H.E. NO. 90-17

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

STATE OF NEW JERSEY,

(WILLIAM PATERSON COLLEGE),

Respondent,

-and-	Docket No. CO-H-88-280

COUNCIL OF NEW JERSEY STATE COLLEGE

LOCALS, NJSFT-AFT/AFL-CIO,

Charging Party.

Appearances:

For the Respondent, Hon. Peter Perretti, Attorney General

(Melvin E. Mounts, D.A.G.)

For the Charging Party

Bennett Muraskin, NJSFT/AFT Staff Representative

HEARING EXAMINER'S RECOMMENDED

SUPPLEMENTAL REPORT AND DECISION ON REMAND

This Hearing Examiner issued the recommended report and decision on June 30, 1989 in which she recommended that the Commission dismiss the complaint of the charging party ("Council") (H.E. No. 89-43, 15 NJPER (¶ 1989). The Hearing Examiner credited James Kuhn's denial that he made any comment concerning the right to file grievances. Thereafter, on July 13, 1989, the Council filed exceptions to the Hearing Examiner's Recommended Report and Decision, supra. The Respondent ("State") did not file any subsequent position statements.

On August 18, 1989, the Commission issued its decision and dismissed a portion of the Complaint alleging the Board ("Board of Trustees") member said the professor had no right to file a grievance. However, the Commission requested that the Hearing Examiner review the recommendation and make a supplemental report concerning that portion of the complaint alleging that the Board member said "Little lady, how dare you file a grievance".

The Commission, in its remand to the Hearing Examiner, stated that this was done so that she might "... make findings and recommendations on these issues..." and that she "...should also make any supplemental findings of fact necessary to resolve the disputes identified in the exceptions and arguments presented by the charging party".

Based upon the pleadings, the record made during the days of hearing in this matter, the post hearing briefs of the parties, the exceptions of the charging party, which together constitute the entire record in this proceeding the hearing examiner makes the following:

SUPPLEMENTAL FINDINGS OF FACT1/

6. Linda Dye testified that Kuhn said to her "Listen here, young lady, your idea of moderate and my idea of moderate are very

1/	The original findings of fact set forth in H.E. No. 89-43, supra. are incorporated by reference. For convenience, the paragraph numbers in these "Supplemental Findings" shall follow numerically the paragraph numbers in the original findings of fact.

different." (1T18). When asked again whether or not Kuhn made the remark, Dye testified:

"Q. I am asking then is it young lady or little lady.

A. Little lady."

(1T24)

7. Robert Bing testified that there were discussions concerning other issues at this meeting of March 21 (1T55). Specifically, a discussion concerning promotions. In an effort to bring the conversation back, Dye requested the governance issue be placed back on the table. Bing did not recall Dye's specific words, but testified that Kuhn's response "was in an angry tone and Kuhn continued to question 'Do you know that grievances have been filed in this matter? I can't understand why grievances have been filed in this matter and little lady, how dare you file a grievance in this matter.'" (1T55).

Bing further testified President Speert also observed that Kuhn was angry and Speert wrote Bing a note to change the subject (1T56). There were no further questions concerning Dye's grievance (1T57). Bing's testimony confirmed the issues for discussion were the no confidence vote for the President by the faculty and the governance issue of which Kuhn demonstrated a great deal of anger. When Bing was asked if anyone said anything concerning Kuhn's comment about the grievance as to its impropriety or that it should not have been said at the meeting, Bing responded "No." (1T71).

Bing testified that Kuhn was very adamant about placing a faculty member on the Board of Trustees while the faculty is withdrawn from governance (1T55). Bing testified that Kuhn brought up this issue at least three times before making any comment concerning grievances (1T53,54,55).

This corroborates Dye's testimony (1T38) when she asked about subsequent discussions to Kuhn's alleged comment. Both witnesses testified that there were no discussions immediately following Kuhn's alleged remark at the March 21 meeting (1T38).

8. Timothy Gerne, witness for the Charging Party, is a professor in the Department of Curriculum and Instruction at William Paterson College. He is a union member, but not a union officer (2T3,4).

