H.E. No. 84-64

Synopsis:

A Hearing Examiner recommends that the Public Employment Relations Commission find that the Respondent violated Subsections 5.4(a)(1) and (3) of the New Jersey Employer-Employee Relations Act when it failed to hire Gina Alven, Daily M. Smith and Effie T. Clark, who had formerly worked for a private sector college at Fort Dix. The Hearing Examiner found that the Respondent had been discriminatorily motivated when it refused to hire the three individuals on account of their having engaged in protected activities under the Act. Alven had been openly active in organizing employees into a union while working for the private sector college and this activity became known to the Respondent. Smith and Clark had, in addition to signing authorization cards for the union, each signed a letter complaining about working conditions at Fort Dix and the Respondent learned that Smith and Clark had signed this letter, which the Respondent acknowledged influenced its hiring decision as to Smith and Clark. The fourth individual, Teresa Corbett had only signed an authorization card and knowledge of this could not be imputed to the Respondent.

Inasmuch as the Respondent was the contractor at Fort Dix for only one year, back pay only was awarded to Alven, Smith and Clark with interest at 12% per annum. No back pay was awarded for Corbett.

A Hearing Examiner's Recommended Report and Decision is not a final administrative determination of the Public Employment Relations Commission. The case is transferred to the Commission which reviews the Recommended Report and Decision, any exceptions thereto filed by the parties, and the record, and issues a decision which may adopt, reject or modify the Hearing Examiner's findings of fact and/or conclusions of law.

PERC Citation:

H.E. No. 84-64, 10 NJPER 390 (¶15181 1984)

Appellate History:

Additional:

Miscellaneous:

NJPER Index:

72.315 72.323 72.339 72.3594

Issues:

Decisions	WordPerfect	PDF
NJ PERC:	.	- HE 84-064.pdf
Appellate Division:
Supreme Court:

H.E. NO. 84-64 1. H.E. NO. 84-64 1. NOTICE TO EMPLOYEES PURSUANT TO AN ORDER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION AND IN ORDER TO EFFECTUATE THE POLICIES OF THE NEW JERSEY EMPLOYER-EMPLOYEE RELATIONS ACT, AS AMENDED, We hereby notify our employees that: H.E. NO. 84-64 STATE OF NEW JERSEY BEFORE A HEARING EXAMINER OF THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of OCEAN COUNTY COLLEGE, Respondent, -and- Docket No. CI-83-52-117 GINA ALVEN, TERESA CORBETT, DAILY M. SMITH & EFFIE T. CLARK, Charging Parties. Appearances: For Ocean County College Berry, Kagan, Privetera & Sahradnik, Esqs. (Seymour J. Kagan, Esq.) For the Charging Parties Stern, Herbert & Weinroth, Esqs. (Michael J. Herbert, Esq.) HEARING EXAMINER = S RECOMMENDED REPORT AND DECISION An Unfair Practice Charge was filed with the Public Employment Relations Commission (hereinafter the A Commission @ ) on March 18, 1983 by Gina Alven, Teresa Corbett, Daily M. Smith and Effie T. Clark (hereinafter the A Charging Parties, @ A Alven, @ A Corbett, @ A Smith @ or A Clark @ ) alleging that Ocean County College (hereinafter the A Respondent @ or the A College @ ) had engaged in unfair practices within the meaning of the New Jersey Employer- Employee Relations Act, as amended, N.J.S.A. 34:13A-1 et seq. (hereinafter the A Act @ ), in that in September 1982, after the College received a contract from the Department of the Army to provide instructional services at Fort Dix, thereby replacing Johnson & Wales College (hereinafter A J & W @ ) as the contractor, it failed to hire the Charging Parties on September 29, 1982, all of whom had had satisfactory work records with J & W, and all of whom had been active in organizing into a collective negotiations unit to be affiliated with the N.J.E.A. at or around the time that J & W lost its contract with the Department of the Army, all of which was alleged to be a violation of N.J.S.A. 34:13A- 5.4(a)(1) and (3) of the Act.1/ It appearing that the allegations of the Unfair Practice Charge, if true, may constitute unfair practices within the meaning of the Act, a Complaint and Notice of Hearing was issued on June 29, 1983. Pursuant to the Complaint and Notice of Hearing, hearings were held on October 25 and 26, 1983 and January 6, 19842/ in Trenton, New Jersey, at which time the parties were given an opportunity to examine witnesses, present evidence and argue orally. Oral argument was waived and the parties filed post-hearing briefs by May 11, 1984.3/ An Unfair Practice Charge having been filed with the Commission, a question concerning alleged violations of the Act, as amended, exists and, after hearing, and after consideration of the post-hearing briefs of the parties, the matter is appropriately before the Commission by its designated Hearing Examiner for determination. Upon the entire record, the Hearing Examiner makes the following: FINDINGS OF FACT 1. Ocean County College is a public employer within the meaning of the Act, as amended, and is subject to its provisions. 