H.E. NO. 80-20

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

CAPE MAY CITY BOARD OF EDUCATION,

Respondent,

-and-	Docket No. CO-79-60-27

CAPE MAY CITY EDUCATION ASSOCIATION,

Charging Party.

Appearances:

For the Respondent

Martin R. Pachman, Esq.

For the Charging Party

Greenberg & Mellk, Esqs.

(William S. Greenberg, Esq., Arnold Mellk, Esq. and

Alan G. Kelley, Esq., Of Counsel)

HEARING EXAMINER'S RECOMMENDED

REPORT AND DECISION

On September 12, 1978, the Cape May Education Association ("Association" or "Charging Party") filed an unfair practice charge with the Public Employment Relations Commission ("Commission") alleging that the Cape May City Board of Education ("Board" or Respondent") has engaged in unfair practices within the meaning of the New Jersey Employer-Employee Relations Act ("Act"), as amended, N.J.S.A. 34:13A-1 et seq. Specifically, the Association alleges that the Board reduced the employment of George Loper, physical education teacher, from five to three days per week effective with the 1979-80 school year, closed the school swimming pool which Loper supervised for a period of time during April, 1978, and commencing in July, 1978 required Loper to undergo a physical examination to determine his physical ability to conduct the health, physical education and swimming program in the School District, all as part of a campaign of harassment and intimidation against Loper, motivated by anti-
union animus, in violation of N.J.S.A. 34:13A-5.4(a)(1) and (3).1/

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 thereon on October 16, 1978. By Answer served and filed on November 3, 1978, the Respondent denied the material and conclusionary allegations of the Complaint and interposed certain affirmative defenses, one of which formed the basis for an oral motion to dismiss made at the outset of the hearing. The motion was based upon a claim that the proceeding, at least with respect to the reduction of Loper's work schedule, was time barred under N.J.S.A. 34:13A-5.4(c) precluding the issuance of a Complaint upon any unfair practice occurring more than six months prior to the filing of the charge with one exception not here relevant. Ruling on that motion was reserved pending issuance of this Report and will be included herein.

Hearings on the substance of the issues joined by the pleadings were held before the undersigned on May 30, 31,2/ and June 1, 1979 at Cape May Courthouse, N.J. and on August 2, in Trenton, N.J. A preliminary hearing before Carl Kurtzman, Director of Unfair Practices, on Charging Party's unsuccessful motion to re-consolidate the instant proceeding with unfair practice proceeding in Docket No. CO-78-58-26 between the same parties was held in Trenton, N.J. on March 14, 1979. Both parties were given full opportunity to examine witnesses, present evidence and to argue orally. Both parties filed post-hearing briefs, the Charging Party on October 12, 1979 and the Respondent on October 17, 1979.2/

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

FINDINGS OF FACT

1.	The Board operates a school district located in the City of Cape May containing grades K through 6. For at least the last 10 years the Association has been the exclusive representative for purposes of collective negotiations concerning the terms and conditions of employment of the certified teachers employed by the Board. A series of successive collective agreements have been negotiated between the parties. Accordingly, I find and conclude that the Board is a public employer and the Association is an employee organization and majority representative of employees in an appropriate unit, respectively, within the meaning of the Act.

2.	George Loper was employed as the sole physical and health education teacher by the Board from September, 1965 until he voluntarily resigned effective May 1, 1979. During his tenure in the District, Loper usually held a leadership role in the Association. In school year 1976-77, Loper was Vice President, PR&R (grievance) Chairman and had been Negotiations Chairman for some years prior thereto. He continued in these Association positions for school year 1977-78 and then assumed the Presidency in April, 1978, which position he continued to hold until his resignation. Loper was also a member of the Executive Committee of the New Jersey Education Association, the State-wide organization with which the Charging Party is affiliated, elected as sole representative from Cape May County from 1972 to 1979.