Gerne's testimony is inaccurate and inconsistent. Primarily, he was not able to recall the comments concerning governance and Kuhn's remarks on the same issue, yet he allegedly vividly recalled Kuhn's alleged comment to Dye beginning with "little lady."(2T14,15)

Gerne testified there were discussions concerning faculty members being non-voting members on the Board of Trustees. He directed this discussion toward Russell Hawkins, Chairperson for the Board of Trustees, and noted that Kuhn did not state an opinion on this particular matter (2T6). However, Gerne made an observation concerning Kuhn's alleged remark:

[Kuhn] was rustling papers and then all of a sudden he turned. They [Dye & Kuhn] were on the same side of

the table Mr. Hoffman was between Professor Dye and Professor Kuhn and he looked her right in the eye and he said, 'Little lady, how dare you bring the small issue of your promotion. I don't want my house picketed by students like it was in 1974.' (2T6). He observed Kuhn looked distressed (2T7).

Gerne testified concerning the length of the meeting. He figured approximately "a couple of hours. They had lunch. It wasn't a brief meeting (2T9)." When he asked how long the meeting continued after Kuhn's alleged remarks about Dye's grievance, Gerne answered, "Not too long, not too long." (2T9).

On cross-examination, Gerne testified the group had dinner and then the meeting commenced and when asked how long after the meeting commenced did the question of grievance come up, Gerne testified, "Maybe 20 minutes, half an hour." (2T10). Gerne further testified on cross-examination that he did not recall Kuhn having made any comment about whether or not the Board should have a faculty representative before speaking to the grievance comment (2T11).

Gerne's account of the remark on direct examination elaborated on the "promotion and picketing" attached to Kuhn's comment about Dye's grievance (2T6,7).2/ Gerne testifies on cross examination that out of the blue and without provocation, Kuhn suddenly turned to Dye and started yelling about her grievance

2/	Kuhn's account of the alleged remark, "Little lady, how dare you bring this small grievance, you know, to this thing. I don't want to..." "I don't want my house picketed like in 1974." (2T17).

(2T13) and gave yet another version of Kuhn's comment by stating "he heard Kuhn say 'little lady, how dare you bring this small grievance ...'"(2T17).

Gerne did not recall Kuhn making any comments concerning a faculty member on the Board prior to Kuhn making the alleged comment to Dye (2T14). More importantly, Gerne was uncertain as to the sequence of events (2T14). It is unlikely that Kuhn made three different comments and more unlikely that three different accounts, by the same person, of an allegedly derogatory remark is able to withstand credibility. Gerne's testimony is inaccurate, inconsistent and the hearing examiner discredits it.

9. Arnold Speert is the President of William Paterson College. He makes only positive recommendations to the Board of Trustees for promotion of the faculty (2T22).

The All College Promotions Committee took exception to Speert's recommendations which eliminated three people (2T23). Consequently, the union filed a group grievance and then Dye filed an individual grievance (2T24). Speert did not tell the Board members at any time prior to the March 21 meeting that Dye filed an individual grievance (2T25).

Speert testified about several discussions concerning the suspension of governance and participation of faculty with the Board (2T32). Speert recalled Dye responding to the suspension of governance, "I don't remember the exact words, but a mild step, a mild expression and it was -- I think the comment was not as strong

as a vote of no confidence or something to that effect." (2T32). Speert testified Kuhn was concerned about the withdrawal from governance and made reference to the 1974-75 picketing (2T33).

Speert spoke to Kuhn's comments concerning the promotions grievance:

"In the course of Dr. Kuhn's -- in the course of discussing withdrawal from governance...he [Kuhn] talked about the adversarial role which the discussion was taking and how he felt it was not in the best interest of the faculty." (2T33)

Speert on direct examination recalled Kuhn's comments "with respect to the withdrawal from governance and the filing of the grievances came as a result of Dr. Dye's attempt to put the Faculty Senate's actions in perspective" (2T34). Speert observed Kuhn as being very "passionate" in his sentiment regarding the governance issue (2T34).

Speert testified that he did not hear Kuhn say anything improper to Dye or anyone else (2T36).

Speert did not recall Kuhn referring to Dye as a "little lady" (2T38); he does not recall Kuhn addressing whether or not Dye had a right to file a grievance. Speert testified Kuhn addressed whether the filing of the grievance in this particular situation was

beneficial to the open discussions between the administration and faculty in solving what he saw as a campus problem (2T38). 3/

10. Kuhn recalled that the March 21 meeting addressed the board members' positions on the question of faculty representation on the Board of Trustees. Kuhn stressed the inappropriate timing of talking about extending the governance with the faculty at a time when the faculty had withdrawn from governance (2T83). Kuhn testified he thought it would be much more appropriate if the Board were to discuss such a matter when the faculty was actually governing in its usual way. He's uncertain as to what the sequence was when asked if someone took exception to what he said. He testified "he was sorry to see this kind of development because it reminded him very much what had happened some years before when he first came to the Board and his home was picketed (2T83)."