2. Johnson & Wales College is not a public employer within the meaning of the Act, as amended, and is not subject to its provisions. 3. Gina Alven, Teresa Corbett, Daily M. Smith and Effie T. Clark are individuals whose status as public employees within the meaning of the Act, as amended, is the major issue in this proceeding. All four individuals were employees of J & W at all times material hereto (see infra). 4. The educational qualifications and employment history of the Charging Parties at Fort Dix are as follows: a. Alven has a B.A. in Theater Arts and English, a Master = s Degree in Education and English Education and has received three credits toward a Doctorate in Education. In addition, she has participated in post-secondary education with respect to English as a second language (ESL) at Trenton State College. Alven was hired by the Army in July 1978 as a Military Occupation Specialist. She continued in the employ of the Army until January 1979 and was supervised by Maurice Williams. Alven taught English conversation, English grammar and various military subjects. In January 1979 Burlington County College was awarded a contract by the Army to provide educational services to Fort Dix personnel. Alven was hired by the College to serve as an ESL instructor. In addition to teaching, Alven participated in the development of a new curriculum, which involved a combination of military subjects and English. In October 1981 J & W became the contractor. Alven continued to serve as an ESL instructor and was supervised by Maureen McKeever. This employment continued through September 1982 when J & W lost the contract, which was awarded to the Respondent as of October 1, 1982. b. Smith, who has a B.A. in English and Sociology, was first employed by the Army in January 1970 as a Reading and Basic Skills teacher. She served in this position until Burlington County College was awarded the contract at Fort Dix in 1979 when she became an ESL instructor. The record does not indicate whether the ESL instructor position continued during the period of the J & W contract but, in any event, Smith was employed by J & W and worked under the supervision of McKeever through September 1982. c. Corbett was employed at Fort Dix for three years, serving primarily as an ESL instructor. She has a B.A. in Foreign Languages and a certificate to teach Spanish. She was also involved in developing the ESL curriculum with Alven, supra. d. Clark has a B.S. in Social Studies and an M.A.T. degree in Education and was first employed at Fort Dix on August 6, 1982 as a Basic Skills Instructor and became a substitute teacher in the ESL program. 5. In the Spring of 1982 Alven contacted an N.J.E.A. Representative, Jerry Veldof, regarding the establishment of an affiliate at Fort Dix. Alven was provided with authorization cards, which she distributed to approximately 30 to 35 employees of J & W. Copies of 14 authorization cards were introduced in evidence, all but one having been signed in April 1982 (CP-1 to CP-5). Alven was plainly the most active employee in the unionization of J & W employees. She held an organizational meeting in July 1982 and had scheduled a second meeting for September 29, 1982. Although the time frame is not clearly delineated by the testimony, the Hearing Examiner finds as a fact that McKeever, the supervisor of the J & W employees at Fort Dix, supra, was aware of the organizational activities of Alven and others,4/ and viewed their efforts adversely (1 Tr. 75, 76). McKeever testified that she learned of the union organization campaign from other teachers, and that this information included the names of those active, one being Alven (3 Tr. 44). McKeever passed this information, including names, to James Lyle, the Director of the Reading Institute of J & W in Rhode Island, who was upset over the information given him (3 Tr. 45). Lyle advised McKeever not to discuss it but to listen and obtain any additional information (3 Tr. 45). McKeever received the same advice from the attorney for J & W. 6. The Respondent learned that it had been awarded the contract to provide instructional services at Fort Dix on September 22, 1982, beginning October 1st. John Riismandel, the Director of Special Programs for the Respondent, was placed in charge of hiring the necessary personnel. After consulting with Assistant Dean C.B. Cargile, Jr., who instructed him regarding hiring under the Respondent = s rules and regulations, Riismandel made arrangements to meet on September 24th with J & W personnel at Fort Dix to discuss the transition. Advertisements were placed in the local papers on September 25 and 26, 1982 (CP-6). 