association.
7/ Camarda= s handling of unsigned student work was the basis of the complaint. She simply threw out anything unsigned, and this was not an unusual manner of dealing with the problem in this school. In this particular incident, the student insisted that she had signed the work and one of her friends corroborated it. Since Camarda had disposed of the item and could not show that it was indeed unsigned, the Principal resolved the issue in favor of the student, who was not required to redo the work.
8/ It was during this meeting, Charging Parties allege, that a Board member, Ainsworth Scott, interrupted the discussion to describe Camarda as a A rotten apple @ in the elementary faculty (T. 47; 112).
9/ Tshudy also warned her about A making faces @ and sideways comments @ to people at a Board meeting. Since it is unclear what subject was being discussed by the Board at the time and exactly what A faces @ Camarda made or what she said during this incident, it is impossible to characterize her conduct as protected activity. It would be significant if she was mocking a poorly chaired meeting or if she was registering a protest about remarks concerning the Association. It might be even be more significant if the record recited more precisely the nature of her gestures. Fortunately the parameters need not be discussed here.
10/ Whether this referred to her union activity was not specified, but Cain = s explanation of her decision not to run for Association office supports an inference that she meant Camarda = s union activity.

10a Every elementary school teacher was approached to hold Association office. All refused nomination, and all but one gave Camarda = s situation as the reason for their refusal (T. 94-95; 157-159).
11/ Frank Matla was Grievance Chairman and the only Association activist with both tenure and sufficient seniority to protect him from a RIF.
12/ Ghetti voted against the abolition of the art program. Dombloski also testified that Ghetti had stated that he was more interested in getting rid of Dombloski and Repko than Camarda. Respondent asserts in its brief that Charging Parties = decision not to call Ghetti as a witness raises an inference that Ghetti = s testimony would be unfavorable to them. To the contrary, a more appropriate inference would be that Respondent = s failure to call Ghetti and allow him to deny the statements attributed to him support an inference that he had indeed made the statements evidencing hostility toward Camarda and others of the Association = s leaders.
13/ In addition to the allegation that Scott termed Camarda a A rotten apple @ during a Board meeting, Charging Parties also brought on a parent from the community who testified that Scott told her in April 1979 that he himself would like to see an art program but he felt that there was a personality problem with the art teacher (T. 502).
14/ This decision was arrived at despite the recent expenditure, estimated by Camarda to between $80,000-$100,000 on a new art facility. This estimate remained uncontradicted by Respondent. The expenditure was apparently part of a building expansion involving both the high school and the elementary building (T. 140-141). By resolution of the Board made April 10, 1979 (R-2) he elementary art position, vocal music position in the high school and the part-time gifted and talented position and an assistant wrestling coaching position were all eliminated. Camarda was lowest in seniority of the two art teachers (R-1) and therefore was terminated subject to recall provisions of N.J.S.A. 18A:28- 12.
15/ There was no testimony on what transpires at these coffee klatches other than encouragement of parents to attend Board meetings. While it is acknowledged that the Board perceived them, generally, as causing dissention against it as a body, absent any evidence that Camarda = s activities related to Association disputes with the Board or to her efforts to inform the public of Association concerns or positions, no conclusion favorable to Charging Parties regarding the effect of Camarda = s participation in these can be drawn. Compare In re Laurel Springs Board of Education, P.E.R.C. No. 78-4.
16/ Most, if not all, of the events upon which the (a)(1) violation is based took place outside the six-month statute of limitations concerning filing of said charges. Respondent never raised the issue of time-bar, and thus has waived this defense. A.H. Belo Corp. v. NLRB, 71 LRRM 2437 (5th Cir. 1969); Shumate v. NLRB, 78 LRRM 2905 (4th Cir. 1971); Cf. Kaczmarek v. New Jersey Turnpike Authority, 77 N.J . 329, 339-340. The introduction of evidence on the allegations of interference, restraint and coercion was necessary and proper even had Respondent raised time-bar since these allegations were directly related to the (a)(3) charge which had been filed timely.
17/ A violation of N.J.S.A . 34:13A-5.4(a)(3) should be found if it is determined that a public employer = s discriminatory acts were motivated in whole or in part by a desire to encourage or discourage an employee in the exercise of rights guaranteed by the Act or had the effect of so encouraging or discouraging employees in the exercise of those rights. P.E.R.C. No. 77-36 at 4, 3 NJPER at 72. See Brookdale Community College v. George Abel and PERC, N.J. Super. (App. Div. Docket No. A-4824-77, 1/9/80).
18/ North Warren Regional Board of Education and North Warren Regional Ed. Assn ., P.E.R.C. No. 79-9 at 5.
19/ In re Cape May City Board of Education (Loper), P.E.R.C. No. 80-87 (1980).
20/ Cf. Galloway Tp. Bd. of Ed. v. Galloway Tp. Ed. Assn., 78 N.J . 25, 34-37.
21/ See H.W. Elson Bottling Co., 155 NLRB No. 63, [60] LRRM 1381 (1965).