3.	During the interview process in 1965, leading to his initial employment, Loper was asked by the then Administrative Principal to show how he would set up a complete physical education program for the elementary school which housed a swimming pool and to provide an overview of the scope of such a program for each grade level. Upon his hire, Loper, as "Director of Physical Education", prepared a lengthy document comprising a physical education curriculum for the school (R-4). While Loper interpreted his responsibilities more narrowly at the hearing (see Vol. III, p. 105) admitting only that he conducted the program, I find, in view of all the testimony and exhibits in the record, that Loper, as he swore in a deposition taken in connection with Federal law suit, was responsible for setting up a physical education program (III, 104). The curriculum, maintained thereafter on file at the School, constituted that program (IV, 134-5) and Loper implemented it where possible. Teacher preparation of curriculum, subject to administrative approval, has been the norm in the District (IV, 131-2). With respect to aquatics, generally limited to grades 4 to 6, Loper's curriculum provided that the recommendations of the National Red Cross as stated in the "Instructor's Manual of Swimming and Water Safety" would be followed and the school would work in association with the Cape May County Chapter of the Red Cross under supervision of authorized Water Safety Instructors. Loper himself maintained both the Red Cross Senior Lifesaving ("S.L.") and Water Safety Instructor ("W.S.I.") certificates through initial and refresher courses until a back injury hospitalized him in the Spring of 1976.3/ Loper's certificates lapsed that year (II, 160) and at least his W.S.I. certificate was not renewed until August, 1978 (III, 28) following certain events, related infra, culminating in an April shutdown of the pool and a July request by the Board for Loper's current Red Cross certification.

4.	In school year 1976-77 and into school year 1977-78 Loper as grievance chairman represented Association President Charles McCarty at informal level one discussions held over a period of a little over a year with the Administrative Principal John Demarest on a series of six grievances relating to McCarty's adverse evaluations and withholding of an increment.4/ Upon vote of the Association, not disclosed to the Board, these grievances, now submitted in writing, were heard by the Board at level two. Although Loper attended, he did not represent McCarty at these hearings. Subsequently, in a letter signed by Loper as Chairman of the PR&R Committee, the Association advised of its intent to proceed to arbitration on one or more of these disputes. Arbitration was not pursued (II, 174).

5.	Commencing during the fall of the school year 1976-77, and continuing thereafter, negotiations were underway for a successor contract between the parties for the school years 1977-
78 and 1978-79. By late October, 1977, problems had arisen, with the Association accusing the Board of unfair tactics (CP-1) and the Board charging the Association with a failure to put all of its proposals on the table. (II, 68; CP-28). By letter dated November 25, 1977, and addressed the Board Chairperson, Mildren Blomkvest, Loper, as Chairman of the Association's Negotiations Committee, responded to Respondent attorney Martin R. Pachman's November 10 letter which was critical of the Association's failure to provide proposals. In it, he defended the Association's good faith in the bargaining process. Ultimately, the Association submitted proposals in March, 1978 and an agreement was reached later that year. As of the close of hearing, no agreement had yet been concluded for the 1978-79 and 1979-80 school years.5/

6.	In the period from October to December, 1977, Demarest was involved in correspondence with the Association relating to Loper's representation of McCarty at the informal first level meeting stage and also relating to Demarest's attempts, ultimately successful, to grieve an alleged breach by the Association of that Article of the agreement relating to its Rights and Privileges. On October 31, 1977, Demarest wrote Association President John Mathis claiming that a "teacher delegated to represent the entire Association mandated that I follow the Board-Teacher Agreement without exception." The letter had reference to an apparent difference which arose between Demarest and Loper as to Loper's right to represent McCarty at one of the informal first level meetings on an evaluation grievance (II, 124). There is no evidence in the record that the difference resulted in Loper withdrawing from such representation. On November 1, 1977, Demarest requested a meeting at level one of the grievance process to discuss an alleged breach by the Association of its responsibility under the Association Rights and Privileges Article of the contract to comply with Board policy on use of school property to transact Association business. On November 7, 1977, Mathis and Loper responded in a sarcastic vein with copies forwarded to Board members, suggesting that if Demarest had a grievance, he first discuss the matter with his immediate superior, the Board of Education. This brought a written response to Mathis from then Board President Robert LeMunyn, chiding the Association for its conduct. Finally, after Demarest formally advised Mathis by letter dated December 6, 1977 that the Board was charging the Association $10 per meeting for its use of school facilities in accordance with Board policy, Loper sought an informal grievance meeting by letter dated December 21, 1977, a meeting was held and the matter was resolved, the substance of the parties' understandings on Association use of school facilities being set forth in a letter from Demarest to Loper dated December 23, 1977 (CP-27).6/