After the discussion with Bing concerning the governance issue, which Kuhn perceived as a very serious matter, Kuhn recalled turning to Dye, who was sitting to his left, and asking her directly

"why a grievance was filed at this time 'when a grievance -- when a

3/	Speert testified he first learned of Kuhn's alleged remarks from Irwin Knack, the union president. Knack approached Speert concerning the statements that were made at the March 21 meeting (2T40) and Knack suggested it was important for them to meet. They arranged to meet that day.

Knack and Speert met, Knack showed Speert copies of four affidavits and told him of his intention to pursue an unfair labor practice against the Board. Speert offered to settle the matter by issuing a statement of employee's rights (2T41). Knack replied the only way this could be settled would be for the President to reverse his decision on three promotions that he denied (2T41).

resolution, when it would make a resolution more difficult' and she replied that the 'union had to file the grievance, that it had to be filed --' I forget exactly how she put it, that the grievance had to filed because there was a limit on the time for filing. I said, 'Well, I understand that of course but you can always get an extension at least it's a usual practice to extend it.'" (2T84, 85).

Kuhn observed that no one made any comment concerning the action by the faculty in comparison to those events and Kuhn did not feel that withdrawing from governance was a moderate action. He did not at any time refer to Dye by any other form of address other than her name (2T85, 86).

Kuhn testified he was concerned about the complaint by Dye that he had called her "little woman." "I do not believe I said that or I would so testify that I did not say that but if I thought -- if there was any way in which she heard that that I would certainly want to apologize and apologize in public." (2T95).4/ On cross-examination when asked about the alleged remark at the March 21 meeting whether or not Kuhn directly confronted Dye with the fact she had filed a grievance, Kuhn's response was:

I don't believe I confronted her directly. I simply -- she was next to me. I was talking to the whole group...I was looking at the group and I said why was a grievance filed. I wasn't speaking to her directly but she responded. (2T103).

4/	Kuhn explained that he had referred to a student member of the Board as "that girl on the Board" (2T85,86).

Kuhn was certain he had no reason to address Dye any more than any of the others. He did not know she was named in a grievance. He presumed she was one of the persons in controversy on the promotions list. (2T104).

11. Russell Hawkins is Chairperson of the Board of Trustees at William Paterson College. This is his third year as chair (2T116, 117). Hawkins testified he started the meeting off by discussing the Board's position on whether or not faculty members should participate at the Board level and suggested ways that the Board could productively explore how the faculty could participate (2T120). Hawkins testified Kuhn was concerned about the faculty withdrawing from governance and Kuhn found this inconsistent.

Hawkins corroborated Kuhn's and Speert's testimony concerning the grievance (2T122,123). The witness commented on Kuhn's views that the timing of the meeting and the timing of the grievance "seemed to be in juxtaposition and his comments went to the timing of this item [grievance]" (2T123). Hawkins testified Kuhn's concern went to the timing of the grievance as it related to the governance issue (2T123).

Hawkins does not recall Kuhn making any comments about an individual's right to file a grievance, nor does he recall at any time during the meeting that Kuhn addressed Dye in any other way other than by her name (2T124).

SUPPLEMENTAL ANALYSIS

"The issue is whether a statement made by a member of the Board of Trustees of William Paterson College interfered, restrained and coerced employees in the exercise of their rights under Section 5.4(a)(1) of the Act."(1T5,6)

To determine if an (a)(1) violation took place, it is necessary to determine whether or not the alleged comment was made and then determine if it has interfered with an individual's rights as protected under the Act.

The Commission upon remand requested the Hearing Examiner make a supplemental finding and a specific and express finding as to whether or not Kuhn called Dye "little lady" and whether he asked her how she dared to file a grievance. Five witnesses testified throughout the hearing concerning Kuhn's comments.

The thrust of the union's argument is whether or not a specific statement was made and, if so, did it interfere with an individuals rights protected under the Act. The union relies on testimony of three witnesses whose testimony is not consistent and although they appear to be testifying as to exactly what was said, none of their testimony is corroborative. They all agree that Kuhn's comments were made in anger, but failed to view these comments in the proper context of the discussions concerning the faculty withdrawing from governance and faculty receiving a position on the Board of Trustees.