7. On September 24th Riismandel first met McKeever, who provided him with information regarding J & W employees in accordance with instructions from Lyle, her superior. In this connection, Riismandel asked McKeever to supply him with a brief professional assessment of the work performance of each applicant currently employed by J & W. Also on September 24th, McKeever introduced Riismandel to the J & W employees. Riismandel discussed the transition, including rates of pay for each job title and said that the pay was not negotiable. Applications for employment with the Respondent were circulated. 8. Thereafter, but prior to the hiring decisions, Riismandel again met with McKeever and specifically asked her opinion regarding Alven and Smith.5/ While McKeever did not discuss Alven = s competency as a teacher, she recommended that Alven not be hired because of her A attitude @ (3 Tr. 9). As to Smith, McKeever recommended against hiring her based upon A personality conflicts @ with no comment having been made about her competency as a teacher (3 Tr. 9). 9. On September 27, 1982, after receiving many telephone calls in response to the advertisements, Riismandel began interviewing that afternoon with the intention of first hiring J & W employees. Approximately 200 applications were received and Riismandel personally spoke to over 100 individuals on September 27th and September 28th. 10. Riismandel ultimately recommended to Dean Cargile and Dean Wilmot Oliver that 50 to 55 of the J & W employees, who sought employment with the Respondent, he hired, the only exceptions being Alven, Corbett, Smith and Clark. Among those hired were nine of the signers of the authorization cards (CP-5). Cargile and Oliver accepted all of the recommendations by Riismandel. 11. The factual findings regarding the interviewing of the Charging Parties by Riismandel, and their ultimate rejection for employment with the Respondent, are as follows: a. Alven was interviewed by Riismandel on September 27, 1982, at which time she completed the application form (R-1) and spoke with him for five or ten minutes. Riismandel inquired only as to the length of time she had been working with the program. Riismandel testified that his impressions, after the interview, were that Alven was qualified on paper but did not appear to be professional in appearance or manner, nor did she appear to be paying attention to him. On September 28th, after many interviews, Riismandel discussed his recommendations for hire with Dean Oliver and recommended that Alven not be hired because of her personality and attitude. Oliver agreed. On the next day, September 29th, Riismandel met for the second time with Alven and informed her that she would not be hired due to her attitude and personality. He refused to elaborate when requested to do so. He further advised Alven that he had inquired about her of certain persons at Fort Dix but would not reveal their names. Alven stated that she felt that the Respondent utilized a poor hiring system, to which Riismandel responded without explication that A the College didn = t want to be involved in any problems @ (1 Tr. 52). The Hearing Examiner does not credit Riismandel = s testimony that by A problems @ he was referring to problems that the College would face if he disclosed confidential information or if he further explained to Alven why she was not hired (2 Tr. 90). This testimony of Riismandel strikes the Hearing Examiner as make-weight and after the fact. b. Smith received an application on September 27th and completed it rather quickly because she had been advised that it had to be submitted that day. She requested a salary of $9.00 per hour based on her twelve years of experience but, when she asked Riismandel about it, he advised her that the salary offer of $8.00 per hour was not negotiable. The application (CP-8) contained several misspelled words and a possible misrepresentation that she had lost no time from work on account of illness when in fact she had lost a day from time to time. Although Riismandel made reference to the application, and