7.	With respect to the Board's budgetary decisions for 1978-79, that process began in November, 1977, when Demarest and Board Secretary Jane Briant consulted together7/ to prepare materials for Board consideration and seek guidelines on preparation of a proposed budget. In a three page memorandum dated November 17, 1977, Demarest noted that while the Board could consider applying a portion8/ of its Free Appropriation Balance of $126,000 (surplus from the prior year), any such appropriation, while aiding in holding down or reducing school taxes, would reduce the current budget upon which state aid is based for the following year and would also reduce the Budget Cap, or percentage figure by which the current expense budget may be increased.

8.	Following a meeting with the Board's Finance Committee on November 17, at which they received guidelines, Demarest and Briant prepared a proposed budget in preparation for a Board workshop to be held in the evening of December 1, 1977. That afternoon, Demarest learned from Briant that the proposal exceeded the School District's Cap limit by $50,410.9/ Demarest thereupon prepared a memorandum (R-11) providing several options for Board consideration. Under one, the Board could increase revenue sources from three areas to equal the excess appropriation. These sources were: (1) increased use of surplus by $16,000; (2) reduce instructional account by $14,000, making up the salary from State and Federal funds; and (3) reduce various other activities, including brick repairs to garage, speech, summer program, teacher supplies, field trips, legal fees and a funded portion of salary by $20,410. If unacceptable to the Board, Demarest proposed several other options due to a drop in enrollment. including reductions in services, in physical education, nurse-medical department, media teacher (librarian), kindergarten to one-half day, and instructional staff by one at the first grade level.

9.	On December 1, the Board determined to make reductions of the cap excess in the following areas: (1) reduce all salaries with certain exceptions from 7 or 8 to 5 percent; (2) eliminate another $14,000 from teacher salaries; (3) reduce services in physical education to 3/5 of Loper's salary; (4) reduce library services to 3/5 of Librarian Deborah Morrell's salary; (5) reduce speech from $6,000 to $4,000; (6) eliminate field trips by $1,700; (7) transfer $8,000 proposed for brick work from expense to capital outlay; and (8) reduce $3,000 from cafeteria manager's salary by paying from non-budget (cafeteria receipt) funds. These reductions, reflected in a typed memorandum prepared the same date, resulted after the Board indicated it was not going to appropriate an additional $16,000 above its usual $40,000 from surplus and Demarest submitted his memo and recommended the alternatives grounded in falling enrollment of 25% over a number of years (IV, 52).10/

10.	On December 5, 1977, Briant revised the proposed budget, entering pen changes and corrections to accord with the Board's consensus on reductions on the document previously submitted to the Board on December 1 (R-9). The budget was now $730 under the cap limit. At a regular Board meeting held on December 8, the proposed budget as revised by hand was adopted for submission to the County Superintendent of Schools. Then, on January 3, 1978,11/ Briant informed the Board members in writing that the County Superintendent's office had directed them to re-
compute the "budget cap" to reflect all sources of anticipated Federal aid. This had the effect of increasing the budget cap leeway from $730 to $12,630.12/ The budget adoption meeting was scheduled for January 26. Meanwhile, a special Board meeting was scheduled for January 23 to make allocation of the additional $14,800 and to take formal votes on the various reductions agreed to at the Board's December workshop which involved personnel matters.