In reviewing the five witnesses' testimony, the three union witnesses obviously recalled the comment being made very vehemently

and in a very angry tone. However, neither witness qualifies the alleged comment. The union translates Kuhn's "passion" against a withdrawal from governance as a direct threat against one of its members and a denial of her promotion. They fail to realize that that sentiment was not directed toward Dye nor toward the rights guaranteed her under the Act. The Charging Party fails to provide substantially convincing testimony, by any of its witnesses, that the comment "little lady, how dare you file a grievance " was ever stated.

Dye and Bing both testified that Kuhn confronted her out of the clear blue sky and said "how dare you file a grievance" (1T18, 35). However, Dye and Bing could not agree on whether or not the comment was "young lady or little lady." (1T18, 35).

Bing's testimony is only partly credited. I discredit it on the fact that he and Dye are unable to agree as to what was said. First Bing testifies that the alleged remark began with "young lady" (1T18) and later, while still on direct examination, clarifies the comment to be "little lady." (1T24)

Gerne's testimony is inconsistent and is discredited. He contradicts himself throughout the testimony. I discredit Gerne's testimony based upon his own statement. First he is not able to recall any previous discussions concerning the governance issue and on cross examination he is uncertain as to the sequence of events. (2T14). Then he contradicts himself as to the length of the dinner discussion and the meeting (2T14,17).

Gerne claims Kuhn, without provocation, turned to Dye and said "little lady, how dare you bring this small issue of your promotion. I don't want my house picketed by students like it was in 1974." (2T6). Gerne is unable to remember exactly whether or not anything was said concerning Dye's grievance because he testified he was in shock from what Kuhn had said. He does not recall the length of the meeting after the alleged comment (2T8,9).

Gerne's testimony is credited on the fact that the meeting of March 21 took place and that Kuhn was angry in his sentiments.

By comparison the State's witnesses, President of the College, the Secretary of the Board of Trustees, Kuhn, and the Chairperson of the Board of Trustees all agree and corroborate Kuhn's testimony and that he was very angry concerning the discussion about faculty withdrawal from governance as it relates to appointing a faculty member to the Board of Trustees. However, neither of their testimony supports the allegation that Kuhn directly confronted Dye by calling her "little lady" and stated to her "how dare you file a grievance."

Speert's testimony, as well as Hawkins', corroborated Kuhn's testimony in that neither of them recall Kuhn making any derogatory remarks toward Dye nor recall Kuhn referring to Dye in any other way other than by her name.

They all concur that Kuhn was angry or "passionate", but that sentiment was not directed toward Dye nor did Kuhn refer to her as "a little lady" or "young lady" or "little woman." (2T83, 95).

I further credit Speert and Hawkins concerning Kuhn's remark. Both witnesses corroborated Kuhn's testimony that he did not remember making the comment. Neither witness observed Kuhn making the remark nor referring to Dye in any other way other than by her name (2T34,36,38). I find that Kuhn did not refer to Dye as "little lady" nor did he make the statement "how dare you file a grievance."

Subsection 5.4(a)(1) prohibits a public employer from "(1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act." A public employer violates subsection (a)(1) when its conduct tends to interfere with an employee's statutory right and lacks a legitimate and substantial justification. Jackson Tp., P.E.R.C. No. 88-124, 14 NJPER 405 (¶19160 1988), adopting H.E. No. 88-49, 14 NJPER 293, 303 (¶19109 1988); UMDNJ, Rutgers Medical School, P.E.R.C. No. 87-87, 13 NJPER 115 (¶18050 1987); Mine Hill Tp., P.E.R.C. No. 86-145, 12 NJPER 526 (¶17197 1986); N.J. Sports and Exposition Authority, P.E.R.C. No. 80-73, 5 NJPER 550 (¶10285 1979). It is not necessary for the charging party to prove an illegal motive in order to establish the independent violation of 5.4(a)(1) of the Act.

The Hearing Examiner finds and concludes that the statements in the Supplemental Findings of Fact support the State's position that the actions of one of its members did not in fact take place; therefore, there is no violation of 5.4(a)(1) of the Act. Based upon the entire record on remand and the Supplemental Findings of Fact made above, the Hearing Examiner makes the following:

SUPPLEMENTAL CONCLUSIONS OF LAW

1.	The Respondent Board did not violate N.J.S.A. 34:13A-5.4(a)(1).

RECOMMENDED ORDER

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

Lorraine H. Tesauro

Hearing Examiner

Dated: October 20, 1989

Trenton, New Jersey