the way in which it was completed, as a basis for rejecting Smith, his reasons given to her were her attitude and personality (1 Tr. 84; 2 Tr. 102, 103). When Smith mentioned her qualifications Riismandel agreed that he could not question these because of her twelve years of experience. As found in footnote 5, supra, Smith was one of the signers of Exhibit R-4, which Riismandel considered in his hiring recommendation as to Smith. c. According to Riismandel, Corbett seemed very lethargic during her interview. When Riismandel informed Corbett that she would not be hired at a meeting with her on September 29, 1982, Corbett questioned his decision. Riismandel explained that others who were more qualified had applied for the position and added that A there are other reasons, but it = s really complicated @ (1 Tr. 115). Corbett testified without contradiction that the person who replaced her had no experience in adult education or with bi-lingual programs. d. Riismandel considered a lesson plan in evaluating Clark = s suitability for employment (R-5). He testified that certain grammatical errors concerned him because she was teaching basic skills. Clark was informed by Riismandel on September 29th that she was not being hired because someone more qualified had been found. Clark later ascertained that the person who replaced her possessed only an undergraduate degree while Clark had a Master = s Degree. e. In addition to speaking to McKeever about Alven and Smith, supra, Riismandel spoke to Lyne of J & W, who was McKeever = s superior. Lyle recommended that Alven and Smith not be hired for the same reasons that McKeever had supplied, i.e., attitude and personality. Because of this information regarding attitude and personality, Riismandel felt that the competency of Alven and Smith was irrelevant (3 Tr. 33). f. Riismandel also spoke to Lyle about the signers of Exhibit R-4, supra, stating that he, Riismandel, had serious reservations regarding the signers. Lyle concurred. The mere sending of the letter concerned Riismandel (3 Tr. 22). DISCUSSION AND ANALYSIS A Public Employer Under The Act Commits An Unfair Practice In Violation Of Subsections (a)(1) And (3) If Its Actions In Refusing To Hire Applicants Formerly Employed By An Employer In The Private Sector Are Discriminatorily Motivated The Hearing Examiner finds that the cases previously decided by the Commission, and cited by the Charging Parties, are not applicable to a resolution of the employment status of the Charging Parties since all dealt with individuals who had at least some prior claim of employment in the public sector in the State of New Jersey. Therefore, the Hearing Examiner will not discuss these cases further. What the Hearing Examiner does find pertinent are the private sector cases cited by the Charging Parties and discussed in briefs filed by each party. Our Supreme Court has made it clear that the Commission may look to the Federal model in developing precedent in the public sector in New Jersey: Lullo v. International Association of Firefighters, 55 N.J. 409 (1970) and Galloway Township Board of Education v. Galloway Township Association of Ed. Secretaries, 78 N.J. 1, 9 (1978). A good starting point is the relatively recent case, NLRB v. Mt. Desert Island Hospital, 695 F.2d 634, 112 LRRM 2118 (1st Cir. 1982), which dealt with the failure of the employer to rehire a former employee who, after complaining about working conditions, had resigned of his own accord. When he reapplied for employment a year later he was not hired. The Court, citing Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941), noted that the Court there found that the NLRA applies to applicants as well as employees already hired and that applicants were protected from discrimination by prospective employers under Section 8(a)(3). The Court then cited: Time-O-Matic, Inc. v. NLRB, 264 F.2d 96, 43 LRRM 2661 (7th Cir. 1959), where a foreman told prospective employees that non-membership in a union was a condition of employment; Wyman-Gordon Co. v. NLRB, 654 F.2d 134, 108 LRRM 2085 (1st Cir. 1981) where an applicant was interrogated regarding his prior union activities; and Reliance Insurance Cos. v. NLRB, 415 F.2d 1, 72 LRRM 2143 (8th Cir. 1969) which held that an applicant may not be discriminated against on account of his views on protected activity and that the applicant is treated as an employee under the NLRA. Finally, in NLRB v. Bausch & Lomb, Inc., 526 F.2d 817, 90 LRRM 3217 (2nd Cir. 1975), the employer there had acquired a building from another employer, which had employed four employees