11.	The special meeting of January 23 was heavily attended. Many citizens spoke critically of the proposed program reductions during the public portion.13/ President LeMunyon announced that due to declining enrollment the library and physical education programs may be cut but that the children would not suffer because they would have more basic instruction in other areas in the classroom. Association spokesmen Mathis and McCarty spoke of the Association and teacher concerns for maintenance of the programs. Demarest spoke of the increase in the budget cap leeway of $14,800. After a caucus to discuss personnel matters,14/ the Board voted to increase the current expense portion of the $1978-79 budget by $14,800 and to appropriate it by increasing textbooks from $6,000 to $9,300; library books and supplies from $5,400 to $8,150, non-public pupil transportation reimbursement from $2,500 to $4,200 and replacement of equipment from $3,000 to $10,000. The Board then announced that as a result of the caucus, the physical education and library programs would be cut back from five to three days per week, the former as a result of a 6 to 1 vote and the latter as the result of a 4 to 3 vote. The Board noted that the library vote would be referred to the Board solicitor as to its legal adequacy in the absence of a majority vote of the full nine member Board (R-14).

12.	At the public portion of the formal budget meeting on January 26, Mathis read a motion adopted by the Association in support of restoration of both physical education and library programs. Loper, who had not attended the January 23 meeting, objected to the Board's failure to consult him on his reduction and also spoke on Board finances. Many others spoke. The budget, as revised, failed of adoption by a 5 to 3 vote and another meeting was scheduled for January 28 to comply with the January 31 deadline for budget action under State law. At the meeting on January 28, the proposed budget cuts were reviewed. At a caucus which followed, the Board's solicitor advised that the vote on library reduction required a majority of the full membership to be effective. The full membership present then reviewed the proposed reductions and by a straw poll of 7 to 2 rejected a proposal to "also" restore the full five day physical education program. On their return to the public meeting, the Board voted 9 to 0 to rescind the motion adopted January 23 to reduce the library/media program. Board Secretary Briant recalled that at either the January 26 or 28 meeting, various Board members had noted in public their additional emphasis over the last few years on the basic skills of math and reading and voiced the opinion that the library media program was tied in with this emphasis to a greater degree than the physical education program (III, 261-2). The Board next determined to fund the $4,700 required to reinstate full library services from the following sources: $2,750 from classroom libraries and $1,950 from replacement of equipment. Board members DeSatnick and Blomkvest both testified that they believed that the physical education program could be conducted in three days with very little loss of teacher contact (IV, 154; V, 21). In school year 1978-79, after implementation of the three day physical education program, the only changes in the students' recreational curriculum was an elimination of one fifth grade swim period and one special fourth grade swimming program (IV, 90).15/ Loper's preparation periods remained unchanged and the class sizes did not increase.

13.	At a routine evaluation interview held on February 24, after a review of Loper's permanent record folder, Demarest, in writing requested Loper to submit a copy of his current,16/ 1977-
78 Red Cross S.L. certification. While Demarest conceded in the written request that State law supercedes any local certification, he noted that a possibility exists that a State certified phys. ed. teacher may not know how to swim. When the S.L. was not forthcoming, Demarest wrote Loper on March 17, reminding him of the request (CP-5). A few days later, Loper responded in writing, advising that he possessed a W.S.I., more advanced than the S.L., that he was setting up a "refresher course" for the Spring, that he could not locate his W.S.I. but would, if not located, obtain a duplicate. Loper also disputed the necessity for such a certificate, claiming that his certification as physical education teacher qualified him by law to teach all physical education including swimming. Loper also urged Demarest to observe him at the pool if he had any doubt of his swimming ability (CP-6). By early April, Demarest had learned from a contact with the Red Cross that Loper's W.S.I. had lapsed and that he had inquired about renewing it. After checking with County Superintendent of Schools Malcolm B. MacEwan17/ and, receiving Board President LeMunyon's approval to a course of action, Demarest informed Loper in writing on April 618/ that in view of the expiration of his W.S.I. the pool was being closed until a fully certified W.S.I. would be available "...to meet the requirements as recommended by the State," and continued, "I am sure you understand the position this places the Board in with respect to possible negligence toward our students." (CP-7)19/ The pool was closed on April 7 until April 17 when an aide with S.L. certification was hired.20/ The elapsed time would normally have encompassed four days of swimming instruction for upper elementary students.