in its boiler room. Bausch & Lomb hired only one of the four employees, that employee being a supervisor. The NLRB found that Bausch & Lomb = s refusal to hire the other three boiler room employees was based upon their union membership. The Court agreed. Plainly, this case among all others, supra, most closely fits the facts in the instant case inasmuch as the three employees involved in Bausch & Lomb had never had an employment relationship with it and were obviously qualified for employment since they had worked for the prior employer in the same capacity. Based on the foregoing authorities, in particular, Bausch & Lomb, supra, the Hearing Examiner concludes without difficulty that the Charging Parties herein are, for the purposes of this proceeding, public employees within the meaning of the Act. Finding of Fact No. 4, supra, makes clear that each one of the Charging Parties has the necessary qualifications and employment experience to have been hired by the Respondent if the Respondent utilized objective criteria in its hiring decision as to each of the four individuals. Clearly, the Charging Parties were as qualified for employment with the Respondent as were the three boiler room employees in Bausch & Lomb, having previously worked in the positions for which they applied. The next question, and the ultimate question, is whether or not the Charging Parties have prevailed on their proofs under the applicable test, namely, that enunciated by the New Jersey Supreme Court in February of this year: Bridgewater Township v. Bridgewater Public Works Association, 95 N.J. 235 (1984). Under the test set forth therein the Charging Party in dual motive @ cases must meet the A causation test @ first enunciated by the National Labor Relations Board in Wright Line, Inc., 251 NLRB 1083, 105 LRRM 1169 (1980). Wright Line was adopted by the United States Supreme Court in NLRB v. Transportation Management Corp., __ U.S. ___, 113 LRRM 2857 (1983) and this decision was specifically referred to by the New Jersey Supreme Court in Bridgewater. The test involves the following requisites in assessing employer motivation (1) the Charging Parties must make a prima facie showing sufficient to support an inference that protected activity was a A substantial @ or a A motivating @ factor in the Respondent = s decision not to hire and (2) once this is established, the Respondent has the burden of demonstrating that the same hiring decision would have taken place even in the absence of protected activity. The first part of the foregoing test, supra, also involves proof by the Charging Parties that the Respondent had knowledge of their protected activity: Bridgewater, supra. The Hearing Examiner first addresses the element of employer knowledge of the protected activity engaged in by the Charging Parties. Clearly, Alven = s activity6/ in distributing authorization cards for signature among 30 to 35 employees of J & W in April of 1982 and scheduling meetings was protected and, further, became known to McKeever. McKeever learned explicitly the name of Alven as an employee active in the unionization of J & W employees. McKeever acknowledged that she learned of the union organization campaign from other teachers, and that this information included the names of those active, one being Alven. Even if this were no so, knowledge of Alven = s protected activity may be imputed to J & W under the NLRB = s A small plant @ doctrine: Wiese Plow Welding Co., 123 NLRB 616, 43 LRRM 1495 (1959).7/ McKeever passed this information on to her supervisor, James Lyle, who instructed her to listen and obtain any additional information. McKeever received the same advice from the attorney for J & W. All of the foregoing is found in Finding of Fact No. 5, supra, and clearly shows that J & W had direct knowledge regarding the activity of Alven. Further, this information, which must have referred to Alven by name, was passed on by McKeever to Riismandel, who acknowledged that McKeever had informed him of the union organizational campaign during the hiring process (2 Tr. 92). Riismandel testified that his response was A I don = t care, @ which the Hearing Examiner does not credit, based on what transpired between Riismandel, McKeever and Lyle, and the interviews with the Charging Parties, supra. There is no direct evidence that Smith, Corbett or Clark participated in the organizational campaign as did Alven, namely by circulating authorization cards, scheduling meetings, etc. However, in addition to signing authorization cards for the union, Smith and Clark signed the August 19, 1982 letter to the Army, which set forth complaints regarding working conditions at Fort Dix (R-4). Riismandel had direct knowledge of who signed the letter and indicated that it influenced his hiring decision as to the signers, two of whom were Smith and Clark. The sending of the August 19th letter was a protected activity: North Brunswick Township Board of Education, P.E.R.C. No. 79-14, 4 NJPER 451 (footnote 16) 1978). Thus the Respondent had direct knowledge of the protected activity engaged in by Smith and Clark.8/ Closely related to ascertaining the Respondent = s knowledge of protected activity is the question of whether or not the Charging Parties have made a prima facie showing sufficient to support an inference that their protected activity was a A substantial @ or a A motivating @ factor in the Respondent = s decision not to hire them in September 1982. Again, the Hearing Examiner will consider each of the four Charging Parties seriatim. The Hearing Examiner concludes that the proofs as to Alven clearly support an inference that her protected activity was a A substantial @ or a A motivating @ factor in the College = s decision not to hire her. The nature and scope of her protected activity has been delineated above. McKeever and Lyle each had knowledge of Alven = s activity in unionizing J & W employees. This knowledge was communicated to Riismandel who, notwithstanding the competence of Alven as an instructor, elected to follow the recommendation of McKeever and Lyle that Alven not be hired by the College because of her A attitude @ (3 Tr. 9). The Hearing Examiner has no doubt that, in the context of the hiring process, given Alven = s known exercise of protected activity, the use of the term A attitude @ as a reason not to hire her smacks clearly of retaliation and discriminatory motivation. Thus, the Hearing Examiner concludes that Alven = s protected activity was a A substantial @ or a A motivating @ factor in the College = s decision not to hire Alven. The same essential reasoning applies to Smith, whose protected activity, in addition to signing an authorization card, was the signing of the letter of August 19, 1982 (R-4, supra). Riismandel acknowledged that the mere fact that this letter had been sent influenced his hiring decision as to the signers of R- 4, two of whom were Smith and Clark (3 Tr. 26, 27). Again, as in the case of Alven, McKeever had recommenced to Riismandel against hiring Smith based upon A personality conflicts @ (3 Tr. 9). Smith = s competency as a teacher was never an issue in the hiring decision. The term A personality conflicts @ as a reason not to hire Smith smacks of pretext and indicates to the Hearing Examiner a discriminatory motivation on the part of the Respondent in refusing to hire Smith. The evidence as to Smith clearly supports an inference that her protected activity was a A substantial @ or a A motivating @ factor in the College = s decision not to hire Smith. Further, the Hearing Examiner reaches a like conclusion as to Clark, who, in addition to signing an authorization card, signed the August 19th letter to the Army (R-4). As in the case of Smith, Riismandel acknowledged that the mere fact that the letter had been sent influenced his hiring decision as to the signers, one being Clark. As previously found, the signing and sending of R-4 constituted protected activity, of which the Respondent had knowledge. The Hearing Examiner has no doubt that the evidence regarding Clark is sufficient to support an inference that protected activity was a A substantial @ or a A motivating @ factor in the College = s decision not to hire Clark. The case of Corbett has essentially been disposed of previously, inasmuch as the Hearing Examiner has found that the Respondent had no knowledge of any protected activity engaged in by Corbett. Thus, the evidence as to Corbett is not sufficient to support an inference that protected activity was a A substantial @ or a A motivating @ factor in the College = s decision not to hire her. There remains only for consideration the question of whether or not the Respondent has established by a preponderance of the evidence that it would not have hired Alven, Smith and Clark even in the absence of their protected activity. The Hearing Examiner concludes that the Respondent has failed to meet this burden as to each of these three individuals. What has been said before regarding the reasons advanced by the Respondent for not hiring Alven and Smith on account of A attitude @ and A personality conflicts, @ respectively, applies equally here. The Hearing Examiner has found