14.	By letter dated August 4, Briant directed Loper to comply with Board Policy #5003 then in effect and submit to a physical examination by the school doctor to determine his physical ability to fulfill all aspects of his job as teacher of health, physical education and swimming. That policy requires such an examination when in the Board's judgment an employee shows evidence of deviation from normal physical or mental health. After Loper submitted reports from his physician dated August 10 and 14, indicating a complete recovery from surgery performed on February 10, 1976 to correct a cervical disc and a capability of performing any of his prior functions, the Board did not pursue the matter and Loper took charge of the pool program without an aide for the 1978-79 school year.

15.	In a press release dated September 14, 1978, the Board announced full reinstitution of the swimming program effective September 18 following independent verification that its physical education teacher does indeed possess a lifesaving certificate. The release goes on to state, inter alia, "It was the physical education teacher's repeated refusal to supply evidence of his ability to safeguard the lives of children in the pool which led to the initial closing of the pool for a short time last spring until a lifeguard could be hired. Since that time the teacher, Mr. George Loper, has refused to provide the certificate to the Board, and has instituted two separate law suits in an effort to prevent the Board from demanding such proof of his lifesaving ability." Blomkvest is also quoted as being "outraged" at Loper's "intransigence" which caused the pool closing, the hiring of a lifeguard and the expenditure of excessive time and effort in dealing with a problem which should not have arisen (CP-9). This release became the source of local newspaper stories on the pool incidents (II, 114). It contained no mention of the fact that Loper did meet the legal requirement for performance of all his duties even during the period of his S.L. and W.S.I. had expired.

16.	After Loper resigned effective May 1, 1979, the three day program continued with two substitutes, one of whom possessed a W.S.I. (IV, 145, 195).

ANALYSIS

As a preliminary matter, Respondent's motion to dismiss that portion of the complaint alleging violations of subd. (a)(1) and (3) with respect to Loper's cutback in employment based upon the Board's conduct having occurred more than six months prior to the filing of the charge, is hereby denied. The Commission regards the operative event which triggers the six month period as the implementation of the decision rather than the decision itself. In the Matter of Warren Hills Regional Board of Education, P.E.R.C. No. 78-69. The Board's decision was not implemented until the conclusion of the 1977-78 school year or the commencement of the 1978-79 school year. Whether the end of June or the beginning of September, 1978 is selected, as the charge was filed on September 12, 1978, it is well within the six month period. See In the Matter of Jamesburg Board of Education, P.E.R.C. No. 80-56.

Turning to the merits of the Association's claims with respect to Loper's reduction in employment, the Association charges violations of both subd. (a)(1) and (a)(3).21/ As to the subd. (a)(3) violation, the Commission has adopted a two-fold test for determining whether an employer's conduct violates the Act.22/

I conclude based upon the facts in the record that the Board's decision to reduce the physical education program by 2/5, thereby reducing Loper's salary by 2/5, was neither motivated in whole or in part by a desire to discourage his exercise of rights guaranteed by the Act nor did it have the effect of so discouraging Loper or other employees in the exercise of those rights.