that the use of these reasons, A attitude @ and A personality conflicts, @ was pretextual. As previously found in Findings of Fact Nos. 4a and 4b, supra, Alven and Smith were clearly qualified for the positions that they had been employed in by the Army for many years; since July 1978 in the case of Alven and since January 1970 in the case of Smith. They had been employed by several contractors with no criticism of their job performance having been made, at least on this record and yet suddenly A attitude @ and A personality conflicts @ problems arise when the Respondent comes on the scene in September 1982. It just flies in the face of logic to accept the stated reasons as the true reasons for their not being hired by the College. It is concluded that the exercise of protected activity was the real reason for their not being hired by the Respondent. While Clark had only worked for J & W since August 6, 1982, her qualifications appear to have been adequate (see Finding of Fact No. 4d, supra). The Hearing Examiner cannot accept Riismandel = s reasons for not hiring Clark, namely, that someone more qualified had been found, particularly since Clark testified without contradiction that the person who replaced her possessed only an under-graduate degree while she had a Master = s Degree. It will be recalled that Clark was a signer of the August 19th letter (R-4) and that Riismandel testified that the mere fact that the letter was sent influenced his hiring decision as to the signers, one of whom was Clark (3 Tr. 26, 27). The Hearing Examiner again concludes, in the case of Clark, that the Respondent = s defense as to why it did not hire Clark is pretextual. Finally, the Hearing Examiner has considered the fact that the College has collective negotiations relationships with the N.J.E.A. in four other units. This fact does not weigh heavily in the Respondent = s favor with respect to Alven, Smith and Clark inasmuch as it may well be argued that the College was not interested in having one more collective negotiations unit at Fort Dix. * * * Accordingly, the Hearing Examiner finds and concludes that the Respondent violated Subsections (a)(1) and (3) of the Act when it refused to hire Alven, Smith and Clark in September 1982 but, however, the Respondent did not violate the Act when it refused to hire Corbett. The Respondent was not the successful bidder for the contract at Fort Dix for the year commencing October 1, 1983. Accordingly, an award of back pay for Alven, Smith and Clark will be limited to the 12-month period from October 1, 1982 through September 30, 1983. The rate of $8.00 per hour will be incorporated into the back pay award. Finally, interest at the rate of 12% annum will be awarded but will be calculated on basis of 6% per annum on gross earnings for the year October 1, 1982 through September 30, 1983 in order to account for the accrual of earnings over the 12-month period, and at the rate of 12% per annum since October 1, 1983. * * * Upon the entire record in this case, the Hearing Examiner makes the following: CONCLUSIONS OF LAW 1. The Respondent violated N.J.S.A. 34:13A-5.4(a)(1) and (3) when it failed to hire Gina Alven, Daily M. Smith and Effie T. Clark in September 1982. 2. The Respondent did not violate N.J.S.A. 34:13A- 5.4(a)(1) and (3) when it failed to hire Teresa Corbett in September 1982. RECOMMENDED ORDER The Hearing Examiner recommends that the Commission ORDER: A. That the Respondent cease and desist from: 1. Interfering with, restraining or coercing its employees in the exercise of the rights guaranteed to them by the Act, particularly, by failing to hire employees such as Gina Alven, Daily M. Smith and Effie T. Clark on account of their engaging in protected activities. 2. Discriminating in regard to hire or tenure employment or any term or condition of employment to encourage or discourage employees in the exercise of the rights guaranteed to them by the Act, particularly, by failing to hire employees such as Gina Alven, Daily M. Smith and Effie T. Clark on account of their engaging in protected activities. B. That the Respondent take the following affirmative action: 1. Forthwith make payment to Gina Alven, Daily M. Smith and Effie T. Clark of the wages that they would have earned if employed by the Respondent at Fort Dix from October 1, 1982 through September 30, 1983. Said wages are to be calculated on the basis of $8.00 per hour for each and every hour that Gina Alven, Daily M. Smith and Effie T. Clark would have worked, based on a comparison with other employees of the Respondent at Fort Dix like situated. Interest at the rate of 12% per annum shall be added to the foregoing back wages and calculated as follows: interest at the rate of 6% per annum shall be added to the gross wages due for the one year period October 1, 1982 through September 30, 1983; and interest at the rate of 12% per annum shall be added to the monies due as of October 1, 1983 to the date of payment. 2. Post in all places where notices to employees are customarily posted, copies of the attached notice marked as Appendix A A. @ Copies of such notice on forms to be provided by the Commission, shall be posted immediately upon receipt thereof and, after being signed by the Respondent = s authorized representative, shall be maintained by it for at least sixty (60) consecutive days. Reasonable steps shall be taken to insure that such notices are not altered, defaced or covered by other materials. 3. Notify the Chairman of the Commission within twenty (20) days of receipt what steps the Respondent has taken to comply herewith. /s/Alan R. Howe Hearing Examiner DATED: June 11, 1984 Trenton, New Jersey WE WILL NOT interfere with, restrain or coerce our employees in the exercise of the rights guaranteed to them by the Act, particularly, by failing to hire employees such as Gina Alven, Daily M. Smith and Effie T. Clark on account of their engaging in protected activities. WE WILL NOT discriminate 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 the Act, particularly, by failing to hire employees such as Gina Alven, Daily M. Smith and Effie T. Clark on account of their engaging in protected activities. WE WILL forthwith make payment to Gina Alven, Daily M. Smith and Effie T. Clark of the wages that they would have earned if employed by us at Fort Dix from October 1, 1982 through September 30, 1983. Said wages are to be calculated on the basis of $8.00 per hour for each and every hour that Gina Alven, Daily M. Smith and Effie T. Clark would have worked, based on a comparison with our other employees at Fort Dix like situated. Interest at the rate of 12% per annum shall be added to the foregoing back wages and calculated as follows: interest at the rate of 6% per annum shall be added to the gross wages due for the one-year period October 1, 1982 through September 30, 1983; and interest at the rate of 12% per annum shall be added to the gross wages due from October 1, 1983 to the date of 1/ 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. @ 2/ The delay in commencement of the hearing on October 25, 1983 was due tot he resignation of the original Hearing Examiner assigned to the case, Joan Kane Josephson. The instant Hearing Examiner was assigned the case on October 4, 1983. 3/ The delay in the filing of briefs was due to extremely late transcript. 4/ The Charging Parties admitted that they did not discuss unionization with McKeever, McKeever = s knowledge having been obtained independently, infra. Further, none of the Charging Parties had any conversation with representatives of the Respondent during the course of seeking employment with the Respondent. (1 Tr. 58, 94, 95, 118, 119, 121, 136). 5/ Riismandel acknowledged that McKeever had informed him of the union organizational campaign during the hiring process (2 Tr. 92). Also, prior to the hiring decisions, Riismandel was informed of a letter dated August 19, 1982 to the Army, which set forth complaints regarding staff working conditions at Fort Dix, which was signed, inter alia, by Smith and Clark (R-4). Riismandel acknowledged further that the mere fact that the letter had been sent influenced his hiring decision as to the signers of R-4, two of whom were Smith and Clark (3 Tr. 26, 27). 6/ See finding of Fact No. 5, supra. 7/ The Hearing Examiner also draws an inference that the Respondent knew of Alven = s organizational activities: NLRB v. Nevada Consolidated Copper Corp., 316 U.S. 105, 106-07, 10 LRRM 607 (1942). 8/ The evidence regarding the Respondent = s knowledge of Corbett = s protected activity is insufficient to support a finding of knowledge inasmuch as she did not sign R-4, and knowledge of Corbett = s signing an authorization card cannot be imputed to the Respondent. Docket No. Ocean County College (Public Employer) Date: By: This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced or covered by any other material. If employees have any question concerning this Notice or compliance with its provisions, they may communicate directly with the Public Employment Relations Commission, 495 West State Street, PO Box 429, Trenton, NJ 08625-0429 (609) 984-7372 APPENDIX A A @ ***** End of HE 84-64 *****