There is no question that George Loper for many years had been a leader in the Association and had taken on active roles with respect to negotiations and grievance handling which were known to the Board. The fact of Loper's strong union advocacy is insufficient alone to establish that the Board's decision to reduce the physical education program was retaliatory in nature. It is noted that no adverse action was taken against Loper by the Board during the prior years of his leadership in the Association, even after the commencement of Administrative Principal Demarest's tenure. Furthermore, the testimony of both Demarest and Board Secretary Briant establish that the Board was facing a budgetary crisis which required it to establish educational priorities. While one might differ with the Board's judgment regarding the limitation of appropriation of surplus from a prior year to $40,000 or its initial selection of those services slated for reduction in the fact of an initial $50,000 appropriation in excess of the Cap limit, I find no evidence that the deliberative process was marked by any hostility or animosity to Loper himself or even to the Association. The testimony of more than one Board member as well as the Principal reflects a legitimate concern with the maintenance of the basic educational program in a period of declining enrollment which was maintained in the face of parental objections to reductions in physical education services. The bona fides of the Board's concern is borne out by the internal debate among the members themselves which was only resolved at the January 28 meeting when final decision was made to restore the library-media services at the expense of the physical education program over parental objection. None of the debate, including the recommendations of Administrative Principal Demarest, discloses any evidence that discriminatory factors entered into the manner in which the deliberations were conducted or in the way the result was reached to reduce Loper's employment.23/ Thus, the record lacks any nexus between Loper's activity, including his most recent representation of Association President McCarty on grievances protesting adverse evaluations in informal meetings with Demarest, and the determination in January, 1978 to cut back Loper's services.24/

The Association urges in its brief that Loper was never consulted or advised as to the alleged necessity for such reduction. The evidence that neither he nor the Association itself was notified to the Board's intended reduction might very well have been probative of an allegation that the Board had refused to negotiate when it made the decision in this matter, but no such violation of subd. (a)(5) has been alleged. Surely, evidence that Loper had received advance notice would not safeguard the Board's conduct from a finding of discrimination were evidence of retaliation apparent from the record, but such evidence is here lacking.

The Association further contends that the Board's selection process evidenced a disparate treatment between Loper, an outstanding union adherent, and Deborah Morrell, the librarian-
media specialist, who was not very active on its behalf. The only record evidence of Board knowledge of Morrell's non-
involvement in Association affairs comes on April 5, 1978 when she and seven other teachers filed the statement of disavowal with respect to the tenure claims of two teachers which the Association strongly supported. This occurred well after the series of events which culminated in the Board's decision on January 28, 1978 to reduce physical education services in the school district. Morrell's subsequent loss of interest in Association positions, whether due at all to the Board's earlier restoration of full librarian services, could not be a factor in Loper's earlier reduction of employment.

The Association further argues that the absence of any documentation at the January 28 Board meeting providing reasons for its final decision to restore the library program and not the physical education program supports its claim that the Board's motive was retaliatory and not educational. The absence of such records is no substitute for hard evidence of a discriminatory motivation. The various minutes coupled with the testimony of the Board members is sufficient evidence of the Board's concern with maintenance of a basic education program and of its prevailing judgment that the program would suffer least from a limited cut back in the time devoted to physical education rather than librarian-media services.25/ Finally, the Association questions the Board's failure to apply a portion of the $14,800 budget Cap leeway which became available to it in January, 1978. It is a portion of that such which was applied to the full restoration of library services. In view of the consensus of opinion with respect to the physical education program that a limited reduction would not seriously undercut the basic educational program, I can read no retaliatory motivation into the Board's final decision, in effect, that a portion of that sum should be applied to purchase textbooks, library books, replacement equipment and provide transportation services, rather than to restore the five days of the physical education program.

Neither does the series of correspondence between Loper and Demarest relating to the negotiating posture of each and the Principal's attempts to grieve an alleged Association breach of contract manifest a particular hostility to Loper's union advocacy. From all that appears, Demarest maintained his equanimity in the face of a baiting by Loper and Mathis on the dispute which was ultimately amicably resolved. Accordingly, I will recommend dismissal of this allegation.

The Association further claims that the Board's reduction in Loper's employment as well as the closing of the swimming pool have interfered with and restrained Loper in the exercise of guaranteed rights under (a)(1). The Commission's standard for a finding of a violation of (a)(1) has been most recently reiterated by it in The Matter of Cape May City Board of Education and Cape May City Education Association, P.E.R.C. No. 80-37 at page 5 of its Decision and Order. As originally set forth in In re New Jersey College of Medicine and Dentistry, P.E.R.C. No. 79-11, 4 NJPER 421 (4189, 1978) the standard is as follows:

"The Commission in determining whether N.J.S.A. 34:13A-5.4(a)(1) has been violated applies the following general rule: It shall be an unfair practice for an employer to engage in activities which, regardless of the absence of direct proof of anti-union bias, tend to interfere with, restrain or to coerce a reasonable employee in the exercise of rights guaranteed by the Act, provided the actions taken lack a legitimate and substantial "business" justification. If an employer, pursuant to the above standard does establish such justification, no unfair practice will be found under Section 5.4(a)(1) unless the charging party proves anti-union motivation for the employer's actions. In determining initially whether particular actions tend to interfere with, restrain or coerce a reasonable employee in the exercise of rights protected under the Act we will consider the totality of evidence proffered during the course of a hearing and the competing interests of the public employer and the employee organization and/or affected individuals."

This Report has already considered the legitimate and business justification for the Board's determination to reduce the number of days during which its physical education program would be provided in school year 1978-79. With respect to the Board's decision to close the swimming pool I am persuaded that decision also has a firm basis in education, health and safety reasons. As the facts show, the original curriculum prepared by Loper upon his initial employment as physical education teacher and director of the program, even if not formally adopted by the Board, was the curriculum which guided Loper in his conduct of the program. Loper's stress in that document on the importance of the presence of an authorized water safety instructor to supervise all phases of pool use cannot be ignored. Indeed, Loper continued to provide the administration with an update of his qualifications in Red Cross swimming certifications by entries on his personnel folder. It would be natural and reasonable for the administration to be concerned when Loper failed to provide current evidence of such certifications following an immobilizing injury to his back in 1976. The request for such information which was initiated by Demarest during a routine evaluation interview on February 24, 1978 cannot under these circumstances be viewed in any way other than as a legitimate expression of concern with the safety of the swimming aspect of the physical education program. The Board's continued emphasis on this matter appears to have resulted primarily from Loper's failure to have been forthcoming as to the lapse of his certifications. The culmination of the incident in the closing of the pool evidences an administration concern not only with safety but with the risk of liability resulting from any injury to children without the presence of a certified instructor.26/ While these concerns manifest a safety standard which even Demarest himself noted went beyond the Education Law, they nonetheless establish a legitimate business justification.27/

Finally, the Association asserts that the Board's request for Loper to undergo a physical examination interfered with his rights under the Act in violation of (a)(1). As I have found that Loper's physical condition was a matter of legitimate concern to the Board and given the history of Loper's operation and his failure to update or adequately explain his failure to update his Red Cross certifications, the Board's request for current evidence of his physical abilities to perform the full duties of his position was well warranted. Upon the submission by Loper of the letters from his own physician, the Board reasonably concluded its investigation of that matter, ceasing its demand for an examination by the school doctor.

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

CONCLUSIONS OF LAW

The Respondent did not violate N.J.S.A. 34:13A-5.4(a)(1) and (3) by reducing George Loper's employment as physical education teacher, by closing the school district's swimming pool for a limited period of time during April, 1978, or by requiring Loper during the Summer of 1978 to produce current evidence of his physical ability to conduct the physical education program.

RECOMMENDED ORDER

The Cape May City Board of Education not having violated the Act, it is HEREBY ORDERED that the Complaint be dismissed in its entirety.28/

_________________________

Robert T. Snyder

Hearing Examiner

DATED:	Newark, New Jersey

November 9, 1979